STATE OF NEW JERSEY VS. DENNIS F. RODRIGUEZ (17-01-0094, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1253-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS F. RODRIGUEZ, a/k/a
DENNIS FELIX, EDDIE NEVES,
and JOSE CRUZ,

Defendant-Appellant.
_____________________________

Submitted February 14, 2019 – Decided May 13, 2019

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-01-0094.

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

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Deputy
Executive Assistant Prosecutor, of counsel; John C.
Tassini, Assistant Prosecutor, on the brief).
PER CURIAM

Defendant Dennis Rodriguez appeals from a September 15, 2017

judgment of conviction. A jury convicted defendant of second-degree robbery,

N.J.S.A. 2C:15-1(a)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(7), stemming from the robbery of seventy-six-year-old N.R.1 For the

reasons that follow, we reverse and remand for a new trial.

The key issue at trial was identification. On November 8, 2016, N.R.

entered a bathroom stall in a Lakewood bus terminal and felt a tap on his

shoulder. When he turned around, someone punched him in the face, and he fell

to the ground. N.R. felt the assailant take his wallet from his back pocket. When

N.R. got up, he exited the bathroom and alerted the bus terminal's security guard,

J.R. The two followed the assailant outside, but the assailant walked behind a

bus and down a street before they could identify him. Neither pursued the

assailant.

Detective Gerald D'Alessio, of the New Jersey Transit Police Department,

reviewed surveillance footage from the bus terminal's lobby and depot.

D'Alessio generated several still photographs from the video and sent the photos

to the Lakewood police before responding to the scene. The Lakewood police

1
We use initials to protect the victim's and witness's privacy.
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distributed the photos to the bus terminal security staff, and M.G., a security

guard who was not working on the date of the robbery, recognized defendant in

the still photographs because he frequented the bus terminal. M.G. confirmed

his suspicions after visiting Mugshots.com and informed D'Alessio he believed

defendant to be the robbery suspect. 2

On November 9, 2016, the day after the robbery, Detective Chase Messer

generated a random photo lineup. Messer handed the lineup off to Detective

William Sweeny, who was unaffiliated with the investigation, and Sweeny

showed the lineup to J.R. The process was video recorded. J.R. selected

defendant as the man he saw exit the terminal.

On November 21, 2016, Messer generated another lineup and handed it

off to Detective Steven Costain, who was also unaffiliated with the

investigation, to show N.R. The interview was video recorded. N.R. was shown

six photographs and said the picture of defendant "look[ed] like the closest, the

best, the closest to the guy." Costain asked N.R. how confident he was, and

N.R. responded, "[u]m, towards the good, [ninety] be close to being it, [ninety-

five] will be close to being him . . . I'm [ten], [ten] or [twenty] or [thirty] percent

2
M.G. was permitted to testify he recognized defendant but was not permitted
to reference Mugshots.com.
A-1253-17T4
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left that its no, it's not." N.R. continued, "[o]ne to a hundred, I would say this,

[thirty] to [thirty-five]," to which Costain asked, "[thirty] to [thirty-five] percent,

you think that's him?" N.R. responded, "[thirty] percent, that's the closest,

though of all." N.R. kept asking Costain whether the photo of defendant "was

his true color" and said, "[b]ecause if this is the true color, definitely no cause

he's a little dark." Costain tried to confirm N.R.'s final answer and asked, "so

none of these guys you would say a hundred percent?" to which N.R. answered,

"[n]o." Costain then told N.R. he was going to mark the box "no positive

identification was possible." As the interview was finishing, N.R. said, "[i ]f you

can find out if that's the true color, 'cause he's dark skinned like I, that where I

showed you . . . . Definitely if that’s the true color, it will never be him. No

way. 99.99999999, about the forty thousand nine's, that's the best."

Defendant moved to suppress both N.R.'s and J.R.'s identifications and

sought a Wade3 hearing. The trial judge watched both videos and found neither

identification impermissibly suggestive under State v. Henderson, 208 N.J. 208

(2011). Both identifications were played for the jury.

3
United States v. Wade, 388 U.S. 218 (1967).

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 At trial, D'Alessio testified about the verbal description of the assailant

N.R. gave to him. D'Alessio testified N.R described the assailant as "[six]-foot,

[two]-inches tall," "250 to 275 pounds," "had a dark complexion," and was

wearing "a blue coat" and "white pants." On cross-examination, N.R. was asked

if he "remember[ed] telling the police the man had a blue coat?" N.R.

responded, "[h]e had some kind of bluish, grayish clothing." N.R. was then

asked, "[a]nd do you remember telling the police that he had white pants?" to

which N.R. answered, "[t]hat, I don't remember. I'm sorry. . . . I said he had

white pants?"

