                        NOT FOR PUBLICATION WITHOUT THE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-0436-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FARAD ANDREWS, a/k/a FRAD
ANDREWS, JAHAD PARKER, RODDY
WILLIAMS, NEHEMIAH N. HENDERSON,
NEHEMIAH A. HENDERSON, DOMINICK
C. PLUMMER, NAHEMIAH HENDERSON,
and FARD T. ANDREWS,

     Defendant-Appellant.
________________________________

              Submitted May 1, 2018 – Decided August 1, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              14-09-2348.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on
              the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Matthew
              E.    Hanley,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).
PER CURIAM

      Tried     by   a   jury,       defendant        Farad    Andrews    appeals       his

conviction for first-degree robbery, N.J.S.A. 2C:15-1; second-

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

second-degree possession of a weapon for an unlawful purpose,

N.J.S.A.   2C:39-4(a).           He        contends   the     trial    judge    committed

plain error by giving a jury charge on the non-existent crime of

first-degree attempted robbery, and erred in denying his Wade1

motion    to    suppress       the    two     victims'       show-up   identifications

because        the   police          did     not      properly        memorialize       the

identification procedures.                  We disagree and affirm because the

judge    corrected       the    jury        charge,    and    his     decision    not    to

suppress       the   show-up     identifications             was    supported     by    his

credibility findings that the Wade hearing testimony established

they were reliable.

                                              I.

      Long-time male and female live-in companions were finished

exercising in an Essex County park around 1:00 a.m., when two

men, one of them pointing a handgun with a mask covering his

face, demanded their possessions.                     When the unmasked assailant

stated, "I know her, she's good," the other armed assailant

1
    United States v. Wade, 388 U.S. 218 (1967).



                                               2
                                                                               A-0436-163
lowered his mask for five seconds to reveal his face, and they

both left.         Moments later, the couple flagged down a police

patrol car to report the robbery and to give a description of

their   assailants.              After      unsuccessfully            searching      for    their

assailants while riding in the patrol car, the couple returned

home    where      the    female,          an   Essex        County    Sheriff's         Officer,

retrieved     her        service      weapon,          and    they    drove       back    to    the

vicinity     of    the     park       to    look       for   their     assailants.          After

spotting     two    men        they    suspected         were    their      assailants,         the

couple alerted the police by calling 911 and followed the men.

Two or three police vehicles responded, and the two suspects

were apprehended.

       In   the    ensuing       show-up        identifications,            the    couple      were

separately asked if either of the two men were involved in the

robbery.        They      both     identified           defendant      as    the    person      who

lowered his mask and held the gun.                       Neither, however, identified

the other suspect as the other assailant.

       Defendant         was     subsequently            indicted          for     first-degree

"attempted"        robbery;2       second-degree             unlawful       possession         of   a

weapon; second-degree possession of a weapon for an unlawful

purpose;     and     fourth-degree              possession       of    a    defaced       weapon,


2
   Defendant has not challenged the indictment charging him with
the non-existent offense of first-degree attempted robbery.

                                                   3
                                                                                    A-0436-163
N.J.S.A. 2C:39-3(d).       At the trial, the jury found defendant

guilty of all but the defacing charge.      He was later sentenced

to an aggregate term of eighteen years and six months, subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2.

      Before us, defendant argues:

                POINT I

                THE JURY INSTRUCTIONS ON COUNT ONE WERE
                GIVEN FOR THE SECOND-DEGREE CRIME OF
                ATTEMPTED   ROBBERY;   THE  DEFENDANT'S
                FIRST-DEGREE   CONVICTION   SHOULD   BE
                REVERSED AND THE MATTER REMANDED FOR
                RETRIAL. (Not Raised Below).

                POINT II

                THE TRIAL COURT SHOULD HAVE SUPPRESSED
                THE SHOWUP IDENTIFICATIONS OF DEFENDANT
                BECAUSE POLICE REFUSED TO FOLLOW FULLY
                THE RECORDATION REQUIREMENTS OF STATE
                v. DELGADO[3] AND STATE v. HENDERSON[4]
                AND SIMPLY FAILED TO ASK EITHER OF THE
                EYEWITNESSES, WHO WERE A COUPLE THAT
                LIVED   TOGETHER,   WHETHER   THEY  HAD
                DISCUSSED THE MATTER AFTER THE INCIDENT
                BUT BEFORE IDENTIFYING DEFENDANT AT A
                SHOWUP AS ONE OF THE PERPETRATORS.

                                 II.

