Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JEROME HOLLEY, a/k/a JEROME D GANDY, ROME HOLLEY, and JERMONE HOLLEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1378-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME HOLLEY, a/k/a JEROME D.
GANDY, ROME HOLLEY, and JERMONE
HOLLEY,
Defendant-Appellant.
_________________________________
Argued November 27, 2017 – Decided December 19, 2017
Before Judges Accurso and Vernoia.
On appeal before Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
15-04-1111.
Alicia J. Hubbard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Alicia J. Hubbard, of counsel and on the
brief).
Dylan P. Thompson, Assistant Prosecutor,
argued the cause for respondent (Damon G.
Tyner, Atlantic County Prosecutor, attorney;
Dylan P. Thompson, of counsel and on the
brief).
PER CURIAM
Defendant appeals his conviction and sentence following a
conditional guilty plea to second-degree burglary,
N.J.S.A. 2C:18-
2(a). He argues the court erred by denying his motion to suppress
a victim's out-of-court identification and by failing to award the
jail credits the court said he would receive when he pleaded
guilty. We vacate defendant's sentence and remand for resentencing
in accordance with the plea court's assurances concerning the
award of jail credits or renegotiation or withdrawal of his plea
agreement.
I.
In the early morning hours of October 10, 2014, three
individuals broke into the Pleasantville home of S.W.,1 his wife
D.C., her twenty-one-year-old son Billy and twenty-year-old
daughter Betty. Two of the perpetrators went to the second floor
and confronted Billy. One was armed with a handgun and ordered
Billy into the bedroom S.W. and D.C. shared. Once in the bedroom,
the armed perpetrator ordered S.W., D.C. and Billy to lay on the
floor, demanded money and struck Billy on the head with the gun.
The three perpetrators ransacked the residence and fled.
The police were called and arrived shortly after the
perpetrators left. S.W. told the police he recognized the armed
1
We use initials and pseudonyms to identify the victims to protect
their privacy.
2 A-1378-16T1
perpetrator because they had been incarcerated together in South
Woods State Prison a year earlier. S.W. said he did not know the
person's "information or whereabouts," but was "positive" the
person lived in Pleasantville. S.W., D.C. and Billy described the
man as a six-foot tall, slim, black male with slight facial hair.
They described the second man as a six-foot tall black male with
a full beard. The third perpetrator remained on the first floor
and was never seen.
Later that day, Detective Steven Sample went to the home and
spoke with D.C. and Billy. S.W. was not at home. Billy informed
Sample that he reviewed photographs on the New Jersey Department
of Corrections' website and identified defendant as the armed
perpetrator.
A week later, Detective Miguel Lugo showed D.C. a photo-array
consisting of six photographs. Lugo read D.C. instructions from
the "Sequential Photo Lineup Form" and asked her to review the six
photographs sequentially. After she reviewed the array, D.C.
reported she was unable to positively identify a suspect. She
pointed out the photos of defendant and another individual in the
array and said "that one of the two could possibly be the person
involved" but "she could not determine which of the two was in
fact the actor in the crime."
3 A-1378-16T1
On the same day, Lugo also showed S.W. a photo-array. Lugo
read S.W. the written instructions from the "Sequential Photo
Lineup Form," and S.W. signed the form. S.W. "positively
identified" defendant's photograph and said he was the armed
perpetrator. S.W. signed and dated defendant's photo, and signed
a separate form confirming he selected defendant's photo.
Defendant was charged in an indictment with first-degree
robbery,
N.J.S.A. 2C:15-1; second-degree burglary,
N.J.S.A. 2C:18-
2(a); third-degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2); second-degree possession of a weapon for
an unlawful purpose,
N.J.S.A. 2C:39-4(a); second-degree unlawful
possession of a weapon,
N.J.S.A. 2C:39-5(b);2 three counts of
third-degree criminal restraint,
N.J.S.A. 2C:13-2(a); second-
2
The indictment incorrectly states that the crime charged in count
five, unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b), is a
first-degree offense. Unlawful possession of a handgun constitutes
either a second or third-degree offense.
