SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4003-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DURRELL HEARD, a/k/a

DURRELL A. HEARN,

Defendant-Appellant.

________________________

Submitted November 9, 2020 - Decided

Before Judges Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, 

Criminal Division, Essex County, Indictment No. 15-

08-1935.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Daniel S. Rockoff, Assistant Deputy Public 

Defender, of counsel and on the brief). 

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Emily M. M. Pirro, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

January 13, 2021
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PER CURIAM

Defendant appeals from the denial of his motion to suppress the out-ofcourt identifications and from his conviction after a jury trial. He also 

challenges his sentence, asserting it is inconsistent with the verdict, and the 

judgment of conviction (JOC) differs from the orally pronounced sentence. We 

affirm.

I.

Defendant was charged in an indictment with first-degree murder, 

contrary to N.J.S.A. 2C:11-3a(1)-(2) (count one); second-degree conspiracy to 

commit robbery, contrary to N.J.S.A. 2C:5-2 (count two); three counts of firstdegree robbery, contrary to N.J.S.A. 2C:15-1 (counts three, four, and five); firstdegree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count six); seconddegree unlicensed possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) 

(count seven); and second-degree possession of a firearm for an unlawful 

purpose, contrary to N.J.S.A. 2C:39-4(a) (count eight). 

A.

The charges arose out of events that took place on January 8, 2015 in a 

fast food restaurant where defendant and co-defendant Leon Trent robbed 

several individuals – Tyreese Barkley, Jahod Onque, and Tykwan Crenshaw –
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and defendant shot and killed Crenshaw.

1 At the time, Hasim Salimi was 

working in the restaurant and he witnessed the shooting.

After the shooting, Barkley gave a statement to police. He described the 

shooter as 6'2", with brown skin, dreadlocks, and wearing a vest over a 

sweatshirt. Barkley described the accomplice as heavyset, dressed all in black, 

and with a black do-rag on his head. 

Salimi also gave an initial statement to police that day. Salimi said he saw 

several people, including defendant, in his restaurant just prior to the shooting. 

He stated he was in the back area of the restaurant near the freezer when he 

heard a gunshot. Although he could not see the shooter at that point, he did see 

Crenshaw holding his hands up, saying "no, no, no" and then falling to the floor. 

Salimi ran closer and saw defendant with his right arm down at a 45-degree 

angle towards Crenshaw who was laying on the floor. He described the shooter 

as six feet tall with an average build. He said the shooter had dreadlocks and 

was wearing a vest. 

In the days after the shooting, Essex County Prosecutor's Office (ECPO)

detectives retrieved surveillance footage from the area of the restaurant in the 

minutes before and just after the homicide. In their review of the footage, the 

1

 Trent was charged in counts two, three, four, five, and six of the indictment.
4

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detectives spotted two individuals who matched the descriptions Barkley and 

Salimi had given of the perpetrators in their initial statements. A detective from 

Irvington identified the men in the surveillance footage as Trent and defendant. 

The detectives made some still photographs of defendant and Trent from the 

footage.

A week after the shooting, the police asked Salimi to come to the ECPO. 

When he arrived, Salimi gave a second recorded statement to Detectives David 

Fontoura and James Ventola. His description of the events was similar to his 

first statement – he was in the back of his store, heard one shot, ran to the front, 

and saw defendant shoot Crenshaw a second time. He also described how the 

accomplice seemed to be standing as a lookout and added that he heard 

defendant say "you robbed my man last week" before shooting Crenshaw. 

Fontoura showed Salimi the still photo, stating: "My partner . . . had a 

chance to review some surveillance footage and we have a still image of a few 

individuals. Tell me do you recognize anyone in this photo?" Salimi 

immediately identified defendant as the shooter. 

Salimi then picked defendant's photograph out of a six-person, blindadministered photo array. He was certain defendant was the shooter. Afterward, 

Fontoura re-entered the room and stated, "[a]nd just for the record, the male you 
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identified is known to the [ECPO] as Durrell Heard whose SBI number is 

721168 Delta."

At the suppression hearing, Salimi testified that he identified defendant as 

the shooter in the surveillance still photo "[b]ecause I saw him, he was the 

shooter." He denied identifying defendant in the still photo only based on the 

person having dreadlocks. He stated that he was not instructed by anyone to 

identify defendant in the photo or to say he was the shooter. 

