                                NOT FOR PUBLICATION WITHOUT THE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-2854-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAMADEE KAMARA,

          Defendant-Appellant.


                    Argued telephonically February 15, 2019 –
                    Decided May 15, 2019

                    Before Judges Yannotti, Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 13-10-2016.

                    Susan L. Romeo, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Susan L. Romeo, of counsel
                    and on the brief).

                    Jaimee M. Chasmer, Assistant Prosecutor, argued the
                    cause for respondent (Esther Suarez, Hudson County
                    Prosecutor, attorney; Erin M. Campbell, on the brief).

PER CURIAM
        Defendant Mamadee Kamara was indicted for three crimes related to the

armed robbery of L.B.1 A jury convicted defendant of first-degree robbery,

N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b)(1). Defendant was sentenced to an aggregate

term of twelve years in prison, with periods of parole ineligibility and parole

supervision as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

        Defendant appeals his convictions and sentence. He argues (1) it was

improper to admit portions of his recorded police interview where the officers

questioned him about his financial circumstances and allegedly mocked his

religious beliefs; and (2) the court abused its discretion in denying his request

for a Wade2 hearing concerning his identification. He also contends that his

sentence should be reversed because the court failed to properly weigh

aggravating factor nine, the need for deterrence. Having reviewed defendant's

arguments in light of the applicable law, we affirm in part and remand with

direction that the trial court conduct a full Wade hearing.


1
    We use initials to protect the privacy interests of the victim and witnesses.
2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                            A-2854-16T3
                                          2
                                       I.

      The evidence at trial established that at approximately 11 a.m. on March

20, 2013, L.B. was robbed at the corner of University Avenue and Market Street

in Newark. L.B. testified that as she was walking on Branford Place, she noticed

a young African-American male walking closely behind her.          At the next

intersection, L.B. turned left on to University Avenue and the man continued

walking straight on Branford Place. L.B. walked north on University Avenue

until the road intersected with Market Street where she turned right. As she was

turning, L.B. heard footsteps and then saw the man from Branford Place standing

in front of her and pointing a gun at her chest. The man told L.B.: "[D]on't

move or I will kill you, give me your pocketbook."

      L.B. let go of her pocketbook, the man grabbed her pocketbook and as he

ran away, L.B. screamed for help. At approximately that time, B.P., who was

then working for the Newark Downtown District and was in the area, looked up

and saw a man point a gun at L.B., take her pocketbook, and run away. B.P.

came over to L.B., who told him that she had just been robbed. B.P. then chased

the robber.

      B.P. testified that he followed the robber, but stayed approximately forty

to fifty feet behind him because he knew he was armed. When the robber


                                                                        A-2854-16T3
                                       3
reached Martin Luther King Jr. Boulevard, he stopped and began pacing up and

down the sidewalk. B.P. saw a car pull up and the robber entered the rear

passenger side of the vehicle, which then left. B.P. walked into the road to see

the vehicle's license plate as it drove away, and he was able to make out the

license plate number. Thereafter, B.P. gave that license plate number to the

police.

      Meanwhile, L.B. had tried to follow B.P. and the robber, but lost sight of

them. L.B. worked as a secretary in the prosecutor's office, and a work colleague

was driving on University Avenue when she observed L.B. and pulled over to

check on her. L.B. told the colleague she had been robbed and the colleague

called 911.

      The police responded, and L.B. and B.P. thereafter gave statements to the

police. Both described the robber. L.B. described the robber as approximately

five-feet-eleven-inches tall, a young African-American man with a thin build.

She also told the police that the robber had "distinct eyes" that "were kind of

slanted" and "like oriental."

      Thereafter, a detective from the Newark Police Department began

investigating the robbery. By tracing the license plate number given by B.P.,

the detective learned that the motor vehicle was registered to the girlfriend of


                                                                         A-2854-16T3
                                       4
defendant and defendant had received motor vehicle summonses while driving

that vehicle.   Consequently, the detective determined that defendant was a

person of interest and he compiled photo arrays. The detective and other officers

from the Newark Police Department then contacted both L.B. and B.P. to see if

they could identify defendant from a photo array.

