STATE OF NEW JERSEY v. DARRYL DENMARK

NOT FOR PUBLICATION WITHOUT THE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.

DARRYL DENMARK, a/k/a

DARREL DENMARK,

Defendant-Appellant.

__________________________

October 27, 2014

 

Argued September 23, 2014 Decided

Before Judges Reisner, Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1125.

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

Jennifer J. Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, argued cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Pinales, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Darryl Denmark appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (a)(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He also appeals from the aggregate sentence of forty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, thirty-five years of which were to be served without parole.1

On this appeal, defendant raises the following points of argument for our consideration

POINT I

THE COURT ERRED IN FINDING THAT THE RELIABILITY OF CHOICE'S IDENTIFICATION OUTWEIGHED THE INCREDIBLY SUGGESTIVE AND COERCIVE PROCEDURES EMPLOYED BY THE POLICE IN ELICITING THE IDENTIFICATION.

POINT II

LIEUTENANT DIAZ'S TESTIMONY ABOUT WHY HE CHOSE THE PARTICULAR PHOTOGRAPH TO SHOW TO CHOICE WAS IRRELEVANT AND HIGHLY PREJUDICIAL. (Not raised below).

POINT III

THE COURT'S JURY INSTRUCTIONS ON IDENTIFICATION WERE DEEPLY FLAWED, REQUIRING REVERSAL. (Not raised below).

A. BECAUSE IDENTIFICATION OF THE SHOOTER WAS THE CRUCIAL QUESTION AT TRIAL, THE COURT'S TOTAL FAILURE TO INSTRUCT THE JURY ON MS. CORTES' IDENTIFICATION AMOUNTED TO PLAIN ERROR. (Not raised below).

B. THE COURT FAILED TO TAILOR THE JURY INSTRUCTIONS TO THE UNIQUE FACTS OF THIS CASE, AND FAILED TO INSTRUCT THE JURY TO CONSIDER VIOLATIONS OF THE ATTORNEY GENERAL GUIDELINES AS FACTORS RELEVANT TO THE RELIABILITY OF CHOICE'S IDENTIFICATION. (Not raised below).

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS DENIED DENMARK A

FAIR TRIAL.

POINT V

BECAUSE THE JURY INSTRUCTIONS ON UNLAWFUL POSSESSION OF A FIREARM FAILED TO INCLUDE AN ELEMENT OF THE CRIME AND LACKED AN ESSENTIAL PORTION OF THE CHARGE, THIS CONVICTION MUST BE REVERSED. (Not raised below).

POINT VI

THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED CONTAINS A PERIOD OF PAROLE INELIGIBILITY GREATER THAN THAT MANDATED BY THE CODE AND BECAUSE THE COURT ERRED IN FAILING TO MERGE TWO OF THE CONVICTIONS.

A. DENMARK'S SENTENCE IS ILLEGAL BECAUSE THE PERIOD OF PAROLE INELIGIBILITY ON THE MURDER CONVICTION MUST BE EIGHTY-FIVE PERCENT OF HIS SENTENCE, OR THIRTY-FOUR YEARS, PURSUANT TO NERA.

B. DENMARK'S CONVICTION FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE MUST MERGE WITH HIS CONVICTION FOR MURDER.

POINT VII

THE COURT FAILED TO CONSIDER MITIGATING FACTOR TWELVE, WHICH WAS AMPLY SUPPORTED BY THE RECORD, REQUIRING A REMAND FOR RESENTENCING.

In his supplemental pro se brief, defendant raises the following issues

POINT I

THE TRIAL COURT ERRED IN DETERMINING THAT THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT WAS RELIABLE ABSENT ANY EVIDENCE OF INDEPENDENT RELIABILITY OVER THE CORRUPTIVE EFFECTS OF THE SUGGESTIVENESS OF THE DETECTIVES WHO IMPOSED DEFENDANT'S IDENTIFICATION ON THE EYEWITNESS.