Barkley was also asked to come to the ECPO to give a second recorded 

statement. Once there, Fontoura and Ventola stated: "We asked you to come in 

here today because we wanted to show you a picture of a possible suspect and 

wanted to see if you can identify this person." Ventola added, "if you recognize 

this person just let us know as the person who robbed you, victim of a robbery, 

and -- and/or the same person that -- responsible for the shooting. So, this is a 

surveillance photo." 

Barkley immediately stated he recognized both men in the photo. He 

identified defendant as the person who shot Crenshaw and Trent as the one who 

robbed them. Barkley testified at the suppression hearing that he did not know 

if the shooter would be in the still photo until the police showed it to him, and 

when they did, he identified defendant because he "saw his face as clear as day,"
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and stated "I know it's him because I know his face." Barkley confirmed he was 

sure defendant and Trent were the perpetrators of the crime, "[b]ecause I 

identified those faces." He denied that anyone directed him to identify the two 

men. 

Barkley then picked defendant and Trent out of two separate photo arrays 

with two different detectives. He denied that anyone told him that the person he 

had picked out of the surveillance still would be in the photo array, or that he 

had picked the right people out of the photo arrays. When Fontoura came back 

into the room, he stated, "[f]or the record the male you identified is known to

the [ECPO] as Durrell Heard whose [SBI] Number is 334741 Delta."

When Trent was later questioned, he admitted to being at the scene of the 

crime and identified himself and defendant on the surveillance still photo. 

B.

Defendant moved to suppress Salimi's and Barkley's out-of-court 

identifications of him. The motion was denied in a well-reasoned written 

decision. The court stated:

Here, the photo array procedure was not significantly 

suggestive by itself. It was not a show up identification. 

It was administered in a double[-]blind manner. The 

detectives who conducted the photo arrays did not 

know who the suspect was or if his photo was included 

in the array. The detectives provided adequate pre-
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identification instructions to the witnesses. The photo 

arrays were comprised of six photos, five of which were 

of men who looked similar to [d]efendant. There was 

only one suspect, [d]efendant, included in each photo 

array. Detectives did not provide feedback on the 

witnesses' identifications.

Defendant focuses his argument on the fact that each 

witness was shown a surveillance still of [d]efendant 

and . . . Trent shortly before the photo array was done. 

This issue falls under the system variable of multiple 

viewings. The process of first showing the witnesses a 

still photo of [d]efendant makes it difficult to know 

whether the subsequent photo array identification was 

based on their memories of the original event or on the 

still photo they had just viewed. See [State v. 

Henderson, 208 N.J. 208, 255 (2011)]. This is 

particularly true given that the still photo and the photo 

arrays were shown to the witnesses close in time on the 

same day.

With regard to the identifications by . . . Salimi and . . . 

Barkley from the single surveillance camera still, it is 

true that [d]efendant met his burden of producing some 

evidence tied to a system variable that demonstrates 

that the identifications are suggestive. However, under 

the totality of the circumstances and through the 

application of the reliability factors, . . . Salimi and . . .

Barkley's identifications are reliable.

In addressing the identification by . . . Salimi, the State 

did offer proof that the identification was reliable. As 

to the system variables, there is no evidence that the 

police told . . . Salimi that the shooter was in the still 

photograph and no evidence that the police told . . .

Salimi that he had to identify someone. Defendant was 

not the only one in the photograph. Finally, there is no 
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evidence that the detectives provided feedback during 

or after the procedure.

As to the estimator variables and the reliability factors, 

. . . Salimi had ample opportunity to view [d]efendant 

at the time of the incident. . . . Salimi saw [d]efendant 

for sixteen seconds, which were not fleeting glimpses. 

The lighting was also abundant in the . . . restaurant and 

he was less than 20 feet away from the shooter. There 

were no obstructions between . . . Salimi and 

[d]efendant's face. Defendant also was not wearing a 

disguise. 

Second, . . . Salimi was attentive during the shooting. 

There is no evidence that . . . Salimi was under any 

stress at the time of the incident. Furthermore, because 

the gun was not pointed at . . . Salimi nor could . . .

Salimi see the gun from his position, . . . Salimi was not 

focused on the weapon.

Third, the evidence shows that . . . Salimi's prior 

description matches [d]efendant's physical appearance. 

Fourth, . . . Salimi's level of certainty when identifying 

[d]efendant is clearly satisfied in this case. There is no 

evidence that . . . Salimi hesitated in his identification. 