      We begin by addressing defendant's argument in Point I,

which he raised for the first time on appeal.      When a defendant

fails to object to a jury charge at trial, we review for plain


3
    188 N.J. 48 (2006).
4
    208 N.J. 208 (2011).

                                  4
                                                         A-0436-163
error, and "disregard any alleged error 'unless it is of such a

nature as to have been clearly capable of producing an unjust

result.'"     State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting

R. 2:10-2).       Plain error, in the context of a jury charge, is

"[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to

justify notice by the reviewing court and to convince the court

that of itself the error possessed a clear capacity to bring

about an unjust result."          State v. Camacho, 218 N.J. 533, 554

(2014) (alteration in original) (quoting State v. Adams, 194

N.J. 186, 207 (2008)).        This is not the case here.

    In reviewing any claim of error relating to a jury charge,

"[t]he charge must be read as a whole in determining whether

there   was   any   error."      State       v.    Torres,    183   N.J.     554,    564

(2005).       A   defense     attorney's          failure    to   object     to     jury

instructions not only "gives rise to a presumption that he did

not view [the charge] as prejudicial to his client's case,"

State   v.    McGraw,   129    N.J.   68,         80   (1992),    but   it   is     also

"considered a waiver to object to the instruction on appeal,"

State v. Maloney, 216 N.J. 91, 104 (2013).                   Even so, we consider

the argument on the merits, given that appropriate and proper

jury charges are essential to a fair trial.                       State v. Savage,

172 N.J. 374, 387 (2002).

                                         5
                                                                           A-0436-163
    Defendant argues the appropriate charge was for either a

first-degree     armed    robbery    –    which   requires     a   weapon   and    a

demand   for    money    (explicit   or      implicit)   but   not   the    actual

receipt of the stolen money – or second-degree attempted armed

robbery – if the demand for money never actually occurred.                        He

argues the charge given was for second-degree attempted robbery,

and, therefore, the first-degree robbery conviction should be

reversed.      We disagree.

    There is no dispute that the court erred by instructing the

jury on first-degree attempted robbery, which does not exist, by

stating:

                 If you find that the [S]tate has proven
            beyond a reasonable doubt that the defendant
            committed the crime of attempted robbery as
            I have defined it to you, but if you find
            that the [S]tate has not proven beyond a
            reasonable doubt that the defendant was
            armed with, used, or purposely threatened
            the . . . immediate use of a deadly weapon
            at the time of the commission of the
            attempted robbery, then you must find the
            defendant guilty of attempted robbery in the
            second-degree.

                 If you find that the [s]tate has proven
            beyond a reasonable doubt that the defendant
            committed the crime of attempted robbery and
            was armed with a deadly weapon, or used, or
            threatened the immediate use of a deadly
            weapon at the time of the commission of the
            robbery, then you must find the defendant
            guilty of attempted robbery in the first-
            degree.


                                         6
                                                                      A-0436-163
      The error, however, was corrected after the jury presented

the   question   to    the    court:    "What     is   the   difference      between

first-degree attempted robbery and second-degree?"                     In response,

the court re-explained the elements of attempt:

            First, that the defendant had the purpose to
            commit the crime of robbery; and that the
            defendant purposely did or omitted to do
            anything which, under the circumstances a
            reasonable person who believed them to be,
            is an act or omission that is a substantial
            step in the course of conduct planned to
            culminate in his commission of the crime of
            robbery.

The court then reinstructed the jury on the elements of robbery

by stating "a section of our statute provides that an attempted

robbery is a crime of the second-degree except that it is a

crime of first-degree if the actor is armed with, or uses, or

threatens the immediate use of a deadly weapon".                    Following this

clarification,    the    jury     convicted       defendant     of     first-degree

robbery and the other noted offenses.

      The   court's    re-instruction        is    consistent        with   N.J.S.A.

2C:5-4(a),   which     provides    that      an   "attempt     or    conspiracy     to

commit a crime of the first degree is a crime of the second

degree," except for an attempt to commit murder or terrorism.

And   our   criminal    code    recognizes        "attempted        robbery"   as    a

predicate    offense    for    felony    murder,       and   because    "the   Model

Penal Code suggests that attempted robbery is an appropriate

                                         7
                                                                        A-0436-163
charge     when    a    defendant    is     apprehended         before    reaching    the

potential robbery victim."              State v. Farrad, 164 N.J. 247, 263

(2000).     Only where there is no evidence of a completed theft

must the court "instruct the jury on the law of attempt as an

element of robbery."           State v. Dehart, 430 N.J. Super. 108, 119

(App. Div. 2013).