POINT II

LIEUTENANT DIAZ'S TESTIMONY ABOUT WHY HE CHOSE THE PARTICULAR PHOTOGRAPH TO SHOW TO CHOICE WAS IRRELEVANT AND HIGHLY PREJUDICIAL WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION.

POINT III

THE COURT'S CUMULATIVE ERRORS ON THE JURY INSTRUCTIONS PERTAINING TO THE IDENTIFICATION EVIDENCE WERE DEEPLY FLAWED, DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL REQUIRING REVERSAL OF CONVICTION. U.S. CONST. AMEND. V, XIV; N.J. CONST. ART. I PAR. 1 & 9.

POINT IV

THE ERRORS COMMITTED DURING DEFENDANT'S TRIAL CUMULATIVELY IMPACTED THE FAIRNESS OF THE TRIAL, DEPRIVING THE APPELLANT OF HIS CONSTITUTIONAL RIGHTS OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I PAR. 1, 8, 9.

Finding no error in the outcome of the Wade2 hearing, and no trial errors warranting reversal, we affirm the conviction. We also affirm the forty-year prison term. However, the State concedes that under NERA, the term of parole ineligibility imposed should have been thirty-four years rather than thirty-five years. The State also concedes that the conviction for possession of a weapon for an unlawful purpose merges with the murder conviction. Accordingly, we remand for the limited purpose of amending the judgment of conviction to correct those two errors.

I

We begin by addressing the identification issue, which arose in the following context. Shortly before midnight on April 1, 2009, Ormont Logan was shot on Clendenny Avenue in Jersey City. He later died of his wounds. Logan's close friend, James Choice3, witnessed the shooting from his car parked across the street, after spending five to ten minutes observing Logan and the shooter having a conversation. Choice told the police that he knew who shot Logan, and he "wanted to take care of it" himself. Later that night, after Logan died at the hospital, Choice was brought to the Hudson County Prosecutor's Office to speak with homicide detectives.

According to Prosecutor's Detective Efrain Diaz, the sole witness at the Wade hearing, he feared that if Choice left the Prosecutor's Office without revealing the shooter's identity, Choice would then "take matters into his own hands." Consequently, Diaz and several other detectives interviewed Choice at length in an effort to convince him to tell them the shooter's name. They eventually invited the victim's mother to come into the interview room to entreat Choice to tell what he knew.

At first, Choice was reluctant to make any statement or identify the shooter. He told the detectives that he did not want be labeled a "tattle-tale" and feared retribution because the shooter was a member of the Bloods street gang. After continued prompting from the detectives and Logan's mother, Choice named defendant, whom he called "D", as the shooter. He told the detectives that D was the father of Jessica R's baby.4 Logan's mother told the police that D had recently been released from jail.

After checking a computer database, the detectives determined that Jessica had recently posted bail for Daryl Denmark. They also determined that defendant fit Choice's general physical description of the shooter. One of the detectives pulled up defendant's photograph from a police database, and Diaz showed Choice the photo to determine whether this was the person whom Choice knew as D and whom he claimed was the shooter. When showing Choice the photo, Diaz asked him whether that was the person who shot his brother. Choice replied in the affirmative.

Diaz admitted that in several respects including showing defendant only one photograph instead of presenting him with an array of several photos, and in allowing an investigating officer to show him the photo instead of having the presentation done by someone unconnected with the investigation -- the police did not follow the procedures set forth in the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (adopted April 18, 2001). See State v. Herrera, 187 N.J. 493, 511-20 (2006). However, according to Detective Diaz, he did not follow the Guidelines because he believed they did not apply to this situation.

Diaz explained his understanding that the Guidelines were to be used in situations where a witness was trying to identify a stranger. By contrast, in this case, Choice knew the shooter's nickname, had known him since childhood, gave a physical description of the shooter, and told the detectives that the shooter was the father of Jessica's one-year-old son.5 Thus, the shooter was not a stranger to Choice. Diaz believed that the issue was not whether Choice could identify the shooter, within the meaning of the Guidelines, but whether he could be persuaded to tell the police the shooter's name. Diaz confirmed that the entire session during which Choice was questioned was recorded on video. A DVD of the interview was played at the Wade hearing.