      Approximately three weeks after the robbery, on April 10, 2013, three

detectives went to L.B.'s home to conduct a photo array.          The array was

administered by a detective who was not involved in the investigation. L.B.

selected the photograph of defendant as the robber.           That identification

procedure was audio recorded and detailed in a subsequent police report dated

April 22, 2013, which was authored by the lead investigating detective. At trial,

L.B. explained that she was confident in her photograph selection. L.B. also

identified defendant at trial.

      The next day, on April 11, 2013, the detectives created a second photo

array and showed that array to B.P. Again, the detective who presented the array

was not involved in the investigation.        B.P. selected the photograph of

defendant. As with the identification by L.B., B.P.'s out-of-court identification

procedure was audio recorded, and later detailed in the lead detective's April 22,

2013 police report.


                                                                          A-2854-16T3
                                        5
       Defendant was arrested on April 12, 2013. Following his arrest, he was

given his Miranda3 rights, which he waived. Defendant then participated in a

recorded interview with detectives. During that interview, defendant told the

detectives he was in Newark on the date and time of the robbery. He stated that

while he was driving to work, at approximately 11 a.m., he observed a man with

a gun running on Branford Place and that man was being chased by a second

man in a yellow jacket. Defendant was not able to recall what the man with the

gun looked like, other than that he was a "black kid" wearing a hoodie.

Defendant denied knowing the person he saw running and denied that person

got into the car with him. Defendant also denied having anything to do with the

robbery.

       While being questioned by the police, defendant acknowledged that he

never notified the police of what he saw. In explaining why he had not called

the police, defendant stated that based on his religion he did not get involved in

things that did not concern him. The police then asked defendant what religion

he practiced, and defendant responded that he was Muslim.




3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                          A-2854-16T3
                                        6
      The detectives also questioned defendant about his financial and familial

circumstances. During that questioning, defendant stated that he had a bank

account and he sent money to his family in Africa.

      In October 2013, a grand jury indicted defendant for three crimes related

to the armed robbery. On February 20, 2015, in preparation for trial, defense

counsel requested a Wade hearing, contending that the out-of-court photo array

identifications by L.B. and B.P. should be excluded from the trial due to law

enforcement officers' suggestiveness.       At the time the request was made,

defendant was not present in court.

      The trial court did not hold a hearing on that request. Instead, the court

heard oral arguments by counsel and reviewed the audio recordings of the photo

arrays. On March 13, 2015, the court issued a written decision denying the

request for a Wade hearing. Based on its review of the recorded photo arrays,

the court concluded that defendant had made no showing of suggestiveness. The

court's initial decision referenced only the identification made by B.P.

Thereafter, the court supplemented its decision on April 16, 2015, and denied

the request for a Wade hearing concerning the identifications made by both L.B.

and B.P.




                                                                        A-2854-16T3
                                        7
      Pretrial, the State also moved to admit a redacted audio recording of

defendant's statement. The court conducted a hearing. During that hearing,

defense counsel objected to the admission of defendant's statement describing

the method he used to send money to his family in Africa and his agreement to

testify in court. After hearing oral argument and testimony from the lead

detective, the court granted the State's motion to admit defendant's statement

with the redactions requested by defense counsel.

      In September 2016, a four-day jury trial was conducted. At trial, there

was testimony that the lead detective on the investigation spoke with L.B. and

B.P. alone before they were shown their photo arrays. In that regard, the

detective who conducted the photo array for L.B. testified that when the

detectives went to the home of L.B. to show the photo array, the lead detective

initially went into L.B.'s apartment by himself. The lead detective also testified

at trial that when B.P. was shown a photo array, he initially walked B.P. into the

interview room, opened the statement concerning the photo array, and went over

that statement with B.P. Thereafter, the detective who was not involved with

the investigation conducted the photo array. Defense counsel did not renew his

request for a Wade hearing based on the testimony that was given at trial.




