                                NOT FOR PUBLICATION WITHOUT THE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-0057-14T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANGEL T. TORRES, a/k/a
ANGEL D. RAMOS, and
ANGEL RAMOS,

     Defendant-Appellant.
___________________________

                   Argued February 5, 2018 – Decided January 25, 2019

                   Before Judges Accurso, O'Connor and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 10-03-
                   0333 and 10-03-0340.

                   Joseph A. Fischetti, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Robert J. Kipnees, Designated
                   Counsel, and Joseph A. Fischetti, on the briefs).

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

        The opinion of the court was delivered by

O'CONNOR, J.A.D.

        Defendant Angel T. Torres was convicted by a jury of first-degree reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1), of A.V. 1; second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1), of L.D.; 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 weapon, N.J.S.A. 2C:58-4. In a bifurcated trial, the same jury

also convicted defendant of second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b); this charge arose out of a separate indictment. In the

aggregate, defendant was sentenced to a twenty-four year term of imprisonment.

        Based upon our review of the record and applicable legal principles, we

affirm defendant's convictions, but remand for resentencing.

                                           I

        We recount the evidence adduced at trial relevant to the issues on appeal.

On August 18, 2009, defendant was informed his seventeen-year old son, Angel



1
    We use initials to protect the victims' identities.



                                                                          A-0057-14T2
                                           2
Diaz, had been assaulted by L.V, an adult. One of Angel's2 friends, co-defendant

Axcel Diaz3, testified that he, Angel, defendant, and two others got into a white

car to go to L.V.'s home. When he entered the car, defendant was wearing a hat.

According to Axcel, a black vehicle with "many people" in it accompanied them

to L.V.'s home, which was a building in which three families lived in three

separate living quarters.

      When the cars stopped in front of L.V.'s home, defendant stated, "get the

man who's responsible." Defendant also told Axcel, whose parents lived in the

same building as L.V., to get his parents into the basement. After he was inside

the house, Axcel heard the sound of shattering glass followed by gunshots.

Axcel observed that A.V. and L.D., two residents in the building, had been hit

by bullets. Axcel testified "they" had fired shots through the door; it is not

disputed the front door had six bullet holes in it. A.V. died from his gunshot

wounds and L.D. survived.




2
  Because some of those involved in the events of that day share the same
surname, we refer to them by their forenames in order to avoid confusion. We
intend no disrespect by this informality.
3
  Before defendant's trial, Axcel Diaz pled guilty to two counts of hindering
apprehension of another, N.J.S.A. 2C:29-3(a).
                                                                         A-0057-14T2
                                       3
      One of the residents in the building, Angel Alvarado, testified he saw a

black and a white vehicle pull up and stop. Axcel emerged from the white car,

ran up to the house, and told his parents to get into the basement. Axcel also

told Alvarado that he should "duck." When Alvarado asked for clarification,

Axcel said, "it's already too late."   L.K. testified he heard another resident in

the building say that "he" had a gun. L.K. ran toward his living area in the

building and, while doing so, observed A.V. struggling to keep the front door

shut. L.K. then heard gunshots.

      Another resident, Beatriz Rodriguez, testified she was standing on the

front porch of the building when she saw a black and a white vehicle pull up and

noticed two men approach the building. One was young and the other was

"older." The older one, who she estimated was five feet tall, was wearing a hat

and carrying a stick the size of a baseball ball. He slapped Rodriguez in the face

as he passed her; she commented that, at that moment, the two were "face-to-

face" and she was able to look directly at him.

      He then smashed the glass on the outer, storm door of the building with

the stick. The other man tried to kick in the front door. Meanwhile, Rodriguez

ran across the street. She heard gunshots, but did not see who the shooter was.

She saw one of the men run back to the white car and the other to the black car,


                                                                          A-0057-14T2
                                         4
and both vehicles drove off. There was evidence that, when arrested, defendant's

height was determined to be five feet and one inch.