N.J.S.A. 2C:39-5(b). A
third-degree offense is committed when there is unlawful
possession of a "handgun in the nature of an air gun, spring gun
or pistol or other weapon of a similar nature in which the
propelling force is a spring, elastic band, carbon dioxide,
compressed air, and ejecting a bullet or missile smaller than
three-eighths of an inch, with sufficient force to injure a
person." Ibid. Unlawful possession of any other handgun
constitutes a second-degree crime. Ibid. Because defendant was
not charged with the possession of the type of handgun that would
render the offense a third-degree crime, the indictment charged a
second-degree crime.
4 A-1378-16T1
degree conspiracy to commit robbery,
N.J.S.A. 2C:15-1 and
N.J.S.A.
2C:5-2; and second-degree possession of a weapon by a certain
person,
N.J.S.A. 2C:39-7(b).
Defendant moved for suppression of the photo identifications
made by S.W. and D.C. during Lugo's separate photo-array
presentations.3 Defendant argued the police failed to sufficiently
record and detail their interactions with S.W. and D.C. during the
identification procedures. Defendant also claimed the police
failed to record S.W.'s level of certainty concerning his
identification of defendant during the identification procedure.
Defendant further asserted that the photo-array shown to S.W. was
suggestive because the background of S.W.'s photograph was lighter
than the backgrounds in the other five photos in the array.
3
Defendant also challenged Billy's identification of defendant
based on his review of the New Jersey Department of Corrections'
website. See State v. Chen,
208 N.J. 307, 327-28 (2011) (holding
that even where there is no police involvement, a court must
conduct a hearing to determine the admissibility of identification
evidence when the "identification was made under highly suggestive
circumstances"). Defendant does not argue the court committed any
error concerning Billy's out-of-court identification. In
addition, defendant does not make any arguments concerning the
admissibility of D.C.'s identification of defendant as a possible
perpetrator during the photo-array identification procedure
conducted by Lugo. We therefore address only defendant's argument
that the court erred by denying his motion to suppress S.W.'s
identification. See Jefferson Loan Co. v. Session,
397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (finding any argument not briefed
on appeal is waived).
5 A-1378-16T1
After hearing argument, the court denied defendant's request
for a hearing concerning the suggestiveness of the photographs
shown to S.W. The court found defendant presented insufficient
evidence of suggestiveness concerning the photographs to establish
entitlement to a hearing. The court found the difference in the
background of defendant's photograph was immaterial and not
suggestive, and that the "race, age, skin tone, hair and the like"
of the individuals in the six photographs were similar.
Although the court found defendant did not present sufficient
evidence of suggestiveness concerning the photographs to warrant
a hearing, it nevertheless ruled it would conduct a N.J.R.E. 104
hearing during which defendant could question the officers who
administered the photo-array identification procedures about any
"system variables" relevant to the suggestiveness of the process.
See State v. Henderson,
208 N.J. 208, 250-61 (2011) (explaining
the system variables relevant to determining the suggestiveness
of an identification procedure). The court also stated that
defendant could question witnesses about their interactions with
S.W. and Billy, and inquire about whether they were shown any
Department of Corrections photographs or provided any other
identifying information "by anyone involved." The court found
"there may be some indication of suggestibility regarding [S.W.'s]
involvement with lay witnesses" and after a hearing it would
6 A-1378-16T1
"revise [its] decision relative to any further suppression or
limitation on introduction of eyewitness identification based on
what [occurs] at the hearing."
The court entered an order denying defendant's motion to
suppress the out-of-court identification but, in the same order,
directed that a N.J.R.E. 104 hearing be held to permit defendant
"to examine Detective Lugo regarding the photo lineup shown to
[S.W.] based upon system variables." The order also permitted a
N.J.R.E. 104 hearing to "examine the victims as to the limited
issue of whether or not the photograph of [defendant] found by
[Billy on the Department of Corrections' website] was shown to
these witnesses[, including S.W.,] and whether it had any influence
on them."
