STATE OF NEW JERSEY VS. GLENFORD G. FINDLAY (17-04-0886, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3909-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GLENFORD G. FINDLAY,

Defendant-Appellant.
_________________________

Submitted November 8, 2021– Decided November 19, 2021

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-04-0886.

Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 After a jury trial, defendant appeals from his convictions for second-

degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A.

2C:15-2(a)(2); first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); 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).

Defendant argues primarily that the motion judge erred in denying his motion

for a Wade1 hearing and that the trial judge imposed an excessive sentence. We

affirm.

Around 3:30 a.m. on August 31, 2016, Tikah Arrington was sitting in her

car in front of her apartment building in the parking lot with the windows rolled

down. A car with two occupants pulled into the parking lot and parked alongside

Arrington's driver's side. The occupant in the front passenger's seat told

Arrington to "get out of [her] car." The front passenger then exited the car and

attempted to open Arrington's driver's side door. The front passenger opened

the driver's side door of Arrington's car and pointed a gun at her stomach.

Arrington fled to her apartment building where she observed the gunman's

1
United States v. Wade, 388 U.S. 218 (1967).

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vehicle and her vehicle being driven away. Five minutes after the carjacking ,

Arrington and her friend called 9-1-1 to report the armed robbery.

Officers Wayne Adams and E.H. Carter, Jr. were the first officers to arrive

at the scene and speak with Arrington. Adams testified that Arrington described

the armed front passenger as being "between [five foot six inches] and [five foot

eight inches], wearing a white t-shirt, blue jeans, short haircut" and having a

medium complexion. Arrington described the driver of the car as being in his

early twenties and wearing "a white t-shirt with his hair[] [in] dreads, braids,

pushed up in like a bun and a bandana around it."

Detective John Bocchino was assigned to investigate the carjacking of

Arrington. Later in the morning of the carjacking, Arrington arrived at the East

Orange police precinct to view a photo array of over 650 photos. Arrington

flagged eight photos from the array, noting that two photos resembled the

assailant who exited the vehicle and none of the remaining photos resembled

either assailant. When the police showed Arrington updated versions of the two

photos that she previously flagged, she stated neither were the assailants.

Bocchino went to the scene of the carjacking and recovered surveillance

camera footage from Arrington's apartment building, which he showed to

Arrington. The surveillance video showed the assailants arriving next to

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Arrington's vehicle at 3:11 a.m. and Arrington running away twenty-nine

seconds later.

On September 1, 2016, Bocchino created another array with six

photographs from the previous array. Detective Sharieff Greenwood conducted

the photo array and recorded the procedure. Arrington identified co-defendant

Dashawn Ward as the "one who actually took [her] vehicle" at gunpoint,

prompting Bocchino to obtain an arrest warrant and arrest defendant.

On September 7, 2016, Bocchino asked Arrington to return to the police

station again to view a second six-photo array. Detective Rolando Baugh

administered the photo array, which was also video recorded. Arrington

identified defendant as the driver of the vehicle. After Arrington's

identification, Bocchino asked Baugh to complete pretrial identification

documentation, including a Photo Array Eyewitness Identification Procedure

Worksheet (the worksheet), which Baugh only partially completed. Bocchino

later arrested defendant outside of his apartment building.

On February 5, 2018, the motion judge denied defendant's motion to

dismiss the indictment but granted defendant's motion for a testimonial Wade

hearing for later that month regarding Arrington's pretrial identifications. The

judge explained that he granted the motion for a hearing "not . . . because there

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was suggestiveness," but "because there's not enough information to determine

the system variables." The motion judge heard testimony from Bocchino and

Baugh and reviewed the pretrial identification procedure recordings before

denying defendant's motion.

On appeal, defendant raises the following arguments for this court's

consideration:

POINT I

A VERY SUBSTANTIAL LIKELIHOOD OF
IRREPARABLE MISIDENTIFICATION EXISTS
WHERE THE STATE DID NOT OFFER A
REASONABLE EXPLANATION FOR OMITTING
ANSWERS TO MATERIAL QUESTIONS ON THE
EYEWITNESS IDENTIFICATION PROCEDURE
WORKSHEET AS REQUIRED, ONE OF WHICH
RELATED TO ITS STAR WITNESS'S LEVEL OF
CERTAINTY.

POINT II

THE TRIAL JUDGE ABUSED HER DISCRETION
WHERE SHE FOUND AGGRAVATING FACTOR
SIX APPLIED BASED SOLELY ON THE
ELEMENTS OF THE CRIME.

I.

We begin by addressing defendant's argument that the motion judge's

conclusion the record does not demonstrate suggestiveness contradicts his

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findings and that he improperly concluded the Wade hearing before defendant

was able to examine estimator variables.

