STATE OF NEW JERSEY v. KEVIN A. ROBBINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN A. ROBBINS,

Defendant-Appellant.

___________________________________

June 10, 2016

Submitted January 13, 2016 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-05-0840.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction of fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). Defendant stipulated that on the day of the alleged crime, January 19, 2012, he was aware that his New Jersey driver's license was suspended after a second conviction for driving while under the influence, N.J.S.A. 39:4-50. However, he denied that he operated the motor vehicle stopped by the arresting officer, Middletown Township patrolman Adam Colfer. Thus, the principal issue at trial was whether defendant was the person driving the car. His sole point on appeal, which he asserts as plain error, is that the court failed to properly instruct the jury regarding Colfer's out-of-court identification of defendant. Having considered his argument in light of the record and applicable principles of law, we affirm.

I.

Colfer was the only witness at the January 15, 2014 trial. He testified that at 11:40 p.m. on January 19, 2012, he pulled over a gray Dodge van for running a red light. The stop occurred in a well-lit area on Thompson Avenue, near the intersection of Route 36. He illuminated the van with his police car's spotlight. After alerting dispatch of the stop, Colfer approached the driver's door and shined his flashlight on the driver. He had a good view of the driver a "white male, thin, clean-shaven, had glasses on, darker hair."

Colfer introduced himself, explained the reason for the stop, and asked the driver for his credentials. The man produced a New York driver's license. Colfer looked at the photo on the license and the man in the stopped van, and determined it was a match. The name on the New York license was Kevin Robbins, with a birthdate of January 17, 1968. The driver also orally confirmed that his name was Kevin Robbins and he was born January 17, 1968. In response to Colfer's questioning, the driver denied that he ever possessed a New Jersey driver's license.

Colfer returned to his patrol car, and asked dispatch to run the driver's name, date of birth, and license number. Dispatch then informed Colfer that Kevin Robbins had a New Jersey driver's license, which was currently suspended for DWI. Colfer walked back to the van and told the driver, "Kevin, you lied to me. . . . Your license in New Jersey is suspended."

Colfer testified that Robbins then shook his head in the affirmative and said, "[I]t looks like I'm going to jail." Refreshed with his February 22, 2013 supplemental report, Colfer testified that Robbins had actually stated, "Now I'm going to jail for six months."1 Colfer wrote three tickets during the stop: failure to observe a signal, N.J.S.A. 39:4-81; driving while suspended for DWI, N.J.S.A. 39:3-40; and driving while unlicensed, N.J.S.A. 39:3-10.2 Colfer did not, at that time, sign a complaint charging a violation of N.J.S.A. 2C:40-26(b). Colfer learned during the stop that Robbins lived "maybe a block away" from where he was pulled over.

Colfer testified that when he returned to the police station, he retrieved an image of Robbins's driver's license from a Motor Vehicle Commission (MVC) database and the photo matched the driver he stopped that night. Colfer also asserted that on the night of the stop, he wrote the first of two reports of the incident.3 The second was prepared a year later, when Colfer said he again viewed a photo of Robbins and determined it matched the driver. Colfer also identified defendant in court as the man he stopped.

On cross-examination, defense counsel highlighted several discrepancies in Colfer's report. Colfer admitted that his January 19 report did not say that he viewed the MVC photo that night.4 It also erroneously stated that the stop occurred on Center Avenue in Middletown. The report did not refer to Colfer's discussion with Robbins about whether he had a New Jersey license, Robbins's ultimate admission that he did, or his "I'm going to jail" comment. However, the report stated that "[a]fter further investigation" Robbins was mailed a summons for violating N.J.S.A. 2C:40-26(b), which Colfer admitted did not occur until July 24, 2012, several months after he allegedly prepared the January 19, 2012 report. He testified that he issued this complaint after learning that the facts supported an N.J.S.A. 2C:40-26 charge.

Colfer testified that he wrote a second report on February 22, 2013, after an assistant prosecutor told him the driver's identity would be disputed at trial. The report stated that on February 22, Colfer printed out Robbins's New Jersey driver's license photo, which "positively identified the driver of this stop as Kevin Robbins." Colfer acknowledged that this report did not mention that he viewed Robbins's MVC photo on January 19, 2012. This report for the first time recounted Robbins's "I'm going to jail" comment.

