SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1872-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN TODD, a/k/a 

ABDUAL TODD, JIHAD

BEAL, JERMAINE COLEY, 

QUAMIR WILLIAMS and 

HAS,

Defendant-Appellant.

________________________

Argued December 15, 2021 – Decided September 1, 2022

Before Judges Gilson, Gooden Brown and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 18-12-4130.

Morgan A. Birck, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Morgan A. Birck, of counsel 

and on the briefs).

Caitlinn Raimo, Special Deputy Attorney General/ 

Acting Assistant Prosecutor, argued the cause for 

NOT FOR PUBLICATION WITHOUT THE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.
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respondent (Theodore N. Stephens II, Acting Essex 

County Prosecutor, attorney; Caitlinn Raimo, of 

counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant was convicted of first-degree murder, 

N.J.S.A. 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b)(1); and second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a)(1). He was sentenced to an aggregate term of sixty-five 

years of imprisonment, subject to an eighty-five percent period of parole 

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

The convictions stemmed from the fatal shooting of Elijah Roberts and 

wounding of Tyre Sorbino in front of a Newark pizzeria. Defendant was arrested 

after two witnesses identified him as the shooter from photo arrays. One of the 

eyewitnesses, Asya Thomas, Roberts's girlfriend, was with Roberts at the time 

of the shooting, and knew defendant. Detective Yolanda Holmes, the lead 

detective, secured surveillance footage of the shooting, interviewed the 

eyewitnesses, and obtained a search warrant for defendant's aunt's home. The 

search uncovered a jacket belonging to defendant that matched the one worn by 
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the shooter as depicted in the surveillance footage. At trial, both eyewitnesses 

testified, and Holmes narrated the surveillance footage, identifying defendant as 

the shooter three separate times and identifying the seized jacket as matching 

the one worn by defendant in the footage. No forensic evidence or weapon 

linking defendant to the crimes was presented to the jury. 

On appeal, in his counseled brief, defendant raises the following points 

for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING A 

WADE[1] HEARING.

POINT II

THE JURY INSTRUCTION ON IDENTIFICATION, 

WHICH OMITTED AN INSTRUCTION 

REGARDING THE NON-RECORDED 

CONVERSATION BETWEEN AN EYEWITNESS 

AND LAW ENFORCEMENT REGARDING THE 

PHOTO ARRAY PROCEDURE, DID NOT 

ADEQUATELY EXPLAIN THE RELEVANT

FACTORS OF ASSESSING THE RELIABILITY OF 

THE OUT-OF-COURT IDENTIFICATIONS. (NOT 

RAISED BELOW).

POINT III

THE LEAD DETECTIVE GAVE IMPROPER LAYWITNESS OPINION TESTIMONY AS TO CRUCIAL 

1

 United States v. Wade, 388 U.S. 218 (1967).
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IDENTIFICATION DETAILS. (NOT RAISED 

BELOW).

POINT IV

THE SENTENCE IS EXCESSIVE AS THE TRIAL 

COURT FAILED TO FIND A MITIGATING 

FACTOR SUPPORTED BY CREDIBLE EVIDENCE 

IN THE RECORD.

In a pro se supplemental brief, defendant makes the following arguments:

POINT I

THE JURY INSTRUCTIONS W[ERE]

INADEQUATE AND DEFECTIVE AND DENIED 

[DEFENDANT] HIS CONSTITUTIONAL RIGHT TO 

A FAIR TRIAL.

POINT II

[DEFENDANT'S] CONVICTIONS SHOULD BE

REVERSED BECAUSE [THE] PROSECUTOR 

IMPROPERLY INFLAMED THE JURY BY TRYING 

TO GET THE JURY TO SYMPATHIZE WITH THE 

VICTIM AS [O]PPOSED TO JUST ARGUING THE 

FACTS OF THE CASE. 

POINT III

DEFENDANT'S CONVICTION SHOULD BE 

REVERSED BECAUSE THE IDENTIFICATION 

PROCEDURE WAS SUGGESTIVELY TAINTED BY 

THE STATE'S KEY WITNESS BEING TOLD TO 

REMEMBER THE PHOTO NUMBER THAT 

DEFENDANT WAS IN PRIOR TO VIEWING THE 

PHOTO ARRAY. 
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POINT IV

[DEFENDANT'S] CONVICTIONS MUST BE 

REVERSED BECAUSE OF THE CUMULATIVE 

ERROR THAT OCCURRED DURING HIS TRIAL.