                                                                          A-2854-16T3
                                        8
      After hearing the evidence at trial, a jury convicted defendant of first-

degree armed robbery, second-degree possession of a weapon for an unlawful

purpose, and second-degree unlawful possession of a handgun.

      Defendant was then sentenced on November 18, 2016. On the conviction

of first-degree armed robbery, defendant was sentenced to twelve years in prison

subject to NERA. The conviction for second-degree possession of a weapon for

an unlawful purpose was merged with the armed robbery conviction. Defendant

was also sentenced to a concurrent term of five years for the conviction of

second-degree unlawful possession of a handgun. Ten days later, on November

28, 2016, the court held a supplemental sentencing proceeding to advise

defendant that as part of his sentence for armed robbery, he was subject to a

five-year period of parole supervision following his release from prison as

required by NERA.

                                      II.

      On appeal, defendant makes three arguments, which he articulates as

follows:

            POINT I – IT WAS PLAIN ERROR FOR THE COURT
            NOT TO SANITIZE THE EXTENSIVE PORTIONS
            OF DEFENDANT'S TAPED STATEMENT WHERE
            THE POLICE: 1) QUESTIONED DEFENDANT'S
            FINANCES AND LIFESTYLE, SUGGESTING THAT
            HE COMMITTED THE ROBBERY BECAUSE,

                                                                        A-2854-16T3
                                       9
           ALTHOUGH HE HAD A FULL-TIME JOB, HE WAS
           TOO POOR TO AFFORD THE CAR, APARTMENT,
           FURNITURE,   CLOTHES   AND   FINANCIAL
           ASSISTANCE THAT HE PROVIDED TO HIS
           FAMILY IN AFRICA, AND 2) MOCKED
           DEFENDANT'S RELIANCE ON HIS MUSLIM
           RELIGIOUS BELIEFS.

           POINT II – THE TRIAL COURT ABUSED ITS
           DISCRETION AND VIOLATED DEFENDANT'S
           CONSTITUTIONAL RIGHTS WHEN IT DENIED
           HIS REQUEST FOR A HEARING PURSUANT TO
           UNITED STATES V. WADE, 388 U.S. 218 (1967),
           WITHOUT PROVIDING DEFENDANT WITH: 1)
           THE OPPORTUNITY TO SUBMIT EVIDENCE
           THAT SHOWED A COURSE OF IMPROPER
           CONDUCT     BY   THE   POLICE     BEFORE
           PRESENTATION OF THE PHOTO ARRAYS, AND
           2) THE OPPORTUNITY TO BE PRESENT AT THE
           PRETRIAL PROCEEDINGS ON THAT ISSUE.

           POINT III – DEFENDANT'S SENTENCE MUST BE
           REVERSED BECAUSE, IN THE ABSENCE OF ANY
           FINDINGS ON A NEED FOR SPECIFIC
           DETERRENCE, THERE WAS NO SUPPORT FOR
           THE TRIAL COURT'S FINDING THAT THE
           SINGLE AGGRAVATING FACTOR OF THE NEED
           FOR GENERAL DETERRENCE SUBSTANTIALLY
           OUTWEIGHED THE MITIGATING FACTOR THAT
           DEFENDANT HAD NO PRIOR CRIMINAL
           RECORD.

     Having reviewed these arguments in light of the record and law, we affirm

the ruling on defendant's statement and his sentence, but remand for a full




                                                                      A-2854-16T3
                                    10
hearing on the out-of-court identifications. We will address the arguments in

the order they were raised by defendant.

