STATE OF NEW JERSEY v. JOSEPH J. HORVATH

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH J. HORVATH,

Defendant-Appellant.

______________________________

November 24, 2015

 

Argued June 2, 2015 Decided

Before Judges Ostrer and Tassini.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0143.

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).

Sarah Lichter, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Lichter, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant appeals from his conviction of a single count of second-degree robbery after a September 2011 jury trial. The jury acquitted his female co-defendant. Defendant argues on appeal that the court erred in denying his motion to suppress two out-of-court identifications. He also asserts as plain error shortcomings in the jury instructions. We reverse, based on the police's failure to create an adequate written record of the out-of-court identification proceedings, which is a condition of admissibility pursuant to State v. Delgado, 188 N.J.48 (2006).

I.

The robbery occurred on Sunday morning, September 20, 2009, at the Kenilworth home of Bob and Madge Smith, an elderly couple.1 A young woman rang their doorbell, and told them she was from their nearby church. She inquired if they needed bibles. Although Bob and Madge said they did not need bibles, the woman asked if she could enter their home to talk. The couple allowed her in. They sat in the kitchen as the woman discussed purported problems in her personal life. After about ten or fifteen minutes, Bob lost interest in the conversation and walked into his living room, where he saw two other women and a man carrying a safe that the couple kept in their bedroom. Bob confronted them outside the house. Bob yelled, the male suspect pushed him, and the two women scratched and pushed him. The intruders left the safe and fled in a black, late model Lexus.

Patrolman Christopher Bryson responded to the home and interviewed Bob and Madge. Meanwhile, Officer Joseph Scuorzo found three neighbors who said they saw the altercation Heather and Fitz Marshall, and Mary Lawrence.2 According to Bryson's report, the male suspect was between thirty and thirty-five years of age, Hispanic, with "Round Face, Brown Hair, Short White/Gray Shirt, Dark Pants." The woman in the kitchen was eighteen years old, had brown hair, and was Hispanic. The other two women were described as Hispanic and about forty years of age.3

Detective Timothy Dowd interviewed Bob on the scene and thereafter testified that Bob's description of the man remained the same. Shortly after the robbery, Dowd accompanied Detective Gagliardi, of the Union County Prosecutor's Office, to Bob's home, so Gagliardi could prepare a sketch of the male suspect. Printed October 5, 2009 on a "Wanted" flyer, the composite depicted a wide-faced, clean shaven man, with dark eyebrows, a somewhat broad nose, and black hair that lay flat on his head. Gagliardi testified that the hair was meant to be shown combed forward. The flyer described the suspect's race as "W," which we presume meant white, with "BRO" eyes, which we presume meant brown. No height, weight, or age information was provided.

Police identified defendant as a suspect through a circuitous route, based on its prior identification of co-defendant Julia Lakatoaz as a suspect. Police in Pennsylvania arrested Lakatoaz, as well as two other women and one man, for a suspected burglary in that state. Dowd's November 3, 2009 updated report stated that the "one male suspect and three females . . . fit the description of the [Smith] incident." The man was not defendant.

On October 20, 2009, Kennilworth police detectives Anthony Giacalone and Frederick J. Soos presented a photo array including Lakatoaz to Bob at his home. Giacalone was apparently already involved in the investigation. He testified that he had transported fingerprint evidence to the State, and received the results, which did not tie defendant or Lakatoaz to the robbery. According to his report, Giacalone presented "four different photo lineups" to Bob, who identified Lakatoaz.4 Giacalone testified that Bob stated Lakatoaz was one of the persons in the home the day of the robbery.

On February 9, 2010, Heather Marshall gave a statement to Dowd at Kenilworth police headquarters about her observations the day of the robbery. Soos was apparently present as he notarized the signatures and initials on the statement. Heather Marshall described the male participant in the robbery as "a tall guy with dark hair."

A New York Police Department detective later informed Kenilworth police that defendant was a known associate of Lakatoaz. Consequently, on November 11, 2009, Giacalone and Soos returned to Bob's home to present him with a six-photo array that included defendant. Bob positively identified defendant, expressing one-hundred-percent certainty in his selection. Bob also signed a form containing photo display instructions, and a photo display statement in which Bob stated that no one tried to influence him, or to suggest which photo to select. Giacalone testified that Bob stated that defendant was "[t]he person who he was struggling with at his home on that day."