On June 29, 2010, the motion judge issued a comprehensive written opinion. After applying the factors set forth in Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), she denied the suppression motion, finding that the identification was reliable.6

Relying on State v. Herrera, supra, the judge rejected the State's argument that the witness's prior familiarity with the perpetrator obviated the need apply a Manson analysis or to consider police compliance with the Guidelines. Instead, she concluded that the witness's familiarity with the suspect was an important factor to consider in assessing the reliability of the identification. She determined that showing Choice one photo of the suspect was the equivalent of a "show-up." However, while she found that the process used was suggestive, she concluded that the identification was reliable.

The judge reasoned that, in Herrera, the Court applied the Guidelines where a carjacking victim named Valentin was familiar with the perpetrator but did not know his name. However, the Court found the victim's prior familiarity with the victim to be a very strong factor supporting the reliability of the identification. We quote Herrera to put her reasoning in context

In finding that the identification procedure was reliable, the trial court underscored that defendant was "not a person who was a stranger to Valentin." We agree that fact is significant, if not controlling. Valentin had previously seen defendant on a daily basis even though he did not know his name, and he had sufficient opportunity to observe defendant during the attack.

[Herrera, supra, 187 N.J. at 507.]

In similar fashion, the motion judge found the following facts to be critically important

It is . . . clear from the video that Choice has known the alleged suspect named "D" for ten (10) to fifteen (15) years because "D" grew up around him. Choice indicated that "D" was in the Bloods gang. He also acknowledged that "D" had a one (1) year old male baby with "Jessica" and was recently released from prison. Moreover, Choice stated during his formal statement that he got a good look at the suspect.

This Court finds that the fact that "D" is not a stranger to Choice is a critical factor in this analysis. This factor is very significant, if not controlling in the case at bar. Even though Choice exhibited reluctance with identifying the suspect, this Court finds the reluctance was due to fear for his family's safety and his own, as well as [] a belief that he may have to leave town for protection. This Court finds that Choice had at least five (5) minutes to observe what the alleged shooter looked like and was able to provide significant detail about the circumstances surrounding the shooting that a stranger would not have been able to provide about "D".

At the time the Wade hearing was decided, our courts followed the Manson standards in determining the admissibility of eyewitness identification evidence. See State v. Madison, 109 N.J. 223, 232 (1988). Manson requires the following analysis

[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony. . . ."

[Madison, supra, 109 N.J. at 232 (citations omitted).]

In addressing the reliability issue, courts applying Manson look to five factors: "(1) the 'opportunity of the witness to view the criminal at the time of the crime'; (2) 'the witness's degree of attention'; (3) 'the accuracy of his prior description of the criminal'; (4) 'the level of certainty demonstrated at the time of the confrontation'; and (5) 'the time between the crime and the confrontation.' Those factors are to be weighed against 'the corrupting effect of the suggestive identification itself.'" State v. Henderson, supra, 208 N.J. at 238 (citations omitted).

On this appeal, defendant argues that in questioning Choice, the police used procedures that were suggestive and coercive. He further contends that Choice's identification of defendant was not sufficiently reliable to warrant the motion judge's decision that the identification was admissible despite the improper procedures the police used. We cannot agree. The trial judge properly applied the Manson factors and reached the correct decision. We affirm substantially for the reasons stated in her written opinion. We add the following comments.

Unlike the typical identification case, here the suspect was someone the witness had known for years and knew by name, albeit by a nickname. As the Court stated in Herrera, that is a powerful if not a controlling factor in determining the reliability of the identification. Herrera, supra, 187 N.J. at 507. The primary purpose of showing Choice defendant's photograph was not to determine whether he could identify a stranger, but to confirm that the person he had already identified for the police as "D" was in fact Darryl Denmark.