In the jury instructions, which were also provided in writing, the court modified the model charge on in-court and out-of-court identifications.5 The court did so after receiving counsel's requested instruction and obtaining defense counsel's consent to the final charge. Defendant's requested instruction is not included in the appellate record.

The jury deliberated for less than an hour before returning its guilty verdict. The court then found defendant guilty of the motor vehicle complaint-summonses, finding that defendant was the driver Colfer stopped. The court sentenced defendant on the criminal conviction to a term of probation of two years, conditioned upon a mandatory jail term of 180 days. Defendant's driver's license was suspended for twelve months.

Defendant's sole point on appeal is

THE COURT'S IDENTIFICATION CHARGE WAS NOT PROPERLY TAILORED TO ADDRESS CRITICAL LEGAL AND FACTUAL ISSUES, INCLUDING: (1) THE OFFICER'S FAILURE TO MAKE A RECORD OF AN OUT-OF-COURT IDENTIFICATION SUPPOSEDLY CONDUCTED ON THE NIGHT OF THE EVENT, AS REQUIRED BY STATE V. DELGADO; (2) THE IMPERMISSIBLE SUGGESTIVENESS OF A SINGLE PHOTO "SHOW-UP" IDENTIFICATION CONDUCTED BY THE PRIMARY INVESTIGATOR MORE THAN ONE YEAR AFTER THE EVENT, WITHOUT ANY OF THE SAFEGUARDS DISCUSSED IN STATE V. HENDERSON; AND (3) HOW THE NUMEROUS ERRORS AND OMISSIONS IN THE OFFICER'S REPORTS ARE INDICATIVE OF A POTENTIAL MISIDENTIFICATION. (Not Raised Below).

II.

As defense counsel expressly stated that the jury instructions were satisfactory, we may reverse only if the identification charge was plain error, that is, was "'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182 (2012) (quoting R. 2:10-2). We view the alleged error in the context of the charge as a whole, mindful that the absence of objection suggests defendant's trial counsel perceived no prejudice. State v. Wilbely, 63 N.J. 420, 422 (1973). Whether plain error exists "depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2006) (rejecting argument that failure to deliver identification instruction was plain error). Even where identification is a "key issue" and the trial court completely omits an identification charge, the Supreme Court has rejected a per se rule requiring reversal. State v. Benthall, 182 N.J. 373, 386 (2005).

We consider first defendant's argument that the court should have addressed the officer's failure to document his identification at the station house the night of the stop. Defendant relies on State v. Delgado, 188 N.J. 48, 63 (2006), in which the Court required as a condition of admissibility that the officer "make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." The Court reasoned that recording the details of an identification procedure is essential to enable a jury to assess the reliability of the identification. Id. at 59-60. The Court reaffirmed the record-keeping requirement in State v. Henderson, 208 N.J. 208, 252 (2011).

The Court adopted Rule 3:11 to implement Delgado's record-keeping requirement. The Rule clarifies that the remedy for failure to comply with the record-keeping requirements may include exclusion, redactions, or an appropriate jury charge

If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification.

[R.3:11(d).]

We discern no plain error in the trial court's failure to deliver a "Delgado charge." Even assuming that Colfer was required by Delgado to document his retrieval of Robbins's MVC photo and identification of the depicted person as the driver he stopped, there was no interaction between Colfer and another law enforcement officer to record. While we recognize the inherent suggestiveness of viewing a single photograph that was already associated with defendant, the jury charge addressed this suggestiveness.

Defendant argues that the omission of a Delgado charge was prejudicial because it "might have caused jurors to question" whether Colfer viewed any photograph at all. This is not the evil that the recording requirement was designed to address. In any event, defense counsel was able to question Colfer as to whether he did in fact retrieve and identify a photo of Robbins shortly after the stop. Counsel's cross-examination highlighted that Colfer's first report did not mention the photo identification and also suggested that this report was prepared long after Colfer claimed. Furthermore, there was other powerful evidence that the driver Colfer stopped was defendant. Colfer testified that the driver matched the photograph on the New York driver's license. When Colfer told Robbins that his New Jersey license was suspended, Robbins allegedly responded that he was going to jail.

Defendant also argues the charge did not adequately explain the risk of misidentification, because (1) it omitted language from the model jury charge about reliable alternatives to single-photo arrays and (2) it suggested that a single-photo array was necessary in this case. Defendant argues that Colfer should have asked for a photo lineup with a double-blind administrator, to assure the reliability of his identification, and that the court should have instructed the jury about the significance of Colfer's failure to do so.