On February 10, 2010, Soos and Giacalone presented a photo array to Heather Marshall, including defendant and five other bald men. The documentary record does not reflect where the identification procedure took place. In her signed photo display statement, Marshall stated she identified Horvath with "one-hundred-percent certainty," and that no one tried to influence her, or suggest her selection. Giacalone later testified that Heather Marshall "stated that she recognized him as a person who was driving the vehicle away from the scene."

Bob and Madge Smith testified at trial, and described the arrival of the young woman, Bob's discovery of the attempted theft of the safe, and the altercation and flight that followed. They did not make in-court identifications of defendant or Lakatoaz.5

Bob Smith identified the photos of Lakatoaz and defendant that he selected during the photo identification procedures. He confirmed that he stated he was "one hundred percent" confident in his selection of defendant's photo. On the other hand, he confirmed his identification of his male assailant as a thirty to thirty-five year old Hispanic male. He also recalled providing a description to the sketch artist, including that the assailant had combed down hair. Bob testified he believed that the face in the sketch, and the face in the photo matched.

Also at trial, Heather Marshall identified her statement, which was moved into evidence. She denied the detectives suggested her selection. She stated she saw defendant as she and her husband walked home from church. She looked at the altercation for less than two minutes. Confronted with her prior statement that the male suspect had dark hair, she stated, "I would have to go with my first statement . . . ." On the other hand, she testified her identification was based on her recognition of the suspect's face, not hair. She also admitted she was unable to identify defendant when a defense investigator presented her with a photo array, shortly before the trial, that contained defendant's photo. She told the investigator the suspect was a tall man and had hair. She said her husband told the investigator the suspect was Hispanic, five feet eleven inches tall, slender, with short black hair and olive skin.

At trial, it was developed that Fitz Marshall was also presented with a photo array, the day after his wife, but he identified a person other than defendant as the driver of the Lexus. Fitz Marshall confirmed he recalled that the man who tussled with Bob Smith was "a Hispanic male about 5' 11", 6 feet, mid-30s, slender, with short black hair and olive skin[.]"

Soos, called as a defense witness, stated he conducted the photo identification procedure with Fitz Marshall. Soos testified he knew nothing about the case, notwithstanding his role notarizing Heather Marshall's February 9, 2010 statement. Soos stated that Fitz Marshall "picked the wrong person," not defendant. However, the original photo array presented to Fitz Marshall was lost. A photocopy of a composite of the photos was discovered, but it was such a poor copy that the faces could not be discerned. Moreover, the documentary record includes no written report of the photo identification procedures conducted with Fitz Marshall.

Neither defendant nor Lakatoaz testified in their defense. Defendant called the private investigator, who confirmed that Bob and Madge Smith told him, in an interview the month before trial, that the male assailant was a tall, slender Hispanic male in his mid-thirties. They were unable to make a photo identification. The defense also elicited from Soos that defendant's arrest report listed him at five foot eight inches tall, 248 pounds, and forty-nine years old.6

Defendant also called his two sisters as alibi witnesses. They testified they were with defendant on September 20, 2009 at his home in Staten Island. One stated she spent the weekend there, having arrived on Friday. The other sister, who lived in New Haven, testified she arrived on Saturday.

After hearing a read-back of Bob's entire testimony, the jury found defendant guilty, and Lakatoaz not-guilty. Sentencing occurred in May 2013. The State recommended a five-year term in return for defendant's withdrawal of a motion for a new trial based on new-found evidence that allegedly supported a defense of third-party guilt. The court imposed a five-year term, along with a period of parole ineligibility in accord with the No Early Release Act, N.J.S.A.2C:43-7.2.

Defendant presents the following points on appeal

POINT I

THE JUDGE IMPROPERLY FAILED TO ADDRESS DEFENDANT'S CLAIM THAT THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO RECORD NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION, CONTRARY TO STATE V. DELGADO. THE JUDGE ALSO SHOULD HAVE ORDERED A WADE HEARING BECAUSE THE EVIDENCE SUGGESTED THAT THE OFFICERS WHO SHOWED THE PHOTOGRAPHIC ARRAYS TO THE WITNESSES KNEW THE IDENTITY OF THE SUSPECT.