At a pretrial conference held a few months later, defendant's
counsel advised the court that the State had extended a plea offer
of five years subject to the requirements of the No Early Release
Act (NERA),
N.J.S.A. 2C:43-7.2. Counsel stated defendant
understood that his sentencing exposure exceeded 100 years and
that defendant faced imposition of an extended term of life
imprisonment. Counsel reminded the court that a N.J.R.E. 104
hearing was required prior to trial, and requested that the court
schedule a plea cutoff proceeding.
7 A-1378-16T1
The court addressed defendant and explained defendant's
sentencing exposure. Defendant said he had been incarcerated for
one year following his arrest on the charges, and his counsel
informed the court that during that period defendant had been
serving a sentence for a parole violation on a prior conviction.
The court informed defendant that he did not get jail credit
for the time spent serving his parole sentence and that the "sooner
[he] take[s] the [State's plea] offer, the better because then it
starts counting as good time." The judge advised defendant that
if he accepted the State's offer that day, his counsel could make
a motion for discretionary jail credits and the court would
consider the application and "decide how much credit [defendant]
should get" after "a fair hearing." The judge reminded defendant
that if he waited thirty days to plea on the plea cutoff date,
"that's [thirty] more dead days against [his] sentence."
The court then advised defendant that "if you want to accept
the [plea] offer today, we can ensure that you're at least getting
credit starting today." The judge further stated that when
defendant appeared at sentencing, he could request additional days
of jail credit for the period following his arrest and prior to
his parole revocation. The judge said he would give defendant a
fair hearing on a request for such credit, but could not promise
8 A-1378-16T1
it would be awarded. In response to the judge's statements,
defendant said, "All right, I accept that."
Defendant then pleaded guilty to second-degree burglary,
N.J.S.A. 2C:18-2(a), in exchange for the State's recommendation
that the court impose a custodial sentence not to exceed five
years subject to the requirements of NERA, and dismiss the
remaining charges. During the plea colloquy, the court explained
that at sentencing it would "consider [defendant's] parole status
and any appropriate discretionary credits" and would provide
defendant with a fair hearing on any request for jail credits.
Defendant accepted the plea offer, and provided a factual basis
describing his commission of the second-degree burglary. The
judge accepted defendant's plea and scheduled defendant's
sentencing.
Defendant's original sentencing date was adjourned for two
weeks by the court. Defendant was sentenced by a different judge
from the judge who accepted his plea. The sentencing judge awarded
jail credits for the two-week delay in defendant's sentencing, but
denied defendant's request for jail credits for the period during
which defendant was serving his parole violation sentence. In
accordance with the plea agreement, the court imposed a five-year
custodial term subject to the requirements of NERA. This appeal
followed.
9 A-1378-16T1
POINT I
THE FAILURE OF THE POLICE TO RECORD THE
DETAILS OF THE IDENTIFICATION PROCEDURE
RENDERED THE OUT-OF-COURT IDENTIFICATION OF
DEFENDANT PER SE INADMISSIBLE, REQUIRING THAT
THE CONVICTIONS BE SET ASIDE. (U.S. CONST.
AMENDS. V, VI, XIV; N.J. CONST. (1947) Art.
I, PARS. 1,
9 AND 10).
POINT II
THE SENTENCING COURT ERRED IN DENYING MR.
HOLLEY ADDITIONAL CREDIT PROMISED HIM AT THE
TIME OF PLEA AND, THEREFORE, THE MATTER SHOULD
BE REMANDED FOR A HEARING WHERE THE SENTENCE
IS AMENDED TO EFFECTUATE THE TERMS OF THE PLEA
OR HE HAS THE OPPORTUNITY TO WITHDRAW HIS
PLEA. (U.S. CONST. AMENDS. V, VI, XIV; N.J.
CONST. (1947) Art. I, PARS. 1, 9, AND 10).
II.
