STATE OF NEW JERSEY v. RAFFEE AHMEDAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-02497-11T2
STATE OF NEW JERSEY,
November 19, 2014
Argued October 21, 2014 Decided
Before Judges Reisner, Koblitz and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0367.
James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E.Krakora, PublicDefender, attorney; Mr. Smith, of counsel and on the brief).
Sarah Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Defendant Raffee Ahmed appeals from convictions relating to a stabbing during a fight that occurred outside a pizzeria in the early morning hours of December 29, 2007. After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions, but remand for a corrected judgment of conviction reflecting a merger of certain counts.
A jury convicted defendant of all four counts in the indictment: second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). Defendant was sentenced to restitution of more than $13,000 and an aggregate term of eight years in prison subject to eighty-five percent rule of the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant did not testify or call witnesses. The State's witnesses set forth the following facts. Emery Aaron Jackson, his cousin, Taiwan Greene, and Shawn Harper went to a club. After the club closed, at approximately 2:00 a.m., Harper drove Jackson and Greene, who had been drinking, to a pizzeria in New Brunswick. Harper stayed in the car while Jackson and Greene walked into the pizzeria.
As the two were walking in, they exchanged looks with a man, later identified as defendant, and a woman talking outside. Jackson went inside while Greene stayed outside to smoke a cigarette. Defendant approached Greene and a verbal altercation ensued wherein defendant accused Greene of disrespecting him. Greene went into the pizzeria, told Jackson what happened, and both men went back outside.
Jackson and defendant then began a verbal altercation that escalated to a physical altercation, which lasted about twenty seconds until defendant quickly "picked himself up and ran off." Jackson testified that he did not "feel it at all," but realized he had been stabbed when his "shirt turned cranberry." Harper drove Jackson and Greene a block to Robert Wood Johnson University Hospital. Dr. Tomer Davidov, the emergency room physician who treated Jackson's stab wound, testified that the two-inch-long wound located right below the collarbone caused the collapse of Jackson's right lung.
Pratesh Patel, who knew defendant from high school, saw him outside of the pizzeria on the night of the stabbing. While Patel was walking into the pizzeria, he saw defendant "very casual[ly] talking" to three men outside. From inside the pizzeria, he heard a loud noise, looked outside, saw a "big group scuffle" and went outside where he saw "maybe ten" people. Jackson, clutching his own body, approached Patel and asked him if defendant was his friend. When Patel said yes, Jackson struck Patel twice while screaming that Patel's friend stabbed him. Greene and Jackson both denied that Jackson hit Patel, testifying that after he was stabbed Jackson was immediately transported to the hospital.
Officer James Hoover went directly to the hospital to speak to Jackson, who told Hoover that he and another man got into an altercation at the pizzeria and the man stabbed him in the chest. Jackson did not know the suspect, but stated he was "a short, Hispanic-looking male."
Detective Mark Pappas was "briefed by Officer Hoover" about the stabbing that occurred earlier. Detective Pappas obtained a "formal statement" from Patel, wherein Patel said the person fighting with Jackson that morning was a man he knew from high school named Raphael. Patel and Jackson identified defendant as the person who was fighting with Jackson. At trial, Jackson admitted he did not recognize defendant at counsel table, although he "fit the description" of his assailant. Defendant was arrested more than two weeks after the stabbing and denied being at the pizzeria on December 29, 2007.
On appeal, defendant raises the following issues through counsel
POINT I: THE TRIAL COURT ERRED IN ADMITTING EMERY JACKSON'S APPARENT PHOTO IDENTIFICATION OF DEFENDANT WHICH IT FOUND HAD RESULTED FROM "QUITE SUGGESTIVE" PROCEDURES, AND WHICH HAD NONE OF THE EARMARKS OF RELIABILITY.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S SEEMINGLY INTENTIONAL MISCONDUCT IN REPEATEDLY ARGUING TO THE JURY THAT PRATESH PATEL HAD SEEN DEFENDANT STAB THE VICTIM. THE PREJUDICE WAS COMPOUNDED BY THE TRIAL COURT'S JURY INSTRUCTION ON IDENTIFICATION.