Finally, only six days elapsed between the shooting and 

. . . Salimi's identification. It is unlikely that his 

memory of the incident would have significantly faded 

in six days. Thus, under the totality of the 

circumstances, . . . Salimi's identification was reliable.

In addressing the identification by . . . Barkley, once 

again, the State did offer proof that the identification 

was reliable. Similarly[] to the identification by . . .

Salimi, there is no evidence that the police told . . .

Barkley that the shooter was in the still photograph. 

The detectives informing . . . Barkley that they had a 
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possible suspect is not sufficient to demonstrate that the

detectives significantly influenced . . . Barkley's 

identification. There was also no evidence that the 

police told . . . Salimi that he had to identify someone 

or that his identification was correct.

[B]arkley had ample opportunity to view [d]efendant at 

the time of the incident. . . . Barkley saw [d]efendant 

prior to the robbery, as he was waving the gun around 

while the robber was collecting the money, and during 

the shooting, which were not fleeting glimpses. As 

mentioned above, the lighting was also abundant in the 

. . . restaurant. There were no obstructions between 

. . . Barkley and [d]efendant's face . . . [d]efendant was 

not wearing a disguise. 

Second, . . . Barkley was attentive during the shooting.

. . . [T]here is no evidence that . . . Barkley was under 

any stress at the time of the incident. Furthermore, 

because the gun was not pointed at . . . Barkley, [he] 

was not focused on the weapon. 

Third, the evidence shows, as it did for . . . Salimi's 

identification, that . . . Barkley's prior description 

matches [d]efendant's physical appearance. 

Fourth, . . . Barkley's level of certainty when identifying 

[d]efendant as the shooter is clearly satisfied in this 

case. There is no evidence that . . . Barkley hesitated 

in his identification.

Finally, only six days elapsed between the shooting and 

. . . Barkley's identification. In comparison to . . .

Salimi's memory, it is unlikely that his memory of the 

incident would have significantly faded in six days. 

Thus, under the totality of the circumstances, . . .

Barkley's identification was reliable. 
10 A-4003-17T2

Therefore, because the out-of-court identifications of 

[d]efendant by . . . Salimi and . . . Barkley are reliable, 

they will not be suppressed, and the State may also 

elicit in-court identifications by these two witnesses as 

well.

C.

Defendant was tried before a jury in November and December 2017. Both 

Salimi and Barkley testified. In addition, the third robbery victim – Onque –

was called as a witness. He stated that he was standing three feet from defendant

at the time of the robbery and right next to Crenshaw when defendant shot 

Crenshaw. Onque stated that defendant entered the restaurant and said "this is 

a shake[,]" which Onque knew meant he was about to get robbed. When Onque 

was questioned by police in February 2015, he described the shooter as having 

dreadlocks, wearing a hoodie and jeans, and missing about four front teeth. At 

trial, defendant displayed his teeth for the jury, showing that he had missing or 

rotted top teeth. Onque testified that defendant accused Crenshaw of robbing 

Trent before shooting Crenshaw. 

Onque's identification of defendant in a blind-administered photo array in 

February 2015 was not challenged. During the array, Onque stated he was

"positive" defendant was the one who shot Crenshaw, because "I'll never forget 

that day." 
11 A-4003-17T2

Trent also testified, identifying himself as the lookout and defendant, his

cousin, as the shooter. Trent told the jury that he and defendant planned to rob 

the restaurant. He also informed the jury that he had pled guilty earlier that year 

to conspiracy to commit robbery and robbery. The plea agreement required him

to testify truthfully at defendant's trial. The State recommended a ten-year 

sentence with an eighty-five percent parole disqualifier.

D.

During the charge to the jury, the judge advised them that Trent was 

indicted for conspiracy to commit robbery, three counts of first-degree robbery,

and felony murder. He further stated that Trent had pled guilty to conspiracy to 

commit robbery and first-degree robbery of Crenshaw. The judge then 

instructed: "Evidence of . . . Trent's plea of guilty may be used only to determine 

the credibility or believability of the witness' testimony." 

The judge continued, stating:

You may consider such evidence along with all the 

other factors that I mentioned previously in determining 

the credibility of the witness. However, you may not 

use . . . Trent's plea of guilty as evidence that this 

defendant is guilty of conspiracy to commit robbery or 

first-degree robbery for which defendant is charged." 

