                                NOT FOR PUBLICATION WITHOUT THE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-3626-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL JOHNSON, a/k/a
LAMAR JOHNSON,

     Defendant-Appellant.
___________________________

                    Submitted January 25, 2019 – Decided May 14, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 14-11-1900.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Ali Y. Ozbek, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant, Daniel Johnson, appeals from a February 16, 2018 judgment

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

conspiracy to commit robbery, N.J.S.A. 2C:5-2, after a jury trial on consolidated

indictments from Passaic County and Hudson County. We affirm.

        At approximately 1:00 a.m. on May 11, 2014, a group of people were

gathered outside of a Paterson bar when two black men, one described as having

dark skin and the other having lighter skin, approached the group pointing guns

at them. Together, the two men robbed the entire group. The same morning,

another group of people, including Q.M.,1 were gathered on Main Avenue in

Passaic when two black men, one with dark skin and one with lighter skin, pulled

out guns and robbed the group.

        Q.M. told the dark-skinned man he had nothing. When Q.M. ran from the

scene, he was shot by the dark-skinned man. Q.M. later died from his gunshot

wound.

        Later that same morning, G.W. was waiting for a bus in Jersey City when

he was approached by a dark-skinned man and a light-skinned man on bicycles.

The dark-skinned man pointed a gun at G.W. and demanded money. G.W. gave




1
    We use initials to protect the privacy of the victims and witnesses.
                                                                           A-3626-16T3
                                          2
the man money and his cell phone. After the light-skinned man saw a police

car, the men on bikes fled together. G.W. reported the robbery to the police.

      A short time later, E.S. was waiting for a friend in Jersey City. Similarly

described men on bicycles approached E.S. The dark-skinned man produced a

gun and robbed E.S. E.S. reported the robbery to the police. E.S. later identified

both defendant and co-defendant Zaire Palms as the men who robbed him.

      Jersey City Police Officer Christopher Harrison received a radio report

describing the robbery suspects. Harrison observed a black male, later identified

as Palms, riding a green bicycle with a black seat, and he gave chase. Palms

abandoned the bicycle, ran and jumped over a fence. Police arrested Palms in

possession of five cell phones, a phone charger, keys and a quantity of cash.

      Detective Sergeant William Hoffman also heard the report, observed the

two men on bicycles and gave chase. Hoffman arrested defendant. Jersey City

Police Officer Edward Esparra observed Palms drop a gun to the ground; Esparra

recovered the gun. Ballistics tests showed shell casings recovered from the

crime scene in Paterson were from Palms's pistol.

      G.W. said he was robbed by two men at 4:52 a.m. on May 14, 2014. Jersey

City Detective Brian Rabbit took a statement from G.W. roughly thirty minutes

after the robbery. G.W. described a thin, dark-skinned black man in a black


                                                                          A-3626-16T3
                                        3
hooded sweatshirt with a gun and a stocky, light-skinned black man in a black

hooded sweatshirt.

      While Rabbit was getting ready to prepare his report, he heard a

transmission over the police radio that two men on bicycles were apprehended

on suspicion of robbery. The descriptions were similar to the descriptions

provided by G.W., who was present when the radio transmissions were

broadcast. Rabbit did not know if G.W. heard the radio transmissions. G.W.

accompanied Rabbit to another police station for a showup identification.

There, they sat in a police car and observed defendant and Palms, both

handcuffed, walking into the station. This occurred at approximately 6:00 a.m.,

less than two hours after the robbery. G.W. identified defendant with ninety

percent certainty, identified Palms with one hundred percent certainty and

identified one of the bicycles ridden during the robbery.

      Defendant was charged in a Hudson County indictment with: two counts

of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree

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

counts of first-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(j);

second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a); fourth-degree obstructing, N.J.S.A. 2C:29-l; second-


                                                                       A-3626-16T3
                                       4
degree certain persons not to have a firearm, N.J.S.A. 2C:39-7(b); and second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2.

       A Passaic County grand jury returned an indictment that charged

defendant with: first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; five counts of first-

degree armed robbery, N.J.S.A. 2C:15-l; five counts of second-degree

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

degree unlawful possession of a firearm, N.J.S.A. 2C:39-5; first-degree murder,

N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2); and second-degree certain

person not to have a firearm, N.J.S.A. 2C:39-7(b).