Officer Kevin Donnelly, who responded to the scene, testified that N.R.

described the assailant "as a Hispanic male . . . approximately [six] feet tall,

short, wavy, dark . . . black hair" and "was wearing a gray sweatshirt and blue

jeans."

On direct examination, D'Alessio testified in a narrative format as to what

he believed the security footage depicted while the prosecutor played the video

for the jury. D'Alessio's knowledge of what the security footage showed was

based on his review of the footage during his investigation of the robbery and

interviews with the witnesses. However, D'Alessio responded to the bus

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terminal after the robbery, and he did not know or interact with defendant before

or during his investigation.

The State sought to have D'Alessio identify N.R. and defendant on the

video, and the following exchange took place:

[Prosecutor]: Can you describe what you see on
the right-hand upper corner?

[D'Alessio]: You see the victim walking with two
other individuals.

....

[Prosecutor]: [D]o you know the name of that
individual?

[D'Alessio]: [N.R.]

[Prosecutor]: And the other individual who is
walking in close proximity but not with him, can
you describe who that is?

[D'Alessio]: That's [defendant] Dennis
Rodriguez.

The prosecutor did not ask D'Alessio how he knew the man depicted in

the video was defendant. D'Alessio testified N.R. walked to the bathroom, was

followed by defendant, and defendant exited the bathroom and bus terminal

before N.R. Next, D'Alessio explained how N.R. emerged from the bathroom

holding his face and alerted J.R. The video then showed N.R. and J.R. step

A-1253-17T4
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outside the bus terminal, and, when asked what the video depicted, D'Alessio

said, "[we] [s]ee [J.R.] looking for an individual that [N.R.] had described to

him had just assaulted and robbed him." The video was played for a second time

during jury deliberations without narration.

The trial judge explained to the jury its essential role as fact-finders by

saying, "[y]ou and you alone are the sole and exclusive judges of the evidence,

of the credibility of the witnesses and the weight to be attached to the testimony

of each witness." The trial judge also listed several factors to consider when

assessing the credibility of a witness, including "the extent to which, if at all,

each witness is either corroborated or contradicted, supported or discredited by

other evidence" and "whether the witness made any inconsistent or contradictory

statement." The jury charge included specific in-court and out-of-court

identification instructions. The jury found defendant guilty. Defendant was

sentenced to a ten-year term of imprisonment with an eighty-five percent parole

ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

This appeal followed.

On appeal, defendant raises the following points:

I. REVERSAL IS REQUIRED BECAUSE THE
TRIAL COURT ERRED IN NOT
SUPPRESSING EVIDENCE OF AN
ATTEMPTED IDENTIFICATION AND BY

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 DECLINING TO HOLD A TESTIMONIAL
HEARING ON THAT EVIDENCE AND
ANOTHER WITNESS'S IDENTIFICATION.

A. Evidence of the Attempted Identification
Should Not Have Been Admitted Because
Its Limited Probative Value Was
Substantially Outweighed by the Risk of
Prejudice and Jury Confusion.

B. The Trial Court Erred in Not Holding a
Wade Hearing Given the Evidence of
Suggestiveness Regarding Both Photo
Array Procedures.

II. REVERSAL IS REQUIRED BECAUSE THE
STATE'S CASE WAS BOLSTERED BY
INADMISSIBLE HEARSAY AND OPINION
TESTIMONY, AND IMPROPER COMMENTS
MADE BY THE PROSECUTOR. (NOT
RAISED BELOW)

A. The Trial Court Committed Plain Error by
Allowing the State to Bolster Its Case with
Inadmissible Hearsay Testimony from
Two Investigating Officers.

B. The Trial Court Committed Plain Error by
Allowing a Detective to Narrate the
Surveillance Video.

C. The Prosecutor Committed Reversible
Misconduct When She Repeatedly
Appealed to the Jury's Emotions.

III. THE TRIAL COURT COMMITTED PLAIN
ERROR WHEN IT FAILED TO CHARGE THE
JURY ON PRIOR INCONSISTENT

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 STATEMENTS, CHARGED ATTEMPTED
THEFT AS A BASIS FOR ROBBERY
WITHOUT EVER PROPERLY DEFINING
ATTEMPT, AND ONLY CHARGED SIMPLE
ASSAULT WITH ATTEMPTED BODILY
INJURY AS A LESSER OFFENSE OF
AGGRAVATED ASSAULT. (NOT RAISED
BELOW)

A. The Trial Court Committed Plain Error
When It Failed to Instruct the Jury on Prior
Inconsistent Statements.

B. The Trial Court Committed Plain Error
When It Charged the Jury on Attempted
Theft as a Predicate for Robbery Without
Defining Attempt.