Because of the impermissible lay opinion testimony of the lead detective, we 

reverse the convictions and remand for a new trial. 

I.

After defendant's motion for a Wade hearing challenging the admissibility 

of Thomas's out-of-court identification was denied, a six-day jury trial was 

conducted in September 2019, during which the State produced twelve witnesses

consisting of civilian and law enforcement witnesses, including the 

eyewitnesses, the surviving victim, a crime scene investigator, a ballistics and 

firearm identification expert, and the medical examiner. We glean these facts 

from the trial record.

At approximately 5:45 p.m. on September 22, 2018, an argument occurred

on Ridgewood Avenue in Newark between Roberts and another individual. 

Maryanne Pollard, who knew Roberts from the neighborhood, lived on 

Ridgewood Avenue and observed the argument from her front porch. Roberts 

called his girlfriend, Asya Thomas, who came to help calm Roberts down. 

Thomas and Roberts then walked down the block to Avon Avenue and turned 
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the corner toward the Brick City Oven pizzeria, at which point Pollard lost sight 

of them. 

A few minutes later, Pollard saw a truck pull up with four people inside. 

The driver handed the front seat passenger a bag containing a gun, and the 

passenger, who was wearing a black hooded coat, walked towards the pizzeria. 

Thomas and Roberts were talking with friends, including Sorbino, in front of 

the pizzeria when the shooter approached them and shot Roberts in the chest. 

The gathering immediately dispersed. While hiding behind a wall, Thomas 

looked out and saw Roberts laying on the pavement as the shooter stood over 

him and continued to shoot. The shooter eventually retreated behind a parked 

car, still shooting at Roberts before fleeing. 

Once the shooting stopped, Thomas ran to Roberts, but he was 

unresponsive. Police were alerted by 911 calls and ShotSpotter,

2

and responded 

along with paramedics. Roberts was later pronounced dead at University 

Hospital from "[m]ultiple gunshot wounds," having been shot a total of fifteen 

times. Sorbino, who had been shot in the leg, was treated at the hospital and 

released. Although Sorbino saw a "black hoodie" prior to the shooting, he could 

not identify the shooter. 

2

 The ShotSpotter system alerts officers to a location where shots were fired.
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Detective Yolanda Holmes responded to the scene half an hour after the 

shooting occurred. Holmes served as the lead detective and, in that capacity, 

observed the scene, interviewed witnesses, and canvassed the neighborhood for 

surveillance cameras. After locating surveillance cameras, Holmes viewed and

downloaded the footage that depicted the shooting as well as the shooter's initial 

flight. During the investigation, Holmes reviewed the footage multiple times. 

Holmes interviewed Thomas the evening of the shooting and obtained a 

nickname for the shooter, which Holmes matched to a "government" name. 

Thomas testified she was familiar with defendant from having seen him "a 

couple of times." However, when presented with her prior statement to police 

to refresh her recollection, Thomas acknowledged she had told police she had 

previously seen defendant "about ten times."

Two days after the shooting, Holmes asked Thomas to participate in a 

recorded photo array identification procedure, which was conducted by a 

double-blind administrator.

3 Nine days after the shooting, Holmes arranged for

3

 A double-blind administrator is one who does not know who the suspect is or 

where the suspect's photograph is positioned in the photo array. State v. 

Henderson, 208 N.J. 208, 248 (2011). The double-blind best practice 

established in Henderson reduces the possibility that the officer who is 

administering the identification procedure will suggest to the witness, even 

unconsciously, which photo in the array depicts the suspect. Id. at 248-49.
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Pollard to be administered a recorded double-blind photo array identification

procedure. Thomas and Pollard each identified defendant as the shooter from 

the photo arrays presented to them. Holmes had compiled the photo arrays so 

that all six photos in each array depicted men with tattoos on their faces, similar 

to defendant's. 

After Thomas's identification, Holmes obtained a search warrant for 

defendant's aunt's house. During the execution, officers found "a black jacket 

with a hood" in one of the bedrooms. Defendant's aunt indicated that the jacket 

belonged to defendant. Holmes believed that the jacket matched the one she had 

observed in the surveillance footage. After Pollard's identification, defendant 

was arrested.