POINT II

BECAUSE THE COURT'S IDENTIFICATION CHARGE OMITTED CRITICAL FACTS AND LEGAL PRINCIPLES REGARDING HOW TO ASSESS A POTENTIALLY SUGGESTIVE IDENTIFICATION, HORVATH IS ENTITLED TO A NEW TRIAL. (Not Raised Below).7

II.

Defendant sought to suppress the out-of-court identifications by Bob Smith and Heather Marshall. In his brief in support of his pre-trial motion, defendant did not argue that the identification procedures were impermissibly suggestive. Rather, defendant asserted that the State had failed to adequately document the identification procedures, and failed to explain that failure. Defendant argued that adequate documentation was a condition precedent to the identifications' admissibility, citing Delgado, supra, 188 N.J.at 63-64, as well as State v. Earle, 60 N.J.550 (1972), State v. Herrera, 187 N.J.493 (2006), and State v. Adams194 N.J.186 (2008).

The State did not submit an opposing brief. At oral argument, defense counsel rested on his brief, and the State argued, based on State v. Ortiz,203 N.J. Super.518, 521-22 (App. Div.), certif. denied, 102 N.J.335 (1985), and State v. Madison,109 N.J.223, 233 (1988), that defendant had failed to demonstrate impermissible suggestiveness to warrant an evidentiary hearing.

The trial court agreed with the State. Without addressing Delgado's requirement that adequate documentation of an out-of-court identification procedure was a condition of admissibility, the court denied the motion on the grounds that defendant had failed to present sufficient evidence of suggestiveness.

On appeal, defendant renews his argument that the State failed to create an adequate record of the photo identification procedures as commanded by Delgado. We agree. We will review the command in Delgado, and then apply it to the records provided to the defense in this case.

The Court in Delgado, exercising its rulemaking authority, required police to create an adequate record of out-of-court identification procedures as a condition of the identification's admissibility.

We now exercise our supervisory powers under Article VI, Section 2, Paragraph 3 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 Court expressed a strong preference for electronic recordings of the identification procedures, allowing written recordings only when electronic recordings were not feasible.

When feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. In the station house where tape recorders may be available, electronic recordation is advisable, although not mandated. Needless to say, the use of a tape recorder will minimize, if not eliminate, dueling testimony recounting what actually occurred at an identification procedure. Tape recording will serve as much to protect the police from claims of improper conduct as it will to preserve evidence.

[Id.at 63-64.]

The Court's command was intended to give force to its prior statement in State v. Earle, 60 N.J.550, 552 (1972) that "'enforcement authorities should . . . make a complete record of an identification procedure if it is feasible to do so. . . .'" Delgado, supra, 188 N.J.at 59 (quoting Earle, supra, 60 N.J.at 552).

The Court imposed the requirement mindful that "'the annals of criminal law are rife with instances of mistaken identification.'" Id.at 60 (quoting United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967)). The specific requirements were intended to assure that "reliable evidence is placed before a jury and . . . a defendant receive a fair trial." Id.at 61.

With respect to the requirement that police preserve the dialogue between the witness and the officer conducting the identification procedure, the Court stated, "[T]he dialogue between a law enforcement officer and a witness may be critical to understanding the level of confidence or uncertainty expressed in the making of an identification and whether any suggestiveness, even unconsciously, seeped into the identification process." Id.at 60.

The Court emphasized that the record-keeping requirement applied to identification procedures in which someone other than the defendant was selected.

When an "identification is made," the result is no less important if the witness selects a person other than the defendant, for such information could give rise to the defense that someone else committed the crime. SeeUnited States v. Ash, 413 U.S. 300, 318-319, 93 S. Ct. 2568, 2579, 37 L. Ed. 2d 619, 632 (1973) ("Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution."); State v. James, 144 N.J.538, 561 (1996) ("The victim's initial choice of someone else's photograph suggests that some other person may have been the perpetrator.").

[Id.at 59-60.]

The Court reviewed the Attorney General's guidelines regarding the recording of identifications, quoting the following

When conducting an identification procedure, the lineup administrator or investigator shall preserve the outcome of the procedure by documenting any identification or nonidentification results obtained from the witness. Preparing a complete and accurate record of the outcome of the identification procedure is crucial. This record can be a critical document in the investigation and any subsequent court proceedings. When conducting an identification procedure, the lineup administrator or investigator should

 
1. Record both identification and nonidentification results in writing, including the witness' own words regarding how sure he or she is.