      A.    Defendant's Statement to Law Enforcement Officers

      Defendant first argues that his conviction should be reversed because the

court erred in admitting certain parts of his recorded statement to law

enforcement officers. Specifically, defendant contends that the jury heard the

officers insinuate that defendant robbed the victim because he did not have

enough money to finance the lifestyle he maintained for his family and heard

the officers mock defendant's religious beliefs.

      Defendant did not object to the admission of the portions of the recorded

statement he gave to law enforcement officers that he now challenges. Indeed,

defendant twice failed to object to these portions of his statement. Accordingly,

we review the admission of those statements for plain error. R. 2:10-2. Under

that standard, reversal is only appropriate if the error was "clearly capable of

producing an unjust result." State v. McKinney, 223 N.J. 475, 494 (2015)

(quoting R. 2:10-2).

      It is improper for the State to use poverty or lack of financial means as

evidence of a defendant's motive to commit a crime. State v. Mathis, 47 N.J.

455, 472 (1966) ("[T]here must be something more than poverty to tie a


                                                                         A-2854-16T3
                                      11
defendant into a criminal milieu."); State v. Terrell, 359 N.J. Super. 241, 247

(App. Div. 2003); State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978).

Accordingly, "[t]he introduction of evidence regarding whether or not a

defendant has a regular source of income is, when a collateral issue, prohibited

in any form." Terrell, 359 N.J. Super. at 247. Courts have ordered new trials or

reversed convictions based on admission of such evidence when elicited from a

defendant or other witnesses and when referenced by the State in opening or

closing arguments. See Mathis, 47 N.J. at 469-72; Terrell, 359 N.J. Super. at

247-48; State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988) (ordering a

new trial after the assistant prosecutor "used his summation . . . to suggest that

defendant committed the crimes with which he was charged because he was

without funds").

      Here, defendant has not shown, and there is nothing in the record

indicating, that the admission of his statement to law enforcement officers was

clearly capable of producing an unjust result. The State did not question any of

the trial witnesses about defendant's financial circumstances, nor did the State

suggest in its opening or closing arguments that defendant had committed the

crime due to his financial circumstances. The questions posed to defendant and

his responses, which the jury heard when defendant's recorded statement was


                                                                          A-2854-16T3
                                       12
played, did not directly suggest that defendant committed the robbery because

of his financial circumstances. Instead, those questions were more in the nature

of general background questions. Thus, the situation here is distinguishable

from the facts in Mathis, Terrell, and Sherman.

      Moreover, there was strong evidence linking defendant to this crime. The

victim and a witness identified defendant as the robber. The police also located

defendant based on a license plate number which, after investigation, proved to

be the license to the car of his girlfriend and there was a record that defendant

had driven that car.

      Defendant also argues that his conviction should be reversed because he

was prejudiced when the detectives mocked his religious beliefs. The record

does not support that contention. While questioning defendant, the detectives

did ask him about his religion when defendant asserted that he had not called

the police after seeing a man running on the sidewalk with a gun because of his

religious beliefs. A review of the record shows that this exchange was relatively

brief in duration and did not contain any mocking of defendant's religion.

Instead, defendant was asked whether there was anything in his religion,

including within the Koran, which would prohibit him from reporting a crime to




                                                                         A-2854-16T3
                                      13
the police. Heard in context, the questioning cannot be reasonably construed as

mocking defendant's religious beliefs.

      B.    The Request for a Wade Hearing

      Next, defendant argues that the trial court abused its discretion in denying

his request for a Wade hearing. In connection with that argument, defendant

also contends that the court converted a status conference, at which defendant

did not appear, into an argument on whether defendant was entitled to a Wade

hearing.

      We review a denial of a request for a Wade hearing under an abuse of

discretion standard. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985).