To obtain a Wade hearing, a defendant must "present some evidence of

suggestiveness tied to a system variable which could lead to a mistaken

identification." State v. Anthony, 237 N.J. 213, 233 (2019) (citing State v.

Henderson, 208 N.J. 208, 288-89 (2011)). "System variables" include blind

identification, pre-identification instructions, lineup construction, feedback,

recording confidence, multiple viewings, showups, private actors, and other

identifications made. Henderson, 208 N.J. at 288-90. If a defendant proffers

such evidence, the State "must then offer proof to show that the proffered

eyewitness identification is reliable—accounting for system and estimator

variables." Id. at 289.

The defendant may cross-examine the State's witnesses as well as present

their own witnesses and evidence relating to system and estimator variables.

Ibid. At any point during the hearing, if the judge finds that based on the

testimony, defendant's threshold allegation of suggestiveness is baseless, he or

she may end the hearing. Id. at 290-91. "Under those circumstances, the [judge]

need not permit the defendant or require the State to elicit more evidence about

estimator variables; that evidence would be reserved for the jury." Id. at 291.

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 At all times, the burden of proof remains with the defendant to "prove a

very substantial likelihood of irreparable misidentification." Id. at 289. If the

judge determines that based on the totality of the circumstances the defendant

has "demonstrated a very substantial likelihood of irreparable misidentification,

the [judge] should suppress the identification evidence." Ibid. Our Court has

not "created bright-line rules that call for the 'suppression of reliable evidence

any time a law enforcement officer makes a mistake.'" Anthony, 237 N.J. at 239

(quoting Henderson, 208 N.J. at 303); see State v. Green, 239 N.J. 88, 109

(2019) (noting that the Court has not "suggest[ed] that any time a full record of

an identification is not preserved, the evidence must be excluded").

Bocchino testified that he called Arrington on September 6, 2016, spoke

to her briefly and asked her to return to police headquarters to view the second

photo array the next day. He spoke to Arrington for thirty seconds and explained

to her that Baugh would administer the photo array. Bocchino testified that it

was his normal practice to ask the witness prior to administering the photo array

whether anyone had spoken to them before administering the array, but he did

not ask Arrington this question, and Arrington did not voluntarily inform him

that she had heard from or communicated with anyone prior to the arrays. He

did not tell Arrington that he had developed a suspect and did not direct her to

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flag any one photo from the array. At the conclusion of the photo array,

Bocchino took a recorded statement from Arrington.

Baugh testified that he had no prior knowledge of the case, was not

involved in the investigation, and did not select the photos used in the array. He

filled out the photo display instruction form, photo display report form, and

photographic identification form during the recording. Baugh obtained the

worksheet to fill out after the photo array concluded, but he failed to record

responses for each question. He testified that he did not record a response for

question fourteen2 because he was "[p]robably too busy doing things in between

and missed it" and that Arrington did not ask him questions about the

procedures. He also testified that he did not fill out question sixteen3 because

he "forgot" because he was "working and handling so many other tasks" at the

time.

Baugh further testified that he could not recall whether he asked Arrington

to describe her level of confidence when completing Questions twenty-one and

2
Question fourteen reads: "Did the witness ask any questions about the
procedure?"
3
Question sixteen reads: "Did you ask the witness whether he/she had
previously spoken to anyone (law enforcement or civilian) about the
identification?"

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twenty-two.4 He testified that he wrote that Arrington "states she is positive"

because his "perceived notion [was] that she was positive" and because she

"seemed very sure." However, Baugh testified that he did not believe Arrington

affirmatively stated that she was positive. And although Baugh answered "yes"

to question twenty-two, he did read the answer to question twenty-one to

Arrington before doing so.

The motion judge described Baugh's failure to properly record responses

on the worksheet as "sloppy," and even if Baugh was busy or interrupted, that

did not "justify [his] sloppiness." The motion judge determined that despite the

failure to properly complete the worksheet, there was "nothing to demonstrate

even by a preponderance of the evidence that there was any suggestiveness" and

"absolutely nothing to indicate that anything was suggest[ed] to the witness."

After hearing testimony from Bocchino and Baugh and reviewing the

identification procedure video, the motion judge agreed that the detectives were

"sloppy when completing the report" and they "did not follow the worksheet

4
Question twenty-one reads: "If yes to [number twenty], did you ask the witness
during the procedure to make a statement concerning his/her level of confidence
that the photo he/she selected depicts the perpetrator?" Question twenty-two
reads: "Did you repeat back to the witness the language quoted in the answer to
[number twenty-one] and confirm that is what he/she said about his/her level of
confidence?"

