                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4392-13T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSHUA M. GREEN,

     Defendant-Appellant.
__________________________________

              Argued October 25, 2016 – Decided August 21, 2017

              Before Judges Fisher, Ostrer and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment No. 12-02-0322.

              Rochelle Watson, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ms. Watson, of counsel and on the brief).

              Nancy A. Hulett, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; Ms.
              Hulett, of counsel and on the brief).

PER CURIAM

        A jury found defendant guilty of second-degree attempt to

commit aggravated sexual assault by sexual penetration during a
kidnapping, N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:5-1; second-

degree kidnapping (as a lesser-included offense of first-degree

kidnapping), N.J.S.A. 2C:13-1(b); and second-degree attempt to

commit sexual assault, N.J.S.A. 2C:14-2(c) and N.J.S.A. 2C:5-1.

The convictions arose out of an attack on September 15, 2011 at a

nutrition products store in Perth Amboy.   Minutes after the store

opened for business in the pre-dawn hours, a man walked in, forced

the sole employee, Maria,1 into a rear bathroom, threw her against

the sink and toilet, and tried to rape her.       After two regular

customers entered the store, the assailant tried to barricade

Maria in the bathroom with a mop and then fled.      A surveillance

video from a neighboring store recorded him as he entered and,

minutes later, ran from the store, but the picture quality was

poor.

     The trial focused on identification, as the State lacked

forensic evidence tying defendant to the crime.    Months after the

attack, the victim identified defendant from a photo array and

identified him again in court.   With some uncertainty, one of the

regular customers also identified defendant in court, after he

previously did not identify him from a photo array.




1
  We use pseudonyms to protect the privacy of the victim and
eyewitnesses.

                                 2                          A-4392-13T3
      As his principal point on appeal, defendant contends the

court erred in allowing the State to bolster these two witnesses

by (1) permitting Perth Amboy police officers involved in the

investigation to opine that defendant was depicted on the video

despite lacking any prior personal familiarity with defendant; and

(2) allowing testimony that defendant's photo was included in the

array because a South Brunswick police officer, who was familiar

with defendant, believed he was the man in the video.

                                 I.

      Maria told police that her attacker entered the store soon

after it opened and ordered a nutrition shake.   While Maria's back

was turned to prepare the drink, he grabbed her from behind,

dragged her to the bathroom and locked the door behind him.         He

then tried to sexually assault her in various ways, choking and

striking her in the face and neck when she resisted.

      Gerardo was the first regular customer to enter the store the

morning of the attack.      He overheard what he believed was an

argument in the bathroom.    He heard Maria tell a man to let her

go.   Then, he saw a man exit and run out of the store.   Maria came

out, crying and apparently beaten, and said the man had tried to

rape her.   The second customer, Miguel, passed the fleeing man as

he entered the store.



                                 3                           A-4392-13T3
     Maria was reluctant to call the police.      She said that in El

Salvador, from which she emigrated, women who accused men of rape

were often killed.   However, a coworker who arrived around 8:40

a.m. called the police and persuaded Maria to cooperate.          Perth

Amboy Police Detective Marcos Antonio Valera and Detective Sandra

Rivera arrived soon thereafter.        The police made no effort to

collect fingerprint or DNA evidence from the scene.           Detective

Valera explained that multiple people had entered the store after

the attack.

     The   eyewitnesses   did   not     provide   identical   physical

descriptions of the attacker.         According to Detective Valera,

Maria said she saw her attacker's face when he ordered a shake,

but he "didn't let me see" him while they were in the bathroom.

In her initial statement, she said her assailant was a twenty-four

to twenty-six year old black male; he was taller than Detective

Valera who is six feet tall; his hair was curly; he had a big

mouth; and a face that appeared "pulled back."       Detective Rivera

testified that Maria said her attacker had a protruding mouth,

"small ears, big eyes and his face was kind of drawn, kind of long

and he was kind of lanky . . . ."

     Later that day, Maria was unable to identify her assailant

from about 400 photos — none of defendant — that police presented



                                 4                              A-4392-13T3
to her.   She also did not make an identification from a photo

array a week later.

     Gerardo said the assailant was black, between eighteen and

twenty years old.     He did not see his face, which he said was

covered with a jacket.      But, he confirmed that the man shown

running from the store on the surveillance video was the man he

saw flee the store.   According to witnesses, the fleeing man wore

shorts and a team jersey.

     Miguel told Detective Valera that he saw the assailant well

and he was confident he could identify him if he saw him again.