We are unpersuaded that the court's omissions constitute plain error. The model charge does not uniformly require judges to instruct juries regarding lineup composition, fillers, and multiple viewings so-called system variables. The model charge directs judges to instruct regarding these factors "as appropriate." "Ordinarily, the better practice is to mold the instruction in a manner that explains the law . . . in the context of the material facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). Since there was no lineup, and no suggestive fillers or multiple viewings, we do not discern the omission as clearly capable of producing an unjust result.

We also reject defendant's argument that the court suggested the single photo identification was necessary. The judge stated, drawing from the model charge, "Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct one-on-one identification procedures utilizing a single photograph." However, the judge went on to say that "the viewing of a single photograph conducted more than two hours after an event, present[s] a heightened risk of misidentification."

Finally, we disagree that the court should have sua sponte discussed errors in Colfer's reports that may have suggested misidentification. These errors included (1) incorrect timestamps, (2) the January 19, 2012 report stated events that occurred in the future, (3) the February 22, 2013 report incorrectly stated the location of the traffic stop, and (4) both reports omitted facts that Colfer later asserted in his testimony. A "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997). Assuming the inconsistencies in Colfer's testimony undermined his credibility, defense counsel had ample opportunity to highlight that to the jury.

Affirmed.

APPENDIX6

Now, the State has presented the testimony of Patrolman Adam Colfer of the Middletown Township Police Department. You'll recall that this witness identified the Defendant in court as a person who was driving the automobile. He, Colfer, stopped on January 19, 2012. The State also presented testimony that on a prior occasion, before this trial, this witness identified the Defendant as the person who committed the offense. According to the witness, his identification of the Defendant was based upon the observations and perceptions that he made of the perpetrator at the time the offense was being committed.

It is your function to determine whether the witness's identification of the Defendant is reliable and believable, or whether it's based on a mistake, or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable that this Defendant is the person who committed the offense charged.

Now, eyewitness identification evidence must be scrutinized carefully. Human beings have the ability to recognize other people from past experiences, and to identify them at a later time. But research has shown that there are risks of making mistaken identifications. That research is focused on the nature of memory and the factors that affect the reliability of eyewitness identification. Human memory is not foolproof.

Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex. The process of remembering consists of three stages: acquisition, the perception of the original event, retention, the period of time that passes between the event and the eventual recollection of a piece of information, and retrieval, the stage during which a person recalls stored information.

At each of these stages memory can be affected by a variety of factors. Relying on some of the research that's been done, I'll instruct you on specific factors you should consider in this case in determining whether the eyewitness identification evidence is reliable. In evaluating this identification, you should consider the observations and perceptions on which the identification was based, the witness's ability to make those observations and perceive events, and the circumstances under which their identification was made.

Although, nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony be advised that a witness's level of confidence standing alone may not be an indication of the reliability of the identification.

If you determine that the out-of-court identification is not reliable, you may still consider the witness's in court identification of the Defendant, if you find that it resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense, and that the identification is reliable.

If you find that the in-court identification is the product of an impression gained at an out-of-court identification procedure, it should be afforded no weight. The ultimate question of reliability of both the in and out of court identifications is for you to decide. To decide whether the identification testimony is sufficiently reliable evidence to conclude that this Defendant is the person who committed the offense charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I've already explained to you.

In addition, you should consider the following factors that are related to the witness, the alleged perpetrator, and the criminal incident itself. In particular, you should consider: one, the witness's opportunity to view, and the degree of attention. In evaluating the reliability of the identification, you should assess the witness's opportunity to view the person who committed the offense at the time of the offense, and the witness's degree of attention to the perpetrator at the time of the offense.

In making these assessments you should consider the following: A, was there any stress. Even under the best viewing conditions, high levels of stress can reduce an eyewitness's ability to recall and make an accurate identification. Therefore, you should consider a witness's level of stress and whether that stress, if any, detracted the witness, or distracted the witness, or made it harder for him or her to identify the perpetrator.

B, duration. The amount of time an eyewitness has to observe an event may affect the reliability of the identification. Although, there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure to the perpetrator. In addition, time estimates given by witnesses may not always be accurate, because witnesses tend to think events lasted longer than they actually did.