 
2. Ensure that the results are signed and dated by the witness.

 
3. Ensure that no materials indicating previous identification results are visible to the witness.

 
4. Ensure that the witness does not write on or mark any materials that will be used in other identification procedures.

 
[Id.at 61 (quoting Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Apr. 18, 2001) at 7).]

Although commending the guidelines, the Court concluded they were not an adequate substitute for the record-keeping requirement the Court imposed. The guidelines did not create a condition of admissibility. Id.at 61, n.7. Furthermore, the guidelines accomplished "most" but not all of what the Court required. Id.at 64 ("We suspect that in light of the Attorney General's guidelines, law enforcement officers are already following most of the practices now required by this Court.").

The Court in State v. Henderson, 208 N.J.208 (2011), reaffirmed the Delgadorecord-keeping requirement, while establishing, prospectively, a "revised framework" for considering pretrial challenges to admission of identification evidence. Henderson, supra, 208 N.J.at 288-96. "Of course, all lineup procedures must be recorded and preserved in accordance with the holding in State v. Delgado, supra, 188 N.J.at 63, to ensure that parties, courts, and juries can later assess the reliability of the identification." Henderson, supra, 208 N.J.at 252.8

Based on the record before us, we conclude that the police did not comply with the record-keeping requirements set forth in Delgado. The Kenilworth police created no video or sound recordings of the photo identification procedures. The record on defendant's motion included several documents pertaining to the photo identification procedure. As noted, the State did not respond in writing. We thus conclude that no other documentary evidence was available. The record consists of five categories of documents.

1. Giacalone's and Dowd's police reports of the Heather Marshall and Bob Smith identification procedures.

Dowd reported on December 14, 2009, "I . . . provided the lineup to Det. Giacalone, who went with Det[.] Soos to the residence of Mr[.] & Mrs[.] [Smith]. Det[.] Giacalone then reported that Mr[.] [Smith] had positively identified Joseph Horvath as being the responsible male suspect in the case." Giacalone wrote, of Heather Marshall's identification of defendant

The undersigned detective on February 10, 2010 along with Detective Soos met with [Heather Marshall] a Kenilworth resident. Mrs. [Marshall] was shown a photo lineup and positively identified Joseph Horvath as the male suspect who she had seen driving the black Lexus that fled the scene. . . . She also identified Horvath as the male who was assaulting the victim, Mr. [Smith] outside the house on the same date and location. The undersigned completed the photo display statement and had [Marshall] sign the form acknowledging same.

No comparable reports were supplied regarding the photo identifications by Bob Smith or Fitz Marshall.

2. "Kenilworth Police Department Lineup Report" (Lineup Report) of Bob Smith's identification of defendant on November 18, 2009, but not of Heather or Fitz Marshall.

This document provides the following information: "case no. 09-08102"; "date of lineup 11/19/09"; "start time: 1500"; "end time: 1530"; "position and name of persons in lineup," which included only six digit numbers for photos one through three and five through six, but identified photo number four by defendant's name; "name of eyewitness: Det. Fred Soos"; "comments & demeanor of witness (to be written by officer conducting lineup)," which preceded the following entry, "Witness/Victim [Bob Smith] looked at each photo then asked to look at photo #4 a few more times. He positively identified Joseph Horvath from the incident at his house."; "Did Witness ask to see any photos again? (Yes or No) Yes; If Yes which one? #4 How many times? 2" The document was signed by Giacalone.

3. A document describing the creation of the lineup on October 30, 2009 that matches the numbers of the Lineup Report, except that photo number four was described as "000000," and not defendant's name.

The document indicated that the lineup was requested by Dowd, prepared by the Union County Sheriff's Office on October 30, 2009, and picked up by Dowd on November 9, 2009.

4. "Kenilworth Police Department Photo Display Instructions," (Photo Display Instructions) utilized in Bob Smith's identification on November 19, 2009, and Heather Marshall's identification on February 10, 2009.

In each case the instructions were acknowledged by the witness, and signed by Giacalone; and in Smith's case, witnessed by Soos. The instructions generally inform the witness that the photographs may not contain the person who committed the crime; there is no significance to the order of the photographs; and "hairstyles, beards and moustaches are easily changed. People gain and lose weight. Also, photographs do not always show the true complexion of a person." The instructions also directed the witness not to ask the officer if he agrees with, or supports the selection.

5. "Kenilworth Police Department Photo Display Statement" (Photo Display Statement) signed by Bob Smith on November 19, 2009, and by Heather Marshall on February 10, 2009.