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instructions to a tee," but that even "conced[ing] that this was not done as well

as it should have been done, there's . . . nothing to demonstrate even by a

preponderance of the evidence that there was any suggestiveness." As to

defendant's contention that the detectives had unrecorded conversations with

Arrington prior to the pretrial identification, which establishes suggestiveness,

the motion judge explained that it was unsurprising that the short conversations

that Bocchino had before the photo arrays were not recorded as they involved

Bocchino asking Arrington to come to view the photo array and informing her

that Baugh would be administering the double-blind procedure. The motion

judge properly determined that there was "absolutely nothing to indicate that

anything was suggestive to the witness based on the totality of the

circumstances."

The motion judge concluded the Wade hearing without exploring

estimator variables. The motion judge noted that defendant would "be able to

cross-examine . . . Arrington at length about" the identification procedure and

could put forth arguments calling into question the reliability of her

identification. See Henderson, 208 N.J. at 290-91 (noting that when a trial judge

concludes that a defendant's "initial claim of suggestiveness is baseless, and if

no other evidence of suggestiveness has been demonstrated by the evidence, the

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[judge] may exercise [his or her] discretion to end the hearing" and leave

evidence of estimator variables to the jury). Here, the judge properly ended the

hearing and left the exploration of estimator variables for the jury to determine.

II.

Next, defendant argues that the trial judge imposed a manifestly excessive

sentence. Defendant asserts that the trial judge improperly found aggravating

factor six by considering the elements of the crime in her analysis and, therefore,

improperly double counted his criminal history.

We review a trial judge's sentencing decision for an abuse of discretion.

State v. Jones, 232 N.J. 308, 318 (2018). This deferential standard applies only

when "the trial judge follows the Code and the basic precepts that channel

sentencing discretion." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting

State v. Case, 220 N.J. 49, 65 (2014)). We will "affirm the sentence of a trial

[judge] unless: (1) the sentencing guidelines were violated; (2) the findings of

aggravating and mitigating factors were not 'based upon competent credible

evidence in the record;' or (3) 'the application of the guidelines to the facts' of

the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228

(2014) (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

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 A trial judge "must identify any relevant aggravating and mitigating

factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." Case,

220 N.J. at 64 (citing State v. Fuentes, 217 N.J. 57, 72 (2014)). The judge must

then "determine which factors are supported by a preponderance of [the]

evidence, balance the relevant factors, and explain how it arrives at the

appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). The

judge's application of these factors "must be supported by competent, credible

evidence in the record." Case, 220 N.J. at 64.

Judges may consider a defendant's "uninterrupted history of criminality"

in their determination of whether aggravating factor six is applicable. See State

v. Dalziel, 182 N.J. 494, 502 (2005). Judges may also consider a defendant's

juvenile and municipal records, State v. Taylor, 226 N.J. Super. 441, 453-54

(App. Div. 1988), as well as a defendant's adult arrests which do not result in

convictions, State v. Rice, 425 N.J. Super. 375, 382 (App. Div. 2012) (noting

that adult arrests that do not result in convictions may be relevant to the sentence

imposed).

Judges must "avoid 'double counting' circumstances that the Legislature

has already incorporated as an element of the offense," such as "[e]lements of a

crime, including those that establish its grade." State v. Lawless, 214 N.J. 594,

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608 (2013). However, a judge does not impermissibly double count when they

consider a defendant's prior criminal history for multiple aggravating and

mitigating factors. State v. Tillery, 238 N.J. 293, 328 (2019); see State v.

McDuffie, 450 N.J. Super. 554, 576-77 (App. Div. 2017). A defendant's

criminal record is not included in the "[f]acts that establish[] elements of a crime

for which a defendant is being sentenced" and "should not be considered as

aggravating circumstances in determining that sentence." McDuffie, 450 N.J.

Super. at 576 (second alteration in original) (quoting State v. Kromphold, 162

N.J. 345, 353 (2000)). Nor is a judge "required to ignore the extent of [a

defendant's] criminal history when considering applicable aggravating factors."

Id. at 577.

In finding aggravating factor three applicable, the trial judge considered

defendant's criminal and juvenile record, which she determined demonstrated a

"reckless disregard for the law." Four juvenile complaints have been filed

against defendant, three of which were dismissed and one of which resulted in a

probationary term. Defendant has two adult arrests, one of which was

downgraded to a disorderly persons conviction resulting in probation , which he

later violated. Defendant also had an outstanding bench warrant for failing to

appear. In finding aggravating factor six applicable, the judge not only noted

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that defendant's charges "are very, very serious" "first[-]degree" charges, which

are "the most serious in the State of New Jersey" and carry a sentencing range

of "[ten] to [thirty] years," but appropriately incorporated her prior consideration

of defendant's criminal and juvenile history in finding factor six applicable.

The trial judge considered these facts, determined that aggravating factor

six is applicable, and imposed a proper sentence. The trial judge did not rely

solely on the fact that defendant's convictions were for "very serious" first-

degree charges, see State v. Carey, 168 N.J. 413, 428 (2001), nor did she double

count.

Affirmed.

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