STATE OF NEW JERSEY v. ERNESTO GUILLEN

NOT FOR PUBLICATION WITHOUT THE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.

ERNESTO GUILLEN,

Defendant-Appellant.

___________________________

May 13, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-03-013.

Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief).

Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant was convicted of the disorderly persons offenses of harassment, N.J.S.A. 2C:33-4b, and lewdness, N.J.S.A. 2C:14-4a. We affirm.

On December 24, 2011, the victim was using a department store restroom when a man approached him from behind, touched his buttocks, and then exposed his penis to the victim. The victim left the restroom and immediately reported the incident to the store's security department. He described the man who touched him as a five-foot, eight-inch tall Hispanic male with black hair, who was wearing a white shirt, tie, jacket, and scarf. The security officers reviewed security camera footage, observed a man matching the victim's description of the suspect, and showed the video footage to the victim. The victim then identified defendant, who was walking near the store's fitting rooms. It is undisputed that the man the victim identified was defendant. Store security then alerted the police and produced the video to the responding officers.

The next business day, the store security manager learned that defendant was in the store and brought him to the security office. According to the security manager, defendant admitted to him that he was in the restroom at the time of the incident. The security manager then called the police. Three days later, police conducted a videotaped interview of the victim.

In September and October 2012, a municipal court judge conducted a bench trial. The victim and the security manager both testified that the victim identified defendant as the suspect when viewing the video on the day of the incident. Defendant moved to suppress the victim's out-of-court identification, and the municipal court judge denied the motion. The municipal court judge found defendant guilty on both counts, sentenced him to an aggregate term of one year probation, imposed various fines, and ordered defendant to obtain counseling.

In March 2013, defendant appealed to the Law Division arguing that the municipal court judge should have suppressed the victim's out-of-court identification of him, that the municipal court judge should have bifurcated the proceedings to address defendant's motion to suppress, and that testimony regarding the store security manager's interview with defendant should have been suppressed because the store security personnel never read defendant his Miranda1 rights. The Law Division judge reviewed the record de novo, rejected defendant's arguments, and found him guilty of the disorderly persons offenses. The Law Division judge imposed the same sentence as the municipal court judge.

On appeal, defendant argues the following points:

POINT I

THE COURT BELOW ERRED IN FAILING TO BIFURCATE DEFENDANT'S MOTION TO SUPPRESS FROM HIS ULTIMATE TRIAL.

POINT II

THE COURT BELOW ERRED IN FINDING THAT THE IDENTIFICATION OF DEFENDANT WAS NOT UNDULY SUGGESTIVE AND UNRELIABLE.

A. The procedures used by State agents to obtain an identification of defendant were suggestive and unreliable.

B. External factors, outside the State's control, tainted [the victim]'s identification of the alleged perpetrator, creating a substantial likelihood of misidentification.

POINT III

THE COURT BELOW ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENTS, AS THEY WERE OBTAINED BY STATE AGENTS IN VIOLATION OF HIS MIRANDA RIGHTS.

A Law Division judge reviews a municipal court conviction de novo on the record, giving "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). On appeal from the Law Division's decision, we must determine whether the Law Division judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 161-62). We accord no special deference to the Law Division's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

I.

We reject defendant's contention that it was error to simultaneously consider defendant's motion to suppress and the State's proofs related to the charges. Defendant relies on State v. Gibson, 429 N.J. Super. 456 (App. Div.), certif. granted, 215 N.J. 488 (2013), in which we held that, in a trial on the merits, it was unfair for the trial court to rely upon evidence adduced in a suppression hearing. Id. at 465. Although the better practice is to hear the suppression motion separately from the trial evidence, we cited with approval the following language in State v. Allan, 283 N.J. Super. 622 (Law Div. 1995):

[I]f both counsel stipulate that the testimony from the motion to suppress will be incorporated into the trial and counsel are given wide latitude in cross-examination in connection with the issues raised during the motion to suppress, such a practice may be permitted with caution.

[Id. at 630 (emphasis added) (cited with approval in Gibson, supra, 283 N.J. Super. at 468 n.2).]

At the municipal court hearing, defense counsel stipulated to a consolidated proceeding, as is evidenced by the following colloquy:

COUNSEL: And Judge, just for some housekeeping. I have a notice of motion to suppress identification. I believe this would be encompassed within the testimony. . . . I'm not asking for a separate hearing, I'm just asking for the consideration of this motion, once the complainant has testified . . . .