       A few days after the incident, Rodriguez viewed photographs at a photo

line-up. One of the photographs was of defendant and she stated the person in

that particular photograph "jump[ed] out at her," but she was unable to

definitively identify the person in the picture as defendant. She later saw a

picture of defendant in a newspaper and notified the Prosecutor's Office the

person in the picture was the man who slapped her at the crime scene. When

she testified in court, Rodriguez pointed to defendant at counsel table and stated

she was eighty percent sure he was the person who slapped her.

       Before trial, defendant sought to preclude the admission of what

transpired during the photo line-up. After a Wade4 hearing, the trial court denied

defendant's motion. We detail the evidence adduced during the Wade hearing

when we address the issues defendant asserts concerning the denial of his

motion.

       As noted, the jury convicted defendant of the reckless manslaughter of

A.V., the aggravated assault of L.D., and related gun offenses. He was acquitted

of the following offenses: A.V's murder, N.J.S.A. 2C:11-3(a)(1), (2), L.V.'s


4
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-0057-14T2
                                        5
attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1), (2), and conspiracy to

commit L.V.'s murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1), (2).

                                      II

      On appeal, defendant raises the following points for our consideration.

           POINT I: THE TRIAL COURT ERRED BY
           ALLOWING THE JURY TO CONSIDER AN
           UNCHARGED CRIME, RECKLESS
           MANSLAUGHTER, WHEN THE EVIDENCE
           BELOW DID NOT SUPPORT OR SUGGEST A
           CONVICTION UNDER THAT INCLUDED
           OFFENSE. (NOT RAISED BELOW).

           POINT II: THE TRIAL COURT ERRED BY
           DISCHARGING THE JURY AND THEN
           REASSEMBLING IT FOR THE PURPOSE OF
           RENDERING A VERDICT ON THE COUNT FOR
           CERTAIN PERSONS NOT TO POSSESS A
           WEAPON. (NOT RAISED BELOW).

           POINT III: THE TESTIMONY OF BEATRI[Z]
           RODRIGUEZ, INCLUDING HER UNFAIRLY
           PREJUDICIAL IDENTIFICATION OF
           [DEFENDANT] AS A MEMBER OF THE LATIN
           KINGS AND HER EYEWITNESS
           IDENTIFICATION OF [DEFENDANT],
           PRECLUDED A FAIR TRIAL.

           A. THE TRIAL COURT ERRONEOUSLY
           ADMITTED EVIDENCE OF BEATRI[Z]
           RODRIGUEZ'S IMPROPERLY ADMINISTERED
           PHOTO ARRAY IDENTIFICATION AND
           ALLOWED TAINTED IN-COURT TESTIMONY
           IDENTIFYING [DEFENDANT].


                                                                       A-0057-14T2
                                      6
            1. THE TRIAL COURT ERRED BY FINDING THAT
            THE PHOTO ARRAY IDENTIFICATION WAS
            COMPLIANT WITH THE STANDARDS SET
            FORTH IN STATE V. HENDERSON.

            2. IN THE ALTERNATIVE, EVEN IF STATE V.
            HENDERSON IS NOT APPLICABLE, THE PHOTO
            ARRAY WAS INADMISSIBLE UNDER STATE V.
            MADISON. (NOT RAISED BELOW).

            B. THE TRIAL COURT ERRED BY    REFUSING
            TO DECLARE A MISTRIAL FOLLOWING
            BEATRI[Z] RODRIGUEZ'S TESTIMONY
            REGARDING A HEARSAY STATEMENT
            IDENTIFYING [DEFENDANT] AS A MEMBER OF
            THE LATIN KINGS.

            POINT IV: THE SENTENCE IMPOSED WAS
            MANIFESTLY EXCESSIVE.

            A. THE TRIAL COURT ERRED BY FINDING
            THAT NO MITIGATING FACTORS APPLIED.

            B. THE TRIAL COURT ERRED BY IMPOSING
            CONSECUTIVE SENTENCES FOR RECKLESS
            MANSLAUGHTER AND AGGRAVATED
            ASSAULT.

                                        A

      For the first time on appeal, defendant contends the trial court erred when

it instructed the jury to consider the lesser-included offense of reckless

manslaughter to the charge of murder. Defendant asserts the evidence revealed

the shooter deliberately fired six shots into the front door of L.V.'s home, behind


                                                                          A-0057-14T2
                                        7
which people had just retreated. Defendant reasons such acts were indicative of

an intent to kill and, thus, cannot be consistent with acting recklessly.

