STATE OF NEW JERSEY IN THE INTEREST OF E.R., a juvenile

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04311-13T2

STATE OF NEW JERSEY IN THE

INTEREST OF E.R., a juvenile.

________________________________

October 31, 2016

Submitted February 22, 2016 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-1260-14.

Joseph E. Krakora, Public Defender, attorney for appellant (RobertD. VanPelt, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

E.R. appeals from an adjudication of delinquency for acts which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1(a), and second-degree conspiracy, N.J.S.A. 2C:5-2. After merger, the trial judge imposed a one-year probationary term.

On appeal, E.R. raises the following arguments

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, RESULTING IN A MANIFEST DENIAL OF JUSTICE.

POINT III

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION IN ACCORDANCE WITH RULE[S] 1:7- 4 AND 1-6:2(f), BECAUSE THE COURT EXPRESSED ITS DECISION BASED ON AN INCORRECT AND IRRATIONAL BASIS, AND IT IS OBVIOUS THAT THE COURT NEITHER CONSIDERED NOR APPRECIATED THE SIGNIFICANCE OF PROBATIVE, COMPETENT EVIDENCE.

POINT IV

THE COURT ERRED IN FAILING TO CONDUCT A [WADE]1 HEARING AND DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO REQUEST A HEARING TO SUPPRESS IN COURT AND OUT OF COURT IDENTIFICATIONS AND THEREBY DENIED THE JUVENILE HER RIGHTS TO DUE PROCESS.

POINT V2

THE TRIAL COURT ERRED IN ADMITTING STATE'S EXHIBIT[S] S-1 AND S-2 INTO EVIDENCE, BECAUSE SAID EXHIBITS WERE IRRELEVANT, PREJUDICIAL AND WERE NOT AUTHENTICATED.

POINT VI

THE STATE FAILED TO PROVIDE DEFENSE WITH REQUIRED DISCOVERY RELATING TO THE IDENTIFICATION PROCEDURE. [(Not Raised Below)]

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We derive the following facts from the trial record. At approximately 10:00 p.m. on September 8, 2013, D.D.3 and two friends were walking down a street in the Newark's Ironbound neighborhood after attending a festival when they passed two females walking in the opposite direction. D.D. said, "what's up," but they did not respond. The females walked about thirty feet away and spoke to a group of approximately six males. Moments later, D.D. heard someone from the group say, "okay, let's go, . . . let's get that one[.]" D.D. told his friends that they "better move it along because I think they might want to rob us." While his friends were able to run away, D.D. was restrained and assaulted by the males, causing him to become momentarily unconscious. After D.D. regained consciousness, one of the females removed his cell phone from his pocket as he was being held up by two males. As a result of the beating, D.D. was hospitalized for two days, during which time he had surgery to repair a broken jaw.

Two days later, following his release from the hospital, D.D. went to the police station to report the incident. Although he could not identify any of the male attackers, he identified the female who took his phone as "white" with "blond hair." He also indicated that she was "chubby," looking like she may have been "pregnant."

At some point thereafter, D.D. told a friend about the incident and described the female who took his phone. The friend then showed D.D. photographs on his cell phone that were posted on the social media website, Instagram. D.D. recognized the female in one of the photos, claiming "[w]hen I saw her face, I couldn't forget it from the day of the incident." On September 17, D.D. and his friend went to the police station to meet with the detective investigating the assault. The friend showed the detective the Instagram photo of the female that D.D. accused of taking his phone. The friend then emailed the photo to the detective.

About a month later, the detective was driving around Ironbound when she thought she saw the female in the Instagram photo. She approached the female who identified herself as E.R. Three weeks later, the detective arrested E.R.

At trial, the central focus was D.D.'s identification of E.R. D.D. unequivocally identified E.R. in-court, and confirmed his out-of-court Instagram photo identification of her as the female who took his cell phone during the assault. D.D. maintained that he never told the police that she was pregnant, but that she looked pregnant.

At the conclusion of the State's case, E.R. moved for a judgment of acquittal of all charges, pursuant to Rule 3:18-1. The trial judge denied the motion based on his finding that D.D.'s testimony regarding the incident and his identification of E.R.'s involvement was credible and sufficient to sustain the charges beyond a reasonable doubt.

E.R. did not testify but sought to discredit D.D.'s identification of her by presenting three witnesses. Two of them, E.R.'s family members, contended that she was never pregnant nor looked pregnant. One family member, however, acknowledged that at the time of the incident and E.R.'s arrest, E.R. had blond hair, as D.D. contended.4 E.R.'s other witness was the police officer who received D.D.'s initial report of the incident. He confirmed that D.D. never asserted that the female who took his cell phone was pregnant, but stated the female was "chubby or maybe pregnant at the time[.]" (emphasis supplied).

