                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5363-17T1


STATE OF NEW JERSEY,

           Plaintiff-Appellant,

v.

VICTOR M. RUIZ,

            Defendant-Respondent.


                    Submitted January 30, 2019 – Decided April 2, 2019

                    Before Judges Koblitz and Currier.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 17-11-3225.

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for appellant (Jason Magid, Assistant
                    Prosecutor, of counsel and on the brief).

                    John F. Rooney, V, attorney for respondent.

PER CURIAM
        On leave granted, the State appeals from the order suppressing the out-of-

court identification of defendant Victor Ruiz. Because we find the trial judge

properly utilized the Henderson1 framework in her determination to suppress,

we affirm.

        We summarize the facts from the testimony presented at the suppression

hearings. At approximately 10:00 p.m., on September 2, 2017, a ShotSpotter2

alerted Camden County police officers that gunshots were fired at a gas station.

At the scene, police found two victims with gunshot wounds, one of whom later

succumbed to his injuries at the hospital.

        In the course of their investigation, Detectives Jason Rowello and Edward

Gonzalez reviewed the security camera footage from the gas station and saw a

male, later identified as defendant, arrive at the gas station in a blue Chrysler

driven by another man. Defendant was wearing a white shirt with red airbrushed

artwork. Upon exiting the gas station's convenience store, defendant began

speaking with another male, later identified as Angel Nieves Jr., who was

standing next to a gas pump. Defendant, the vehicle's driver, and Nieves walked

to the back of the gas station, out of view of the security camera. The footage


1
    State v. Henderson, 208 N.J. 208 (2011).
2
    ShotSpotter is a gunfire detection system.
                                                                          A-5363-17T1
                                         2
next depicted the driver and Nieves running away from the rear of the gas

station. The driver got into the car, while defendant walked from the rear of the

gas station and appeared to tuck an object into his waistband. Defendant then

got into the car and left the gas station.

      After reviewing the footage, Rowello and Gonzalez went to the hospital

to take a taped statement from the surviving victim, Richard Brown, who

identified defendant as the shooter. Brown stated defendant was wearing a white

shirt with red airbrushed artwork at the time of the shooting. He added that

defendant drove a blue Chrysler and lived on Kaighn Avenue in Camden. Brown

said he had known defendant for several years and had spoken with him

numerous times.

      After searching the Sheriff Department's picture link database for an

individual resembling the person in the video footage and described by Brown,

Gonzalez identified defendant as a potential match. A motor vehicle registration

check confirmed the registration of a blue Chrysler to defendant's name and

address. A color photograph without identifiers was shown to Brown who

identified defendant as the man who shot him and the deceased victim. In

addition, the detectives located the blue Chrysler at defendant's address.




                                                                             A-5363-17T1
                                             3
      The detectives also spoke with Nieves, who provided a taped interview.

During the interview, Nieves explained he was friends with Brown and on the

night of the shooting, they got "high" behind the gas station's dumpster. Nieves

then left Brown at the dumpster and returned to the front of the gas station.

There, Nieves saw a car arrive, recognized the driver, and began talking to him.

Nieves also saw another individual in the car in a white shirt with a design

commemorating a deceased individual.         Nieves followed the driver to the

dumpster area behind the gas station. Once there, he observed a commotion

before a "dude" pulled out a gun and fired "four or five" shots, prompting Nieves

to run away.

      Nieves told the detectives he would not be able to recognize the shooter

because he "never [saw] him before," the gas station was "dark as hell," and he

was not wearing his glasses during the shooting.

      Rowello and Gonzalez asked Nieves to watch the security camera footage

to "explain what was going on at the time." Gonzalez stated, "[a]nd we got –

we got a person – who did it. You know what I mean? We [were] just doing

follow ups." Nieves agreed to the detectives' request and while watching the

footage, identified defendant as the shooter by his shirt.




                                                                         A-5363-17T1
                                        4
      After seeing images of defendant from multiple angles on the footage,

Nieves was asked to view a photo array, which he again agreed to do. Nieves

selected a photograph from the array, stating the person in the photograph was

the "guy that had the gun" near the dumpster. He advised he was seventy percent

confident that the person in the photograph was the shooter.

