NOT FOR PUBLICATION WITHOUT THE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-0436-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FARAD ANDREWS, a/k/a FRAD
ANDREWS, JAHAD PARKER, RODDY
WILLIAMS, NEHEMIAH N. HENDERSON,
NEHEMIAH A. HENDERSON, DOMINICK
C. PLUMMER, NAHEMIAH HENDERSON,
and FARD T. ANDREWS,
Defendant-Appellant.
________________________________
Submitted May 1, 2018 – Decided August 1, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
14-09-2348.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on
the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Matthew
E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Farad Andrews appeals his
conviction for first-degree robbery, N.J.S.A. 2C:15-1; second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a). He contends the trial judge committed
plain error by giving a jury charge on the non-existent crime of
first-degree attempted robbery, and erred in denying his Wade1
motion to suppress the two victims' show-up identifications
because the police did not properly memorialize the
identification procedures. We disagree and affirm because the
judge corrected the jury charge, and his decision not to
suppress the show-up identifications was supported by his
credibility findings that the Wade hearing testimony established
they were reliable.
I.
Long-time male and female live-in companions were finished
exercising in an Essex County park around 1:00 a.m., when two
men, one of them pointing a handgun with a mask covering his
face, demanded their possessions. When the unmasked assailant
stated, "I know her, she's good," the other armed assailant
1
United States v. Wade, 388 U.S. 218 (1967).
2
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lowered his mask for five seconds to reveal his face, and they
both left. Moments later, the couple flagged down a police
patrol car to report the robbery and to give a description of
their assailants. After unsuccessfully searching for their
assailants while riding in the patrol car, the couple returned
home where the female, an Essex County Sheriff's Officer,
retrieved her service weapon, and they drove back to the
vicinity of the park to look for their assailants. After
spotting two men they suspected were their assailants, the
couple alerted the police by calling 911 and followed the men.
Two or three police vehicles responded, and the two suspects
were apprehended.
In the ensuing show-up identifications, the couple were
separately asked if either of the two men were involved in the
robbery. They both identified defendant as the person who
lowered his mask and held the gun. Neither, however, identified
the other suspect as the other assailant.
Defendant was subsequently indicted for first-degree
"attempted" robbery;2 second-degree unlawful possession of a
weapon; second-degree possession of a weapon for an unlawful
purpose; and fourth-degree possession of a defaced weapon,
2
Defendant has not challenged the indictment charging him with
the non-existent offense of first-degree attempted robbery.
3
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N.J.S.A. 2C:39-3(d). At the trial, the jury found defendant
guilty of all but the defacing charge. He was later sentenced
to an aggregate term of eighteen years and six months, subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Before us, defendant argues:
POINT I
THE JURY INSTRUCTIONS ON COUNT ONE WERE
GIVEN FOR THE SECOND-DEGREE CRIME OF
ATTEMPTED ROBBERY; THE DEFENDANT'S
FIRST-DEGREE CONVICTION SHOULD BE
REVERSED AND THE MATTER REMANDED FOR
RETRIAL. (Not Raised Below).
POINT II
THE TRIAL COURT SHOULD HAVE SUPPRESSED
THE SHOWUP IDENTIFICATIONS OF DEFENDANT
BECAUSE POLICE REFUSED TO FOLLOW FULLY
THE RECORDATION REQUIREMENTS OF STATE
v. DELGADO[3] AND STATE v. HENDERSON[4]
AND SIMPLY FAILED TO ASK EITHER OF THE
EYEWITNESSES, WHO WERE A COUPLE THAT
LIVED TOGETHER, WHETHER THEY HAD
DISCUSSED THE MATTER AFTER THE INCIDENT
BUT BEFORE IDENTIFYING DEFENDANT AT A
SHOWUP AS ONE OF THE PERPETRATORS.
II.
We begin by addressing defendant's argument in Point I,
which he raised for the first time on appeal. When a defendant
fails to object to a jury charge at trial, we review for plain
3
188 N.J. 48 (2006).
4
208 N.J. 208 (2011).
4
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error, and "disregard any alleged error 'unless it is of such a
nature as to have been clearly capable of producing an unjust
result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting
R. 2:10-2). Plain error, in the context of a jury charge, is
"[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Camacho, 218 N.J. 533, 554
(2014) (alteration in original) (quoting State v. Adams, 194
N.J. 186, 207 (2008)). This is not the case here.
In reviewing any claim of error relating to a jury charge,
"[t]he charge must be read as a whole in determining whether
there was any error." State v. Torres, 183 N.J. 554, 564
(2005). A defense attorney's failure to object to jury
instructions not only "gives rise to a presumption that he did
not view [the charge] as prejudicial to his client's case,"
State v. McGraw, 129 N.J. 68, 80 (1992), but it is also
"considered a waiver to object to the instruction on appeal,"
State v. Maloney, 216 N.J. 91, 104 (2013). Even so, we consider
the argument on the merits, given that appropriate and proper
jury charges are essential to a fair trial. State v. Savage,
172 N.J. 374, 387 (2002).
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Defendant argues the appropriate charge was for either a
first-degree armed robbery – which requires a weapon and a
demand for money (explicit or implicit) but not the actual
receipt of the stolen money – or second-degree attempted armed
robbery – if the demand for money never actually occurred. He
argues the charge given was for second-degree attempted robbery,
and, therefore, the first-degree robbery conviction should be
reversed. We disagree.