C, distance. A person is easier to identify when they're close by. The greater the distance between an eyewitness and a perpetrator, the higher risk of a mistaken identification. In addition, a witness's estimates of how far he or she was from a perpetrator may not always be accurate, because people tend to have difficulty estimating distances.

D, lighting. Inadequate lighting can reduce the reliability of an identification. You should consider the lighting conditions present at the time of the alleged crime in this case.

Two, a prior description of the perpetrator. Another factor for you to consider is the accuracy of any description the witness gave after observing the incident and before identifying the perpetrator. Facts that may be relevant to this factor include whether the prior description matched the photo or person picked out later, whether the prior description provided details or was just general in nature, and whether the witness's testimony at trial was consistent with or different from his prior description of the perpetrator.

Three, confidence in accuracy. As I explained earlier, the witness's level of confidence standing alone may not be an indication of the reliability of the identification. Although, some research has found that highly confident witnesses are more likely accurate to make identifications. Eyewitness confidence is generally an unreliable indicator of accuracy.

Four, time elapsed. Memories fade with time. As a result, delays between the commission of the crime and the time an identification is made can affect the reliability of the identification. In other words, the more time that passes, the greater the possibility that a witness's memory of a perpetrator will weaken. In evaluating the reliability of a witness's identification, you should also consider the circumstances under which any out-of-court identification was made, and whether it was the result of a suggestive procedure.

In that regard, you may consider everything that was done or said by the law enforcement to the witness. Here, the witness is a member of law enforcement during the identification process. You should consider the following factor. One, the viewing of a single photograph. In this case, the witness identified with Defendant during a viewing of a single photograph. That is, the Defendant was the only person shown to the witness at that time.

Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct one-on-one identification procedures utilizing a single photograph. Although, the benefits of a fresh memory may balance the risk of a suggestion, one-on-one identification procedures including the viewing of a single photograph conducted more than two hours after an event, present a heightened risk of misidentification.

In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time had elapsed after the witness last saw the perpetrator, and all the circumstances surrounding the viewing of the single photograph. You may consider this factor when you consider the circumstances under which the identification was made, and when you evaluate the overall reliability of the identification.

You may consider whether the witness was exposed to opinions, descriptions, or identifications given by other witnesses, to photographs or to newspaper accounts, or to any other information or influence that may have affected the independence of his identification. Such information can affect the independent nature and reliability of a witness's identification and inflate the witness's confidence of his identification.

You are also free to consider any other factor based on the evidence or lack of evidence in the case that you consider relevant to your determination, whether that identification was reliable. Keep in mind that the presence of any single factor or combination of factors, however, is not an indication that a particular witness is incorrect. Instead, you may consider the factors that I've discussed as you assess all of the circumstances of the case including all the testimony and documentary evidence in determining whether a particular identification made by a witness is accurate and thus worthy of your consideration as you decide whether the State has met its burden to prove identification beyond a reasonable doubt.

If you determine that the in-court or out-of-court identifications resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense, you may consider that evidence and decide how much weight to give it. If, instead you decide that the identifications are a product of an impression gained at the in-court and/or out-of-court identification procedures, the identification should be afforded no weight. The ultimate issue of trustworthiness of an identification is for you to decide.

If after consideration of all the evidence, you determine that the State has not proven beyond a reasonable doubt that the Defendant was the person who committed this offense, then you must find him not guilty. If on the other hand, after consideration of all the evidence you're convinced beyond a reasonable doubt that the Defendant was correctly identified, you may then consider whether the State has proven each and every element of the offense charged beyond a reasonable doubt.

1 The fourth-degree crime, with a mandatory minimum sentence of 180 days, was established by L. 2009, c. 333, 1, which became effective August 1, 2011, less than six months before the stop.

2 The failure-to-observe ticket referred to Robbins's New York driver's license and listed a Staten Island address and a January 17, 1966 birthdate. The other two tickets referred to his New Jersey license and listed a Middletown address and a January 17, 1968 birthdate. Colfer testified he made the change after dispatch informed him that Robbins had a suspended New Jersey license.

3 Although admitted into evidence, neither of the two reports are included in the appellate record.

4 The report was time-stamped at 4:05 p.m., several hours before the stop. Colfer blamed the time-stamp on a quirk in the computer he used, which automatically generated the time, although he could have corrected it.

5 The court's identification instruction is attached as an appendix to this opinion.

6 We have corrected minor typographical errors in the transcript.