Further, Choice had ample opportunity to observe the shooter both before and during the shooting. He not only witnessed the shooting from across the street, but he had previously pulled his car up next to Logan and D and asked Logan to get in the car and leave with him. Logan had refused. Hence, there was little chance that Choice would have been mistaken about the shooter's identity. Defendant's arguments on this point do not warrant further discussion. R. 2:11-3(e)(2).

II

In light of the remaining legal issues, a brief summary of the trial evidence will suffice.7 The State presented evidence that defendant shot Logan after discovering that Logan was having an affair with Jessica, the woman with whom defendant was then living and with whom he had a young son. The State presented Choice's eyewitness testimony as to the shooting and the shooter's identity, as well as witnesses who corroborated Choice's testimony that he had known defendant for many years. The State also presented several witnesses who confirmed various details of the shooting, largely corroborating Choice's description. But those witnesses were either completely unable to identify the shooter or were unable to state with certainty that defendant was the shooter.

In his trial testimony, Choice confirmed that he had known defendant ever since defendant was a "kid" living in Choice's neighborhood.8 At the time of the shooting, Choice knew defendant by his nickname, "D-Money." Choice testified that he had grown up with Jessica, and knew that she had been romantically involved with defendant and had a son with him. Choice testified that on occasions prior to the shooting, he had visited Jessica's apartment and played with the son, who looked "just like" defendant. However, according to Choice, by Christmas of 2008, Jessica was involved in a romantic relationship with Logan.

On the night of the shooting, Choice drove Logan to Clendenny Avenue to visit a friend. As Choice parked his car, a black Acura, defendant drove up next to him in a Toyota Solara which Choice recognized as belonging to Jessica. Defendant parked across the street from Choice's car. Logan and defendant exited the cars and stood talking at the rear of defendant's vehicle. Choice then pulled his car up next to the two men, greeted defendant, and shook his hand. At that point, Choice asked Logan to get back in the car and leave with him. Logan declined and defendant told Choice that "everything" was "good." Logan's car was blocking traffic, so he circled the block and pulled back into the space on Clendenny where he had previously parked.

Choice sat in his car sending a text message, until he heard a gunshot and looked up. At that point, according to Choice, "I saw Darryl shooting my brother, Ormont." When he first looked up, Choice saw Logan turning around to face defendant. Choice saw defendant with a gun in his hand shooting Logan. He saw Logan fall to the ground. Defendant looked at Choice, "jumped in his car," and drove off.

According to Choice, after being interviewed by the police at the shooting scene and declining to identify the shooter, he drove past Jessica's house thinking that he would avenge Logan's shooting himself. He saw the Toyota Solara parked in front of Jessica's home. However, after speaking to his mother, Choice decided not to go after defendant. Choice's mother testified that she spoke to her son at around 1:00 a.m. on the night of the shooting. She was not permitted to tell the jury what he said to her, but she testified that she told her son "not to do anything crazy."

Testifying as a very reluctant State witness, Jessica confirmed that she had known Choice since they were both children. She testified that she began having a romantic relationship with defendant in 2007 and had a son with him in 2008. At the time of the murder in April 2009, defendant was living with her and had permission to drive her gold Toyota Solara.9 Jessica testified that around Christmas 2008, she began having an affair with Logan. She confirmed that Choice and Logan had visited her house together and that Choice was acquainted with her son.

Because a municipal security camera was located near Jessica's home, police were able to retrieve a video that appeared to show someone walking away from the building where she lived, at about 11:30 p.m. on the night of the shooting. Shown the video, Jessica insisted that she could not recognize the person shown in the video. The video showed that her car was gone by 11:36 p.m. and had been returned to its parking spot in front of her house by 11:56 p.m. She admitted telling detectives on April 2, 2009 that a set of her car keys was missing.