In a statement given on the day of the attack, Miguel said the

assailant appeared to be a young black man, eighteen or nineteen

years old, weighing about 125 to 130 pounds, and about five foot

seven.

     Detective Valera took two still photos from the neighboring

store's surveillance video and disseminated them to other police

departments seeking assistance in identifying the man pictured.2

South Brunswick Detective Roger Tuohy responded that he believed

the still photos were of Joshua Green, with whom he was familiar.

He sent photos he had of defendant.     Notwithstanding Detective


2
  The trial court overruled defense counsel's pre-trial objection
to admission of the bulletin Detective Rivera disseminated. None
of the photographic or video exhibits introduced in evidence has
been included in the record on appeal.

                                 5                         A-4392-13T3
Valera's alleged belief, based on Detective's Tuohy's input, that

defendant committed the assault, the police took no immediate

steps to arrest him, to place him under surveillance, or to seek

a warrant to search his apartment for clothing that matched those

worn by the man in the video.

     Soon after the attack, Maria called Detective Valera to say

she believed she saw her attacker board a bus that stopped near

her workplace.      But, when police stopped the bus in another town,

they did not identify any passenger who looked like the attacker.

Maria herself was not permitted to view the passengers.

     On November 17, 2011, Detective Rivera noticed a man at a bus

stop in Perth Amboy who, based on the photos Detective Tuohy had

supplied, looked like defendant.        Detective Rivera, who was out

of uniform, struck up a conversation with the man, who identified

himself as Joshua Green. She also surreptitiously took photographs

of him.

     Police did not show Maria an array with defendant's photo

until    November   25.3    Maria   selected   defendant's   photo   with

certainty.    Miguel also reviewed the same November 25, 2011 photo

array.    He said defendant's photo looked most like the man who

fled the store, but when asked if he is was sure, he said no.           He


3
  The photo used in the array was one from an unrelated arrest of
defendant.

                                    6                            A-4392-13T3
later testified that he was fifty to seventy percent certain that

defendant's photo matched the fleeing man, but he remained silent

because he thought he needed to be entirely certain.

      Detective Valera arrested defendant a week later.          He was

then twenty years old, five-foot-ten, with a "very thin build."

When arrested, defendant reportedly said he weighed 168 pounds.

He was not wearing glasses; by contrast, defendant wore glasses

at trial.   Detective Valera testified that, at trial, defendant

looked even heavier than 168 pounds.

      In court, Maria identified defendant as her attacker.             In

contrast to her statement to Detective Valera, she said she got a

look at his face when he spoke to her in the store, as well as in

the bathroom.   She said, "he had big ears, . . . his eyes were

also big, his mouth was big, very thin, and . . . his hair were,

[sic] like, very high." She asserted she provided Detective Rivera

with additional details about her attacker after she completed her

formal recorded statement, including that her attacker's hair was

messy and his hair was not jet black, but dark.           However, when

defendant stood up in court, Maria said he was much shorter than

he appeared the day of the attack.      Still, she was "certain it's

him."   She also noted he did not wear glasses during the attack.

On   cross-examination,   defense   counsel   attempted   to   highlight



                                    7                            A-4392-13T3
inconsistencies between her trial testimony and her statement to

police the day of the attack.

      Miguel also made an in-court identification.              At trial, he

said defendant's face was thin and his hair curly.                    He also

confirmed that the man depicted in the video was the attacker.                He

noted the man he saw running from the store was not wearing

glasses.   However, Miguel admitted he was "not positive" defendant

was   Maria's    attacker.    Asked   how    sure   he   was,   he   replied,

"[s]eventy percent."

      The eyewitnesses' testimony was bolstered by the testimony

of the investigating officers.            Detective Valera testified he

"received information that this [the still photos] was Josh Green

in September of 2011 from [Detective] Tuohy . . . ."                 Detective

Valera also identified defendant as the person depicted in the

surveillance footage who first walked by the store, then returned

to enter, and later ran out.          He also identified defendant in

court.

      Without objection, the State was permitted to ask Detective

Rivera to state "who was the perpetrator of [the] crime" against

Maria.     She   stated   without   reservation,    "Joshua     Green,"     and

identified him in court.      She explained that Detective Tuohy told

her that he recognized the person in the circulated photos to be

defendant.      She testified that when she met defendant at the bus

                                      8                                A-4392-13T3
stop in Perth Amboy, she identified him as the person in the

surveillance video.     She asserted that defendant was the person

depicted in the still shots taken from the surveillance video, the

photos supplied by Detective Tuohy, and photos she surreptitiously

took of defendant when she met him at a Perth Amboy bus stop.    She

opined that defendant at trial looked heavier than he did when she

saw him at the bus stop.   This was also the first time she saw him

wearing glasses.      On cross-examination, she conceded that she

could not positively identify defendant as the person in the

surveillance video, even after Detective Tuohy sent photos of

defendant.