Defendant first argues the court erred by denying his motion
to suppress S.W.'s out-of-court photo-array identification.
Defendant asserts that the police did not record or adequately
document the verbatim exchange between the police and S.W. during
the procedure and, for that reason, the out-of-court
identification should have been suppressed. Defendant argues that
under State v. Delgado,
188 N.J. 48 (2006), law enforcement's
failure to create a record of "'the dialogue between the witness
and the interlocutor'" renders the out-of-court identification
"per se inadmissible." Defendant also contends the police's
failure to record S.W.'s level of confidence in his identification
10 A-1378-16T1
of defendant required suppression of S.W.'s out-of-court
identification.
In Delgado, our Supreme Court required 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 explained
that "[p]reserving the words exchanged between the witness and the
officer conducting the identification procedure may be as
important as preserving" the photographs shown to a witness, and
required that "[w]hen feasible, a verbatim account of any exchange
between the law enforcement officer and witness should be reduced
to writing." Ibid. When a verbatim account is not feasible, "a
detailed summary of the identification procedure should be
prepared." Ibid.
The Court subsequently adopted Rule 3:11,4 which details the
requirements for the recordation of out-of-court identification
procedures. The Rule requires the preparation of a
"contemporaneous record[ation] of identification procedure[s] in
4 Rule 3:11 was "[a]dopted July 19, 2012 to be effective September
4, 2012." Pressler & Veniero, Current N.J. Court Rules, Note, R.
3:11 (2018).
11 A-1378-16T1
writing, or, if feasible, electronically." R. 3:11(b). Where a
written record is prepared, "it shall include, if feasible, a
verbatim account of any exchange between the law enforcement
officer . . . and the witness." Ibid. If "a written verbatim
account cannot be made, a detailed summary . . . should be
prepared." Ibid. Contrary to defendant's contention, law
enforcement's failure to make the required record does not require
suppression of the out-of-court identification. Under Rule
3:11(d), the decision to suppress an out-of-court identification
based on a failure to make the required record rests within the
"sound discretion" of the motion court.
In the first instance, we address the court's order on
defendant's suppression motion. The order states defendant's
motion to suppress S.W.'s out-of-court identification is denied,5
but clearly and unequivocally provides for a N.J.R.E. 104 hearing
permitting defendant to challenge S.W.'s out-of-court
identifications.
The order granted defendant's request for a N.J.R.E. 104
hearing to permit defendant to question the officer who
5
In its oral opinion, the court addressed only the difference in
the darkness of the background of defendant's photograph from
those of the other five photos in the array and ruled only that
the difference did not demonstrate sufficient suggestiveness to
warrant a hearing. Defendant does not challenge the court's
determination on that issue on appeal.
12 A-1378-16T1
administered the photo-array identification procedure about any
"system variables" relevant to the suggestiveness of the process.
System variables include the pre-identification instructions
provided by law enforcement, information received by witnesses
before and after the identification, confirmatory or post-
identification feedback to the witness, and the witness's level
of confidence in the identification that will be reflected in the
required record of an identification procedure. Henderson,
208 N.J. at 250-61. Thus, the court's order directed a hearing on the
precise issues defendant now claims required suppression of S.W.'s
out-of-court identification.
The court further ordered a N.J.R.E. 104 hearing to consider
whether the photograph Billy found on the New Jersey Department
of Corrections' website was shown to S.W., and if so, whether it
influenced S.W.'s identification. In its oral opinion, the court
said defendant presented evidence of "suggestibility regarding
[S.W.'s] involvement with lay witnesses" and the issue would be
addressed in the N.J.R.E. 104 hearing. If defendant showed "some
evidence of suggestiveness [tied to a system variable] that could
lead to a mistaken identification" the burden would shift to the
State to "offer proof to show that the proffered eyewitness
identification is reliable . . . ." Id. at 288-89. However,
defendant bears the "ultimate burden . . . to prove a very
13 A-1378-16T1
substantial likelihood of irreparable misidentification." Id. at
289.