The law requires that the testimony of such a witness 

be given careful scrutiny. In weighing his testimony, 

therefore, you may consider whether he has a special
12 A-4003-17T2

interest in the outcome of the case and whether his 

testimony was influenced by the hope or expectation of 

any favorable treatment or reward or by any feelings of 

revenge or reprisal. If you believe this witness to be 

credible and worthy of belief, you have a right to 

convict the defendant of conspiracy to commit robbery 

and first-degree robbery of Tykwan Crenshaw on . . . 

Trent's testimony alone, provided, of course, that upon 

a consideration of the whole case, you're satisfied . . . 

beyond a reasonable doubt of the defendant's guilt on 

those charges. 

E.

Defendant was convicted on all charges. He was sentenced on March 5, 

2018 to a fifty-five-year prison term for first-degree murder (count one), subject 

to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). The court imposed 

fifteen-year prison terms for robbery (count four and five) and stated the 

sentences for count four and five would run concurrent to each other, but 

consecutive to count one. The remaining counts merged or were made solely 

concurrent. The Judgment of Conviction (JOC) entered that day also indicated 

that defendant's sentence on counts four and five was consecutive to the sentence 

on count one, but concurrent with each other and all unmerged charges. 

However, the judge listed the total custodial term as eighty-five years. 

On March 12, 2018, the Department of Corrections (DOC) advised the 

sentencing court that the JOC reflected an eighty-five-year sentence, although 
13 A-4003-17T2

the aggregate term imposed by the sentences on each count only added to 

seventy years. The DOC asked the court for clarification. The court issued a 

letter and amended JOC. The letter stated "per [the] letter from DOC, dated 

3/12/18 – counts [four and five] should run consecutive to count [one] [and]

consecutive to each other." 

II.

On appeal, defendant presents the following arguments:

I. DID THE COURT ERR IN DENYING A 

MOTION TO SUPPRESS IDENTIFICATIONS FROM 

TWO OUT-OF-COURT PHOTO ARRAYS? 

II. DID THE COURT ERRONEOUSLY INVITE 

THE JURY TO USE CO-DEFENDANT'S GUILTY 

PLEA AS SUBSTANTIVE EVIDENCE THAT 

DEFENDANT WAS GUILTY OF THE HOMICIDE 

AND WEAPONS OFFENSES? 

III. IS A REMAND FOR RESENTENCING 

REQUIRED?

a. Was the Judgment of Conviction inconsistent 

with the court's oral sentence?

b. Was the court's rationale for consecutive terms 

inconsistent with the verdict?

c. Was defendant's refusal to speak at sentencing 

held against him as an aggravating factor? 
14 A-4003-17T2

A.

Defendant argues the trial court erred in denying his motion to suppress 

the out-of-court identifications made by Barkley and Salimi. In reviewing the 

denial of a motion to suppress an out-of-court identification, we must uphold 

the trial judge's factual findings so long as those findings are supported by 

sufficient credible evidence in the record. State v. Wright, 444 N.J. Super. 347, 

356 (App. Div. 2016). We owe particular deference to findings of fact that are 

based on "a trial judge's assessment of the credibility of a witness he has 

observed firsthand." Id. at 357. 

Defendant contends the still photo of him taken from surveillance footage 

shown to Salimi and Barkley prior to the photo array irreparably tainted their 

identifications of defendant as the perpetrator of the homicide. In addition, 

defendant asserts the detective's statement made after the identification – "for 

the record" the person you identified was "known to the [ECPO] as Durrell 

Heard" – was improper feedback that tainted the identifications. 

To challenge an out-of-court identification, "defendant has the initial 

burden of showing some evidence of suggestiveness that could lead to a 

mistaken identification." State v. Henderson, 208 N.J. 208, 288 (2011). Once 

a hearing has been granted, the State must present proof that the identification 
15 A-4003-17T2

is reliable. Id. at 289. The State's burden to offer proof is the same as the burden 

of producing evidence described in N.J.R.E. 101(b)(2), which is sometimes 

referred to as the burden of going forward. State v. Henderson, 433 NJ. Super. 

94, 107 (App. Div. 2013). "The burden of producing evidence has been 

described . . . 'as so light as to be little more than a formality.'" Ibid. (quoting 

State v. Segars, 172 N.J. 481, 494 (2002)). The evidence need not be persuasive, 

the State must merely "provide evidence on the issue that is germane to the 

inquiry with sufficient clarity so that the opposing party has a full and fair 

opportunity to respond." Ibid.