     Detective Tuohy testified that he had known defendant for

four or five years based on "dealings" in South Brunswick. 4       He

stated that he recognized Joshua Green as the individual depicted

in the photos Detective Rivera sent and identified him in court.

He said, with respect to one photo, he believed it depicted

defendant because the person's posture matched defendant's.        He



4
  The defense objected pretrial to permitting Detective Tuohy to
testify that he recognized defendant based on his prior arrests.
The State informed the court that Detective Tuohy knew of defendant
based on being an officer on patrol in South Brunswick, and was
aware of, but was not directly involved in, prior arrests of
defendant in the township. The court prohibited any reference at
trial to defendant's prior arrests. Defense counsel also objected
to Detective Tuohy reviewing the surveillance footage, or the
photos taken from the footage, to identify defendant.

                                  9                         A-4392-13T3
stated if he "had to guess," he was "probably . . . around 80

percent" positive that defendant was the man in the photos.

     An employee of a temporary employment agency in Perth Amboy

testified that defendant obtained work through their office, which

was located a short distance from the store where Maria was

attacked.     Defendant worked the second shift of the day of the

attack, beginning at 4:00 p.m., for a firm in Carteret. The agency

provided transportation from Perth Amboy at about 3:00 p.m.                         The

agency representative testified that workers could arrive as early

as 6:00 a.m. to seek assignments, and could be sent out for work

early in the morning for the first shift of the day.                           But the

agency had no record that defendant sought work on the morning of

the attack.

     Over   defendant's         objection,     the   State   was    permitted         to

introduce     a     recording    of   a    telephone     conversation          between

defendant     and     his   mother    while     defendant    was        incarcerated

(although   his      incarceration    was      not   disclosed     to    the    jury).

Defendant asked his mother to look for glasses that he claimed he

wore to an interview in Perth Amboy on the day of the attack and

noted that Maria's attacker was not said to be wearing glasses.

Defendant's mother agreed to buy a pair if she could not find

them.



                                          10                                   A-4392-13T3
     The     State   contended   the   conversation   demonstrated

consciousness of guilt because records of medical examinations

from November 2011 and 2012, which the State introduced, indicated

that defendant had twenty-twenty vision.   The court ruled that the

conversation was admissible because defendant admitted to being

in Perth Amboy on the day of the attack.     The court declined to

exclude references to the glasses.

     The State also introduced medical records indicating that

defendant's weight grew from 146 pounds in November 2011 to 172

pounds a year later.     It also reported his height at five-foot-

eleven and then five-foot-ten on those same dates.    However, the

arrest report showed that defendant weighed 168 pounds when he was

arrested on December 1, 2011.

     Defendant did not testify, but his mother did.   She asserted

defendant was home the morning of the attack and she left with

defendant around 8:30 a.m.   She went to Dunkin' Donuts by the bus

stop where she normally dropped defendant off for the bus to New

Brunswick.    As proof, she providing a Dunkin' Donuts receipt

generated at 8:43 a.m.     She testified that she only went "that

way" in the morning when she was dropping defendant at the bus.

She said defendant was going to take a bus to New Brunswick and

then another bus to Perth Amboy because "[h]e said he had a job



                                 11                         A-4392-13T3
interview."   She noted, however, that he did not have to be at

work until 3:00 p.m.

     On cross-examination, without objection, the State confronted

Ms. Green with a twenty-three-year-old conviction for third-degree

theft by deception from 1990.        She testified that she received

probation and admitted she also violated probation.

     In   summation,    defense   counsel   contended   defendant   was

misidentified.   He noted Maria viewed the photo array months after

the incident.    He highlighted the lack of forensic evidence,

inconsistencies in Maria's statements, and Miguel's uncertainty

in his identification.       He challenged the police detectives'

identification, arguing that if the police had been sure defendant

was the attacker, they would have acted sooner.