In these form statements, apparently filled out by Giacalone, and signed by the witnesses, the witnesses agreed to several leading questions about the photo display. The witnesses acknowledge they viewed the photos individually, they recognized someone, which photo, why the photo was selected, and the level of certainty. The statement also asks, "Did I or anyone else try to influence or suggest to you in any way that you should select any photograph?"

The records indicate that photo arrays were presented to Bob Smith at his home. However, contrary to the command in Delgadothat location be disclosed, the record does not reflect the location of Heather or Fitz Marshall's identification procedures. In no case do the records explain the failure to create an electronic recording of the photo identification. We presume that the Kenilworth Police Department has access to video recording equipment, if for no other reason than to comply with Rule3:17. Further, the State did not provide any excuse for failing to utilize portable electronic equipment at Bob Smith's home.

None of the documents of record indicate the dialogue that occurred between Bob Smith and Heather Marshall and the officers. As noted, the Photo Display Statement was prepared after the identification was completed. Bob Smith asked to see defendant's photo "a few more times" or "2" times after viewing it initially, according to Giacalone. The Delgadorule required a record of what if anything Bob Smith said. The possibility that the witnesses engaged in some dialogue is not far-fetched; some comment might well have been triggered when the officers presented the witnesses with an array of bald older white men whose appearances differed greatly from those of the dark-haired, olive-skinned man in his early thirties they previously described.

The need for an adequate record is heightened by the presence of Soos, who attended Heather Marshall's initial statement and therefore was privy to the investigation before her photo array procedure was conducted thereafter.9 It is preferred, if staffing levels allow, to have an officer with no involvement in the investigation to conduct the identification procedure, to avoid any intentional or unintentional suggestion. A memorandum accompanying the Attorney General guidelines provides

The individual conducting the photo or live lineup identification should not know the identity of the actual suspect. This provision of the Guidelines is not intended to question the expertise, integrity or dedication of primary investigators working their cases. Rather, it acknowledges years of research which concludes that even when utilizing precautions to avoid any inadvertent body signals or cues to witnesses, these gestures do occur when the identity of the actual suspect is known to the individual conducting the identification procedure. This provision of the Guidelines eliminates unintentional verbal and body cues which may adversely impact a witness' ability to make a reliable identification.

[Memorandum of Attorney Gen. John Farmer (accompanying Attorney General Guidelines) (quoted in State v. Herrera, 187 N.J.493, 513 (2006)).]

Moreover, in this case, the Lineup Report indicated that defendant was the suspect all the photos but his were denominated by a six-digit number. Thus, both Giacalone and Soos may have been aware that defendant was the suspect. The fact that Heather Marshall and Bob Smith denied that the officers suggested a selection is of limited weight. The Court has recognized that suggestiveness may result from means that are subtle, and therefore unrecognized by the person making an identification. Henderson, 208 N.J.at 248-49. As noted, the Attorney General has recognized the same phenomenon.

We recognize that the Court in Delgadoconcluded that the defendant received a fair trial during his second trial his first having ended in a mistrial notwithstanding the failure to adequately document the identification procedures.

Before the beginning of the second trial, defendant had learned the specifics of every positive, equivocal, and missed out-of-court identification. That information was available through various police reports, the Wadehearing testimony, and Al Bucci's testimony at the first trial. With full disclosure before his trial, defendant cannot show that he suffered any prejudice having the capacity to cause an unjust result.

[Delgado, supra, 188 N.J.at 64.]

We cannot reach the same conclusion here. The specifics of the identification were not disclosed in defendant's trial. Moreover, the records of Fitz Marshall's identification of someone other than defendant were non-existent, except for an indiscernible photocopy of the array itself.

Since the trial in this matter, the court has adopted a Rule to implement its command in Delgado. R.3:11 (adopted July 19, 2012, effective September 4, 2012). The Rule clarifies that the remedy for failure to comply with the record-keeping requirements may include exclusion, redactions, or an appropriate jury charge.

If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification.

[R.3:11(d).]

None of these remedies were utilized in this case, although the "record . . . prepared [was] lacking in important details as to what occurred at the out-of-court identification procedure." Id.

We therefore reverse the conviction, and remand for a hearing on the appropriate remedy in advance of a retrial.