Although the State must present proof that the identification is reliable, it 

is defendant's ultimate burden "to prove a very substantial likelihood of 

irreparable misidentification." Ibid. Defendant may cross-examine the State's 

witnesses and present his own witnesses and relevant evidence related to system 

and estimator variables to meet this burden. Ibid. If, under the totality of the

circumstances, defendant meets this burden, the court will suppress the out-ofcourt identification. Ibid. Although the Rules of Evidence apply in pre-trial 

evidentiary hearings, they may be relaxed "to admit relevant and trustworthy 

evidence in the interest of justice." R. 101(a)(3)(E).
16 A-4003-17T2

A defendant's evidence of suggestiveness "must be tied to a system 

[variable] – and not an estimator – variable." Henderson, 208 N.J. at 288-89. 

System variables are "factors . . . within the control of the criminal justice 

system." Id. at 247. Examples of system variables include: 

1. Blind Administration. Was the lineup procedure 

performed double-blind? 

. . . .

2. Pre-identification instructions. Did the administrator 

provide neutral, pre-identification instructions warning 

that the suspect may not be present in the lineup and 

that the witness should not feel compelled to make an 

identification?

3. Lineup Construction. Did the array or lineup contain 

only one suspect embedded among at least five 

innocent fillers? Did the suspect stand out from other 

members of the lineup?

4. Feedback. Did the witness receive any information 

or feedback, about the suspect or the crime, before, 

during, or after the identification procedure?

5. Recording Confidence. Did the administrator record 

the witness' statement of confidence immediately after 

the identification, before the possibility of any 

confirmatory feedback?

6. Multiple Viewings. Did the witness view the suspect 

more than once as part of multiple identification 

procedures? Did police use the same fillers more than 

once?
17 A-4003-17T2

7. Showups. Did the police perform a showup more 

than two hours after an event? Did the police warn the 

witness that the suspect may not be the perpetrator and 

that the witness should not feel compelled to make an 

identification?

8. Private Actors. Did law enforcement elicit from the 

eyewitness whether he or she had spoken with anyone 

about the identification and, if so, what was discussed?

9. Other Identifications Made. Did the eyewitness 

initially make no choice or choose a different suspect 

or filler?

[Id. at 248-61, 289-90.]

Estimator variables are "factors related to the witness, the perpetrator, or 

the event itself . . . over which the legal system has no control." Id. at 247. 

Estimator variables include: stress, weapon focus, duration, distance and 

lighting, witness characteristics, characteristics of the perpetrator, memory 

decay, race-bias, opportunity to view the criminal at the time of the crime, 

degree of attention, accuracy of prior description of the criminal, level of 

certainty demonstrated at the confrontation, and the time between the crime and 

the confrontation. Id. at 261-72, 291-92.

Here, the system variable at issue is "multiple viewings", as the ECPO 

detectives showed Salimi and Barkley the surveillance photo of defendant prior 

to the photo array. "Viewing a suspect more than once during an investigation 
18 A-4003-17T2

can affect the reliability of the later identification." Id. at 255. "[S]uccessive 

views of the same person can make it difficult to know whether the later 

identification stems from a memory of the original event or a memory of the 

earlier identification procedure." Ibid.

However, multiple viewings do not automatically warrant suppression of

an out-of-court identification. To determine whether a multiple viewing 

identification should be suppressed, the question becomes "whether under the 

'totality of the circumstances' the identification was reliable even though the 

confrontation procedure was suggestive." State v. Herrera, 187 N.J. 493, 503 

(2006) (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972)). A number of factors 

are considered in making this determination: (1) the opportunity of the witness 

to view the criminal at the time of the crime; (2) the witness's degree of attention; 

(3) the accuracy of the witness's prior description of the criminal; (4) the level 

of certainty demonstrated by the witness at the confrontation; and (5) the length 

of time between the crime and the confrontation. Henderson, 208 N.J. at 238. 

"These factors are to be weighed against 'the corrupting effect of the suggestive 

identification itself.'" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114 

(1977)). 
19 A-4003-17T2

Defendant argues that Salimi's identification is tainted because Fontoura 

asked Salimi to assist in identifying those responsible for the "shooting 

homicide" that Salimi had witnessed. In addition, Fontoura told Salimi he had 

found a "still image" of "surveillance footage." Defendant contends that these 

statements signaled to Salimi that the suspects were in the photo. 