      Following the identification, Rowello and Gonzalez reentered the

interview room, thanked Nieves for viewing the array, and asked who he picked.

Nieves replied, "[t]he guy I . . . saw in the video."     Nieves explained he

recognized the man in the array as being the man wearing the white shirt in the

video. He also said he had seen defendant in Camden after the incident occurred,

realizing it was defendant after viewing the video. Rowello then questioned

Nieves again about the shooting and showed him a still photo from the gas

station footage. Nieves again identified defendant.

      Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1),

(2); first-degree attempted murder, N.J.S.A. 2C:5-1(a)(2), 2C:11-3(a)(1);

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1).




                                                                        A-5363-17T1
                                       5
       Defendant moved for a Wade3 hearing, seeking to exclude the out-of-court

identification from Nieves. After argument and a review of the briefs, the trial

court found suggestiveness in the pre-identification procedures utilized by

Gonzalez and Rowello. Specifically, the trial court noted the detectives showed

Nieves the video footage after he expressed an inability to identify the shooter .

As a result, the court granted a Wade hearing.

       After hearing testimony from the detectives, the trial judge issued an oral

decision analyzing the out-of-court identification procedure under the

framework of the system and estimator variables established in Henderson, 208

N.J. at 248-61. In addressing the photo array, the trial judge found the array was

"fine" because "police procedure was followed," and thus, the "system variables

were all followed properly."

       In considering the estimator variables, however, the judge expressed

concern that Nieves "said to the police from the start" that he could not identify

the shooter, he was high at the time, it was dark, and he was not wearing his

glasses. The court found there was suggestiveness by the police in showing

Nieves the video and photo array after he told them he could not identify the

shooter. The judge stated:


3
    United States v. Wade, 388 U.S. 218 (1967).
                                                                          A-5363-17T1
                                        6
                   So, in terms of the system variables with respect
            to what led up to the photo array, when I look at it, I
            find the pre-identification procedures were suggestive.
            [Nieves] couldn't make an I.D., they show him a video,
            they show him a still photo, and then he's able to move
            on to make an I.D. They don't show him a still photo
            of anyone else . . . and they don't talk about, in the video
            surveillance, the other people that are with the person
            who is wearing the white airbrushed T-shirt in the
            video. They say to him we have a guy here, this is the
            guy, and then they show him the video. And in terms
            of multiple viewings, they show a video and a still
            photograph. There is no composite here. This is not a
            showup.

      The trial judge concluded she required Nieves' testimony to determine

whether there were "sufficient indicia of reliability to outweigh the corrupting

effect of the suggestive identification procedure." See Manson v. Brathwaite,

432 U.S. 98 (1977); State v. Adams, 194 N.J. 186 (2008); State v. Madison, 109

N.J. 223 (1988).

      After hearing testimony from Nieves and Detective Gonzalez, the judge

found Nieves to be credible and fairly consistent in his testimony. She precluded

the State from using Nieves' out-of-court identification, but permitted it to call

Nieves as a witness to establish an in-court identification at trial, should it

choose to do so.

      In considering the State's subsequent motion for reconsideration, the trial

court stated, in her analysis of Henderson, under the totality of the

                                                                           A-5363-17T1
                                         7
circumstances, "defendant ha[d] demonstrated a very substantial likelihood of

irreparable misidentification" if Nieves' out-of-court identification was

admitted. After the State moved for leave to appeal, the judge provided an

amplification statement. R. 2:5-1(b).

      On appeal, the State argues:

            THE    TRIAL   COURT    IMPROVIDENTLY
            SUPPRESSED      THE       OUT-OF-COURT
            IDENTIFICATION             WARRANTING
            INTERLOCUTORY REVIEW IN THIS INSTANCE.

      "Our standard of review on a motion to bar an out-of-court identification

. . . is no different from our review of a trial court's findings in any non -jury

case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016) (citing State

v. Johnson, 42 N.J. 146, 161 (1964)). "The aim of the review at the outset is . . .

to determine whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record." Ibid. (citing Johnson, 42 N.J.

at 162).