C. The Trial Court Committed Plain Error
When It Failed To Charge the Jury on the
Lesser-Included Offense of Simple Assault
Involving Bodily Injury.

IV. THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DEPRIVED DEFENDANT OF DUE
PROCESS AND A FAIR TRIAL AND
WARRANTS REVERSAL OF HIS
CONVICTIONS. (NOT RAISED BELOW)

V. DEFENDANT IS ENTITLED TO AN
ADDITIONAL DAY OF JAIL CREDIT FOR
THE DAY HE WAS ARRESTED.

I.

We review a trial court's evidentiary determinations under an abuse-of-

discretion standard. State v. Perry, 225 N.J. 222, 233 (2016). An abuse of

A-1253-17T4
9
discretion occurs when a trial court's evidentiary ruling "was so wide of the

mark" as to result in "a manifest denial of justice" and the evidence diverts the

jurors from a reasonable and fair evaluation of guilt or innocence. State v.

Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216

(1984)); State v. Moore, 122 N.J. 420, 467 (1991). Errors not objected to at trial

are reviewed for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

D'Alessio's narrative testimony of the security footage, particularly the

identification of defendant, was inadmissible lay opinion testimony. "Lay

witnesses may present relevant opinion testimony in accordance with Rule 701,

which permits 'testimony in the form of opinions or inferences . . . if it . . . is

rationally based' on the witness'[s] 'perception' and 'will assist in understanding

the witness'[s] testimony or in determining a fact in issue.'" State v. Lazo, 209

N.J. 9, 22 (2012) (first and second alterations in original) (quoting N.J.R.E. 701).

"The Rule does not permit a witness to offer a lay opinion on a matter 'not within

[the witness's] direct ken . . . and as to which the jury is as competent as [the

witness] to form a conclusion[.]'" State v. McLean, 205 N.J. 438, 459 (2011)

(first, second, and fourth alterations in original) (quoting Brindley v. Firemen's

Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). "[L]ay opinion testimony is

A-1253-17T4
10
limited to what was directly perceived by the witness and may not rest on

otherwise inadmissible hearsay." Id. at 460.

Lazo is instructive. There, our Supreme Court held a detective's testimony

explaining why he included the defendant's picture in a photo array was

inadmissible because the decision was based on a tip the detective received, not

personal knowledge. 209 N.J. at 21-22. "In essence, the detective told the jury

that he believed defendant closely resembled the culprit—even though the

detective had no personal knowledge of that critical, disputed factual question."

Id. at 22. This testimony was inadmissible because it improperly bolstered the

victim's account and usurped the jury's responsibility to weigh the victim's

credibility. Id. at 13, 22.

Lazo identified several factors to be considered before lay opinion

identification testimony is admitted. Whether the opinion is "helpful" depends

on the witness's familiarity with the defendant's appearance when the crime was

committed, whether the defendant disguised his or her appearance during the

offense or altered his or her appearance before trial, and "whether the witness

knew the defendant over time and in a variety of circumstances." 209 N.J. at 22

(quoting United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)). Courts

should also consider whether there are additional witnesses available to identify

A-1253-17T4
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the defendant at trial. Id. at 23. "[W]hen there is no change in a defendant's

appearance, juries can decide for themselves—without identification testimony

from law enforcement—whether the person in a photograph is the defendant

sitting before them." Ibid.

Although we have not previously extended Lazo to the identification of a

defendant on video surveillance, these principles apply. D'Alessio's testimony

exceeded the bounds of permissible lay opinion testimony. He did not

personally witness the crime nor did he have prior interactions with defendant.

He based his testimony on his observation of the video and not on any personal

knowledge. As a result, D'Alessio was in no better position than was the jury to

draw conclusions about what the video showed.

The State does not suggest defendant changed his appearance before trial

such that his appearance in court was unrecognizable from that in the security

footage. Nor does the State explain why J.R. did not testify as to what the

security footage depicted based on his personal knowledge of the events.

Rather, D'Alessio's testimony merely served to bolster the credibility of N.R.,

who offered unreliable and inconsistent descriptions of the assailant.

Of equal concern is identification testimony lacking personal knowledge

that introduces inadmissible hearsay testimony. Hearsay testimony may lead

A-1253-17T4
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the jury to infer a police officer received information from an unknown source

implicating the defendant in a crime, which is barred and its allowance is

reversible error. State v. Branch, 182 N.J. 338, 349-51 (2005); State v. Irving,

114 N.J. 427, 444-48 (1989); State v. Bankston, 63 N.J. 263, 271 (1973). "[A]

police officer may not imply to the jury that he possesses superior knowledge,

outside the record, that incriminates the defendant." Branch, 182 N.J. at 351.