      Because the court ultimately gave the proper jury charge on

first-degree       robbery,     there      was    neither       error    nor   an   unjust

result.     The evidence reveals that defendant pointed a gun at

the couple so as to threaten them with immediate bodily injury

if   they    did       not   turn   over    their        valuables.        Even     though

defendant and his accomplice decided not to go through with the

theft after the latter recognized the female victim, there was

an attempt applied to the theft, which supports a verdict of

first-degree robbery.

                                                 III

      In    point      II,   defendant      argues       that    when    the    detective

failed to record whether the couple were asked if they discussed

the matter between themselves prior to their respective show-up

identifications         of   defendant,     the        detective   failed      to   comply

with the recordation requirements for identification procedures,

and therefore, the identifications should have been suppressed

as impermissibly suggestive and unreliable.

                                            8
                                                                               A-0436-163
      A   show-up    identification           is    essentially        a    single-person

lineup that occurs at or near the scene of the crime shortly

after     its    commission.         Henderson,          208    N.J.       at   259.          The

circumstances of a show-up identification are, to some extent,

inherently suggestive.            Adams, 194 N.J. at 204.                  Nonetheless, a

show-up     identification         may   be       admitted      at    trial       if     it    is

otherwise reliable.          Ibid.

      Concerned     with     "safeguarding          evidence         and    enhancing         the

reliability of the truth-seeking function of the trial," law

enforcement       officers      must     "make       a    complete         record      of      an

identification procedure if it is feasible to do so, to the end

that the event may be reconstructed in the testimony."                              Delgado,

188 N.J. at 59-60 (quoting State v. Earle, 60 N.J. 550, 552

(1972)).        Because "[m]isidentification is widely recognized as

the   single      greatest      cause    of       wrongful      convictions         in      this

country," the Court in Delgado held that "as a condition to the

admissibility        of      an      out-of-court              identification,"               law

enforcement officers were required to make "a written record

detailing the out-of-court identification procedure, including

the   place      where    the     procedure        was   conducted,         the     dialogue

between the witness and the interlocutor, and the results.                                    Id.

at 60, 63.



                                              9
                                                                                A-0436-163
       The Delgado ruling was codified in Rule 3:11(c), which, in

pertinent      part,        requires     recordation     of      an     out-of-court

identification as follows:

              (1) the   place        where    the     procedure        was
              conducted;

              (2) the dialogue between the witness and the
              officer who administered the procedure;

              (3) the   results   of   the   identification
              procedure,   including  any   identifications
              that the witness made or attempted to make;

                     . . . .

              (6) the identity of persons who witnessed
              the live lineup, photo lineup, or showup;

              (7) a witness' statement of confidence, in
              the    witness'    own   words,   once  an
              identification has been made; and

              (8) the identity of any individuals with
              whom the witness has spoken about the
              identification, at any time before, during,
              or    after   the    official  identification
              procedure, and a detailed summary of what
              was said. This includes the identification
              of   both   law   enforcement officials   and
              private actors who are not associated with
              law enforcement.

If   the    record    lacks    the     important     details   required       by     Rule

3:11(c), the court "may, in its sound discretion and consistent

with       appropriate       case      law,   declare      the        identification

inadmissible, redact portions of the identification testimony,

and/or      fashion    an    appropriate      jury    charge     to    be     used    in

evaluating the reliability of the identification."                     R. 3:11(d).
                               10
                                                                            A-0436-163
    When reviewing an order denying a motion to bar an out-of-

court identification, our standard of review "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)).                                 We

accord     the        court's      findings       regarding        the    impermissible

suggestiveness         of    the     identification        procedure      "considerable

weight."       Adams, 194 N.J. at 203 (quoting State v. Farrow, 61

N.J. 434, 451 (1972)).                 "The findings of the [court] as to

reliability of the witnesses are [also] entitled to considerable

weight."       State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.

2003).         We     accept      those    findings       of   the    court     that     are

"supported       by    sufficient         credible    evidence       in   the    record."

State    v.    Gamble,      218    N.J.    412,    424    (2014)     (citing     State    v.

Elders, 192 N.J. 224, 243 (2007)).

    At the pre-trial Wade/Delgado hearing to determine whether

the show-up identifications were impermissibly suggestive, the

judge heard testimony from the detective who, along with his

sergeant, conducted the show-ups.                  He stated that prior to their

separate       show-ups,       the    victims      were    separated,      placed      into

different      patrol       vehicles,      and    were    told   "that    just    because

we're showing persons in front of them, that these persons may

or may not be the persons who robbed them, and they are under no

                                             11
                                                                               A-0436-163
obligation to pick one."           During both show-ups in a well-lit

area – a little over an hour after the incident – the handcuffed

suspects were in separate police vehicles with another officer.