      Our review "of a motion judge's factual findings in a suppression hearing

is highly deferential. We are obliged to uphold the motion judge's factual

findings so long as sufficient credible evidence in the record supports those

findings." State v. Gonzales, 227 N.J. 77, 101 (2016) (citations omitted). The

factual findings of the trial court are accorded deference because our "reading

                                                                           A-5363-17T1
                                        8
of a cold record is a pale substitute for a trial judge's assessment of the credibility

of a witness he [or she] has observed firsthand." State v. Nash, 212 N.J. 518,

540 (2013). Legal conclusions, however, are reviewed de novo. Id. at 541.

      We are unpersuaded by the State's argument that the trial judge failed to

properly weigh and analyze the system and estimator variables established in

Henderson. The factors created by the Court in Henderson are used by the trial

court to determine the reliability of an out-of-court identification by reviewing

system variables and estimator variables. "System variables" are factors within

the State's control. 208 N.J. at 248. These variables concern the manner in

which the police conduct an identification procedure and include considerations

such as: 1) the type of procedure used; 2) how a photo array was constructed

and administered; 3) whether the witness is exposed to multiple viewings of the

suspect; 4) what pre-identification instructions were given to a witness; and 5)

whether suggestive feedback was given to a witness post-identification. Id. at

248-61.

      Conversely, "estimator variables" are factors over which the legal system

has no control. Id. at 261. Estimator variables are factors related to the incident

in question, the witness, or the perpetrator. Ibid. They include stress; weapon

focus; duration of the witness' observation of the perpetrator; distance and


                                                                               A-5363-17T1
                                          9
lighting; the witness' characteristics that could impact an identification's

accuracy; the perpetrator's appearance, including whether a mask or disguise

was employed; racial bias; and the speed of an identification. Id. at 261-272.

      "[I]f after weighing the evidence presented a court finds from the totality

of the circumstances that defendant has demonstrated a very substantial

likelihood of irreparable misidentification, the court should suppress the

identification evidence." Id. at 289.

      After several days of testimony, the trial judge found that showing Nieves

the video surveillance before the photo array was unduly suggestive based on

Nieves' initial responses to the detective's questions regarding his inability to

identify the shooter. The credible evidence in the record supports the judge's

conclusion that showing Nieves the gas station footage before conducting a

photo array was suggestive. Gonzales, 227 N.J. at 101; State v. Michaels, 136

N.J. 299, 320 (1994).

      Because defendant demonstrated the use of a suggestive interview

technique, the burden then shifted to the State to "offer proof to show that the

proffered eyewitness identification is reliable — accounting for system and

estimator variables." Henderson, 208 N.J. at 289. However, "the ultimate




                                                                         A-5363-17T1
                                        10
burden remains on the defendant to prove a very substantial likelihood of

irreparable misidentification." Id. at 289 (citing Manson, 432 U.S. at 116).

      As the judge relied on system and estimator variables in finding Nieves'

identification unreliable, the suggestiveness of the identification procedure

resulted in a "very substantial likelihood of irreparable misidentification."

      Nieves consistently stated he had no opportunity to view the shooter

during the shooting and he did not see the shooting occur. He testified he was

standing four to five feet away from the shooting, and was not wearing his

glasses or contacts. Nieves had also used heroin prior to the incident, calling

into question his perception abilities. Prior to viewing the video footage, Nieves

could only identify the shooter by his white shirt and could not provide any

physical details about the shooter. He consistently stated he did not know the

shooter's identity until after he was shown the video footage.

      Therefore, we conclude the judge properly identified and balanced the

various system and estimator variables within the Henderson framework. The

judge correctly followed the totality of the circumstances approach require d

when evaluating the admissibility of identification evidence. We find no basis

to disturb the judge's conclusion that defendant established "a very substantial




                                                                           A-5363-17T1
                                       11
likelihood of irreparable misidentification," requiring the suppression of Nieves'

out-of-court identification.

      Affirmed.




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                                       12