     The State emphasized that defendant was identified not only

by Maria and Miguel, but also Detectives Tuohy and Rivera (omitting

without   explanation   Detective    Valera's   identification).    The

prosecutor highlighted defendant's contacts with Perth Amboy.       She

also referred to defendant's phone call regarding his glasses and

contended that defendant wore glasses to court "[t]o perpetrate a

fraud on the Court . . . ." She challenged Ms. Green's credibility,

highlighting her past conviction for theft by deception.

     The jury found defendant guilty of second-degree kidnapping,

as it declined to find he failed to release Maria unharmed;

                                    12                         A-4392-13T3
attempted aggravated sexual assault during the commission of a

kidnapping; and attempted sexual assault.       The jury found him not

guilty of criminal restraint.        After merger, the court imposed

concurrent   ten-year   terms   on    the   kidnapping   and   attempted

aggravated sexual assault counts, both subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1

to -23.

    On appeal, defendant presents the following points for our

consideration:

          POINT I

          BECAUSE IDENTIFICATION WAS THE CRITICAL ISSUE
          BEFORE THE JURY, INADMISSIBLE TESTIMONY ABOUT
          WHY DEFENDANT'S PHOTO WAS INCLUDED IN THE
          ARRAY AND INADMISSIBLE LAY OPINION TESTIMONY
          FROM   INVESTIGATING  OFFICERS,   IDENTIFYING
          DEFENDANT AS THE PERSON ON THE SURVEILLANCE
          FOOTAGE, INFRINGED HIS RIGHT TO A FAIR TRIAL.
          (PARTIALLY RAISED BELOW).

                 A.   Testimony That Defendant's Photo
                 Was Included in the Array Because the
                 Police Had Concluded that Defendant
                 Resembled the Surveillance Footage Was
                 Inadmissible and Unduly Prejudicial.

                 B.   Lay    Opinion   Testimony    from
                 Investigating Detectives, Identifying
                 Defendant   as   the Suspect    on  the
                 Surveillance Footage was Improper and
                 Prejudicial.

          POINT II

          THE COURT ERRED IN ADMITTING IN EVIDENCE A
          PHONE CALL BETWEEN DEFENDANT AND HIS PARENTS,

                                 13                              A-4392-13T3
            WHICH THE STATE USED AS PROOF OF CONSCIOUSNESS
            OF GUILT.    THE PREJUDICE TO DEFENDANT WAS
            COMPOUNDED BY THE JUDGE'S FAILURE TO GIVE THE
            REQUIRED JURY INSTRUCTION. (PARTIALLY RAISED
            BELOW).

            POINT III

            THE ALIBI WITNESS'S TWENTY-THREE-YEAR-OLD
            THIRD-DEGREE CONVICTION WAS INADMISSIBLE AS
            TOO REMOTE TO IMPEACH CREDIBILITY AND THE
            PROSECUTOR COMMITTED MISCONDUCT IN ARGUING
            THAT THE VICTIM WAS MORE CREDIBLE BECAUSE SHE
            HAD NO CRIMINAL CONVICTIONS.     (NOT RAISED
            BELOW).

            POINT IV

            A RESENTENCING IS NECESSARY BECAUSE THE COURT
            FAILED TO SUPPORT ITS FINDING OF AGGRAVATING
            FACTOR ONE WITH COMPETENT CREDIBLE EVIDENCE
            IN THE RECORD, INDEPENDENT OF THE ELEMENTS OF
            THE CRIME.

                                      II.

      Identification of Maria's attacker was the principal focus

of   the   trial.      We   are   convinced   that   Maria's   and   Miguel's

identifications of defendant was improperly bolstered by (1) the

Perth Amboy detectives' explanation that defendant's photo was

placed in the array based on the information that South Brunswick

Detective Tuohy had provided; and (2) the Perth Amboy detectives'

identification of defendant as the man in the surveillance video.

      We turn first to the issue of the photo array.                    "[A]n

officer's reasons for placing a particular photo in an array are

irrelevant and prejudicial."          State v. Lazo, 209 N.J. 9, 12-13

                                      14                              A-4392-13T3
(2012)    (citing       State   v.        Branch,   182 N.J. 338,       352     (2005)).

Moreover, when those reasons may lead a jury to infer past contact

with    law    enforcement,         the    courts    have    found    them    generally

inadmissible due to their limited probative value and prejudicial

effect.       See, e.g., State v. Tilghman, 345 N.J. Super. 571, 578-

79 (App. Div. 2001).