POINT III: ABSENT ANY EVIDENCE THAT THE VICTIM SUFFERED SERIOUS BODILY INJURY, THE TRIAL [COURT] ERRED IN CHARGING THE JURY ON THE AGGRAVATED ASSAULT BY CAUSING SERIOUS BODILY INJURY. INSTEAD, THE COURT SHOULD HAVE ONLY CHARGED THE JURY ON AGGRAVATED ASSAULT BY PURPOSELY ATTEMPTING TO INFLICT SERIOUS BODILY INJURY. (Not Raised Below)
POINT IV: THE CONVICTION FOR POSSESSION OF A KNIFE WITH INTENT TO USE IT UNLAWFULLY SHOULD MERGE INTO THE CONVICTION FOR AGGRAVATED ASSAULT BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT HAD A BROADER PURPOSE THAN TO STAB THE VICTIM. (Not Raised Below)
He also raises the following issues in a pro se supplemental brief
POINT I: DEFENDANT'S CONVICTION SHOULD BE REVERSE[D] DUE TO PROSECUTOR FAILURE TO SUSTAIN THE BURDEN OF PROOF.
POINT II: THE CUMULATIVE EFFECT OF TRIAL ERRORS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL [AND] WARRANTS REVERSAL OF DEFENDANT'S CONVICTION.
Defendant argues in Point I of his brief that the motion judge1 erred when admitting Jackson's identification of defendant. Detective Pappas testified at the Wade2 hearing that he used the information provided by Patel to obtain defendant's full name and "all the pertinent information" from the Edison Police Department. That Department also informed Pappas that defendant had been arrested previously by the Franklin Police Department, which provided Pappas with a photo lineup including defendant's picture.
On January 8, 2008, Detective Pappas interviewed Jackson at the New Brunswick Police Department. The interview was video-recorded. After Jackson provided his formal statement, Pappas left the interrogation room and Detective Christopher Plowucha administered the photo lineup. Plowucha was not involved in the case nor did he know which picture, if any, was of the suspect. Plowucha read detailed instructions from a "Photo Lineup Array Form" and Jackson signed the form.
Plowucha then showed Jackson the photos one at a time. Jackson said the man in the second photograph "may be the guy" and had Plowucha put that photograph aside while he looked at the remaining four. Jackson then went back to the second photograph, at which time Plowucha repeated the following instructions from the form, using his own wording
Like I said it's your decision, your decision alone so. It's something I can't help you with. Just to, again to go over the final form again, okay. As is, as I read to you before please keep in mind that the hairstyles, beards, mustaches, facial hair easily changed, people can gain and [lose] weight as stated on the form, you know, the photographs shown.
Immediately thereafter Jackson identified defendant as the man who stabbed him, stating, "This is the guy."
The photo lineup method utilized was generally in accordance with the Attorney General Guidelines.3 The motion judge determined, however, that the timing of Detective Plowucha's rereading of a portion of the instructions "was quite suggestive." Therefore, the judge focused on Jackson's opportunity to view the person who stabbed him at the time of the incident. The judge found that Jackson had a good opportunity to view his assailant on the date of the stabbing. Specifically, Jackson saw defendant as he walked into the pizzeria and again when he came back outside. He was in close proximity during their verbal altercation and even closer when the altercation turned physical.
The judge determined that Jackson's description of his assailant, as "a short, Hispanic-looking male," was generally accurate and that, when shown the photo lineup, his "level of certainty was not great, at first . . . [b]ut he was certain at the point that he made the identification." Finally, the judge found that the time between the stabbing and the identification was only one to two weeks, so the incident was still fresh in Jackson's mind.
The motion judge concluded that considering the totality of the circumstances, the identification was reliable and did not pose a "substantial likelihood of irreparable misidentification."
"[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)). "[T]he trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid.
It is well-established that an out-of-court identification procedure that "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" violates due process. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); State v. Herrera, 187 N.J. 493, 502 (2006). To address concerns regarding the unreliability of eyewitness identification, the United States Supreme Court established procedures to ensure that identification procedures are not unduly suggestive. See Wade, supra, 388 U.S. at 227-41, 87 S. Ct. at 1932-40, 18 L. Ed. 2d at 1157-65; State v. Madison, 109 N.J. 223, 232 (1988). To determine the admissibility of eyewitness identifications, New Jersey courts have adopted the two-prong test articulated by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). Herrera, supra, 187 N.J. at 503-04.4
The first prong is to "ascertain whether the identification procedure was impermissibly suggestive." Id. at 503. "What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." Farrow, supra, 61 N.J. at 451. If the court determines that the procedure was impermissibly suggestive, "the court must then decide whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification." Adams, supra, 194 N.J. at 203 (citations and internal quotation marks omitted).