In sum, although the court's order states the suppression
motion was denied, it permitted a N.J.R.E. 104 hearing concerning
the system variables and S.W.'s exposure to other information and
photographs to determine the admissibility of S.W.'s out-of-court
identification. The court's opinion and order provided defendant
with the opportunity to challenge the admissibility of the
identification on all of the issues he currently raises on appeal,
but defendant opted to forego the N.J.R.E. 104 hearing and instead
pleaded guilty. Defendant was aware he could challenge the
admissibility of S.W.'s out-of-court identification at a N.J.R.E.
104 hearing. At the pretrial conference proceeding, his counsel
reminded the court that the N.J.R.E. 104 hearing was required
before trial.
The hearing was not held because defendant pleaded guilty.
Thus, the court was not required to determine whether the officers
complied with the requirements of Delgado and Rule 3:11, whether
it was feasible for them to do so and, if it was, whether
suppression of S.W.'s out-of-court identification was the
appropriate remedy. In his decision to forego the N.J.R.E. 104
hearing and plead guilty, defendant did not make the arguments he
now asserts on appeal. We therefore decline to consider the merits
14 A-1378-16T1
of defendant's arguments in support of his assertion that the
court erred by denying his motion to suppress S.W.'s out-of-court
identification. They were not "properly presented to the trial
court" during the N.J.R.E. 104 hearing the court ordered but
defendant opted to forego, and do not "go to the jurisdiction of
the trial court or concern matters of great public interest."
State v. Robinson,
200 N.J. 1, 20 (2009) (quoting Nieder v. Royal
Indem. Ins. Co.,
62 N.J. 229, 234 (1973)).
We next consider defendant's contention that he is entitled
to a remand for either resentencing or withdrawal of his plea. He
contends the court assured him he would receive jail credits for
the period between his plea and sentencing dates, but failed to
award the credits at sentencing. The State asserts the court
never assured defendant he would receive any jail credits but only
told defendant he could request jail credits at sentencing.
"It is fundamental that when a defendant pleads guilty
pursuant to a plea agreement, the terms of the agreement must be
fulfilled." State v. Kovack,
91 N.J. 476, 482 (1982) (citation
omitted). "The terms of the plea agreements must be meticulously
adhered to, and a defendant's reasonable expectations generated
by plea negotiations should be accorded deference." State v.
Brockington,
140 N.J. Super. 422, 427 (App. Div. 1976). Where a
defendant has been misinformed "as to a material element of a plea
15 A-1378-16T1
negotiation, which the defendant has relied thereon in entering
his plea . . . , it would be manifestly unjust to hold the defendant
to his plea." State v. Nichols,
71 N.J. 358, 361 (1976).
The record shows the plea judge advised defendant that he
would begin to earn jail credits upon entry of his guilty plea.
As noted, the court advised defendant that the "sooner [he] take[s]
the [State's plea] offer, the better because then it starts
counting as good time," and that if defendant waited to enter his
plea, there would be "more dead days against [his] sentence." The
court told defendant if he accepted the State's plea offer, it
"ensure[d]" he would begin "getting credit" that day.
To be sure, the judge advised defendant that if he accepted
the State's offer, he could also request jail credits for the
period he was incarcerated prior to the entry of his guilty plea.
A fair reading of the record, however, shows the court spoke
separately about the jail credits for the time following the guilty
plea, and the court assured defendant those jail credits would be
awarded.
A guilty plea based on a "misunderstanding [concerning the
award of jail credits] may fail to satisfy the constitutional
requirement that a plea be voluntary, intelligently and knowingly
entered, at least where the denial of the expected credits results
in the imposition of a sentence longer in duration than the maximum
16 A-1378-16T1
contemplated." State v. Alevras,
213 N.J. Super. 331, 338 (App.
Div. 1986). Jail credits reduce a defendant's period of parole
ineligibility on a day-for-day basis, State v. Hernandez,
208 N.J.
24, 37 (2011), and here the court imposed a period of parole
ineligibility under NERA. Thus, the sentencing court's failure
to award jail credits in accordance with the plea court's
assurances increased the time defendant must serve before being
eligible for parole. See Alevras,
213 N.J. Super. at 338 (finding
the defendant's reasonable expectations in entering a guilty plea
may not have been met where the jail credits improperly awarded
at sentencing changed the length of his parole ineligibility
period).