Jessica admitted that on the night of April 1, 2009, she had an argument with defendant. Later in her testimony, she admitted that defendant asked her if she was having a relationship with someone else. In an interview prior to the trial, Jessica told the police that defendant mentioned Logan's name during the argument, but in her trial testimony she insisted she did not recall that detail.

Another witness, Ms. Cortes, who lived on Clendenny Avenue near the shooting scene, testified that from her first floor window, she saw two tall muscular black men standing across the street arguing with each other. She then went upstairs and observed the two men still loudly arguing. She saw one of the men turn away and saw the other man pull out a gun and aim it at the first man's back. She did not see the shooting because at that point she started to scream and her adult son pulled her to the floor. However, she heard a series of gunshots.

When the police later showed her a photo array, in a process compliant with the Guidelines, Cortes was able to identify defendant as the shooter, but only with what she characterized as "75%" certainty. As a result, she did not sign the back of defendant's photograph, the procedure required by the Guidelines when a witness can identify a suspect. At the trial, she repeated that she was only seventy-five percent certain that the person she identified for the police was the shooter and was only seventy-five percent certain he was in the courtroom. The prosecutor never actually asked Cortes to point out defendant for the jury. Cortes also testified that at the time of the shooting, she saw a gray car parked across the street in front of the two men, and a black car parked on her side of the street.

Another neighbor, Mr. Negron, testified that when he came home from work about 11:30 p.m., he saw two men arguing next to a gray car that was parked up the street from his house. He also saw a black car parked across the street.10 Negron drove away, intending to visit his girlfriend, but he instead drove back around the block because of his concern over seeing two strangers arguing in his neighborhood. When he returned, he saw one of the men lying in the street. The other participant in the argument was gone by then; Negron described him as a tall, well-built black man with neck-length corn row style braids. The State introduced evidence that, at the time of the shooting, defendant wore his hair in that style.

III

Defendant's Points II through V require relatively little discussion. For the first time on appeal, defendant argues that it was error to allow Lieutenant Diaz to explain why he showed Choice defendant's photograph. Diaz testified that "[d]uring the -- the interview, it was learned that -- that -- that Mr. Denmark might be a suspect in our investigation." Defendant argues that this testimony violated the principles set forth in State v. Branch, 182 N.J. 338, 350 (2005), by implying that "Diaz had received information from an unknown source implicating Denmark in the crime."

Ordinarily, it is irrelevant and improper for a police witness to testify as to why a suspect's photo was shown to a witness. See State v. Lazo, 209 N.J. 9, 21 (2012). Testimony that the photo was chosen "based on information received" may unfairly imply that "a non-testifying declarant had implicated [defendant] in the crime." Branch, supra, 182 N.J. at 347. However, in this case, we cannot find that Diaz's brief remark constituted plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 338 (1971). Taken in context, it would have been obvious to the jury that the information about defendant's involvement in the shooting did not come from some undisclosed source but rather came from Choice "[d]uring the interview" with him. It was also clear that the police were not asking Choice to identify a stranger but to confirm whether defendant was the person Choice had already identified as "D."

Unlike State v. Dehart, 430 N.J. Super. 108 (App. Div. 2013), on which defendant relies, this case did not present any genuine issue as to whether Choice mistakenly misidentified the perpetrator. The only issue was his credibility in testifying that he saw defendant shoot Logan. Defense counsel had ample opportunity to cross-examine Choice on that issue. Unlike Lazo, where the officer opined that a composite sketch resembled defendant, Diaz's remark did not bolster Choice's credibility. See Lazo, supra, 209 N.J. at 19.

Defendant next contends that the judge erred in failing to tell the jury that the model charge on eyewitness identification, which the judge read with respect to Choice's identification of defendant, also applied to Cortes. Because defense counsel did not raise this issue at the trial, we apply the plain error rule. R. 1:7-2; R. 2:10-2. We find no plain error for two reasons. First, Cortes's testimony was not central to the prosecution because, as defense counsel pointed out in his summation, she was uncertain of her selection during the photo array procedure and did not actually identify defendant in court as being the perpetrator. Second, although the judge only mentioned Choice by name, the charge included general instructions about how to evaluate identification testimony; it is highly unlikely that the jury would have believed those instructions applied only to Choice and not to Cortes.