See also State v. Henderson, 208 N.J. 208, 290-91 (2011). Generally, we will

not disturb a trial court's finding that the photographic identification procedures

were reliable if there is sufficient credible evidence in the record to support that

finding. State v. Adams, 194 N.J. 186, 203 (2008). Moreover, even if a

reviewing court finds that the trial court should have conducted a Wade hearing,

but also finds that the identification procedures did not result in "a very

substantial likelihood of irreparable misidentification," the ruling can still be

affirmed. State v. Anthony, ___ N.J. ___,___ (2019) (slip op. at 35) (quoting




                                                                            A-2854-16T3
                                        14
Henderson, 208 N.J. at 289); State v. Cherry, 289 N.J. Super. 503, 517 (App.

Div. 1995).

      Identifications of a defendant are often critical evidence. See Anthony,

___ N.J. at ___ (slip op. at 2). Accordingly, pretrial identification procedures

must comply with due process.         If a process is overly suggestive, the

identification may be excluded to protect defendant's constitutional rights.

Foster v. California, 394 U.S. 440, 443 (1969); Henderson, 208 N.J. at 285-87

(first citing Manson v. Brathwaite, 432 U.S. 98, 112-16 (1977); then citing State

v. Madison, 109 N.J. 223, 239 (1988)).            To safeguard a defendant's

constitutional rights, law enforcement officials must document their

identification procedures. See R. 3:11; Anthony, ___ N.J. at ___ (slip op. at 2,

17-21); Henderson, 208 N.J. at 278, 298; State v. Delgado, 188 N.J. 48, 63

(2006).

      Rule 3:11 enumerates the documentation requirements for pretrial

identification procedures. Specifically, Rule 3:11(a) provides that "[a]n out-of-

court identification resulting from a photo array, live lineup, or showup

identification procedure conducted by a law enforcement officer shall not be

admissible unless a record of the identification procedure is made." The rule

then details how law enforcement should record identification procedures and


                                                                         A-2854-16T3
                                      15
what type of information should be included in that recording. See R. 3:11(b)

to (c); Anthony, ___ N.J. at ___ (slip op. at 20-21) (quoting R. 3:11). Relevant

to this appeal, the record should include, "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." R. 3:11(c)(8).

      Where a record "is lacking in important details" and law enforcement

could have obtained and preserved those details, Rule 3:11 authorizes the trial

courts in their "sound discretion and consistent with appropriate case law" to (1)

"declare the identification inadmissible," (2) "redact portions of the

identification testimony," and (3) "fashion an appropriate jury charge to be used

in evaluating the reliability of the identification." R. 3:11(d); accord Anthony,

___ N.J. at ___ (slip op. at 21) (quoting R. 3:11(d)).

      A defendant may request a pretrial hearing to evaluate the reliability and

admissibility of a pretrial identification. Such a hearing is commonly known as

a Wade hearing. There is no absolute right to a Wade hearing and such a hearing

is not granted in every case involving an out-of-court identification. Henderson,

208 N.J. 288-89; State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). To

obtain a Wade hearing, a defendant is usually required to show "some evidence


                                                                          A-2854-16T3
                                       16
of suggestiveness that could lead to a mistaken identification." Henderson, 208

N.J. at 288. "That evidence, in general, must be tied to a system—and not an

estimator—variable." Id. at 288-89. System variables are factors within the

control of the criminal justice system.      Id. at 247. Estimator variables, in

contrast, "are factors related to the witness, the perpetrator, or the event itself

—like distance, lighting, or stress—over which the legal system has no control."

Ibid. If a court finds that the procedure was impermissibly suggestive, then the

State must "offer proof to show that the proffered eyewitness identification is

reliable[.]" Id. at 289. "[T]he ultimate burden remains on the defendant to prove

a very substantial likelihood of irreparable misidentification." Ibid.

