STATE OF NEW JERSEY v. EDDIE GOLDWARE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04931-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE GOLDWARE, a/k/a EDDIE

PARKS,

Defendant-Appellant.

____________________________________

Submitted May 14, 2014 Decided May 28, 2014

Before Judges Grall and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0232.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Mary E. Sparkman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eddie Goldware appeals the judgment of conviction entered after a jury found him guilty of armed robbery, theft, and two weapons offenses, and a judge sentenced him to serve fifteen years in State prison. He presents a single argument for our consideration:

POINT I

THE MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO RECORD NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE V. DELGADO.

Finding no merit in defendant's argument, we affirm.

The State developed the following facts at a Wade1 hearing. On the afternoon of the robbery, Trenton police officer Rolando Ramos, then a detective, was working in the robbery unit when the victim, Taquan Johnson, arrived at police headquarters. Ramos had been notified by his sergeant that Johnson could identify one of the two men who robbed him at knifepoint. Johnson explained to Ramos "that he was walking on Prospect Street when two individuals approached him, and one of the individuals stated, what's cracking," a phrase Johnson believed to be associated with "gang identification verbiage." When Johnson said he was not a gang member, one of the men pulled out a knife. The men robbed Johnson of a phone and five dollars.

Based on Johnson's description of the robber who wielded the knife "a dark-skinned black male, approximately five-eight, wearing dark clothing" Ramos entered a date in a "picture-link [computerized] data system." He entered search criteria for a "black male between the ages of [nineteen] and [twenty-two]." According to Ramos, in response to his search criteria, the program generated unidentified photographs that appeared on the screen in groups of twelve, each group remaining on the screen for approximately ten seconds before the next group appeared. After viewing about 200 photographs, Johnson pointed to a picture and said, "that's the guy that robbed me." Ramos printed the picture and had Johnson sign and date it. Ramos also retrieved the information identifying the picture as defendant.

Following defendant's arrest, a grand jury charged him in a four-count indictment with first-degree robbery while armed with a knife, N.J.S.A. 2C:15-1; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Before trial, defendant unsuccessfully moved to suppress Johnson's out-of-court identification. Thereafter, a jury found defendant guilty on all counts. At sentencing, the court merged the theft and weapons counts into the robbery count and imposed a fifteen-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count. The court also imposed appropriate penalties and assessments. Defendant filed this appeal.

In this appeal, defendant contends that "[t]he trial court erred in allowing the state to introduce unreliable identification evidence that created a substantial likelihood of misidentification." He argues that the out-of-court identification should have been suppressed because the police did not make a written record of the identification procedure. Defendant's reliance on State v. Delgado, 188 N.J. 48 (2006), is misplaced. There, two witnesses to a murder were unable to identify defendant from a photographic array they viewed shortly after the murder but identified the defendant when shown the same array about seven months later. Id. at 50. Although the Supreme Court affirmed defendant's conviction because he "knew of the missed and positive out-of-court identifications before trial and fully explored them in questioning witnesses," id. at 51, the Court exercised its supervisory powers "to require that, as a condition to the admissibility of an out-of-court identification, law enforcement officers 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." Id. at 63.

The Supreme Court decided Delgado on July 31, 2006. Id. at 48. Here, the robbery and the victim's identification of defendant as the robber took place on December 21, 2005, seven months before the Delgado decision. Nothing in Delgado suggests the Supreme Court intended to apply it retroactively.

Further, in Delgado the witnesses identified the defendant from a photo array, unlike this case where the victim identified defendant from a large number of photographs randomly generated by a computer. We noted in State v. Joseph, 426 N.J. Super. 204, 223 (App. Div.), certif. denied, 212 N.J. 462 (2012), that large numbers of photographs stored in a computer are the electronic equivalent of a mug shot book. "'[T]he use of mug shot books to develop an as-yet-to-be-determined suspect does not require that all the photographs viewed in the mug shot books be preserved.'" Ibid. (quoting State v. Janowski, 375 N.J. Super. 1, 6 (App. Div. 2005)). In the case before us, like Joseph, though "the officer[] did not document the procedure or save the computer search, there is no evidence that . . . [he] acted in bad faith." Id. at 224.

Lastly, and most significantly, there is no evidence that Johnson's selection of defendant's photograph, after viewing approximately two hundred other photographs, was in any way unreliable. Officer Ramos was unaware of the identity of any suspects in the case when he entered the criteria for the computer search, and he did not tell Johnson that either of the robbers would appear in the photographs. Nor did Ramos say anything to Johnson while Johnson was viewing the computer-generated photographs.

In short, there was no evidence that the out-of-court identification procedure at issue here was "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Id. at 224 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

Affirmed.

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