      During the charge conference, the court announced it would be charging

"on some lesser included offenses, particularly on the murder charge" and asked

if either party had an objection. Defense counsel answered in the negative.

Because there was no objection to the charge, our review requires we apply the

"plain error" rule. R. 2:10-2; State v. Montalvo, 229 N.J. 300, 320-21 (2017).

Plain error in this context means there existed a "[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 unj ust

result." State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting

State v. Jordan, 147 N.J. 409, 422 (1997)).

      Our Supreme Court has held that "a trial court has an independent

obligation to instruct on lesser-included charges when the facts adduced at trial

clearly indicate that a jury could convict on the lesser while acquitting on the

greater offense." State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v.

Jenkins, 178 N.J. 347, 361 (2004)); see State v. Denofa, 187 N.J. 24, 41-42

(2006). The rationale for imposing such an obligation on the trial court is that


                                                                            A-0057-14T2
                                        8
"[n]o defendant should be convicted of a greater crime or acquitted merely

because the jury was precluded from considering a lesser offense that is clearly

indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003). The danger

of prejudice to a defendant that may result from a trial court's failure to charge

a lesser-included offense to the jury is that "[w]here one of the elements of the

offense charged remains in doubt, but the defendant is plainly guilty of some

offense, the jury is likely to resolve its doubts in favor of conviction." State v.

Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S.

205, 212-13 (1973)).

      Reckless manslaughter is a lesser-included offense of murder. State v.

Ramsey, 415 N.J. Super. 257, 263-64 (App. Div. 2010). Criminal homicide

constitutes reckless manslaughter under N.J.S.A. 2C:11-4(b)(1) when "[i]t is

committed recklessly[.]" An actor is reckless:

            when he consciously disregards a substantial and
            unjustifiable risk that the material element exists or
            will result from his conduct. The risk must be of such
            a nature and degree that, considering the nature and
            purpose of the actor's conduct and the circumstances
            known to him, its disregard involves a gross deviation
            from the standard of conduct that a reasonable person
            would observe in the actor's situation.

            [N.J.S.A. 2C:2-2(b)(3).]



                                                                          A-0057-14T2
                                        9
To convict a defendant of reckless manslaughter in violation of N.J.S.A. 2C:11-

4(b), the State "need not prove that the defendant perceived a risk that the victim

would certainly or probably die as a result of the defendant's conduct; the

defendant has the required state of mind if he 'disregarded only a "possibility"

of death[.]'" State v. Campfield, 213 N.J. 218, 233 (2013) (alteration in original)

(quoting Jenkins, 178 N.J. at 363 (2004)).

      Here, the court had a rational basis to charge reckless manslaughter. It is

not known whether it was defendant or his accomplice - the man who was

observed trying to kick down the front door after defendant smashed the storm

door - who fired the six shots through the door. But the absence of evidence

identifying who actually fired the gun at the door is inconsequential, because

defendant was charged with accomplice liability. See N.J.S.A. 2C:2-6; State ex

rel. Atlantic Cty. Prosecutor v. City of Atlantic City, 379 N.J. Super. 515, 521

(App. Div. 2005).

      In our view, it is patently obvious that, by shooting at the door when

defendant or his accomplice knew there were people inside – in fact, A.V. was

pressing against the front door in an effort to keep defendant and his accomplice

from entering - the actor consciously disregarded a substantial and unjustifiable

risk that those behind the door would be injured or killed. The risk was of such


                                                                          A-0057-14T2
                                       10
a nature and degree that, considering the nature and purpose of the actor 's

conduct and the circumstances known to him, its disregard was a gross deviation

from the standard of conduct that a reasonable person would observe in the

actor's situation. See N.J.S.A. 2C:2-2(b)(3). Further discussion on the question

whether firing a gun at the door under these circumstances constituted

recklessness as defined by N.J.S.A. 2C:2-2(b)(3) is unnecessary. We discern no

plain error warranting reversal because the jury was instructed on the lesser -

included offense of reckless manslaughter.