      Our Supreme Court recently recognized an exception to the requirement

that a defendant must show some evidence of impermissible suggestiveness that

could lead to a mistaken identification. In that regard, in Anthony, the Court

held that a defendant is "entitled to a pretrial hearing on the admissibility of

identification evidence if Delgado and Rule 3:11 are not followed and no

electronic or contemporaneous, verbatim written recording of the identification

procedure is prepared." Anthony, ___ N.J. at ___ (slip op. at 26-27). Indeed,

"[i]n such cases, defendants will not need to offer proof of suggestive behavior

tied to a system variable to get a pretrial hearing." Id. at ___ (slip op. at 27). In


                                                                             A-2854-16T3
                                        17
reaching its holding, the Court explained that "defendants need a full record of

the identification procedure to gather possible evidence of suggestiveness." Id.

at ___ (slip op. at 26). The Court went on to stress that "[t]he failure to provide

that information should not deprive defendants of the opportunity to probe about

suggestive behavior that may have tainted an identification." Id. at ___ (slip op.

at 26).4

      Here, the identifications of defendant as the armed robber by L.B. and

B.P. were crucial evidence leading to defendant's conviction. Based on the

evidence adduced at trial, it appears that the recordings did not fully capture the

conversations between the witnesses and the lead investigating detective.

Accordingly, we remand for a Wade hearing to explore those unrecorded

conversations.

      When defendant requested a pretrial hearing concerning the identification

made by B.P., he argued that B.P.'s statements to the police included certain

discrepancies. In that regard, defendant argued that there was a discrepancy in

B.P.'s description of the car that defendant entered, the license plate that B.P.



4
  The decision in Anthony was issued after this appeal was argued. Counsel for
defendant submitted a letter in accordance with Rule 2:6-11(d) contending that
the reasoning in Anthony was applicable to defendant's appeal. The State did
not respond to that letter.
                                                                           A-2854-16T3
                                       18
collected, and the distance at which B.P. made his identification. Defendant

also challenged B.P.'s ability to see what he claimed to see concerning the car.

With regard to the identification made by L.B., defendant argued that one of the

investigating detectives told L.B. that she would be examining photographs of

individuals that may contain a suspect.

      As previously noted, the trial court did not hold a hearing. Instead, the

court listened to the audio recordings of the out-of-court identifications made by

both B.P. and L.B.      The trial court found that the procedures used were

consistent with the procedures required by Henderson. The court also noted that

defendant's arguments regarding the identification made by B.P. only went to

estimator variables and, thus, did not show any suggestive conduct by the police.

      With regard to the identification made by L.B., the trial court found that

the blind administrator's instructions were consistent with the instructions called

for by Henderson. The court then went on to hold that the remarks by the

investigating detective, which preceded the appropriate instructions, did not

establish suggestiveness.

      On appeal, defendant does not challenge the court's findings regarding the

initial request for a Wade hearing. Rather, defendant presents a new ground to

support his request. That is, he relies on testimony from trial to argue that the


                                                                           A-2854-16T3
                                       19
lead investigating detective met with B.P. and L.B. prior to their photo arrays.

Defendant concedes, however, that he did not renew his request for a Wade

hearing at trial when that testimony was first heard.

      Regarding L.B.'s pretrial identification, defendant relies on trial testimony

of the detective who administered the photo array. That detective testified that

before she conducted the photo array, the lead detective spoke with L.B.

privately for a few minutes. In that regard, the detective testified as follo ws:

            [Assistant Prosecutor:] What happened when you
                                    arrived at the home?

            [Detective:]              I remained outside with [a
                                      third detective]. [The lead
                                      detective] went in, and he then
                                      came back out a few minutes
                                      later.

            [Assistant Prosecutor:] What happened next?

            [Detective:]              I went - - I went into the
                                      apartment, and showed the
                                      victim six photographs.

            [Assistant Prosecutor:] At what point did [the lead
                                    detective] give you the
                                    photographs?

            [Detective:]              In the - - in the hallway.

      On cross-examination, the detective explained further:



                                                                            A-2854-16T3
                                       20
            [Defense Counsel:]       And you get out of the car, and
                                     you make your way into
                                     [L.B's] house, and only [the
                                     lead detective] goes in to
                                     speak to her initially; correct?

            [Detective:]             Correct.

                                     ....