Such testimony is admissible only to rebut the defendant's suggestion the police

arbitrarily identified the defendant as a suspect or acted with ill motive. Id. at

352.

On direct examination, the prosecutor asked D'Alessio "the next day [after

the robbery], based on some information about a possible identification of Mr.

Rodriguez as the person being in the still, did you have a photo array conducted?

[A]: Yes." (Emphasis added). The source of the information was M.G. M.G.

testified, but explained he told Officer Brooks of the Lakewood Police

Department, who circulated the still photographs, he recognized defendant.

M.G.'s identification may have been relayed to D'Alessio, but the jury was never

informed of this fact. It is unclear if this was the basis upon which D'Alessio

identified defendant in the security video. Without knowing how D'Alessio was

able to identify defendant, a juror could infer D'Alessio was privy to an unknown

A-1253-17T4
13
source who implicated defendant in the crime. This was error capable of

producing an unjust result. Based upon this, as well as D'Alessio's lay opinion

testimony, we conclude defendant is entitled to a new trial.

II.

In light of our decision to grant defendant a new trial, we address only one

more point raised by defendant on appeal: the suppression of N.R.'s and J.R.'s

out-of-court identifications. We agree with the trial court that neither

identification was impermissibly suggestive and affirm the trial court's order

denying defendant's motion to suppress.

Defendant argues three elements of suggestiveness were present during

N.R.'s identification: (1) only four fillers, not five, were included in N.R.'s array;

(2) N.R. was permitted to view defendant's photo multiple times without looking

at others; and (3) the administrator did not ask whether N.R. discussed the

identification with others. As for J.R.'s identification, defendant takes issue with

the fact Sweeny, who administered the identification process to J.R., did not

elicit a statement of confidence in percentage form and failed to ask whether

J.R. spoke with anyone about the identification.

Under Henderson, a defendant must make a threshold showing of

suggestiveness before a trial court will consider whether an out-of-court

A-1253-17T4
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identification should be suppressed. Henderson, 208 N.J. at 288-89. Henderson

divided the characteristics of an identification into two groups: system variables

and estimator variables. Id. at 248-61, 261-72. System variables are those

factors the State has control over, such as: (1) whether a "blind" or "double

blind" administrator is used; (2) whether pre-identification instructions are

given; (3) whether the lineup is constructed of a sufficient number of fillers that

look like the suspect; (4) whether the witness is given feedback during o r after

the procedure; (5) whether the witness's confidence level was recorded before

any confirmatory feedback was given; (6) whether the witness is exposed to

multiple viewings of the subject; (7) whether a "showup" was used; (8) whether

the administrator asked the witness if he or she had spoken with anyone about

the identification; and (9) whether the eyewitness initially made no choice or

chose a different suspect or filler. Id. at 289-91; see also R. 3:11. The defendant

has the burden of showing some evidence of suggestiveness tied to a system

variable, rather than an estimator variable. Henderson, 208 N.J. at 288-89. If

no evidence of suggestiveness is produced, there is no need to consider estimator

variables at the hearing because evidence of reliability is a fact issue. Id. at 290-

91.

A-1253-17T4
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 If the defendant sustains the burden, a hearing will be granted and the

burden shifts to the State to demonstrate the identification was reliable,

"accounting for system and estimator variables." Id. at 289. Estimator variables

include factors outside the State's control. Id. at 261-72. The defendant retains

the burden to show a "substantial likelihood of irreparable misidentification."

Id. at 289. If the defendant makes such a showing, the evidence should be

suppressed. Ibid.

The Supreme Court's recent decision in State v. Anthony modified the

Henderson framework. __ N.J. __ (2019) (slip op. at 23). Prior to this opinion,

creation of an audio or visual recording of the out-of-court identification was

highly suggested but not mandatory. Id. at 18 (discussing State v. Delgado, 188

N.J. 48 (2006)). After Anthony, a defendant must receive a Wade hearing if the

police fail to "electronically record the identification procedure or prepare a

contemporaneous verbatim account of the exchange[.]" Id. at 26. Here, both

identifications were video recorded; thus Anthony does not alter our analysis.