                                         B

      The court discharged the jury following the jury's announcement of its

guilty verdicts on the reckless manslaughter, aggravated assault, and weapons

offenses, and not guilty verdicts on the murder, attempted murder, and

conspiracy to commit murder charges. After the jury left the courtroom, the

court immediately realized the jury had not considered the charge of certain

persons not to have weapons (certain persons). The jury was to consider this

charge in a bifurcated trial after it had reached a verdict on all other charges, in

accordance with State v. Ragland, 105 N.J. 189 (1986).

      The court asked the staff to bring the jury back into the courtroom and,

when it arrived, the trial on the certain persons charge commenced. Defendant


                                                                           A-0057-14T2
                                        11
argues it was reversible error for the trial court to permit the jury to consider

this charge after it had been discharged. He contends that during the period the

jury was discharged, any juror could have been exposed to information that

improperly influenced him or her.

      Defendant did not provide a copy of the court clerk's log but, as revealed

by the transcript of what transpired in the courtroom from the moment the jury

was excused to the time it was returned to the courtroom, only a very limited

amount of time elapsed. Specifically, after the court excused the jury, there was

brief colloquy between the court and counsel, and the jury then re -entered the

courtroom. The transcript demonstrates as follows:

            THE COURT: [Addressing the jury] Thank you for
            your service. . . . And I will excuse you at this time.

            (The following is out of the presence of the jury.)

            THE COURT: There remains a count in the [other]
            indictment, Indictment 10-03-340, certain persons not
            to have a weapon. Mr. [Prosecutor], what is your
            preference on how to proceed?

            PROSECUTOR: I'd like to proceed on that count, your
            Honor.

            THE COURT: [Defense counsel]?

            DEFENSE COUNSEL:           Well, I object.   I have no
            reason, but I do.


                                                                         A-0057-14T2
                                      12
            PROSECUTOR:         The jury's just been discharged,
            Judge.

            THE COURT: Well, they're still on the floor. At this
            point, I assume you're just going to submit?

            PROSECUTOR: Yes, your Honor. I assume [defense
            counsel] does not want the jury to see the indictment. I
            ask that there be a stipulation that there's a conviction
            and then I'll open –

            THE COURT:        All right.

            PROSECUTOR: -- present the indictment and close.

            THE COURT: You wish to proceed?

            DEFENSE COUNSEL: Yes

            THE COURT: All right. Yeah. Tell them he's going to
            have to bring the jury back.

            CALENDAR COORDINATOR: They'll just be a
            moment, Judge.

            SHERIFF'S OFFICER: Jury entering.

      The court then informed the jury it had to consider the certain persons

charge. The prosecutor very briefly addressed the jury in what was both his

opening and closing statement; defendant waived both statements. The court

then instructed the jury on the certain persons charge.

      Among other things, the court told the jury the parties stipulated defendant

had been previously convicted of a crime. It further instructed the jury to

                                                                         A-0057-14T2
                                       13
completely disregard its prior verdict and to consider anew the evidence

previously admitted in connection with the charge for possession of a weapon.

The court stated:

            On the issue of possession, although you may consider
            evidence previously introduced, the State must prove
            beyond a reasonable doubt that the defendant possessed
            the weapon before you find the defendant -- before you
            may find the defendant guilty on this charge. In
            deciding whether the State has carried its burden of
            proof, you must set aside your previous verdict and
            begin your deliberations anew.

Later that day, the jury found defendant guilty of the certain persons charge.

      Although during the above-cited colloquy defense counsel lodged an

objection to proceeding on the certain persons charge, he did not specify his

objection and then admitted he had no reason to object and wished to procee d.

Because there was no objection to the court permitting the jury to consider the

certain persons charge, we consider whether permitting the jury to do so

constituted plain error. See R. 2:10-2 (any error will be disregarded unless it

was "clearly capable of producing an unjust result."). Applying that standard,

we conclude there was no such error.

      Defendant cites State v. Black, 380 N.J. Super. 581, 589 (App. Div.