            [Defense Counsel:]       How long was he in there with
                                     her before you went - - end up
                                     going in showing the photo
                                     array?

            [Detective:]             I didn't time it, but a few
                                     minutes.

      The recording of the photo array procedure with L.B. begins with the lead

detective speaking with L.B. alone for approximately one minute and eighteen

seconds before leaving the room, at which time the blind administrator detective

enters. During that initial discussion with L.B., the lead detective confirmed

L.B.'s identity, the location of the identification procedure, and explained that

he was there with other law enforcement officials for the purpose of conducting

a photo array. L.B. agreed to participate in the identification procedure, and at

that time, the lead detective left the room. Based on the blind administrator

detective's testimony that the lead detective spoke with L.B. for "a few minutes"

before she conducted the photo array, it is unclear whether the recording


                                                                         A-2854-16T3
                                      21
captured the entirety of L.B.'s conversation with the lead detective, as the

recording includes a conversation that is less than two minutes in duration.

      As to B.P.'s pretrial identification, defendant relies on the lead detective's

testimony, when he stated:

            [Lead Detective:]         We met with [B.P.]

            [Assistant Prosecutor:] Where?

            [Lead Detective:]         On the street. I contacted
                                      him. . . . We found him. We
                                      told him that we made some
                                      developments. We told him
                                      we needed him to come back
                                      to the office with us. He
                                      alerted his supervisor, advised
                                      him.      He was okay, and
                                      authorized him to come with
                                      us, and then we brought him
                                      back to the office.

            [Assistant Prosecutor:] So, the photo array was done at
                                    your office?

            [Lead Detective:]         Yes.

                                      ....

            [Assistant Prosecutor:] And at what point did you
                                    hand off the photo array?

            [Lead Detective:]         Again, I walked [B.P.] into the
                                      interview room, I opened the
                                      statement, went over the same
                                      things I did with [L.B.]. I

                                                                            A-2854-16T3
                                       22
                                     excused myself out of the
                                     room. Went up to [the blind
                                     administrator], handed her the
                                     array package, and said, you're
                                     ready, can you go show this.

      The recording of the photo array procedure with B.P. begins with the lead

detective speaking with B.P. in the presence of another detective for

approximately two minutes before both detectives leave the room, at which time

the blind administrator enters. During the initial recorded discussion with B.P.,

the lead detective confirms B.P.'s identity and contact information, the location

of the identification procedure, and then explains the photo array procedure,

which B.P. agrees to participate in. At that time, the two detectives leave the

interview room. There is no recording or contemporaneous written account as

to any conversation between B.P. and the investigating detectives during the

drive to the police station or the walk to the interview room.

      Accordingly, the trial testimony suggests there were unrecorded

conversations between the witnesses and the lead investigating detective

immediately before the pretrial identification procedures. We, therefore, hold

defendant is entitled to a full Wade hearing. See Anthony, ___ N.J. at ___ (slip

op. at 26-27). Under Rule 3:11(c), law enforcement was required to provide a

detailed summary of any conversations between a witness and other individuals


                                                                         A-2854-16T3
                                       23
with whom the witness discussed the identification before the official

identification procedure occurred. See R. 3:11(c)(8). The record provided to us

contains no such detailed summary.

      We note that Anthony did not directly address the instant situation where

evidence of unrecorded conversations involving the pretrial identification

procedures first came to light at trial and defense counsel did not renew a request

for a Wade hearing. Nonetheless, the witness identifications were crucial at

defendant's trial, and thus, defendant should have an opportunity to explore the

reliability of those identifications due to the witnesses' conversations with the

lead investigating detective prior to identifying defendant in the photo arrays.

Consequently, we remand for such a hearing consistent with the requirements

set forth in Wade, Henderson, Delgado, and Anthony.

      We express no view as to the outcome of the Wade hearing on remand.

