STATE OF NEW JERSEY v. THOMAS REED

NOT FOR PUBLICATION WITHOUT THE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-3302-18T3

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                v.

THOMAS REED, a/k/a
THOMAS REID, THOMAS
RIED AND DAVID RED,

     Defendant-Appellant.
_________________________

                Submitted March 11, 2020 – Decided March 25, 2020

                Before Judges Koblitz and Mawla.

                On appeal from the Superior Court of New Jersey,
                Law Division, Monmouth County, Indictment Nos.
                16-03-0596 and 16-06-1161.

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

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (William P. Cooper-Daub, Deputy
                Attorney General, of counsel and on the brief).
PER CURIAM


      Defendant Thomas Reed appeals from the March 25, 2019 order denying

his motion to suppress an out-of-court showup identification. The order was

entered after the judge analyzed the facts under State v. Henderson,  208 N.J.
 208 (2011), pursuant to our remand. See State v. Reed, No. A-5048-16 (App.

Div. Jan. 15, 2019) (slip op. at 3-6). The same judge who tried the case

originally carefully reconsidered the evidence elicited at the earlier hearing,

applying the "system and estimator variables" required by Henderson,  208 N.J.

at 288-289. We now affirm.

      As we stated in our earlier opinion:

            Defendant appeals after a jury convicted him of second-
            degree robbery, an attempted theft by threat, N.J.S.A.
            2C:15-1(a)(1), third-degree possession of drugs,
             N.J.S.A. 2C:35-10(a)(1), second-degree witness
            tampering,  N.J.S.A. 2C:28-5(d), and the disorderly
            persons offense of hindering apprehension, N.J.S.A.
            2C:29-3(b)(1). On May 12, 2017, the court sentenced
            him to an aggregate term of twenty years, with twelve
            years and nine months of parole ineligibility pursuant
            to the No Early Release Act (NERA),  N.J.S.A. 2C:43-
            7.2. He received concurrent terms on three unrelated
            convictions stemming from three additional
            indictments.

            [Reed, slip op. at 2 (footnote omitted).]



                                                                       A-3302-18T3
                                        2
      The victim of the attempted robbery identified defendant shortly after the

incident at a showup, when the victim was in a police car and defendant was in

handcuffs. Defendant raises the following issue on appeal:

            POINT I:   THE TRIAL COURT ERRED BY
            ADMITTNG        THE       OUT-OF-COURT
            IDENTIFICATION BECAUSE IT WAS A SHOWUP
            CONDUCTED IN AN UNDULY SUGGESTIVE
            MANNER, AND BECAUSE THE WITNESS DID
            NOT RECEIVE ANY OF THE INSTRUCTIONS
            DESIGNED TO IMPROVE RELIABILITY.

      The court found, based on the transcript of the police officer's testimony,

that the victim was told prior to the showup "that someone was stopped matching

the description that he gave, but that the person may or may not be the

perpetrator." The officer testified:

            Q: Can you please generally [describe] what a showup
            is?

            A: When you advise the victim that someone is stopped,
            matching the description that he gave, but he needs to
            know that he may or may not be the person involved in
            the incident.

            Q: Did you explain to [the victim] what you've
            explained to us?

            A: Yes.




                                                                        A-3302-18T3
                                       3
Later the officer testified he had no discussion with the victim about the

identification in the patrol car. We defer to the court's factfinding in sorting out

this apparent inconsistency. State v. Handy,  206 N.J. 39, 44 (2011).

      Although a showup is "inherently suggestive," Henderson,  208 N.J. at
 261, it is not per se impermissible evidence. Having reviewed the judge's

detailed analysis placed on the record on March 1, 2019, we now affirm

substantially for the cogent reasons expressed by the trial court.

      Affirmed.




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