At trial, the surveillance footage was played for the jury, with Holmes 

narrating what it depicted. On three separate occasions during crossexamination, Holmes referred to the shooter in the video by defendant's first and 

last name, "Hassan Todd." Holmes also testified on direct examination that the 

jacket seized from defendant's aunt's home was "the same jacket . . . depicted in

the surveillance video" "worn by Hassan Todd." The jacket was never tested 

for DNA or gunshot residue and although law enforcement recovered eight shell 

casings from the scene that were fired from the same gun, the gun used in the 
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shooting was never recovered. Additionally, no fingerprints were found at the 

scene, either on recovered shell casings or parked vehicles. 

After the jury returned its verdict, defendant was sentenced to a term of 

sixty-five years' imprisonment, subject to NERA, on the murder conviction; a 

concurrent ten-year term, subject to NERA, on the aggravated assault 

conviction; and a concurrent ten-year term, with a five-year period of parole 

ineligibility, each on the weapons offenses. A memorializing judgment of 

conviction was entered on December 5, 2019, and this appeal followed.

II.

In Point III of his counseled brief, defendant argues the lead detective 

offered "impermissible lay-opinion testimony" which "improperly invaded the 

jury's role as ultimate fact-finder." According to defendant, "Holmes's opinion" 

of "whether [defendant] was the shooter in the video and whether the coat in the 

video was the same as the one recovered from [defendant's aunt's] house" 

"strayed far beyond the bounds of proper fact testimony by a police officer" and 

improperly bolstered Thomas's and Pollard's identification testimony.

Because defendant did not object at trial, we apply a plain error standard 

of review and will reverse only if the errors were "clearly capable of producing 

an unjust result." R. 2:10-2; see also State v. R.K., 220 N.J. 444, 456 (2015) 
10 A-1872-19

(explaining an "error will be disregarded unless a reasonable doubt has been 

raised whether the jury came to a result that it otherwise might not have 

reached"). We also recognize that "[a] trial court's evidentiary rulings are 

entitled to deference absent a showing of an abuse of discretion, i.e., there has 

been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) 

(quoting State v. Harris, 209 N.J. 431, 439 (2012)).

When the issue has arisen of what is and what is not permissible narration

of video footage that captures an incident not witnessed in real time, the question 

has focused on whether a specific comment by the narrator is purely factual or 

is a lay opinion. See State v. Singh, 245 N.J. 1, 14-15 (2021). Accordingly, the 

Court has evaluated the admissibility of narration testimony under N.J.R.E. 701. 

See State v. Sanchez, 247 N.J. 450, 466 (2021); Singh, 245 N.J. at 14; see also

State v. Lazo, 209 N.J. 9, 20-24 (2012).

In Singh, the Court squarely addressed lay opinion testimony relating to 

video surveillance recordings. 245 N.J. at 4. The defendant in that case 

challenged testimony from a detective who had twice referred to the person 

shown in the surveillance video as "the defendant." Id. at 18. The detective 

further commented that the sneakers worn by the suspect in the surveillance
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video looked like sneakers found on defendant the night he was arrested. Id. at 

19.

The Court began its analysis by examining the purpose and boundaries of 

N.J.R.E. 701, which provides:

If a witness is not testifying as an expert, the witness' 

testimony in the form of opinions or inferences may be 

admitted if it:

(a) is rationally based on the witness' perception; and

(b) will assist in understanding the witness' testimony 

or determining a fact in issue.

The Court in Singh determined that it was error for the trial court to allow 

the detective to refer to the suspect in the video as "the defendant" but ultimately 

concluded that those fleeting references were harmless. Id. at 17. The Court 

also concluded that there was no error in allowing the detective to testify that 

the sneakers he saw in the video were like the sneakers the defendant had been 

wearing on the night he was arrested. Id. at 17-19. The Court reasoned that 

although "the jury may have been able [on its own] to evaluate whether the 

sneakers were similar to those in the video[, that] does not mean that [the 

detective's] testimony was unhelpful. Nor does it mean that [the detective's] 

testimony usurped the jury's role in comparing the sneakers." Id. at 20.
12 A-1872-19

In Sanchez, the Court focused on whether a parole officer could offer a 

lay opinion identifying the defendant as a suspect in a still-frame image taken 

from a surveillance video. 247 N.J. at 458. Specifically, the Court considered 

whether it was an improper lay opinion for a "parole officer, who had met with 

[the] defendant more than thirty times as she supervised him on parole, [to tell] 

a detective investigating a homicide and robbery that [the] defendant was the 

individual depicted in a photograph derived from surveillance video taken

shortly after the crimes." Ibid.