If, however, "damaging evidence about feedback, witness confidence, or some

other factor that affects memory is developed at the hearing, [defendant] may

have a strong case and [may] be entitled to a new trial." Anthony, ___ N.J. at

___ (slip op. at 33-34). In such a circumstance, the trial court will need to make

a decision on whether defendant is entitled to a new trial. Alternatively, if the

evidence presented at the hearing does not show that any violations of Rule


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3:11(d) were "clearly capable of producing an unjust result," and that the out-

of-court identifications were reliable, then defendant's convictions can stand.

See id. at ___ (slip op. at 34) (quoting R. 2:10-2). That determination will also

need to be made in the first instance by the trial court after the full Wade hearing.

      In light of the remand for a full Wade hearing, we need not reach

defendant's argument that he should have been present when the court initially

addressed the request for a Wade hearing. Defendant will have the right to be

present at the hearing we are directing on remand. In that regard, we point out

that criminal defendants generally have the "right to be present in the courtroom

during every 'critical stage' of the trial." State v. Reevey, 417 N.J. Super. 134,

149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363 (App.

Div. 1991)). See also R. 3:16(b) (providing that a "defendant shall be present

at every stage of the trial").

      C.     The Sentence

      Finally, defendant argues that his sentence should be vacated because the

sentencing court erroneously weighed the applicable aggravating and mitigating

factors. We disagree.

      We review sentencing determinations under a deferential standard. State

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606


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(2013)). We do not substitute our judgment for the judgment of the sentencing

court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we

will affirm a sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Miller, ___ N.J. ___, ___ (2019) (slip op. at
            15-16) (alteration in original) (quoting State v. Fuentes,
            217 N.J. 57, 70 (2014)).]

      At sentencing here, the court found aggravating factor nine, the need for

deterrence. N.J.S.A. 2C:44-1(a)(9). The court also found one mitigating factor;

that defendant had no prior criminal record. N.J.S.A. 2C:44-1(b)(7). The court

placed significant weight on aggravating factor nine and determined that that

aggravating factor "substantially" outweighed the mitigating factor. The court's

findings concerning aggravating factor nine and mitigating factor seven are

supported by credible evidence in the record. Moreover, we discern no abuse of

discretion in the court's balancing of the aggravating factor relative to t he

mitigating factor.


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      On appeal, defendant argues the court improperly relied on the harm

suffered by the victim in determining that aggravating factor nine substantially

outweighed mitigating factor seven.        At sentencing, however, the court

explained that it weighed aggravating factor nine "very heavily" for two reasons:

(1) defendant committed a first-degree offense; and, (2) that offense was "a very

traumatic experience for [the victim] as it would be for anyone." In evaluating

the need for deterrence, the courts may consider the degree of the offense and

the gravity and harm of the crime. See Fuentes, 217 N.J. at 79 ("[D]emands for

deterrence are strengthened in direct proportion to the gravity and harmfulness

of the offense." (alteration in original) (quoting State ex rel. C.A.H. & B.A.R.,

89 N.J. 326, 337 (1982))); State v. Carey, 168 N.J. 413, 426 (2001) ("The need

for public safety and deterrence increase proportionally with the degree of the

offense."). Accordingly, the court did not abuse its discretion in finding a

compelling need for deterrence after considering the degree of the offense that

defendant committed and the gravity and harm of that offense.

      Just as importantly, we discern no abuse of discretion in the court's

imposition of the sentence. Defendant was found guilty of one first-degree

crime (armed robbery), and two second-degree crimes (possession of a weapon

for an unlawful purpose and unlawful possession of a handgun). The court


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correctly merged the possession of a weapon for unlawful purpose with the

robbery conviction. The court then imposed a twelve-year sentence for the first-

degree crime, which was below the mid-range for a first-degree crime (ten to

twenty years). The court also imposed a concurrent sentence of five years for

the conviction of second-degree unlawful possession of a handgun.          That

sentence was within the guidelines and does not shock the judicial conscience.

      Affirmed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.




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