       In Tilghman, an officer testified "that when he heard the

victim's      description,      he        suspected    that    the     assailant      was

defendant because he knew him."                   Ibid.     The apparently neutral

testimony       implied      "the     officer       knew    defendant     because       of

defendant's prior criminal conduct." Ibid. Although the testimony

"explain[ed]      why     defendant's        photograph      was     included    in   the

array[,]" it was unnecessary to the victim's identification "and,

if anything improperly bolstered it by letting the jury know that

the victim had chosen the photograph of the person the officer

already suspected."          Ibid.

       Similarly,       in   Branch,        the   Court     found    inadmissible       an

officer's testimony that he included a defendant's photo in an

array    "upon    information        received"      because    it    implied    hearsay

information from an unknown source about the defendant's guilt.

Branch, supra, 182 N.J. at 352.                   The Court concluded, "The jury

only    needed    to    know    that       the    police    fairly     displayed      the



                                             15                                  A-4392-13T3
photographs to the witnesses and that the process led to a reliable

identification."   Ibid.

     In Lazo, supra, 209 N.J. at 21, the Court held that its

reasoning   in   Branch    was   not    limited   to   the   admission    of

"prejudicial hearsay testimony," but "extend[ed] to testimony

about the identification process in general."           The detective in

Lazo did not rely on information received; instead, he testified

that he included the defendant's photo in an array because he

believed the defendant matched the culprit.             Id. at 22.       The

admission of that testimony was still error, the Court concluded,

because the detective lacked personal knowledge of the attacker's

appearance and his testimony improperly "enhanced the victim's

credibility and intruded on the jury's role."          Ibid.

     We reach the same conclusion with respect to the testimony

describing why defendant's photo was placed in the array shown to

Maria and Miguel in November 2011.         Detective Tuohy's suspicion

was the obvious reason the photo was included.           He and Detective

Valera explained that after the surveillance stills were sent out,

Detective Tuohy responded that he believed defendant was the man

depicted.   Detectives Rivera and Valera testified that afterwards,

they suspected defendant as well, and ultimately included his

photo in the array.       Although Detective Tuohy obliquely stated

that he knew defendant "through dealings" in the township, the

                                   16                              A-4392-13T3
inference was inescapable that defendant's interaction with law

enforcement was not benign, and arose because of "defendant's

prior criminal conduct."   Tilghman, supra, 345 N.J. Super. at 578.

For example, if Detective Tuohy knew defendant because he coached

him on the Police Athletic League baseball team, he presumably

would have said so.5

     It is also of no moment that, unlike the detective in Lazo,

Detective Tuohy actually knew defendant.     The Court has clearly

held that the reason a defendant's photo is included in an array

is irrelevant.   See Lazo, supra, 209 N.J. at 12-13.     "The only

relevant evidence [is] the identification itself."       Id. at 21

(quoting Branch, supra, 182 N.J. at 348).

     The error regarding the origins of the photo array was

compounded by the improper admission of the Perth Amboy detectives'

lay opinion that the man depicted in the video was defendant. 6     A

lay witness may testify "in the form of opinions or inferences"

if "rationally based on the perception of the witness" and if the


5
 Additionally, while the judge did provide a limiting instruction
stating that photos of defendant could be derived from a variety
of sources and that the jury could not consider them as evidence
of having been arrested or convicted of a crime, this instruction
merely cured speculation arising from the source of defendant's
photo. It did not cure the testimony from Detective Tuohy that
he knew defendant and had photos of him based on prior dealings.
6
  We do not address the propriety of allowing Detective Tuohy to
identify defendant, as defendant does not challenge that on appeal.

                                17                          A-4392-13T3
testimony "will assist in understanding the witness' testimony or

in determining a fact in issue."     N.J.R.E. 701.   "[T]estimony in

the form of an opinion, whether offered by a lay or an expert

witness, is only permitted if it will assist the jury in performing

its function."   State v. McLean, 205 N.J. 438, 462 (2011).      "The

Rule does not permit a witness to offer a lay opinion on a matter

. . . as to which the jury is as competent as he to form a

conclusion[.]"   Id. at 459 (internal quotation marks and citation

omitted).   Furthermore, a police witness is not permitted to offer

an opinion regarding a defendant's guilt.     State v. Frisby, 174

N.J. 583, 593-94 (2002) (disapproving police testimony that opined

regarding innocence of one person and inferentially the guilt of

the defendant); State v. Landeros, 20 N.J. 69, 74-75 (1955)

(holding that police captain's testimony that defendant was "as

guilty as Mrs. Murphy's pet pig" caused "enormous" prejudice

warranting reversal).