There is no dispute that the court erred by instructing the
jury on first-degree attempted robbery, which does not exist, by
stating:
If you find that the [S]tate has proven
beyond a reasonable doubt that the defendant
committed the crime of attempted robbery as
I have defined it to you, but if you find
that the [S]tate has not proven beyond a
reasonable doubt that the defendant was
armed with, used, or purposely threatened
the . . . immediate use of a deadly weapon
at the time of the commission of the
attempted robbery, then you must find the
defendant guilty of attempted robbery in the
second-degree.
If you find that the [s]tate has proven
beyond a reasonable doubt that the defendant
committed the crime of attempted robbery and
was armed with a deadly weapon, or used, or
threatened the immediate use of a deadly
weapon at the time of the commission of the
robbery, then you must find the defendant
guilty of attempted robbery in the first-
degree.
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The error, however, was corrected after the jury presented
the question to the court: "What is the difference between
first-degree attempted robbery and second-degree?" In response,
the court re-explained the elements of attempt:
First, that the defendant had the purpose to
commit the crime of robbery; and that the
defendant purposely did or omitted to do
anything which, under the circumstances a
reasonable person who believed them to be,
is an act or omission that is a substantial
step in the course of conduct planned to
culminate in his commission of the crime of
robbery.
The court then reinstructed the jury on the elements of robbery
by stating "a section of our statute provides that an attempted
robbery is a crime of the second-degree except that it is a
crime of first-degree if the actor is armed with, or uses, or
threatens the immediate use of a deadly weapon". Following this
clarification, the jury convicted defendant of first-degree
robbery and the other noted offenses.
The court's re-instruction is consistent with N.J.S.A.
2C:5-4(a), which provides that an "attempt or conspiracy to
commit a crime of the first degree is a crime of the second
degree," except for an attempt to commit murder or terrorism.
And our criminal code recognizes "attempted robbery" as a
predicate offense for felony murder, and because "the Model
Penal Code suggests that attempted robbery is an appropriate
7
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charge when a defendant is apprehended before reaching the
potential robbery victim." State v. Farrad, 164 N.J. 247, 263
(2000). Only where there is no evidence of a completed theft
must the court "instruct the jury on the law of attempt as an
element of robbery." State v. Dehart, 430 N.J. Super. 108, 119
(App. Div. 2013).
Because the court ultimately gave the proper jury charge on
first-degree robbery, there was neither error nor an unjust
result. The evidence reveals that defendant pointed a gun at
the couple so as to threaten them with immediate bodily injury
if they did not turn over their valuables. Even though
defendant and his accomplice decided not to go through with the
theft after the latter recognized the female victim, there was
an attempt applied to the theft, which supports a verdict of
first-degree robbery.
III
In point II, defendant argues that when the detective
failed to record whether the couple were asked if they discussed
the matter between themselves prior to their respective show-up
identifications of defendant, the detective failed to comply
with the recordation requirements for identification procedures,
and therefore, the identifications should have been suppressed
as impermissibly suggestive and unreliable.
8
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A show-up identification is essentially a single-person
lineup that occurs at or near the scene of the crime shortly
after its commission. Henderson, 208 N.J. at 259. The
circumstances of a show-up identification are, to some extent,
inherently suggestive. Adams, 194 N.J. at 204. Nonetheless, a
show-up identification may be admitted at trial if it is
otherwise reliable. Ibid.
Concerned with "safeguarding evidence and enhancing the
reliability of the truth-seeking function of the trial," law
enforcement officers must "make a complete record of an
identification procedure if it is feasible to do so, to the end
that the event may be reconstructed in the testimony." Delgado,
188 N.J. at 59-60 (quoting State v. Earle, 60 N.J. 550, 552
(1972)). Because "[m]isidentification is widely recognized as
the single greatest cause of wrongful convictions in this
country," the Court in Delgado held that "as a condition to the
admissibility of an out-of-court identification," law
enforcement officers were required to 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 60, 63.
9
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The Delgado ruling was codified in Rule 3:11(c), which, in
pertinent part, requires recordation of an out-of-court
identification as follows:
(1) the place where the procedure was
conducted;
(2) the dialogue between the witness and the
officer who administered the procedure;
(3) the results of the identification
procedure, including any identifications
that the witness made or attempted to make;
. . . .
(6) the identity of persons who witnessed
the live lineup, photo lineup, or showup;
(7) a witness' statement of confidence, in
the witness' own words, once an
identification has been made; and
(8) the identity of any individuals with
whom the witness has spoken about the
identification, at any time before, during,
or after the official identification
procedure, and a detailed summary of what
was said. This includes the identification
of both law enforcement officials and
private actors who are not associated with
law enforcement.