The   female    victim    stated   she    was   "90    percent"   certain      that

defendant was one of the assailants.             The male victim stated he

was "a hundred percent positive" that defendant was one of the

assailants.      After defendant was identified, a similar show-up

of the other suspect was performed; neither victim identified

him as one of the assailants.             The detective did not recall if

he had asked either victim if they had spoken to one another

about   the    suspects    or   "any     type   of    identification"     of   the

suspects.

      The detective gave detailed testimony about the "Show-up

Identification     Procedures      Worksheet"5        he   completed    for    both

victims, and explained why he omitted answering the following

questions:

              Number Ten asked, "Names of other witnesses
              to [show-up] procedure"; he stated the
              question   was   left   blank   because the
              detective believed that his response to
              question   nine,  where   he  mentioned the
              officers "who conducted the show-up," was
              also responsive to question ten.


              Number Thirteen asked, if "an identification
              has been made, did you obtain and record

5
    In compliance with Delgado and Rule 3:11(c).

                                         12
                                                                       A-0436-163
witness statement of confidence . . . at the
time of the procedure"; he stated it was
unanswered because, normally, they would
take the complainant to their headquarters
to record an audio statement, which was not
possible because the case was handed over to
the County Sheriff's Department because the
robbery took place in a county park.


Number Fourteen asked, if he instructed the
"witness not to discuss the identification
procedure, whether an identification was
made or not, with any other witness or
witnesses, or obtain information from other
sources"; he stated that he instructed both
witnesses not to discuss the procedure with
anyone "[i]mmediately after the show[-]up,"
but he failed to answer the question.


Number Fifteen asked, "Did you ask witness
if he/she had discussed identification of
suspect with anyone before or during the
identification    procedure    (Note:    this
includes both police officers and private
actors)"; he stated his failure to record
their answers was "just an oversight," and
he did not recall what their answers were.


Number Sixteen asked, if yes to fifteen,
"did you obtain a detailed summary from
witness of what was said?"; as with question
fifteen, he stated his failure to record
their answers was "just an oversight," but
he did not recall the response.


Number   Seventeen   asked, if  "[y]es  to
[question fifteen], "did you identify the
people with whom the witness discussed the
identification?"; he stated he did not
recall their answers.


                     13
                                            A-0436-163
            Number Eighteen asked, if there was any
            additional dialogue between the witness and
            the   other    officer(s)   concerning  the
            identification    not   recorded    in  the
            worksheet; he stated that although left
            blank, to his knowledge, there was no other
            dialogue.

      At   the    hearing's            conclusion,     the    judge    found         that    "the

written    documents          submitted         memorializing        the    identification

procedures in this case, as supplemented by the testimony of

[the detective]," were sufficient to establish that the show-up

identifications         complied         with    Delgado,     because        the      detective

testified under oath, subject to cross-examination; the location

and   procedure        of    the    show-up      was   documented          in   writing       and

supplemented       on       the     record;      and   the     dialogue         between      the

detective and the victims was testified to.                                He stated, "the

additional questions that . . . were included . . . on the forms

may be helpful, but they're not required for compliance with

[Delgado],       and    the       [c]ourt   finds      that    the    testimony         of   the

officer    as    to     what      he    affirmatively        recollects         as    to    being

exchanged was credible."                  The judge additionally held that the

"oversight" of not filling out certain parts of the forms would

go to the weight of the evidence, not to its admissibility, and

did not warrant suppressing the identifications.                                   Hence, the

judge denied the motion to suppress the show-up identifications.



                                                14
                                                                                     A-0436-163
       In light of the discretion given to the judge's credibility

assessment of the detective's testimony concerning the show-up

identifications, we see no reason to disturb his finding that

the identifications were reliable.              Understandably, defendant

points to the unanswered questions on the worksheet to support

his argument that the show-up identifications were inadmissible.

We, however, are satisfied with the court's credibility finding

that    the    detective's    testimony     cleared   up   the    gaps     in    the

worksheet      and   that   the   identifications     should     not    have     been

suppressed.        We further agree with the judge that the unanswered

worksheet questions were fodder for argument before the jury as

to     why    it   should   consider   the    identifications          lacking     in

credibility, and not a basis to preclude their admissibility.

       Affirmed.




                                       15
                                                                       A-0436-163