In analyzing that issue, the Court compiled a non-exhaustive list of four 

factors to consider in determining whether lay opinion testimony will assist the 

jury in a case. Id. at 473. Those factors include (1) "the nature, duration, and 

timing of the witness's contacts with the defendant"; (2) "if there has been a 

change in the defendant's appearance since the offense at issue"; (3) "'whether 

there are additional witnesses available to identify the defendant at trial'"; and 

(4) "the quality of the photograph or video recording at issue." Id. at 470-73

(quoting Lazo, 209 N.J. at 23). The Court stressed that no single factor will be 

dispositive. Id. at 473-74 (citing Lazo, 209 N.J. at 20-24). The Court in Sanchez

ultimately determined that the parole officer's testimony was based on her 
13 A-1872-19

perceptions of having met with the defendant more than thirty times and, 

therefore, her testimony was admissible and helpful to the jury. Id. at 475.

Although Lazo did not involve narration of surveillance video footage, the 

Court considered "whether it was proper for a [detective] to testify at trial about 

how and why he assembled a photo array" which he showed "to the robbery 

victim, whose eyewitness identification was the only evidence linking defendant 

to the offense." 209 N.J. at 12. The Court held that the detective's opinion that 

defendant's arrest photo was included in the array because it "closely resembled 

a composite sketch of the assailant" could not "pass muster under Rule 701." Id.

at 24. The Court reasoned that the detective "had not witnessed the crime and 

did not know defendant," and the detective's opinion "was not based on prior 

knowledge" but "stemmed entirely from the victim's description." Ibid. 

The Court further expounded that there was no "change in appearance that 

the officer could help clarify for the jurors" who "could have compared the photo 

and the sketch on their own." Ibid. The Court stressed that "[i]n an 

identification case, it is for the jury to decide whether an eyewitness credibly 

identified the defendant." Ibid. "Neither a police officer nor another witness 

may improperly bolster or vouch for an eyewitness' credibility and thus invade 

the jury's province." Ibid. The Court concluded that because the identification 
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was "the sole basis for defendant's conviction," the error in admitting the 

detective's testimony was not harmless and required reversal of defendant's 

conviction. Id. at 27. 

In State v. Watson, 472 N.J. Super. 381, 404-05 (App. Div. 2022), we 

recently considered the standard for determining if police video-narrated 

testimony was properly admitted. After reviewing New Jersey Supreme Court 

precedent, we held there is no categorical, per se rule that prohibits video 

narration testimony. Id. at 445. "Rather, the critical fact-sensitive issue to be 

decided on a case-by-case, indeed, question-by-question basis is whether a 

specific narration comment is helpful to the jury and does not impermissibly 

express an opinion on guilt or on an ultimate issue for the jury to decide." Ibid.

In Watson, we distilled general principles related to lay witness opinion 

testimony and adapted those principles to the specific context of a "play-byplay" narration of video recordings. Id. at 449-450. We recognized certain 

principles that were already clearly established. For example, we pointed out 

that existing case law made it "clear that it is impermissible for a police witness 

to testify at trial as to a defendant's guilt or an ultimate issue to be decided by 

the jury." Id. at 458. "Relatedly, the law also is clear that there are significant 

restrictions on when a police witness may offer a lay opinion on whether 
15 A-1872-19

defendant is the person shown in a video recording or screenshot in cases where 

the identity of the culprit is at issue." Ibid. We pointed out that an objective 

description of what is depicted in a video will generally be admissible, but 

subjective commentary needs to be carefully analyzed. Id. at 463. In that regard, 

we drew "a fundamental distinction between narration testimony that objectively 

describes an action or image on the screen (e.g., the robber used his elbow to 

open the door) and narration testimony that comments on the factual or legal 

significance of that action or image (e.g., the robber was careful not to leave 

fingerprints)." Id. at 462.