If the record lacks the important details required by Rule
3:11(c), 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).
10
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When reviewing an order denying a motion to bar an out-of-
court identification, our standard of review "is no different
from our review of a trial court's findings in any non-jury
case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div.
2016) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We
accord the court's findings regarding the impermissible
suggestiveness of the identification procedure "considerable
weight." Adams, 194 N.J. at 203 (quoting State v. Farrow, 61
N.J. 434, 451 (1972)). "The findings of the [court] as to
reliability of the witnesses are [also] entitled to considerable
weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.
2003). We accept those findings of the court that are
"supported by sufficient credible evidence in the record."
State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v.
Elders, 192 N.J. 224, 243 (2007)).
At the pre-trial Wade/Delgado hearing to determine whether
the show-up identifications were impermissibly suggestive, the
judge heard testimony from the detective who, along with his
sergeant, conducted the show-ups. He stated that prior to their
separate show-ups, the victims were separated, placed into
different patrol vehicles, and were told "that just because
we're showing persons in front of them, that these persons may
or may not be the persons who robbed them, and they are under no
11
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obligation to pick one." During both show-ups in a well-lit
area – a little over an hour after the incident – the handcuffed
suspects were in separate police vehicles with another officer.
The female victim stated she was "90 percent" certain that
defendant was one of the assailants. The male victim stated he
was "a hundred percent positive" that defendant was one of the
assailants. After defendant was identified, a similar show-up
of the other suspect was performed; neither victim identified
him as one of the assailants. The detective did not recall if
he had asked either victim if they had spoken to one another
about the suspects or "any type of identification" of the
suspects.
The detective gave detailed testimony about the "Show-up
Identification Procedures Worksheet"5 he completed for both
victims, and explained why he omitted answering the following
questions:
Number Ten asked, "Names of other witnesses
to [show-up] procedure"; he stated the
question was left blank because the
detective believed that his response to
question nine, where he mentioned the
officers "who conducted the show-up," was
also responsive to question ten.
Number Thirteen asked, if "an identification
has been made, did you obtain and record
5
In compliance with Delgado and Rule 3:11(c).
12
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witness statement of confidence . . . at the
time of the procedure"; he stated it was
unanswered because, normally, they would
take the complainant to their headquarters
to record an audio statement, which was not
possible because the case was handed over to
the County Sheriff's Department because the
robbery took place in a county park.
Number Fourteen asked, if he instructed the
"witness not to discuss the identification
procedure, whether an identification was
made or not, with any other witness or
witnesses, or obtain information from other
sources"; he stated that he instructed both
witnesses not to discuss the procedure with
anyone "[i]mmediately after the show[-]up,"
but he failed to answer the question.
Number Fifteen asked, "Did you ask witness
if he/she had discussed identification of
suspect with anyone before or during the
identification procedure (Note: this
includes both police officers and private
actors)"; he stated his failure to record
their answers was "just an oversight," and
he did not recall what their answers were.
Number Sixteen asked, if yes to fifteen,
"did you obtain a detailed summary from
witness of what was said?"; as with question
fifteen, he stated his failure to record
their answers was "just an oversight," but
he did not recall the response.
Number Seventeen asked, if "[y]es to
[question fifteen], "did you identify the
people with whom the witness discussed the
identification?"; he stated he did not
recall their answers.
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Number Eighteen asked, if there was any
additional dialogue between the witness and
the other officer(s) concerning the
identification not recorded in the
worksheet; he stated that although left
blank, to his knowledge, there was no other
dialogue.
At the hearing's conclusion, the judge found that "the
written documents submitted memorializing the identification
procedures in this case, as supplemented by the testimony of
[the detective]," were sufficient to establish that the show-up
identifications complied with Delgado, because the detective
testified under oath, subject to cross-examination; the location
and procedure of the show-up was documented in writing and
supplemented on the record; and the dialogue between the
detective and the victims was testified to. He stated, "the
additional questions that . . . were included . . . on the forms
may be helpful, but they're not required for compliance with
[Delgado], and the [c]ourt finds that the testimony of the
officer as to what he affirmatively recollects as to being
exchanged was credible." The judge additionally held that the
"oversight" of not filling out certain parts of the forms would
go to the weight of the evidence, not to its admissibility, and
did not warrant suppressing the identifications. Hence, the
judge denied the motion to suppress the show-up identifications.
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In light of the discretion given to the judge's credibility
assessment of the detective's testimony concerning the show-up
identifications, we see no reason to disturb his finding that
the identifications were reliable. Understandably, defendant
points to the unanswered questions on the worksheet to support
his argument that the show-up identifications were inadmissible.
We, however, are satisfied with the court's credibility finding
that the detective's testimony cleared up the gaps in the
worksheet and that the identifications should not have been
suppressed. We further agree with the judge that the unanswered
worksheet questions were fodder for argument before the jury as
to why it should consider the identifications lacking in
credibility, and not a basis to preclude their admissibility.
Affirmed.
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