COURT: The defendant is waiving his rights to have a . . . separate hearing on . . . the suppression motion?

COUNSEL: Yes, Judge. We're just asking that . . . it be encompassed as part of the testimony.

COURT: Alright . . . .

. . . .

COURT: And again, defendant is . . . waiving his right to a separate . . . hearing on the matter. We'll hear it as part of the trial. . . .

Given this exchange, and the fact that defense counsel had a full opportunity to conduct cross-examination, the Law Division judge did not err when he upheld the municipal court judge's refusal to bifurcate the proceedings. Defendant clearly waived his right to a separate hearing.

II.

Defendant next argues that the Law Division judge should have suppressed evidence of the victim's out-of-court identification because, as defendant contends, the identification took place under impermissibly suggestive circumstances.

The Law Division judge rejected the contention that the victim's identification was impermissibly suggestive, and stated in relevant part:

There [were] many video tapes looked at by the loss prevention officers. And even the ultimate tape in which the victim identifies this defendant, this defendant was not the only individual shown on that tape.

The multi-prong test in Henderson[2] is met. The individual victim had an opportunity to see this defendant face[]to[-]face in the men's room. The description was accurate. Because there was no one else there the degree of attention by the victim was great and the level of the certainty was demonstrated at the time of the confrontation. And I don't find that the time lapse was too remote.

I find de novo that the identification was done[,] independent of [the municipal court judge's] findings, with great confidence when that identification was made. . . . [J]ust because there was not . . . what I would call a six-pack photo lineup I do not find this identification faulty. I find it a valid, accurate, reliable identification.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (citations and internal quotation marks omitted). The court also "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (citations and internal quotation marks omitted). In short, "'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" Ibid. (quoting State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999)).

We conclude that the Law Division judge did not err in denying the motion to suppress the out-of-court identification evidence. In Henderson, supra, 208 N.J. at 288-89, the Supreme Court established a framework to determine the admissibility of an out-of-court identification. In State v. Chen, 208 N.J. 307 (2011), the Court modified the Henderson framework for addressing out-of-court identifications not involving police action. The Court stated that "cases that do not involve police action raise no deterrence issues," and "we cannot expect that private actors will conform their behavior to police standards they are unaware of." Id. at 326. Rather, the principal concern in these cases is the reliability of the identification. Ibid. Trial courts must use the following procedure when addressing motions to suppress identifications not involving police action3:

(1) 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, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification.

[Chen, supra, 208 N.J. at 327.]

"If [a] defendant can make that showing under the totality of the circumstances, the identification evidence is suppressed." Id. at 326.

The Law Division judge properly concluded that defendant failed to demonstrate a "substantial likelihood of irreparable misidentification" under Henderson and Chen. There is no credible evidence that store security personnel gave the victim suggestive instructions or otherwise conducted the identification process in a suggestive manner. The security camera footage showed approximately six individuals walking in the store, albeit with only defendant dressed as the victim had described. The victim identified defendant only a few hours after the incident and did so during his first viewing of the footage. The victim saw the suspect at close proximity for at least fifteen seconds while in a well-lit area, was able provide a detailed description of the suspect, and identified defendant as the suspect immediately upon viewing the security camera footage.

III.

Finally, we reject defendant's argument that the Law Division judge should have suppressed evidence of defendant's statement to the store security manager. Defendant incorrectly contends that the security manager was acting as a state agent and was required to read him Miranda rights.

A private individual is "under no responsibility to give the Miranda warnings," as "[t]hose warnings were designed to counteract the coercive nature of in-custody governmental inquiries." State v. Kelly, 61 N.J. 283, 287 (1972) (emphasis added). The record does not support defendant's contention that the store security personnel were acting as agents of the State, and defendant cites no cases in which a court suppressed evidence on the basis of a private actor's failure to read the defendant Miranda warnings.

After a thorough review of the record, we are satisfied that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 State v. Henderson, 208 N.J. 208 (2011).

3 We reject defendant's contention that the store security personnel were "state agents." As we have previously recognized, to be state agents, persons must "act[] together with a state official, obtain[] significant aid from state officials," or conduct activities chargeable to the state. Lascurain v. City of Newark, 349 N.J. Super. 251, 285 (App. Div. 2002) (citation omitted).