     These principles apply to opinions regarding an offender's

identity. "In an identification case, it is for the jury to decide

whether an eyewitness credibly identified the defendant."      Lazo,

supra, 209 N.J. at 24.      A police officer may not "improperly

bolster or vouch for an eyewitness' credibility and thus invade

the jury's province."   Ibid.



                                18                           A-4392-13T3
      The Lazo Court reviewed federal authority on whether a lay

police witness may opine that a defendant is depicted in a crime

scene photograph.       The Court noted that one federal court held

that a lay opinion "is permissible where the witness has had

sufficient contact with the defendant to achieve a level of

familiarity that renders the lay opinion helpful."                   Id. at 22

(internal quotation marks and citation omitted).                    Whether the

opinion is helpful in turn depends on the witness's knowledge of

the   defendant's      appearance    at    the    time   of   the   crime,    the

defendant's    dress,    and   "whether     the    defendant    disguised     his

appearance during the offense or altered her looks before trial,

and whether the witness knew the defendant over time and in a

variety of circumstances."          Ibid. (internal quotation marks and

citation omitted).        "[C]ourts recognize that when there is no

change in defendant's appearance, juries can decide for themselves

— without identification testimony from law enforcement — whether

the person in a photograph is the defendant sitting before them."

Id. at 23.

      The Court cited a decision finding it error to admit an

officer's    opinion    that   a    defendant     was    depicted   in   a   bank

surveillance photo where the officer's opinion "was based entirely

on his review of photographs . . . and witnesses' descriptions

. . . ."     Ibid. (internal quotation marks and citation omitted).

                                      19                                 A-4392-13T3
Another factor in determining whether to permit a lay opinion on

identification    is    "whether   there   are    additional   witnesses

available to identify the defendant at trial."        Ibid.

     With this authority in mind, the Lazo Court held it was error

to permit a detective to testify he believed the defendant's arrest

photo closely resembled a composite sketch that was based on the

victim's description of her assailant.      Id. at 24.    The detective

did not witness the crime; did not know the defendant; and relied

solely on the victim's description. Ibid. "Nor was there a change

in appearance that the officer could help clarify for the jurors;

they could have compared the photo and the sketch on their own.

Finally, the sole eyewitness told the jury what he observed

firsthand."   Ibid.

     Applying these principles, we conclude it was improper for

Detectives Valera and Rivera to opine that defendant was the man

depicted in the video, and, in Detective Rivera's case, to opine

regarding the ultimate issue that defendant committed the assault

against Maria.    In particular, at various points in the playback

of the video footage at trial, Detective Valera was permitted to

assert that the person depicted was defendant.         Detective Rivera

was permitted to testify that defendant was depicted in stills

from the video.        Furthermore, she was permitted to opine on

defendant's   guilt,     by   responding   that    defendant   was    the

                                   20                            A-4392-13T3
perpetrator of the crime.   Yet, neither detective had any contact

or familiarity with defendant before the assault.   Their opinions

were clearly affected by Detective Tuohy's opinion.      The Perth

Amboy detectives were no more competent than the jury to scrutinize

the video, the 2011 photos, and defendant — who sat before them

for several days — to determine whether defendant was the man in

the video.

     The evidence that defendant may have put on weight between

the time of the attack and the trial does not alter our analysis.

First, the evidence was not uncontroverted that defendant gained

weight after the attack.    Perhaps, he never was as slim as the

attacker.    Maria described her attacker as lanky, and Miguel

believed he weighed between 125 and 130 pounds.   The evidence was

far from conclusive that defendant's weight was in that range in

September 2011.   Indeed, the incongruities in the weight-related

evidence raise questions about its reliability.     According to a

November 2011 medical record, defendant reportedly weighed 146

pounds — which is roughly twenty pounds more than the range Miguel

described.   And, when he was arrested the next month, his weight

was reportedly twenty-two pounds more, and it remained close to

that a year later according to another medical record.

     Second, even assuming defendant gained weight between 2011

and the time of trial — which was in March 2013 — the State did

                                21                          A-4392-13T3
not establish that the detectives were more competent than the

jurors to ascertain whether defendant was the man in the video.

Detective Rivera may have been competent to testify that the

heavier person in the courtroom looked like the person she met at

a bus stop in November 2011, and Detective Valera may have been

competent to testify that the man in the courtroom resembled the

person he arrested in December 2011.              They may also have been

competent   to   testify    that   Detective     Tuohy's   photographs,      or

Detective   Rivera's   bus-stop      photographs,     depicted   defendant.