"[P]enal consequences attach to a loss of a parole opportunity
and, accordingly, . . . [trial courts must] establish on the record
that a pleading defendant is aware of any such loss that is part
of the sentence to be imposed." State v. Johnson,
182 N.J. 232,
238-39 (2005). The plea court assured defendant he would accrue
jail credits following his guilty plea, but the sentencing judge
did not award the credits and thereby increased the length of time
defendant reasonably could have expected to serve prior to becoming
eligible for parole. Because the sentence imposed is inconsistent
with the plea court's assurances, we are compelled to vacate
defendant's sentence. See, e.g., id. at 241 (holding a defendant
17 A-1378-16T1
is entitled to seek vacation of a guilty plea when not informed
concerning "NERA's fixed period of parole supervision"); Kovack,
91 N.J. at 484 (finding a "sentence cannot stand" where the
defendant was not informed during the plea proceeding that a period
of parole ineligibility would be imposed).
The present circumstances parallel those in Kovack, where the
sentencing judge did not preside over the defendant's plea
proceeding and "was not aware of [the] defendant's understanding
of" the conditions of the defendant's plea. Id. at 485. In
addition, "defendant neither objected nor moved for resentencing
. . . [and] hence, the sentencing judge had no opportunity to
conform the sentence to the terms" described by the plea judge.
Id. at 485-86. As found by the Court in Kovack, the "best
accommodation of 'pragmatic necessity' and 'essential fairness'"
requires we vacate defendant's sentence and remand for the court
to consider resentencing defendant in accordance with the plea
agreement and the plea court's assurances.6 Id. at 486. If the
court determines it cannot sentence defendant in a manner
6
We express no opinion as to whether the court may impose a
sentence consistent with the plea court's assurances to defendant.
See Henderson,
208 N.J. at 48 (finding "there is no room for
discretion in either granting or denying credits" under Rule 3:21-
8). Defendant acknowledges in his brief that Rule 3:21-8 precludes
the award of discretionary jail credits.
18 A-1378-16T1
consistent with the plea court's assurances, defendant shall be
given the option to "renegotiate the plea, if the State is willing
to do so[,] or . . . withdraw his guilty plea subject to
reinstatement of the dismissed counts and proceed to trial."7 Id.
at 485.
Defendant also claims the judgment of conviction includes an
error because it does not correctly allocate jail credits for the
period between his initial incarceration following his arrest on
the present charges and the date he began serving his parole
revocation sentence, and otherwise incorrectly allocates the
thirty-four days from March 13, 2015 to April 15, 2015, as gap-
time credits. Because we vacate defendant's conviction and
sentence, we do not address the alleged errors in the court's
award of the credits other than to note that the record is
incomplete or contains conflicting information concerning the
dates pertinent to determination of the credits.8 If the court on
7
For the reasons noted, if on remand defendant withdraws his
guilty plea, he shall be entitled to the N.J.R.E. 104 hearing on
the admissibility of S.W.'s out-of-court identifications as set
forth in the motion court's order.
8
For example, the presentence investigation report shows defendant
was arrested on the present charges on January 26, 2015, and
violated parole on March 13, 2015, but during the sentencing
proceeding it was argued defendant was arrested on March 3, 2015
and his parole was revoked on April 15, 2015. The presentence
report also does not include any calculation of jail or gap-time
credits.
19 A-1378-16T1
remand resentences defendant, any award of credits shall be based
on information contained in the record and accompanied by findings
of fact and conclusions of law supporting such an award. See R.
1:7-4.
Vacated and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
20 A-1378-16T1
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