2005), Mohan v. Exxon Corp., 307 N.J. Super. 516, 522-24 (App. Div. 1998),

and State v. Fungone, 134 N.J. Super. 531, 534-36 (App. Div. 1975), in support

                                                                        A-0057-14T2
                                       14
of his argument that once a jury is discharged and leaves the courtroom, it cannot

be reassembled, warranting the reversal of the certain persons charge. We find

these cases distinguishable.

       In Black, the jury failed to render a verdict on one of the offenses with

which the defendant had been charged. The court overlooked the jury's omission

when the court reviewed the verdict sheet and discharged the jury.            The

following day, the court reconstituted the jury so that it could render a verdict

on the remaining charge. The jury did so, finding defendant guilty of such

charge. On appeal, defendant contended the trial court erred by recalling the

jury, and argued the subject conviction had to be vacated.

       We agreed with the defendant, citing Fungone and Mohan for the premise

that "[o]nce a jury has been discharged and dispersed, it cannot be reassembled

in order to correct an omission in the verdict, including the failure to announce

a portion of the verdict agreed upon but not reported." Black, 380 N.J. Super at

589.

       In Fungone, the jury found the defendant guilty of larceny. Although it

had been instructed to make a finding of the value of the item stolen in the event

the jury found the defendant guilty of larceny, the jury neglected to do so. The

court discharged the jury before realizing the jury's oversight. The following


                                                                         A-0057-14T2
                                       15
morning, the court reconvened the jury so that it could render a verdict on this

remaining question. The jury then assigned a value to the stolen item. We found

the trial court erred by reconvening the jury the following day. We stated:

            The essential factor in determining whether a
            discharged jury can be reassembled in order to further
            deliberate or report on a verdict already reached is
            whether it has dispersed, left the jury box or courtroom,
            and had an opportunity to mingle with court attendants,
            other jurors, or third persons. The fact that the court has
            announced the jury's discharge will not foreclose
            subsequent proceedings by the jury, if its members have
            remained in the jury box or otherwise within the
            continuous control of the court.

            [Id. at 535 (emphasis added) (citation omitted).]

      In Mohan, the jury failed to answer two questions on the verdict sheet.

Four days later, the court reconvened the jury so that it could answer such

questions. We held the fact the jury was dispersed and beyond the control of

court for four days compelled a finding the jury's answers to the two questions

could not "serve as the basis for a resolution of the issues presented by those

questions." We remanded the matter for retrial on the issues to be resol ved by

those questions. We noted:

            The operative element in determining when and
            whether a jury's functions are at an end is not when the
            jury is told it is discharged but when the jury
            is dispersed, that is, has left the jury box, the court
            room or the court house and is no longer under the

                                                                          A-0057-14T2
                                       16
             guidance, control and jurisdiction of the court. This
             clearly is the rule in criminal cases; there is no reason
             why the same rule should not apply in civil cases as
             well.

             [Id. at 522-23].

      Here, as indicated by what transpired in the courtroom after the jury left,

it is evident the amount of time that elapsed before the jury was reconvened was

very brief, if not fleeting. The court realized its error so quickly the jury did not

even have the opportunity to leave the floor before being herded back into the

courtroom by court personnel. Defendant himself was not concerned about the

lapse in time and whether a juror had been tainted during the brief period the

jury was discharged.

      More important, when it reconvened the jury was not asked to render a

verdict on the matter previously before it. The jury was asked to consider a new

charge in a different, bifurcated proceeding. Further, the jury was instructed to

completely disregard its prior verdict, and to deliberate and consider anew the

evidence previously admitted in connection with the charge for possession of a

weapon, and it is presumed the jury followed the court's instructions. See State

v. Patterson, 435 N.J. Super. 498, 511 (2014) (quoting State v. Smith, 212 N.J.

365, 409 (2012)).




                                                                            A-0057-14T2
                                        17
      Under these circumstances, we discern no error that was clearly capable

of producing an unjust result. Finally, because of our disposition, we need not

address defendant's contention that, if the certain persons conviction were

reversed, a retrial would violate his protection against double jeopardy.

                                            C

      Defendant contends the court committed reversible error when it declined

to declare a mistrial after Rodriguez testified defendant was a member of the

Latin Kings. We note Rodriguez did not state defendant was a member of this

gang. Rodriguez testified about a fight in which L.V. and others assaulted a

group of teenagers, which included Axcel and defendant's son. Rodriguez

actually stated that, after the fight ended, Axcel yelled, "you guys hit a Latin

King's son."