Following the parties' summation, the trial judge rendered an oral decision adjudicating E.R. delinquent. He found that D.D. was credible in his identification of E.R., both out-of-court and in-court, as the female who took his cell phone when he was assaulted. Recognizing that there was little testimony detailing how E.R. was identified on the Instagram photo, the judge was satisfied that it was her in the photo, which in turn led to her arrest. In commenting that the Instagram photo identification did not involve law enforcement, the judge found that the identification process was "not really of any consequence to the [c]ourt."

As to D.D.'s testimony regarding E.R.'s weight and whether she looked pregnant, it had no significance on the judge's consideration of D.D.'s assertion that E.R. took his phone. The judge remarked,

[t]he testimony given by [D.D.], I don't believe, with regard to [E.R.'s] weight or the fact that she may or may not have been pregnant or may have looked pregnant or looked chubby, whatever the case might be, was something that would affect his ability to be able to see, perceive and understand the person who was involved, the female who was involved in this robbery on the date in question. I believe that his testimony with regard to her facial appearance was consistent, that he had ample opportunity to review it, to see it at the time in question, both before the incident and during the incident, and within a short period of time thereafter, was able to identify her in this photograph.

Thereafter, E.R. moved for a new trial, Rule 3:20-1, and a motion for amendment of the court's decision, Rule 1:7-4(b). The respective motions essentially made the same arguments at trial. The judge denied the motions, emphasizing his verdict was based upon D.D.'s credible in-court identification that E.R. was the person who took his phone. The judge did not find any fault with the Instagram photo because D.D. testified that it was a photo of the female who took his phone, and it clearly was E.R. The judge also observed that nothing prevented the defense from investigating the manner in which the photo was discovered and identified by D.D. He noted that no discovery issues were presented to the court, and D.D.'s friend could have been subpoenaed by the defense. This appeal followed.

II.

We first address E.R.'s arguments regarding the admissibility of D.D.'s out-of-court identification. In Point IV, E.R. contends that prior to trial, her attorney failed to seek a Wade hearing to challenge the admissibility of the Instagram photo that was shown to D.D. under highly suggestive circumstances. Thus, E.R. argues that she is entitled to post-conviction relief (PCR) as trial counsel was ineffective based upon Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). E.R. further asserts that in the absence of counsel's request, the trial court should have sua sponte conducted a Wade hearing. We disagree.

A Wade hearing is a pre-trial proceeding in which the trial court determines "if [an out-of-court] identification procedure [involving police conduct] was impermissibly suggestive and, if so, whether the identification is reliable." State v. Micelli, 215 N.J. 284, 288 (2013). The standard for governing out-of-court identification where there is suggestive behavior by a private party without any state action is set forth in State v. Chen, 208 N.J.307 (2011). Although due process concerns are not implicated when the identification procedure does not involve government conduct, a defendant may challenge an identification tainted by private activity. Id. at 317-18. A defendant may be entitled to a Rule 104 hearing on the admissibility of the identification evidence where the defendant satisfies a heightened evidentiary threshold of "some evidence of highly suggestive circumstances as opposed to [the threshold of] simply suggestive conduct [required by State v. Henderson, 208 N.J. 208 (2011)]." Id. at 327. Therefore, in order "to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification[.]" Ibid.

Once a showing of highly suggestive conduct through private conduct has been made, as in cases of police conduct, the State must "offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and . . . [the] defendant has the burden of showing a very substantial likelihood of irreparable misidentification." Id. at 327. Neither Henderson nor Chen impose any obligation on trial courts to raise suggestiveness issues on their own motion. Moreover, a showing of suggestiveness is not necessarily fatal, as the court may still find the identification reliable. See State v. Madison, 109 N.J. 223, 232 (1988) ("If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.").

Applying these principles, we conclude there was no factual basis for a hearing to challenge the admissibility of the Instagram photo either at the request of trial counsel or sua sponte by the trial court. Any such hearing would not have been a Wade hearing, but a Rule 104 hearing, because there was no state action involved in the identification process. D.D. and his friend took E.R.'s photo to the police with D.D. maintaining that it was a photo of the female who took his phone during the assault.

We do, however, take issue with the trial judge's statement that D.D.'s acquisition of the photo was of "no consequence[]" because there was no police involvement. Nevertheless, no hearing is warranted to determine the photo's admissibility because there is nothing in the record suggesting that the circumstances surrounding the identification of E.R. through Instagram was highly suggestive. Moreover, there is no indication that the identification was unreliable.