However, that was not at issue.           The issue was whether defendant

was the man in the video.          As to that question, the detectives

were not significantly more capable than the jury to form a

conclusion.

     Furthermore, the fact that defendant wore glasses at trial

did not justify admitting the detectives' opinion. Wearing glasses

did not constitute a major change in defendant's appearance.                 In

any event, defendant repeatedly removed the glasses during the

trial when witnesses were asked to make an in-court identification.

     In sum, Detective Valera's and Detective Rivera's testimony

improperly "intruded on the jury's role."            Lazo, supra, 209 N.J.

at 22.

     We   next   consider    whether      the   court's   admission   of   the

testimony regarding the origins of the photo array and of the

                                     22                               A-4392-13T3
Perth Amboy detectives' identification of defendant constitutes

reversible error.     Defendant raised the first issue at trial, but

not the second.     Thus, we consider whether the first was harmless

error.      See   State   v.   J.R.,   227   N.J.   393,   417   (2017)   ("An

evidentiary error will not be found 'harmless' if there is a

reasonable doubt     as to whether the error contributed              to the

verdict."); see also Lazo, supra, 209 N.J. at 26 ("The harmless

error standard requires that there be some degree of possibility

that [the error] led to an unjust result.             The possibility must

be real, one sufficient to raise a reasonable doubt as to whether

[it] led the jury to a verdict it otherwise might not have

reached." (internal quotation marks and citation omitted)).

     The second error is subject to a plain error standard of

review.   Under that standard, "defendant has the burden of proving

that the error was clear and obvious and that it affected his

substantial rights."      State v. Koskovich, 168 N.J. 448, 529 (2001)

(internal quotation marks and citation omitted); see also State

v. Williams, 168 N.J. 323, 336 (2001) (stating that, under plain

error standard, "a defendant . . . must demonstrate . . . the

error possessed a clear capacity for producing an unjust result"

that is, one "sufficient to raise a reasonable doubt as to whether

the error led the jury to a result it otherwise might not have

reached."    (internal    quotation     marks   and   citation    omitted)).

                                       23                             A-4392-13T3
Whether an error is clearly capable of producing an unjust result

"depends on an evaluation of the overall strength of the State's

case."   State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).

     Applying these two standards, we are convinced that the photo

array testimony was not harmless, and defendant has met his burden

as to plain error.       As noted, the trial centered on the issue of

identification.     The video surveillance did not clearly depict the

attacker.     There was no forensic evidence.                  The eyewitnesses'

testimony was questionable.         Although Maria said she was certain

defendant     attacked      her,   her      physical     description      of     the

assailant's age, height and weight did not match defendant's

physical characteristics.          The defense also questioned whether

Maria got a good look at her attacker's face.

     Miguel was only seventy percent certain of his in-court

identification, and fifty-to-seventy percent certain of his out-

of-court identification, although he told a detective on the day

of the attack that he was sure he could recognize the assailant.

Miguel's    physical     description     also      did   not   completely      match

defendant.    Furthermore, defendant presented an alibi.

     The    photo   array    testimony,      the    Perth      Amboy   detectives'

identification, and Detective Rivera's opinion regarding guilt,

constituted    weighty      evidence.        The    importance     of    Detective

                                       24                                   A-4392-13T3
Rivera's identification was reflected in the State's emphasis of

it in summation.    Given the high regard that jurors may have for

the opinions of police officers, our Court has recognized the

substantial prejudice that may befall a defendant if an officer

is permitted to offer a personal opinion of defendant's guilt.

See Landeros, supra, 20 N.J. at 74-75.     Similar harm occurs when

an officer provides improper testimony about the origin of a photo

array, see Branch, supra, 182 N.J. at 353-54 (finding plain error

because officer's testimony that defendant was a suspect "based

on information received" could have "tipped the scales" as there

was no physical evidence linking defendant to scene and the

evidence   was     "far   from   overwhelming"),   or   provides    an

identification that usurps the difficult task assigned to the

jury, see Lazo, supra, 209 N.J. at 24, 27.

     In sum, we are constrained to reverse based on the admission

of testimony regarding the origins of the photo array, and the

Perth Amboy detectives' identification of defendant.

                                 III.

     We add only brief comments on remaining issues to guide the

trial court in the event of a retrial.