      As soon as Rodriguez made this comment, the court said "stop" and

defense counsel asked for a sidebar. During the sidebar conference, the court

denied defense counsel's request for a mistrial, commenting, "You're assuming

people know what that is, so I'm going to give them a curative instruction . . . ."

Following sidebar, the court instructed the jury, "Jury's to disregard that last

statement, not part of the record." During its final charge to the jury, the court

told the jury:


                                                                            A-0057-14T2
                                       18
            Any testimony that I may have had the occasion to
            strike is not evidence and should not enter into your
            deliberations. It must be disregarded by you. That
            means that even though you will remember the
            testimony you are not to use it in your discussions or
            deliberations.

      A motion for a mistrial is to be granted when necessary to obviate a

manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969). The decision

to deny such a motion is within the sound discretion of the trial court, and will

be reversed only if the court abused its discretion. State v. Winter, 96 N.J. 640,

647 (1984) (quoting State v. Witte, 13 N.J. 598, 611 (1953)). Defendant insists

he was denied a fair trial because Rodriguez allegedly indicated defendant was

a member of the "Latin Kings."

      First, there was no indication Axcel's comment referred to defendant.

Persons other than defendant's son were assaulted during a fight in which L.V.

participated. Second, this was a lengthy trial, during which nineteen witnesses

testified. Rodriguez's isolated and transitory reference to the Latin Kings did

not stand out. Third, it bears noting the jury acquitted defendant of murder,

indicating the prejudicial effect defendant feared the subject comment might

have caused did not materialize. Accordingly, the fleeting reference to the Latin

Kings, compounded mitigated by the court's swift instruction, did not warrant a

mistrial.

                                                                         A-0057-14T2
                                       19
                                         D

      Defendant next contends the court erred when it admitted evidence of the

"improperly administered photo array identification" in which Rodriguez

participated. Defendant further maintains the manner in which the photo line -

up was conducted impermissibly influenced Rodriguez's in-court identification

of defendant. We disagree with both contentions.

      During the Wade hearing, the court viewed a video recording of the photo

line-up proceeding, and a transcript of that recording was admitted into

evidence. The video recording is not in the record, but the transcript is. The

transcript reveals the following.

      At the outset of the proceeding, detective Olivieri of the Woodbridge

Police Department told Rodriguez he was going to show her six photographs,

one at a time. Pertinent comments he made before Rodriguez viewed the

photographs were that she: could take as much time as she needed to review the

photographs; should not conclude "that the person is in here"; should let him

know if she saw "the person"; and was "absolutely not required to pick anybody

so don't feel obligated to pick anybody."

      Rodriguez viewed the six photographs and, as to photograph number four,

stated, "I'm not sure but I think it's this one, but I'm not sure." She looked at the


                                                                            A-0057-14T2
                                        20
photographs again and then stated her choice was between photographs number

four and five. Photograph four was in fact a picture of defendant. We note the

transcriber found some portions of the detective's and Rodriguez's statements

inaudible, but the parties are not disputing that after she looked at photographs

four and five an additional four times, Rodriguez stated photograph number four

"jumped out at" her more.

        Rodriguez asked to look at the photographs again and then asked the

detective whether there could be more than one person "in this pile . . . at the

crime scene." The detective replied, "I don't know for sure but I would think

that there is . . . when we have a photo line-up we have one target, you know[.]" 5

However, the detective subsequently told Rodriguez she should not feel

pressured to "pick someone," and that "[t]he person may or may not even be in

the line-up, okay."

        At the end of the proceeding, the detective told Rodriguez he jotted down

her findings about the photographs and, as for photograph four, wrote "jumps

out of [sic] her a little more." She signed his notes, confirming that was her

finding. Thereafter, Rodriguez asked the detective what would happen given

she did not "pick anybody."        The detective stated the investigation would


5
    The ellipses in this statement appear in the transcript.
                                                                          A-0057-14T2
                                         21
continue.