       The Hudson County charges were transferred to Passaic County for

disposition. Defendant was tried over several days between June 10, 2016, to

July 28, 2016. Before trial, the judge conducted a Wade2 hearing regarding

G.W.'s and E.S.'s identifications. The trial judge ruled both identifications were

admissible.

       Two of the Paterson victims and two Jersey City victims, as well as

numerous law enforcement witnesses, testified at trial about what happened in

the early hours of May 11, 2014. Defendant testified that on May 11, 2014, he


2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                          A-3626-16T3
                                        5
was with a group that included Palms and they went to a bar and liquor store in

Paterson to buy alcohol. When they left the bar and liquor store, defendant got

into a car with someone other than Palms, and, as they were pulling away, he

heard gunshots but was unaware where Palms was when the gunshots rang out.

      Defendant testified that later that night he met Palms in Jersey City, and

the two of them rode bicycles together. Defendant testified that while they rode,

Palms would stop to talk with people and defendant would wait. Defendant

testified he did not see Palms use a gun to rob anyone.

      The State produced several letters defendant wrote to an incarcerated

inmate, Q.B., which were obtained during an investigation into whether

defendant was engaging in witness tampering. The trial court permitted the

State to cross-examine defendant with one of the letters to establish

consciousness of guilt. The letter referenced one of the victims as "biting the

cheese." Defendant testified that he was referring to one of the witnesses being

a "snitch."

      On July 28, 2016, the jury acquitted defendant on all of the Passaic County

charges.      On the Hudson County charges, the jury convicted defendant of

second-degree robbery of G.W. and second-degree conspiracy to commit the

robbery of G.W.


                                                                         A-3626-16T3
                                       6
      On January 6, 2017, the trial judge denied defendant's motions for a

judgment of acquittal on the conspiracy charge, to mold the verdict to reflect a

third-degree conspiracy, and for a new trial and granted the State's motion for

an extended term sentence. The court sentenced defendant to an extended term

of sixteen years for the robbery and a concurrent ten years for the conspiracy,

both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. In February 2018,

the court amended the judgment of conviction to make the sentence imposed

consecutive to a sentence for any parole violation. This appeal followed.

      Defendant raises the following issues on appeal:

            POINT ONE

            THE SHOWUP IDENTIFICATION OF THE
            DEFENDANT    MADE   BY    [G.W.] WAS
            IMPERMISSIBLY SUGGESTIVE, AND SHOULD
            HAVE BEEN EXCLUDED.

            POINT TWO

            THE TRIAL COURT'S ADMISSION OF LETTERS
            FROM DEFENDANT TO [Q.B.] ON THE ISSUE OF
            DEFENDANT'S CONSCIOUSNESS OF GUILT
            DENIED DEFENDANT A FAIR TRIAL.

            POINT THREE

            THE TRIAL COURT IMPROPERLY LIMITED
            DEFENSE COUNSEL'S REDIRECT EXAMINATION
            OF DEFENDANT ON THE ISSUE OF WITNESS
            TAMPERING.

                                                                        A-3626-16T3
                                       7
              POINT FOUR

              THE PROSECUTOR'S COMMENTS IN HIS
              SUMMATION CONSTITUTED MISCONDUCT
              WHICH DENIED DEFENDANT A FAIR TRIAL.
              (Not Raised Below)

              POINT FIVE

              DEFENDANT'S SENTENCE IS EXCESSIVE AND
              THE TRIAL COURT SHOULD HAVE MERGED
              THE CONVICTION FOR CONSPIRACY.

                                      I.

      We first address defendant's contention G.W.'s showup identification was

impermissibly suggestive. We begin our review by acknowledging the great

deference we accord a trial judge's findings regarding the impermissible

suggestiveness of the identification procedure. State v. Adams, 194 N.J. 186,

203 (2008).