                                  25                         A-4392-13T3
     We discern no error in the court's admission of defendant's

phone conversation with his mother about eyeglasses.7          It was for

the jury to determine whether defendant — despite evidence of

twenty-twenty vision — wore glasses to interviews, perhaps to make

himself look studious; or whether he was concocting a means of

distinguishing himself from the attacker that the eyewitnesses

described — which may have demonstrated a consciousness of guilt

or merely an effort to look less like the described assailant.

See State v. Mann, 132 N.J. 410, 422 (1993) (stating that a

defendant's post-charge conduct is admissible if it supports an

inference   that   the   conduct   "is   evidence   of   consciousness    of

guilt").    However, it was error for the court to omit the model

jury charge on consciousness of guilt.        Id. at 420 (stating that

when a court admits evidence of post-crime conduct, "it must

instruct the jury carefully regarding the inferences the jury may

draw from that evidence").         We recognize that defendant did not

request the charge.      In view of our disposition of other issues,

we need not determine whether the omission of the model charge

constituted plain error.

     We also conclude it was error to permit the State to challenge

defendant's mother's credibility with presentation of her twenty-


7
 There is no reasonable dispute that defendant's admission in the
conversation that he was in Perth Amboy was relevant.

                                    26                             A-4392-13T3
three-year-old theft conviction.       This, too, was not raised below

and would be subject to a plain error analysis but for our reversal

on other grounds. Although the then-applicable version of N.J.R.E.

609 did not draw any time limits on the use of prior convictions,8

our Court has long recognized a conviction's remoteness weakens

its probative force, which then may be substantially outweighed

by the prejudice to the party against whom the conviction is used.

State v. Sands, 76 N.J. 127, 144-45 (1978) ("The trial court must

balance the lapse of time and the nature of the crime to determine

whether the relevance with respect to credibility outweighs the

prejudicial effect to the defendant.").

     We have found no authority — and the State has provided none

— for the proposition that a twenty-three-year-old third-degree

conviction is sufficiently probative of a lack of credibility so

as to outweigh its prejudicial effect.        Cf. State v. Murphy, 412

N.J. Super. 553, 565 (App. Div.) (finding seventeen-year-old drug

possession conviction too remote), certif. denied, 202 N.J. 440

(2010); State v. Leonard, 410 N.J. Super. 182, 186-89 (App. Div.

2009)   (affirming   exclusion   of    fifteen-year-old   conviction    of

State's witness), certif. denied, 201 N.J. 157 (2010).             Also,



8
  The revised version effective in 2014 establishes a heightened
burden for the proponent of evidence of a prior conviction over
ten years old. N.J.R.E. 609.

                                  27                             A-4392-13T3
there was no evidence of any intervening convictions that might

have mitigated the extreme remoteness of Ms. Green's conviction.

Sands, supra, 76 N.J. at 145 ("If a person has been convicted of

a series of crimes through the years, then conviction of the

earliest crime, although committed many years before, as well as

intervening convictions, should be admissible.").

     The error was exacerbated in two ways.   The State improperly

elicited that Ms. Green was found to have violated probation,

which is not a conviction and, accordingly, not admissible under

N.J.R.E. 609 irrespective of its remoteness.     State v. Jenkins,

299 N.J. Super. 61, 75 (App. Div. 1997) ("Since a probation

violation is not a criminal conviction, it cannot be used for

impeachment purposes under N.J.R.E. 609.").      And the State in

summation juxtaposed Ms. Green's record with the victim's "who

ha[d] no conviction, no convictions for trying to deceive anyone."

That commentary was improper; there was no evidence of the victim's

lack of a record, and, in any event, a party may generally not

bolster a witness's character for truthfulness with evidence of

specific instances of conduct.   N.J.R.E. 405; see State v. Scott,

___ N.J. ___, ____ (2017) (slip op. at 21).

     Finally, with respect to the defendant's sentence, we agree

that the court did not identify facts independent of the elements

of the crime in finding that aggravating factor one applied.

                                 28                         A-4392-13T3
N.J.S.A. 2C:44-1(a)(1) (requiring the court to consider "[t]he

nature and circumstances of the offense, and the role of the actor

therein, including whether or not it was committed in an especially

heinous, cruel, or depraved manner"); State v. Fuentes, 217 N.J.

57, 77 (2014) (remanding for resentencing where trial court did

not identify competent and credible evidence in the record — aside

from that which was necessary to prove the elements of the offense

— in finding aggravating factor one). If the defendant is retried,

found guilty and resentenced, the court shall reconsider its

application of aggravating factor one.

     Reversed and remanded.   We do not retain jurisdiction.




                               29                           A-4392-13T3