Having concluded that a hearing to contest the out-of-court identification was not warranted, we reject E.R.'s PCR claim that trial counsel was ineffective for not making a Wade motion for the same reasons. We add that, normally, we do not decide ineffective assistance of counsel claims for the first time on an appeal because it is the Law Division's obligation to first resolve such claims before they are presented to us on appeal. State v. Preciose, 129 N.J. 451, 460 (1992). However, here, resolution is appropriate because we need not rely upon examination of evidence outside the trial record. See id., supra, 129 N.J. at 460.

In Point VI, E.R. contends that the State failed to provide discovery regarding the identity of D.D.'s friend who showed D.D. the Instagram website and the manner in which they located and identified E.R.'s photo. We are unpersuaded.

Although in rendering his verdict, the judge commented about the absence of any testimony regarding the manner in which E.R.'s photo was located and identified on Instagram, it was not until the post-trial motions that defendant raised this issue. Even so, there was no request to sanction the State for this alleged failure. Thus, the issue should arguably be reviewed under plain error, where we reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). However, regardless of whether we review this challenge under plain error, we conclude the State did not violate E.R.'s rights to discovery.

We are mindful that the State's "obligation to 'turn over material, exculpatory evidence to the defendant' is well established and does not require extended discussion." State v. Nash, 212 N.J. 518, 544 (2013) (quoting State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). "A breach of this duty of disclosure - in appropriate circumstances - violates a defendant's due process rights." Ibid. (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)). "However, the due-process guarantee does not impose on a prosecutor a constitutional duty to investigate." Ibid.

Here, E.R. fails to present any facts suggesting that the State did not disclose information it possessed concerning the identity of D.D.'s friend or the manner in which the Instagram identification occurred. The record suggests the State disclosed all the information in its possession, and no supplemental discovery request was made. Simply put, the State's decision not to further investigate the identification process, did not prevent the defense from doing so.

In Point V, E.R. contends that the trial court abused its discretion in admitting into evidence the Instagram and arrest photos of E.R. because they were: irrelevant, N.J.R.E. 401; unduly prejudicial, N.J.R.E. 403; and admitted without proper foundation, N.J.R.E. 901. E.R. argues that the court should have sua sponte conducted a Rule 104 hearing because the Instagram photo was the product of highly suggestive circumstances. In light of the record and applicable legal principles, we conclude these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, as noted, the photos were only used to establish how D.D. identified E.R., not to prove that she committed the offenses charged.

III.

In Points I, II, and III, E.R. challenges the trial court's decisions denying her motions for acquittal, new trial, and reconsideration of the adjudication of delinquency. Although the standard for resolving these respective motions differs, we will discuss them together because E.R. contends each motion was denied based upon the trial court's incorrect finding that there was proof beyond a reasonable doubt that E.R. took D.D.'s phone as he was assaulted. E.R. claims that the State's case was based solely on D.D., who did not offer credible evidence regarding: the date and time of the assault; the description that it was E.R. who took his phone; and the Instagram photo identification of E.R. We disagree.

We first consider our standards of review. A motion for judgment of acquittal shall be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. An appellate court must determine "whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

A motion for a new trial is only granted when a trial judge sets aside a jury's verdict as "against the weight of the evidence," if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1.

Parties may request a court to alter or amend its findings of fact or reconsider its conclusions of law, pursuant to Rule 1:7-4(b). See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:7-4 (2015) ("This rule expressly permits a motion for reconsideration or rehearing to be filed under this rule or [Rule] 4:49-2 . . . following entry of the order or judgment."). Parties moving to amend or alter findings of fact must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or on which it has erred." R. 1:7-4(b). "'[As] a matter within the sound discretion of the [c]ourt,'" reconsideration should only "'be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is designed for the limited purpose to seek review of a prior order when the judge has overlooked critical information or misapprehended information in the record or has overlooked relevant authority. Id. at 384; D'Atria, supra, 242 N.J. Super. at 401-02.

With these principles in mind, E.R. fails to persuade us that the trial judge's decisions denying her motions were without support in the record. His rulings were based on the determination that D.D.'s in- and out-of-court identifications of E.R. were credible. We see no reason to disturb that assessment when reviewing the motion for acquittal at the conclusion of the State's case, as well as considering the added testimony of the defense witnesses in deciding the motions for new trial and reconsideration.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 This Point was not listed in the Table of Contents section of the brief but was identified and argued in the Legal Argument section.

3 We use the victim's initials to protect his identity.

4 At trial, E.R.'s hair color was darker.