Defendant's arguments are not supported by the record. The following 

exchange takes place in Salimi's recorded statement: 

[FONTOURA]: [M]y partner . . . had a chance to 

review some surveillance footage and we have a still 

image of a few individuals. Tell me do you recognize 

anyone in this photo?

[SALIMI]: This one.

[FONTOURA]: This guy here with the dreadlocks? 

[SALIMI]: Yes.

[FONTOURA]: Okay. And this is the individual you 

described to me the night of the shooting? 

[SALIMI]: Yeah.

[FONTOURA]: Okay. And this is the individual you 

saw do what? 

[SALIMI]: Shooting the guy.

Fontoura did not tell Salimi he had to choose an individual in the still

photo, nor did he state that the perpetrators were in the photo, or that Salimi's 
20 A-4003-17T2

identification was correct. Salimi testified during the suppression hearing that 

he identified defendant in the surveillance photo "[b]ecause I saw him, he was 

the shooter." He also testified that he did not pick defendant out solely because 

of his dreadlocks. 

Defendant's challenge to the photo array procedure also lacks merit. He 

contends that the photo array, which included defendant's photograph, conveyed 

police approval of Salimi's identification of defendant in the still photo. 

However, after Salimi identified defendant in the surveillance photo, Fontoura 

excused himself from the room and another detective came in and conducted the 

photo array. The detective instructed, in pertinent part:

In a moment I will show a number of photographs one 

at a time. You may take as much time as you need to 

look at each of them. You should not conclude that the 

person who committed the crime is in the group merely 

because a group of photographs are being shown to you. 

The person who committed the crime may or may not 

be in the group. And mere[] display of the photograph 

is . . . not meant to suggest that the police believe that 

the person who committed the crime is in the 

photographs. 

You do not have to select any photograph. If you don't 

understand anything that I'm telling you stop me. . . . 

There is no significance in the order in which the 

photographs are displayed. Even if you select a 

photograph all of the photographs will be shown to you. 
21 A-4003-17T2

Tell me immediately if you recognize anyone in the 

photographs. 

. . . .

If you do select a photograph please don't ask me 

whether I agree or disagree to support your selection. I 

do not know whom the suspect [is], if he or she is in the 

lineup, or what photograph he or she may be present in. 

It is your choice alone that counts. Please do not 

discuss whether or not you selected a photograph with 

any other witness. 

Salimi was shown six photos; he identified defendant in the third one. The 

inclusion of defendant's photograph in the photo array does not demonstrate that 

the detectives conveyed to Salimi their approval of his identification of the still 

photo. There is no logic to defendant's assertion that the detectives should not 

have included his photograph in the photo array; there would be little to no value 

to the photo array if it were exclusively conducted with photographs of nonsuspects. Moreover, when questioned about the identification at trial, Salimi 

testified that he did not pick defendant out of the lineup because of the still

photo. He stated he selected him because he saw defendant shoot Crenshaw 

inside his restaurant. 

Defendant also asserts that the statement "just for the record, the male you 

identified is known to the [ECPO] as Durrell Heard whose SBI number is 

721168 Delta," was impermissible feedback, telegraphing to Salimi that 
22 A-4003-17T2

defendant was a bad actor. This statement was made after the identification and 

defendant has not established that Salimi found this statement to be anything 

more than a recitation of defendant's name.

Defendant reiterates his arguments with regard to Barkley's out-of-court 

identification. We equally find them without merit. On January 16, 2015, after 

Barkley gave detectives a second statement, he was asked to review a still 

photograph from surveillance footage of the restaurant area:

[VENTOLA]: Okay. And I remember . . . speaking to 

you the day it happened. . . . [T]hroughout the 

investigation we were able to obtain some surveillance 

photos. One of them on Springfield Avenue and we 

wanted to bring it to your attention and show it to you 

and then we also wanted to bring another detective in 

just to show you a few pictures . . . is that okay? 

[BARKLEY]: Yeah. 

[VENTOLA]: I just want to bring your attention to a 

photo. And please if you recognize this person just let 

us know as the person who robbed you, victim of a 

robbery, . . . and/or the same person . . . responsible for 

the shooting. So, this is a surveillance photo. Do you 

recognize anyone? Who do you recognize? 