      Under New Jersey law, when a defendant can show evidence of an

identification's suggestiveness, the trial court should conduct a hearing where

the State must offer proof the identification is reliable. State v. Anthony, __

N.J. __ (2019) (slip op. at 26-27); State v. Henderson, 208 N.J. 208, 288-899

(2011). Here, because the showup identification was inherently suggestive, the

judge conducted a hearing where he heard testimony from Rabbit and found his

testimony credible.

                                                                       A-3626-16T3
                                      8
      The judge found, with respect to G.W.'s identification of defendant, there

was "no proof that anything was broadcast over the radio that could have

influenced [G.W.]." Further, the "show[]up [was] made within two hours of the

crime[,]" the victim was possibly focused on the weapon, the victim was not

under the influence, the perpetrator was not disguised, G.W. was ninety percent

sure of his identification, and G.W.'s description was general but accurate.

      Defendant    argues   the   police   impermissibly    influenced    G.W.'s

identification.   Defendant argues G.W.'s description of the robbers was

undetailed, G.W. must have heard the police radio report, and Rabbit told G.W.

the suspects matched the description he gave. None of these assertions are

supported by the record.     G.W.'s description was not especially detailed;

however, the judge found it accurately described the defendant. There was no

testimony G.W. heard the radio broadcast, despite being in the room with

Rabbit. Rather, Rabbit testified he told G.W. he was transporting him to view

the suspects.

      Defendant also argues the identification runs afoul of the requirements

articulated in State v. Delgado, 188 N.J. 48, 63 (2006), that, "as a condition to

the admissibility of an out-of-court identification, law enforcement officers

make a written record detailing the out-of-court identification procedure,


                                                                         A-3626-16T3
                                       9
including the place where the procedure was conducted, the dialogue between

the witness and the interlocutor, and the results." We disagree.

      Detective Rabbit completed a "Showup Identification Procedures

Worksheet" to memorialize the showup with the victim making an identification,

but the process was not electronically recorded. Recently, in Anthony, our

Supreme Court held law enforcement must make an electronic recording of the

identification process, or, if an electronic recording is not feasible, a

contemporaneous, verbatim written account must be prepared. (slip op. at 26-

27). If law enforcement fails to make an electronic recording or verbatim

account, the defendant's remedy is a pretrial hearing regardless of whether the

defendant shows suggestiveness in the identification process. Ibid.

      Anthony does not modify our analysis or ruling in this case. While the

record of the identification procedure in the present case does not comport with

the electronic recording requirement of Delgado and Rule 3:11, defendant

received the hearing mandated by Anthony. Even so, "the ultimate burden

remains on the defendant to prove a very substantial likelihood of irreparable

misidentification." Henderson, 208 N.J. at 289.

      Following the hearing, the trial judge correctly noted that the risk inherent

in a showup can be mitigated if done within two hours of the incident. See State


                                                                           A-3626-16T3
                                       10
v. Pressley, 232 N.J. 587, 592 (2018) (quoting Henderson, 208 N.J. at 259)

("Although showups are inherently suggestive, 'the risk of misidentification is

not heightened if a showup is conducted' within two hours of an event.").

Moreover, the trial judge properly considered the Henderson factors and

weighed the evidence, ultimately finding defendant had not demonstrated a

substantial likelihood of irreparable misidentification. We discern no abuse of

the trial court's discretion in admitting the identification.

                                         II.

        We reject defendant's argument he was denied a fair trial when the Q.B.

letter was admitted to show consciousness of guilt. Ordinarily, courts use the

Cofield3 test to determine the admissibility of other crime evidence under Rule

404(b):

              (1) The evidence of the other crime must be admissible
              as relevant to a material issue;

              (2) It must be similar in kind and reasonably close in
              time to the offense charged;

              (3) The evidence of the other crime must be clear and
              convincing; and

              (4) The probative value of the evidence must not be
              outweighed by its apparent prejudice.


3
    State v. Cofield, 127 N.J. 328, 338 (1992).
                                                                        A-3626-16T3
                                        11
            [Cofield, 127 N.J. at 338.]

Evidentiary rulings are generally reviewed with deference, but our review is

plenary where "the trial court did not apply Rule 404(b) properly to the evidence

at trial[.]" State v. Rose, 206 N.J. 141, 158 (2011).