Defendant's related point, that the judge should have focused her instructions on Diaz's failure to follow the Guidelines, is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). To a very great extent, the Guidelines issue was a red herring in this case, because Choice knew defendant, and given the circumstances in which the shooting occurred, there was no realistic possibility of a mistaken identification.

Addressing defendant's next point, we agree that the judge erroneously read the jury the model charge for third-degree possession of a "weapon" for an unlawful purpose, N.J.S.A. 2C:39-4(d), rather than for second-degree possession of a "firearm" for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). The error consisted of the following using the word "weapon" instead of "firearm" in the charge, and failing to define "firearm." However, we agree with the State that, in an earlier section of the charge, concerning unlawful possession of a handgun, the judge defined the term "firearm." Moreover, the only weapon defendant allegedly possessed was a handgun, and the jury convicted defendant of both possessory offenses. Consequently, we are convinced the jury understood that to find defendant guilty of the unlawful purpose offense, they had to find that defendant possessed the handgun.

We also agree with defendant that the judge did not explain to the jury the unlawful purpose for which the State contended defendant possessed the handgun. See State v. Petties, 139 N.J. 310, 319-20 (1995); State v. Villar, 150 N.J. 503, 510-11 (1997). However, "[t]he purpose to use a weapon unlawfully may be inferred from the circumstances." Villar, supra, 150 N.J. at 510. Further, the jury was not left to speculate about an unnamed unlawful purpose for which defendant possessed the gun; it was obvious that the alleged unlawful purpose was shooting Logan. The omission from the charge had no clear capacity to produce an "unjust result," and we find no plain error. R. 2:10-2. Defendant's additional challenges to his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

IV

We turn next to defendant's sentencing arguments. We find no merit in defendant's contentions that, because he voluntarily turned himself in, the judge should have considered mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement authorities), or that the judge failed to balance mitigating and aggravating factors. Those arguments warrant no further discussion. R. 2:11-3(e)(2).

However, as previously noted, the State concedes that the JOC must be amended to reflect the correct NERA period of parole ineligibility of thirty-four years. The State also concedes that the conviction for possession of a weapon for an unlawful purpose merges with the underlying murder conviction. See State v. Tate, 216 N.J. 300, 311 (2013). We remand for the limited purpose of entering an amended judgment of conviction consistent with this opinion.

Affirmed in part, remanded in part.

1 The forty-year NERA term was imposed for the murder conviction. The sentences for all of the other offenses of which defendant was convicted were imposed concurrent to that sentence.

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

3 At the trial, Choice testified that Logan was like a brother to him, and he called him his brother. Choice also had a strong emotional attachment to Logan's mother, who was his godmother.

4 Mindful that our opinion will be posted on the internet, we have omitted the full names of witnesses wherever possible to protect their privacy.

5 Diaz testified that in dealing with another witness, Ms. Cortes, the detectives followed the Guidelines. That witness did not know the person she said she observed at the shooting scene.

6 The judge applied the law as it existed at the time of the Wade hearing. Thereafter, the Supreme Court decided State v. Henderson, 208 N.J. 208 (2011), which the Court announced would have only prospective application except for Henderson and the defendant in a companion case. Id. at 220.

7 The motion judge did not preside over the trial.

8 At the time of the shooting, defendant was twenty-one, while Choice was several years older.

9 Various witnesses described the Toyota as gold, tan, gray, or silver, and there was some testimony that its metallic paint tended to show different colors depending on the light.

10 Negron's testimony pinpointed the time of the shooting, because he sent contemporaneous text messages to his girlfriend, one stating that two men were arguing in the street, and the next stating that one of the men had been shot.