"'Reliability is the linchpin in determining the admissibility of identification testimony[.]'" Madison, supra, 109 N.J. at 232 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). In determining reliability of such identification testimony, the court should consider
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]
"If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Adams, supra, 194 N.J. at 204 (citation omitted).
After giving considerable weight to the judge's determinations, we affirm because there is sufficient credible evidence in the record to support the findings.
In Point II of his brief, defendant contends that the State engaged in prosecutorial misconduct by repeatedly stating that Patel witnessed the stabbing. He asserts that the prejudice caused by the statements was compounded by the judge's instruction on identification.
Just before Patel took the witness stand, the prosecutor said to the judge: "Mr. Patel never saw the defendant stab; but he saw the altercation. But he didn't see the stabbing. He saw like an argument occur. By the time he ran out [of] there, the defendant had already left."
During the trial, Patel testified that he did not see a knife, nor did he see anyone being stabbed. He testified that he identified defendant's photo from the lineup only because he knew he was involved in the altercation. He further testified that his statements have remained consistent.
The assistant prosecutor urged Patel to admit that he witnessed an actual stabbing, relying on the interview he gave to Detective Pappas on December 29, 2007. Pappas stated in that interview: "The reason you are here is cause [sic] you are a witness to a stabbing that happened in the area of [the pizzeria] correct?" Patel responded, "Yes sir." Later, however, Patel told Pappas that he did not see a knife or a stabbing. About a week later, in his January 8, 2008 statement, Patel also denied seeing a stabbing. At trial, when Patel refused to say he chose defendant's picture because he witnessed defendant stab Jackson, the prosecutor again raised the same purported inconsistency. Defense counsel objected and the judge sustained the objection, stating that the question was argumentative and the jury could determine for itself whether Patel's statements were consistent.
In her summation, the prosecutor again focused on Patel's initial agreement with Detective Pappas that the reason Patel was at police headquarters was because he was a witness to a stabbing. The prosecutor surmised the reason for the purported inconsistency was because defendant was present in the courtroom at the time of Patel's testimony. At that point, defense counsel objected, stating that the prosecutor was not "summing up the testimony correctly." Following a sidebar discussion, the judge stated: "I don't think that the [p]rosecutor is saying what [defense counsel] think[s] her argument is suggesting." The prosecutor continued arguing that "Patel identifie[d] the defendant, as the person who did the stabbing . . . the person who committed the crime." She further stated that Patel was "back pedaling" and "not forthright" in court about what he saw on December 29, 2007.
Prosecutors are "expected to make vigorous and forceful
. . . arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented." Ibid. (citation omitted). "[P]rosecutors should not make inaccurate legal or factual assertions during a trial and . . . they must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001) (citations omitted).
To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Stated differently, reversal is warranted when the prosecutor's conduct 'substantially prejudices the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense.'" State v. Rivera, ___ N.J. Super. ___, ___ (2014) (slip op. at 7) (quoting State v. Harris, 181 N.J. 391, 495 (2004).
The prosecutor's persistent characterization of Patel's testimony as inconsistent with his December 29, 2007 statement and January 8, 2008 identification was not accurate. From the date of the incident, Patel took the position that he did not see the stabbing. During the photo array procedure, Patel identified defendant, but then said he never witnessed an actual stabbing.
Defense counsel objected to the State's theory that Patel gave inconsistent statements. The judge told both attorneys his intention was to tell the jury "there has been some suggestion, that there was an inconsistency, that was testified to. I am going to tell them to rely on their own recollection, whether, in fact, during the course of the testimony, if there was an inconsistency, and then how to treat the inconsistency." Both attorneys agreed with the judge's proposed instruction.