      Here, the judge did not perform a Cofield analysis but relied on the

analysis from a Law Division case, State v. Young, 435 N.J. Super. 434 (Law

Div. 2013). The court then allowed the State to cross-examine defendant with

the letter to suggest witness tampering. Compounding the error was the lack of

a limiting instruction explaining to the jury the permitted and prohibited

purposes of the evidence. State v. Williams, 190 N.J. 114, 133-34 (2007). This

limiting instruction should be given even if not suggested by defense counsel.

State v. Clausell, 121 N.J. 298, 323 (1990). Nonetheless, we consider this

harmless error.

      Defendant was ultimately acquitted of charges related to the alleged

witness tampering. Defendant argues the risk remained that the jury used the

witness tampering as inadmissible propensity evidence. However, we do not

consider the admission of this evidence sufficient to tip the scales and produce

an unjust result under Rule 2:10-2 in light of the fact that the jury acquitted

defendant of numerous charges.


                                                                         A-3626-16T3
                                       12
      We also reject defendant's assertion that the prosecutor's comments in

summation constituted misconduct. Summations, like jury instructions, must be

read in "the context of the trial as a whole." State v. Morton, 155 N.J. 383, 416

(1998). We do not evaluate a summation in isolation because the State is

permitted to respond to allegations made by defense counsel. State v. Engel,

249 N.J. Super. 336, 379-80 (App. Div. 1991).

      "Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors "may comment

on facts in the record and draw reasonable inferences from them[.]" State v.

Lazo, 209 N.J. 9, 29 (2012). Most importantly, "prosecutors should not make

inaccurate legal or factual assertions during a trial[.]" State v. Reddish, 181 N.J.

553, 641 (2004) (quoting State v. Smith, 167 N.J. 158, 178 (2001)). We will not

reverse unless the prosecutor's conduct was "so egregious that it deprived the

defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting

Smith, 167 N.J. at 181).

      Defendant asserts misconduct occurred when the prosecutor referred to

the Q.B. letter and suggested defendant got rid of a gun allegedly used in the

robberies. Defendant also challenges the use of his prior convictions when


                                                                            A-3626-16T3
                                        13
prosecutor said, "[a] guy who's been out on two [first-degree] offenses three

months; his own testimony, logic would be, I don’t want anything to do with

this."

         In Engel, we said a prosecutor is permitted to respond in summation to

points raised by defendant in summation. 249 N.J. Super. at 379. In summation

here, defense counsel stated, "[a]t least from my client's viewpoint, he ain't out

trying to rob anybody. He just got out and got a job." As defendant directly

referenced his recent release from prison, the prosecutor's response does not

warrant reversal.

         Moreover, the mention of gun disposal was not so improper that it

deprived defendant of a fair trial. Two witnesses testified seeing a gun in

defendant's hand during the commission of the robberies.         At the time of

defendant's arrest, he was not in possession of a gun. The prosecutor was

entitled to draw reasonable inferences from the record. See Lazo, 209 N.J. at

29.

         Finally, we reject defendant's arguments regarding sentencing. We do not

substitute our own judgment for that of the sentencing court. State v. Natale,

184 N.J. 458, 489 (2005). We limit our inquiry to whether the sentencing

guidelines were followed, whether there was competent and credible evidence


                                                                          A-3626-16T3
                                        14
supporting the application of the guidelines, and whether the sentence shocks

the judicial conscience. Ibid.

      Defendant contends the court rejected mitigating factor four, substantial

grounds tending to excuse or justify defendant's conduct. Defendant argues the

judge should have considered his history of psychiatric disorders as outlined in

the presentence report.    The record demonstrates the judge considered the

information and rejected mitigating factor four. We discern no error justifying

reconsideration of defendant's sentence.

      Defendant also alleges a Dunbar violation occurred when the sentencing

judge did not correctly weigh the aggravating and mitigating factors while

setting the base term of the extended sentence but instead focused on defendant's

prior criminal history. State v. Dunbar, 108 N.J. 80, 91-92 (1987). Our review

of the record demonstrates the judge clearly considered the mitigating and

aggravating factors when setting the sentence.

      We need not address defendant's remaining arguments as these arguments

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

      Affirmed.




                                                                          A-3626-16T3
                                       15