      At the Wade hearing, the detective testified that, before the photo line-up,

he did not know anything about defendant except that he was male and Hispanic,

had not been involved in the investigation of the crime, and had not spoken wi th

Rodriguez before the line-up. The detective mentioned the six photographs in

the array were compiled from driver's license photographs.

      The trial court denied defendant's motion, but when it evaluated and

decided the issues before it, the trial court applied the law in State v. Henderson,

208 N.J. 208 (2011). Henderson does not apply in this matter, because the

subject incident and photo line-up occurred in 2009 and Henderson applies

prospectively only. See State v. Micelli, 215 N.J. 284, 287 (2013). Defendant

contends that under State v. Madison, 109 N.J. 223, 232-33 (1988), which set

forth the standard to be applied before Henderson was issued, his motion should

have been granted. We agree the two-step test articulated by the United States

Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114 (1977), and adopted

by our Supreme Court in Madison, applies in this matter.

      Under the first step of this test, a court must decide whether the procedure

in question was impermissibly suggestive. "Impermissive suggestibility is to be

determined by the totality of the circumstances of the identification." Madison,


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109 N.J. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Such a

determination

            can only be reached so as to require the exclusion of the
            evidence where all the circumstances lead forcefully to
            the conclusion that the identification was not actually
            that of the eyewitness, but was imposed upon him [or
            her] so that a substantial likelihood of irreparable
            misidentification can be said to exist.

            [Ibid. (quoting Farrow, 61 N.J. at 451).]

If there is a finding the procedure was impermissibly suggestive, the court may

proceed to the second step, which requires the court to determine whether the

procedure   resulted   in   a     "very   substantial   likelihood   of   irreparable

misidentification." Id. at 232.

      Here, defendant contends the detective's statement that the police include

a suspect in a photo array was impermissibly suggestive, because it suggested

to Rodriguez that she had to make a selection. When viewed in context, we

cannot agree this statement had the effect defendant claims.

      The detective initially advised Rodriguez that she should not conclude the

suspect was in the photo array, and that she was not required to "pick anybody."

After viewing all of the photographs and examining photographs four and five

in particular a number of times, the most Rodriguez could say was that

photograph number four "jumped out" at her more. It was after she came to that

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                                          23
conclusion that the detective indicated there is a target in a photo line -up.

However, he then changed that statement and said "the person" may or may not

be in the photo array Rodriguez was viewing, and that she should not feel

pressured to choose anyone.

      Therefore, even if the detective's comment that there was a target in a

photo array was suggestive, he changed his statement and clarified the target

may or may not have been in the array she was viewing. But more important,

Rodriguez did not change her findings about any of the photographs she had

viewed after the detective stated there was a target in an array. Rodriguez

maintained photograph four jumped out at her more both before and after the

detective's allegedly suggestive comment. There is no evidence Rodriguez's

impression of photograph four were not actually hers. Accordingly, we cannot

say the procedure in question was impermissibly suggestive under the totality

of the circumstances. Given the first step of the Madison test was not met, we

need not address the second.

                                      E

      Defendant    was   sentenced   to   consecutive   eight-year   terms     of

imprisonment for reckless manslaughter, aggravated assault, and certain persons

not to possess a weapon, for an aggregate term of twenty-four years. The court


                                                                       A-0057-14T2
                                     24
merged the convictions for possession of a weapon for an unlawful purpose and

for unlawful possession of a weapon, but then it imposed a five-year term of

imprisonment for each conviction, to run concurrently to all other sentences.

      Defendant contends his sentence is excessive, arguing the court erred

when it determined the convictions for reckless manslaughter and aggravated

assault warranted consecutive sentences. He also argues the court erroneously

failed to apply certain mitigating factors.

      Before imposing its sentence, the court found aggravating factors N.J.S.A.

2C:44-1(a)(3) (the risk defendant will commit another offense), (6) (the extent

of defendant's prior criminal record and the seriousness of the offenses of which

he was convicted), and (9) (the need to deter). The court rejected defendant 's

argument there were grounds to apply mitigating factor seven, N.J.S.A. 2C:

2C:44-1(b)(7) (defendant led a law-abiding life for a substantial period of time

before the commission of the present offense). Although not argued before the

trial court, on appeal defendant argues the court should have applied mitigating

factors N.J.S.A. 2C:2C:44-1(b)(3) (defendant acted under a strong provocation),

and (4) (there were substantial grounds tending to excuse or justify the

defendant's conduct, though failing to establish a defense).