The trial judge instructed the jury as follows
Now, evidence has been presented, or at least suggested, showing that at a prior time a witness has said something, or has failed to say something, which is inconsistent with the witness'[s] testimony at trial. Now, whether, in fact, that's the case, you must rely on your own recollection of the testimony. Now, if you find that to be the case, that there was inconsistencies, that evidence may be considered by you as substantive evidence, or proof, of the truth of the prior contradictory statement.
However, before deciding whether the prior inconsistent statement reflects the truth, in all fairness, you will want to consider all of the circumstances under which the statement occurred. You may consider the extent of the inconsistencies, and the importance, or the lack of importance, of that inconsistency on the overall testimony of the witness, as bearing on his credibility. You may consider such factors as where and when the prior statements occurred, and the reason, if any, therefor.
In regard to the testimony of Pratesh Patel, on cross-examination, it is suggested that there were some inconsistencies, that have been shown, between these prior statements, and those given on the stand. The witness gave reasons therefor, saying that such prior statements were untrue. And among the reasons given, as I recall, were poor recollection at the time.
Now, notwithstanding the extent to which, if such inconsistencies or omissions reflect the truth, is for you to determine. Consider their materiality and relationship to his entire testimony, and all of the evidence in the case. When, where, and the circumstances under which they were said, and whether the reasons he gave you therefor, appear to you to be believable and logical. In short, consider all that I have told you before about the prior inconsistent statements.
The judge also told the jury that Patel had identified defendant, in court, "as somehow being involved in this offense." He also stated that both Jackson and Patel had made prior out-of-court identifications of defendant "as the person who committed these offenses."
When defense counsel objected, the judge corrected the instruction to say that Patel identified defendant "as the person who was involved in the crime." Defense counsel did not object to the corrected instruction. See State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) ("Where there is a failure to object, it may be presumed that the instructions were adequate.") (citation omitted), certif. denied, 177 N.J. 572 (2003).
In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999) (citation omitted). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983) (citation omitted).
It was clear from the judge's instruction that the jury was to rely on its own recollection of the testimony and evidence presented, and not on the attorneys' comments. Because the jury was well informed of Patel's position, that he did not see a knife or know that a stabbing had occurred, the prosecutor's comments did not have the capacity to substantially prejudice defendant's right to a fair trial. Additionally, as Green testified, the stabbing occurred during a "quick tussle." The victim did not see a knife or know that he had been stabbed until he saw blood on his shirt. In this factual context, whether Patel saw a knife or not is not particularly significant.
In Point III of his brief, defendant contends for the first time on appeal that the trial judge should have charged the jury on aggravated assault by purposely attempting to inflict serious bodily injury, rather than actually causing serious bodily injury. If the attempt alone were charged, the required mental state would be purposefully.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981) (citation omitted). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole in order to determine whether there was any error. Adams, supra, 194 N.J. at 207 (citation omitted).
However, an error in the charge that is clearly harmless and could not have affected the jury's deliberations will not warrant reversal. State v. Docaj, 407 N.J. Super. 352, 369-70 (App. Div.), certif. denied, 200 N.J. 370 (2009). Even a charge that is not perfectly clear may be deemed adequate if it "had no capacity to lead the jurors astray." State v. Miller, 205 N.J. 109, 127 (2011). Even when the trial court charges a greater crime unsupported by the evidence, "reversible error occurs [only] when there is a 'real possibility' that the jury might have acquitted the defendant of the lesser-included offense, absent the erroneous instruction on the greater charge." State v. Wilder, 193 N.J. 398, 408 (2008) (citation omitted).
A defendant has the obligation "to challenge instructions at the time of trial." Morais, supra, 359 N.J. Super. at 134 (citing R. 1:7 2). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35. When a defendant fails to object to the judge's instruction, as occurred here, the appellate court reviews the claimed error under the plain error standard. R. 2:10-2. Our Supreme Court has said a demonstration of plain error in a jury charge must "convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Singleton, 211 N.J. 157, 182-83 (2012) (citation and internal quotation marks omitted).