We briefly address defendant's alternative argument that he presented sufficient evidence of suggestiveness to justify a Wadehearing. Defendant argues the array presented was inherently suggestive because none of the depicted persons matched Smith's description. We are unconvinced. The Attorney General Guidelines recognize that sometimes, police may suspect someone who does not match a witness's description. Attorney Gen. Guidelines at 2. In such cases, the police are obliged to assure that all of the persons depicted are similar in appearance, even if they are all different from the description given. Defendant has also provided no support in the case law for his argument that the administrator should have been disqualified from administering a second photo identification procedure, once a witness selected a photo in the first array.

We recognize that Giacalone and Soos may have been aware that defendant was the prime suspect, based on his photo's unique numbering. Also, Soos witnessed Heather Marshall's formal statement, the day before she participated in a photo identification procedure. This may have provided an opportunity for suggestiveness; but it does not constitute evidence of it. Cf.Henderson, supra, 208 N.J.at 238 ("Procedurally, a defendant must first 'proffer . . . some evidence of suggestiveness' to be entitled to a Wadehearing.") (quoting State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J.3 (1994)). The significant problem in this case is that, as discussed above, the police failed to create the documentary record of the procedures, which would have enabled defendant and the court to assess whether there was evidence of suggestiveness. Relief is appropriate under Delgadofor the reasons discussed at length above.

Finally, given our determination that a new trial is necessary, based on the Delgadoviolation, we decline to address defendant's claim of plain error arising from the jury instructions. Defendant argues the court should have, sua sponte, tailored the jury charge to highlight facts favoring the defense, including: Fitz Marshall had identified someone other than defendant; the State failed to preserve the array shown to Fitz Marshall; and the dissimilarity between defendant, and the witnesses' and victims' descriptions of the male participant in the crime.

Defendant will have an opportunity to request an appropriate molding of the charge upon retrial. We recognize that "it is often important to mold jury instructions so that the jury clearly understands how the evidence in [a] particular case relates to the legal concepts addressed in the charge." State v. Gentry, 439 N.J. Super. 57, 72 (App. Div. 2015). On the other hand, tailoring of an instruction may not be essential if the facts, the parties' respective positions, and the legal principles are clear. State v. Angoy, 329 N.J. Super. 79, 85 (App. Div.), certif. denied, 165 N.J.138 (2000). Also, a "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J.409, 422 (1997). There is also a presumption of correctness in the model jury charges. SeeState v. R.B., 183 N.J.308, 325 (2005) (stating trial court's obligation to deliver model charges); Mogull v. C.B. Comm. Real Estate Group, Inc., 162 N.J.449, 466 (2000) (noting "it is difficult to find that a charge that follows the Model Charge so closely constitutes plain error").

Reversed and remanded. We do not retain jurisdiction.


1 We utilize pseudonyms to protect the privacy of the victim and his wife. We likewise will use pseudonyms of the eye-witnesses.

2 Scuorzo testified that Fitz Marshall wrote a statement about the altercation, including a description of the actors. Heather and Fitz Marshall confirmed that Fitz Marshall wrote a statement. However, it was not produced.

3 The police report attributed the description of the woman in the kitchen to Bob and Madge. It directly attributed to Bob only his identification of the male as Hispanic but Bryson testified at trial that Bob provided the other descriptive details as well.

4 The record does not include the arrays, or other documentary evidence related to the identification of Lakatoaz. However, one of the four arrays apparently included male suspects. The record does not reflect whether one of those depicted was the male arrested in Pennsylvania with Lakatoaz.

5 The State also presented testimony that DNA evidence was gathered from the kitchen and elsewhere in the house, but it did not match Lakatoaz.

6 Lakatoaz was described when arrested as thirty-seven, white, five feet eight inches, and 190 pounds.

7 Defendant also submitted an informal pro se supplemental letter without point headings. Defendant pro se challenges his identification, highlighting the loss of documents relating to Fitz Marshall's identification of someone other than defendant.

8 Indeed, the Court supplemented the Delgado requirements by directing police to "ask witness, as part of the identification process, questions designed to elicit (a) whether the witness has spoken with anyone about the identification and, if so, (b) what was discussed," and then record and disclose the answers. Henderson, supra, 208 N.J. at 270.

9 Soos' statement at trial that Fitz Marshall picked the wrong person provides a basis for inferring that Soos was involved in the investigation and that he was aware that defendant was the prime suspect in the investigation.


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