[BARKLEY]: Both of them. 

[VENTOLA]: You recognize both . . . [o]kay. Are 

these the individuals you described to me the night of 

the incident? Okay. And which one of these two 

individuals actually was the one that robbed you? 
23 A-4003-17T2

Okay. He robbed you. And which one actually shot? 

And he's the one who shot?

[BARKLEY]: Uh-huh. 

. . . .

[VENTOLA]: We're going to step out. We're going to 

have another detective come in. He's going to show you 

a couple photographs. And just see if you recognize 

anyone in the photographs as either of these two males. 

Another detective then came into the room to conduct the photo array. He 

gave Barkley the same instructions previously given to Salimi. Barkley stated 

that he understood them. 

As he reviewed the photographs, Barkley recognized defendant in the 

fourth one. He told the detective that the man in photograph number four was 

the shooter. As with Salimi, Fontoura re-entered the room and told Barkley the 

man he picked from the photo array was "known to the [ECPO] as Durrell Heard 

whose [SBI] Number is 334741 Delta." 

We reject defendant's arguments regarding the photo array for the reasons 

stated above. During the suppression hearing, Barkley stated that he did not 

know if the shooter would be in the still photo until the police showed it to him. 

When they did, he could identify defendant because he "saw his face as clear as 

day." He stated, "I know it's him because I know his face." In addition, 
24 A-4003-17T2

defendant's long dreadlocks in the photo also matched Barkley's description of 

the shooter. There is no evidence that Barkley was given any guidance to help 

him identify the shooter. 

When Barkley was asked about Fontoura's statement at the end of the 

process, he said "They didn't – they didn't say if I was right or wrong. They said 

okay. And they took the pictures away." Barkley also testified that police did 

not tell him that the person he saw in the still photo would be in the photo array. 

The descriptions Salimi and Barkley gave police immediately after the 

incident matched defendant's appearance on the surveillance photo. Barkley 

stated defendant was wearing a vest and long dreads, walking with another, 

chubbier man who was wearing all black and a black do-rag. Salimi's initial 

statement was even more specific: the shooter was wearing a black vest over a 

white sweater. The only person on the surveillance video at the time of the 

shooting wearing a black vest over a white shirt was defendant. 

The surveillance video was taken from the area outside the restaurant 

minutes before the crime occurred, and depicts people fleeing the scene 

moments after it occurred. Defendant does not dispute that the footage and still 

photograph made from it shows him and Trent. And, both witnesses stated that 

they identified defendant in the still photo and again in the photo array because 
25 A-4003-17T2

they recognized him as the man they saw in the restaurant robbing the customers 

and shooting Crenshaw. 

In addition, the witnesses' testimony was corroborated by certain physical 

evidence. Salimi recalled a second shot hitting the doorframe, and indeed, a 

bullet was discovered in the doorframe. Barkley stated the gun was a .38 

revolver. The bullets recovered at the crime scene belonged to a .38 revolver. 

The trial judge found Fontoura, Salimi, and Barkley credible. According 

that finding and the deference it is owed, we are satisfied defendant has not

demonstrated "a very substantial likelihood of irreparable misidentification"

requiring the suppression of the out-of-court identifications. See Henderson,

208 N.J. at 289 (holding that a court should suppress the identification only if it 

"finds from the totality of the circumstances that defendant has demonstrated a 

very substantial likelihood of irreparable misidentification."). The presence of 

a single, potentially suggestive factor does not defeat an eyewitness 

identification. See State v. Adams, 194 N.J. 186, 203-206 (2008) (based on the 

totality of the circumstances, there was sufficient evidence in the record for the 

trial court to conclude that, despite the clear suggestive nature of the 

identification procedures, the identifications were reliable and did not result in 

a substantial likelihood of misidentification).
26 A-4003-17T2

B.

Defendant argues for the first time that the court erred in giving the 

following instruction to the jury regarding co-defendant Trent: "[Y]ou may not 

use [Leon] Trent's [guilty plea] as evidence that this defendant is guilty of 

conspiracy to commit robbery or first-degree robbery for which defendant is 

charged." Defendant contends this instruction was "grossly prejudicial" because 

the model jury charge is more general and precludes jurors from using a codefendant's guilty plea as "evidence that this defendant is guilty of the crimes 

that he/she is charged with." See Model Jury Charges (Criminal), "Testimony 

of a Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006). He asserts that 

this charge gave the jury implicit permission to use Trent's guilty plea as 

evidence that defendant was guilty of all the other offenses he was charged with. 