Jackson's treating physician, Dr. Tomar Davidov, testified that Jackson came to the hospital with a "stab wound to the right chest" and a collapsed right lung. Dr. Davidov inserted a chest tube and removed 100 cc's of blood. After two days, Jackson's lung was inflated, the tube was removed, and he was released from the hospital. Dr. Davidov testified that, while a lung collapse "creates a substantial risk of death[,]" in this case, the injury "wasn't life-threatening." Jackson's injury was a "simple pneumothorax" with a small amount of blood in the chest, as opposed to a "tension pneumothorax," which can be life-threatening.
Defendant was charged in count one with second-degree aggravated assault causing serious bodily injury and in count two with third-degree aggravated assault causing bodily injury with a deadly weapon. The trial judge read the model jury charges: Model Jury Charge (Criminal), "Aggravated Assault Serious Bodily Injury" (2005) and Model Jury Charge (Criminal), "Aggravated Assault Bodily Injury With Deadly Weapon (Purposely or Knowingly)" (2008). The trial judge read the entire charge for the first count, explaining that "the defendant can be found guilty if he either caused serious bodily injury to another, or attempted to cause serious bodily injury to another." He defined "serious bodily injury" for the jury.
"Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1b. Under that definition, "not every stabbing will result in such injury." State v. Sloane, 111 N.J. 293, 298 (1988).
Defendant argues on appeal that Jackson's injury was not life-threatening and, therefore, does not fall within the definition of "serious bodily injury." He contends that the trial court erred in failing to limit the instruction to attempted aggravated assault. If the jury was instructed only on attempted aggravated assault, the State would have had to prove that defendant acted purposely, rather than with any lesser mental state. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986).
Based on the evidence, however, it was reasonable for the jury to find that Jackson sustained a serious bodily injury. Jackson was stabbed in the chest, causing a collapsed lung. Dr. Davidov testified that there was blood in Jackson's chest and his lung needed to be re-inflated. He also testified that a collapsed lung may create a substantial risk of death. The fact that the treating physicians were able to remove the blood from Jackson's chest and re-inflate his lung does not change the fact that the stabbing itself, absent immediate medical intervention, could reasonably create a substantial risk of death. Jackson was only blocks away from the hospital when the stabbing occurred. The jury could have found that, absent immediate medical attention, the collapsed lung and bleeding from the wound created a substantial risk of death. See State v. Turner, 246 N.J. Super. 22, 27 (App. Div.) ("a determination of whether the victim was subjected to a substantial risk of death requires the primary focus to be upon the nature and extent of the injury rather than on the effectiveness of medical treatment"), certif. denied, 126 N.J. 335 (1991).
Even assuming that the record did not support a finding of serious bodily injury, the charge taken as a whole did not have the capacity to confuse the jury. The trial judge explained that if the jury found that defendant had in fact caused serious bodily injury, it must find that defendant acted either purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to human life. He told the jury to "consider the nature of the act itself, and the severity of the resulting injury." When he charged the jury on attempted aggravated assault, he explained that if the stabbing did not cause serious bodily injury, the jury would have to find that defendant acted purposely. He then explained, twice, what constitutes purposeful conduct.
The judge's failure to sua sponte limit the charge on aggravated assault to attempt was not "clearly capable of producing an unjust result." R. 2:10-2.
The State concedes defendant's argument in Point IV, that his conviction in count three for possession of a knife for an unlawful purpose should merge with his conviction in count one for aggravated assault. Where the State does not prove that the defendant possesses a weapon for any "broader unlawful purpose" other than to commit the substantive offense, the possession conviction should merge with the conviction for the substantive offense. State v. Tate, 216 N.J. 300, 311 (2013). We thus remand for a merger.
The issues raised by defendant in his supplemental brief are without sufficient merit to require a written discussion. R. 2:11-3(e)(2).
Affirmed in part and reversed and remanded to modify the judgment of conviction to reflect a merger of count three into count one.
1 The motion judge did not preside over the trial.
2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
3 "Guidelines For Preparing And Conducting Photo and Live Lineup Identification Procedures" (April 18, 2001).
4 In State v. Henderson, 208 N.J. 208, 285-93 (2011), decided on August 24, 2011, the Court revised prospectively the Manson/Madison test for evaluating eyewitness identification evidence in criminal cases. Id. at 300-02. Because the motion judge decided this issue in 2009 and the trial took place in June 2011, the Henderson rule does not apply.