STATE OF NEW JERSEY v. MARVIN L. BYRD

NOT FOR PUBLICATION WITHOUT THE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.

MARVIN L. BYRD,

Defendant-Appellant.

_________________________________________________

September 24, 2015

Submitted September 17, 2015 Decided

Before Judges Fisher and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-11-0702.

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

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

PER CURIAM

Defendant was convicted of third-degree drug offenses at the conclusion of a jury trial and sentenced to an eight-year prison term subject to a four-year period of parole ineligibility. In appealing, defendant argues the judge erred in denying his motion to suppress an out-of-court identification made by a police officer during the course of an orchestrated undercover purchase of narcotics from defendant; he also argues the sentence imposed was excessive. We find no merit in these arguments and affirm.

Although no evidentiary hearing was conducted, the parties proceeded on the assumption that the challenged identification occurred in the following manner. On the afternoon of May 2, 2012, Detective Keith Palek and other officers were investigating the sale of narcotics in Salem City. Detective Palek, disguised as a drug customer, was driven by another undercover officer to an area of Thompson Street where he saw standing on the sidewalk a man later identified as defendant wearing dark jeans, a gray hooded sweatshirt, and a gray and red Chicago Bulls cap. The detective asked if he knew "where I can get my hard?," and defendant told him to wait as he crossed the street and entered a house. Detective Palek broadcasted a description of the man to nearby officers via an on-body transmitter. Two minutes later, defendant emerged from the house and motioned the detective to approach him in the doorway. There, defendant handed him a white rock that appeared to be crack cocaine, and the detective handed him a twenty-dollar bill. The detective then asked for his phone number so he could arrange future transactions. A phone number was provided by defendant, who identified himself as "Mar," and the detective telephoned the number which prompted defendant's phone to ring. The detective left the area and proceeded to a prearranged briefing location a few minutes away.

At the briefing location, Detective Palek described to his colleagues what had occurred; he provided a description of the seller and turned over the suspected crack cocaine. Because of his familiarity with the area and local residents, Salem City Patrolman Richard Ware was contacted by another investigator, who advised Officer Ware of the description of the seller provided by Detective Palek. Within fifteen minutes of the drug sale, Officer Ware went to the area of the sale to locate the seller described by Detective Palek to determine whether Officer Ware could provide the seller's identity. Officer Ware found an individual fitting the description; he knew this individual was defendant Marvin Byrd and advised the investigator, who obtained a photograph of defendant. This single photograph was shown to Detective Palek, who positively identified the individual depicted as the man who sold him narcotics approximately twenty minutes earlier.

On May 23, 2012, Detective Palek made another undercover purchase of narcotics from defendant. In this instance, the detective approached a group of individuals in the same location where the purchase three weeks earlier had occurred and asked, "Is Mar around?" Defendant emerged from the group, wearing the same Chicago Bulls cap he was wearing on the earlier occasion. The detective recognized him as the individual from whom he purchased narcotics on May 2. Again, the detective was handed a rock of crack cocaine in exchange for twenty dollars.

Defendant was indicted and charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), regarding the May 2 transaction; he was also charged with the same two offenses based on the May 23 drug transaction. The judge denied defendant's motion to suppress the out-of-court identification, and defendant was convicted of all four offenses at the conclusion of a four-day jury trial. The possession convictions were merged with the distribution convictions for sentencing purposes, and the judge sentenced defendant to an eight-year prison term, subject to a four-year period of parole ineligibility, for the distribution conviction based on the May 2 transaction, and a concurrent five-year prison term for the distribution conviction emanating from the May 23 CDS transaction.

In appealing, defendant argues

I. DEFENDANT'S MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATION SHOULD HAVE BEEN GRANTED BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE.

II. THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject both these arguments.

To be sure, as Judge Timothy G. Farrell recognized, showing a witness a single photograph of a suspect is inherently suggestive. Such a procedure is also, as defendant argues, inconsistent with the 2001 Attorney General Guidelines concerning identifications. But the judge ultimately concluded that this particular identification was sufficiently reliable to allow its consideration by the jury.

We note, at the outset, that defendant does not complain about the lack of a testimonial hearing at which the identifying witness would have been subjected to cross-examination. Instead, defendant chiefly contends that the presentation to Detective Palek of a single photograph was so suggestive as to require suppression of this out-of-court identification. Although we agree, as did the trial judge, that a procedure by which a witness is shown a single photograph for purposes of identifying a suspect is inherently suggestive, the overall circumstances demonstrate the procedure adopted here possessed enough indicia of reliability to permit its admission at trial.

This situation is far different from an instance where a crime victim is shown a single photograph of a suspect who, until the crime, was a complete stranger. Here, an undercover detective made a narcotics purchase from someone he did not know and provided a detailed description of the seller as well as his location; another officer immediately proceeded to that location within minutes, found the person garbed as the detective described, and realized he knew him. It was only after these assurances that a photograph of defendant was obtained and shown to Detective Palek to confirm defendant was the individual from whom he purchased narcotics.1

This indicia of reliability compelled the denial of the suppression motion. Our Supreme Court recognized, when it revamped the methodology for considering Wade2 applications, that trial judges should pass the reliability determination on to the jury. See State v. Henderson, 208 N.J. 208, 295-96, 303 (2011); State v. Henderson, 433 N.J. Super. 94, 105 (App. Div. 2013), certif. denied, 217 N.J. 590 (2014). In light of the many other facts that supported the reliability of the out-of-court identification we described above, the judge would have erred had he granted the suppression motion. The use of a single photograph in this case served merely to confirm what the other evidence strongly suggested about defendant's identity.

In this vein, we lastly note that the State argues the Attorney General Guidelines and the general principles of Wade and now Henderson do not apply to law enforcement officers with the same rigor that they apply to citizen witnesses. In support, the State relies on State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997), where we found reliability in a photographic identification made by "a trained undercover police officer" because he possessed "heightened awareness of the need for proper identification of persons who engage in drug purveyance." We need not express our view of the theory that trained police officers are less likely than average citizens to be influenced by a suggestive identification procedure in light of our determination that the new methodology of Henderson which announced the Court's expectation that the "vast majority" of challenged out-of-court identifications will be examined by juries rather than screened by trial judges, 208 N.J. at 303 compelled the denial of defendant's suppression motion. The reliability and persuasiveness of the evidence offered by the State to identify defendant as the CDS seller on May 2 and May 23 were matters for the jury, and Judge Farrell correctly denied the suppression motion.

Finally, we reject defendant's argument that the sentence was excessive. The record reveals that Judge Farrell relied on defendant's considerable criminal past, which qualified defendant for an extended term, in imposing the sentence in question. We find insufficient merit in defendant's contentions about the sentence to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1Defendant makes no attempt to parse the evidence that he believes should have been suppressed apparently assuming the use of a single photograph precluded any evidence of the out-of-court identification. Even if we were to agree with defendant's contention about the one-photograph "show-up," this would not preclude testimony from Detective Palek about the May 2 narcotics purchase, his description of the seller, Officer Ware's matching that description with defendant, the seller's statement that he was known as "Mar," the obtaining of the seller's cellphone number, and all other events, including the narcotics purchase a few weeks later from "Mar," all of which demonstrated the reliability of the identification of defendant on May 2.

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