Defense counsel did not object to this jury instruction. Therefore, we

review for plain error. See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 

(2007) ("[T]he failure to object to a jury instruction requires review under the 

plain error standard."). Where there is a failure to object, a reviewing court 

presumes the instruction was "not error" and "unlikely to prejudice defendant's 

case." State v. Singleton, 211 N.J. 157, 182 (2012). 
27 A-4003-17T2

It cannot be disputed that "[c]orrect charges are essential for a fair trial." 

State v. Martin, 119 N.J. 2, 15 (1990). "[T]he court must explain the controlling 

legal principles and the questions the jury is to decide." Ibid. We "evaluate any 

alleged error in a portion of a jury charge in the context of the entire charge." 

State v. Marshall, 173 N.J. 343, 355 (2002). 

To sustain a showing of plain error, a defendant must demonstrate "legal 

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. Nero, 195 N.J. 397, 407 (2008). Defendant has 

not met his burden here where four eyewitnesses identified defendant as the 

perpetrator of the charged crimes. He was seen at the scene of the crime 

participating in the robberies of Onque and Barkley and shooting Crenshaw. 

Moreover, the judge gave the jury limiting instructions that Trent's guilty 

plea could only be used to assess his credibility, and that his plea to robbery and 

conspiracy to commit robbery could not be used as evidence against defendant 

for the same charges. In addition, defense counsel conducted an extensive crossexamination of Trent, highlighting his inconsistent statements to police, and

arguing to the jury during his summation that Trent was lying to "save himself."
28 A-4003-17T2

In light of the overwhelming evidence against defendant, we cannot discern that 

the limiting instruction regarding Trent effected any change in the case's 

outcome.

C.

Defendant also challenges his sentence, contending the amended JOC is 

inconsistent with the court's oral pronouncement of his sentence. We agree that 

the trial judge was inconsistent at times during the sentencing hearing regarding 

the concurrent or consecutive nature of counts four and five. And the initial

JOC listed counts four and five as running concurrent to each other. However,

a reading of the sentencing transcript in conjunction with the JOCs as well as 

the judge's clarification reflects the clear intention of the court was for the 

fifteen-year sentences on counts four and five to run consecutively to each other 

and to the fifty-five-year sentence imposed on count one. 

We support our conclusion with the following evidence. After explaining 

the various sentences, the judge stated: "Your earliest eligibility for release on 

parole based on the published parole eligibility tables will be [seventy-two]

years, three months, and nine days." This calculation is 85% of an eighty-fiveyear sentence. In addition, each of the JOCs lists an aggregate prison term of 

eighty-five years. Finally, when the judge was asked to clarify his intent 
29 A-4003-17T2

regarding counts four and five, he amended the JOC to indicate counts four and 

five were to run consecutive to each other as well as to count one.

"[S]entences can be upheld where the sentencing transcript makes it 

possible to readily deduce the judge's reasoning." State v. Miller, 205 N.J. 109, 

129 (2011). A court can "safely discern the sentencing court's reasoning when 

the record is clear enough to avoid doubt as to the facts and principles the court 

considered and how it meant to apply them." Id. at 130. 

Here, the sentencing transcript and the court's clarification make the 

judge's intended sentence easy to "readily deduce." The judge intended to

sentence defendant to an aggregate eighty-five-year term; fifty-five years on 

count one, fifteen years on count four, and fifteen years on count five, all running 

consecutively.

We discern no merit in defendant's argument that the court's sentence was 

inconsistent with the jury's verdict. The judge carefully considered each 

Yarbough2factor and placed his extensive findings on the record. Because he 

found the murder of Crenshaw took place to facilitate the robbery of him, he ran 

the sentence on count one concurrent to count three, but consecutive to counts 

2 State v. Yarbough, 100 N.J. 627, 643-44 (1985).
30 A-4003-17T2

four and five, as the murder was a separate act from the robbery of the other 

victims.

The jury convicted defendant on all counts, therefore finding that 

defendant killed Crenshaw with a separate, purposeful criminal intent apart from

the other charged offenses. We are satisfied that the imposition of a consecutive 

sentence is supported by the credible evidence in the record.

Any remaining arguments not considered lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.