                                                                        A-0057-14T2
                                       25
      The trial court rejected defendant's argument that mitigating factor seven

applied. Although defendant had not been convicted of a crime since 1993, at

that time he was convicted of three counts of attempted murder, for which he

received a ten-year sentence. The court found that defendant's imprisonment

"had no impact on Mr. Torres. I agree with [the prosecutor], Mr. Torres'

response to perceived frustration is to get a handgun and start shooting." When

the court determined aggravating factors six and nine applied, the court added,

"I'm struck by the fact that both in his conviction and his prior conviction, anger

was apparently the fuel for the disregard of human life. His anger blinded him

to the consequences, a quest for revenge that had no limits. . . . Clearly, the

prior conviction did not deter [him] . . . ."

      The court found the subject consecutive sentences appropriate:

             pursuant to the principles of State v. Yarbough[, 100
             N.J. 627 (1985), superseded by statute, N.J.S.A. 2C:44-
             5]. I have different victims here, different levels of
             harm. The court finds that to sentence [the convictions
             for reckless manslaughter and aggravated assault] as
             concurrent will essentially give Mr. Torres a free crime,
             and that is not permitted under our system of justice
             . . . . [The] sentence [for certain persons not to have
             weapons] shall be consecutive to [the sentence imposed
             for reckless manslaughter and aggravated assault].
             Again, not to sentence separately would give this
             defendant a free crime and would invalidate or negate
             the purpose of the Certain Persons not to have a
             weapon.

                                                                          A-0057-14T2
                                        26
      We defer to a court's sentencing decision unless (1) the court did not

adhere to the sentencing guidelines; (2) the findings on the aggravating and

mitigating factors were not based on competent, credible evidence; or (3) under

the facts of the case, the sentence was "clearly unreasonable so as to shock the

judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). Generally, if a

sentencing court does not explain its reasoning for imposing consecutive

sentences pursuant to Yarbough, a remand is necessary. State v. Miller, 205

N.J. 109, 129 (2011). However, a reviewing court can affirm a sentence where

it is "possible to 'readily deduce' the judge's reasoning." Id. at 129-30 (quoting

State v. Bieniek, 200 N.J. 601, 609 (2010)).

      Here, it is clear from the record the court properly weighed and considered

the relevant aggravating and mitigating factors based on competent and credible

evidence in the record. Further, although its comments were brief, the court

sufficiently articulated its reasons for imposing consecutive sentences under

Yarbough. Additional comment about the trial court's findings with respect to

the applicable aggravating and mitigating factors and its decision to impose the

consecutive sentencing it ordered is unnecessary.

      However, we note the judgment of conviction states defendant was

convicted of first-degree reckless manslaughter. As a matter of law, this crime


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                                       27
is a second-degree offense. Campfield, 213 N.J. at 232. It is not completely

clear from the record whether, when it sentenced defendant for this conviction,

the court considered this to be a first- or second-degree offense. The fact the

court sentenced defendant within the second-degree sentencing range, see

N.J.S.A. 2C:43-6(a)(2) (establishing the sentencing range for second-degree

offenses between five years and ten years), suggests it was mindful reckless

manslaughter is a second-degree offense. But to ensure none of the trial court's

sentencing decisions was influenced by an erroneous assumption that reckless

manslaughter is a first-degree crime, we are remanding this matter so the court

may review the sentence it imposed for all convictions and, if necessary, re-

sentence defendant, accordingly.

      In addition, because the court erred by imposing a sentence on each of the

two merged convictions, we remand and direct the trial court to correct the

sentence and amend the judgment of conviction. The sentence is defective

because fines and penalties were imposed on both counts when they had been

merged into one.

      To the extent we have not expressly addressed an argument defendant

asserted on any issue in his brief, it is because such argument was without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


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                                      28
      Affirmed in part and remanded in part for further proceedings consistent

with this opinion. We do not retain jurisdiction.




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