In any event, we reject defendant's arguments concerning the perceived

suggestiveness of N.R.'s and J.R.'s identifications. First, N.R.'s photo array

contained five fillers, not four. Defendant rules out the first filler because the

man in the first photo did not have hair, while the others did. But Henderson

A-1253-17T4
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did not lay down a strict requirement that the fillers' characteristics exactly

match the witness's pre-lineup description. Henderson, 208 N.J. at 252. Rather,

"fillers [should] generally fit the witness'[s] description and that [w]hen there is

a limited or inadequate description of the perpetrator provided by the witness,

or when the description of the perpetrator differs significantly from the

appearance of the suspect, fillers should resemble the suspect in significant

features." Ibid. (quotation omitted). The goal is to minimize the "pop-out

effect." Id. at 251. Here, N.R. initially described the assailant "as a Hispanic

male . . . with short, wavy, dark . . . black hair." It's true the first filler lacked

hair, but he and the defendant both had similar facial hair, a rounded face, and

were Hispanic. This satisfies Henderson's "general fit" requirement.

The fact N.R. viewed defendant's picture multiple times during the same

sitting is not problematic. When Henderson discussed "multiple viewings," the

Court was concerned about confirmation bias over the course of an

investigation. Id. at 255-56. For example, confirmation bias may occur when a

witness views a set of mugshots, makes no affirmative identification, but then

selects someone depicted in the earlier photos in a later identification procedure.

Ibid. Here, N.R. kept returning to defendant's photograph in the same sitting

without interruption from the administrator. Henderson does not prohibit this.

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 Defendant is correct the administrator never asked N.R. whether he spoke

to anyone about identification of his assailant. In State v. Chen, the Supreme

Court concluded a line-up was impermissibly suggestive because a witness was

shown a photograph of a suspect by a co-witness. 208 N.J. 307, 314, 320-27,

328-29 (2011). Both Henderson and Chen were concerned about co-witness

feedback, where one witness develops a false memory based on an image shown

or a description given by a co-witness. However, here, defendant makes no

specific allegation N.R. spoke with anyone about the identification before he

made it. Defendant's burden is to show "some evidence of suggestiveness," and

here, he fails to do so. Henderson, 208 N.J. at 288 (emphasis added).

Defendant's argument concerning the fact that J.R. was not asked if he

spoke with anyone prior to making his identification fails for the same reason:

defendant offers no evidence of suggestiveness. To be sure, Sweeny did ask

J.R. whether he was "advised by anyone whether others had picked out any

particular photo?" and whether he was "advised anything about any of the

individual picture[s] in the display?" J.R. answered "[n]o" to both questions.

Defendant also argues J.R. was not asked to express how confident he was

in selecting defendant's photo in percentage form. Sweeny asked, "[o]kay . . .

you're identifying photo number [three]? . . . As the person that on November

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the 8th you saw in the Lakewood . . . bus terminal; correct?" To which J.R.

responded, "[y]es."

"[T]o the extent confidence may be relevant in certain circumstances,"

Henderson requires that a statement of confidence "must be recorded in the

witness'[s] own words before any possible feedback." 208 N.J. at 254. The

purpose of this requirement is to guard against confirmatory feedback. Id. at

253. Confirmatory feedback "occurs when the police signal to an eyewitness

that they correctly identified the suspect" and "can distort memory." Id. at 253-

54. However, neither Henderson nor Rule 3:11(c) require a statement of

confidence, if relevant, to be given in percentage form.

Here, J.R. was asked to confirm he was selecting defendant's photo from

the array. He answered "[y]es." That J.R. did not say "100%" is not evidence

of suggestiveness. Defendant bears the burden of showing evidence J.R.

received confirmatory feedback before giving his statement of confidence (or

lack thereof) becomes suggestive, and here, defendant fails to do so.

Defendant also asserts N.R.'s out-of-court identification should have been

excluded under Rule 403. N.J.R.E. 403. Pursuant to Rule 403, evidence should

be excluded "if its probative value is substantially outweighed by the risk of (a)

undue prejudice, confusion of issues, or misleading the jury or (b) undue delay,

A-1253-17T4
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waste of time, or needless presentation of cumulative evidence." Given our

deferential standard of review of evidence rulings, we will only reverse upon a

showing the trial court abused its discretion. State v. Kuropchak, 221 N.J. 368,

385 (2015).

Defendant asserts N.R.'s identification was so uncertain and unclear it had

the propensity to mislead the jury. We disagree. Just because N.R.'s

identification was uncertain does not necessarily mean it was confusing. Rather,

it was in the jury's province to assess N.R.'s credibility. Indeed, N.R.'s

uncertainty would appear to help, rather than hurt, defendant's case.

III.

Defendant advances several other arguments concerning the content of the

jury instructions, the prosecutor's opening and closing statements, and

sentencing. In light of the fact we are granting defendant a new trial, it is

unnecessary to address these arguments.

Reverse and remanded for a new trial consistent with this opinion.

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