The critical inquiry in defining the scope of permissible video-narration 

testimony is the second prong of N.J.R.E. 701: "whether the narration testimony 

would be helpful to the jury by shedding light on the determination of a disputed 

factual issue." Id. at 464. "If the jury needs no assistance to fully understand 

the contents of the video, then narration commentary would tread upon the role 

of the jury under N.J.R.E. 701 analysis." Ibid. Ultimately, in Watson, we 

identified six factors to guide trial courts in safeguarding the province of the 

jury from unwarranted intrusion by narration. Id. at 466. Those factors include: 

(1) if the video-narration testimony would provide helpful background context; 

(2) if the testimony would explain the duration of the video and be focused on 
16 A-1872-19

isolated events or circumstances; (3) if a narrative comment would pertain to a 

fact in dispute; (4) if a narrative comment would be based on an inference or 

deduction supported by other facts in evidence; (5) the clarity and resolution of 

the video recording; and (6) whether the narration testimony would be helpful 

in focusing the jury's attention if a video is complex or contains distracting 

images. Id. at 466-69.

Here, for much of her testimony, Holmes referred to the individual 

depicted in the surveillance video and still-frame images from the video as "the 

shooter." However, on four separate occasions, Holmes identified the shooter 

in the surveillance video as defendant, "Hassan Todd." First, when the 

prosecutor questioned Holmes about the black hooded jacket she seized while 

executing a warrant at defendant's aunt's house, the following ensued: 

[PROSECUTOR]: Okay, and how do you recognize 

that black jacket?

[HOLMES]: That's the same jacket matching the 

description depicted in the surveillance video --

[PROSECUTOR]: Okay, is that --

[HOLMES]: -- worn by Hassan Todd.

[PROSECUTOR]: Is that the jacket that you seized 

from [defendant's aunt's home]?

[HOLMES]: Yes.
17 A-1872-19

During cross-examination, when questioned about Thomas's location in 

relation to the shooter, while the surveillance video played, Holmes explained: 

[HOLMES]: [Thomas] stops, right behind this red sign 

right here. There's a . . . little corner. She stops there

for a second and she looks at Hassan Todd.

[DEFENSE COUNSEL]: Well --

[HOLMES]: Then she continues running.

When defense counsel continued to probe Holmes on Thomas's location

in relation to the shooter, Holmes again responded: "when [Thomas] got to the 

top of MLK, Hassan Todd was still shooting." Later, still disagreeing with 

defense counsel's characterization of Thomas's ability to identify the shooter 

based on her location, Holmes noted: 

And keep in mind . . . Hassan Todd was not 

wearing the hood over his head when he approached the

corner. When he . . . stopped shooting and was going

back, running, that's when in the video you will see he 

[puts the hood up]. So everyone has a clear view of his 

face.

Holmes's references to the shooter as "Hassan Todd" clearly constitutes 

impermissible lay opinion testimony. The testimony violates N.J.R.E. 701's 

prescriptions because Holmes's testimony that the shooter in the video was 

defendant was not "rationally based" on Holmes's own "perception" as N.J.R.E. 

701 requires. Holmes was not present at the scene when the shooting occurred, 
18 A-1872-19

did not witness the incident firsthand, and did not know defendant. Holmes first 

viewed the incident on surveillance footage afterwards. Critically, her opinion 

about the shooter's identity was not based on any prior knowledge of defendant 

but stemmed from Thomas's and Pollard's identification of defendant. As a 

result, Holmes's opinion testimony improperly bolstered the eyewitnesses' 

credibility and impermissibly expressed an opinion on the identity of the

shooter. Holmes's testimony also failed to comport with N.J.R.E. 701 because 

the jury was just as competent as Holmes to form a conclusion about the identity 

of the shooter in the video. Given the absence of any evidence in the record of 

a change in appearance, the jury needed no assistance to determine whether the 

shooter in the video was in fact defendant and whether defendant wore the seized 

jacket in the footage. Holmes's testimony therefore invaded the province of the 

jury as the ultimate trier of fact. 

The Singh Court found that admission of two "fleeting" references to 

"defendant," which "appear[ed] to have resulted from a slip of the tongue" in 

narrating the surveillance video, did not amount to plain error. 245 N.J. at 18. 

Here, Holmes's references were neither fleeting nor a slip of the tongue. The 

Singh Court also determined that the "testimony regarding the sneakers was 

proper" because the detective "had first-hand knowledge of what the sneakers 
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looked like because he saw defendant wearing them on the night of his arrest." 

Id. at 5. Here, Holmes had no first-hand knowledge of defendant wearing the 

jacket. 

Because defendant did not object to the testimony, we must determine 

whether the errors were "clearly capable of producing an unjust result" to 

warrant reversal. R. 2:10-2. In deciding whether reversal was warranted in 

Singh, the Court evaluated "'the overall strength of the State's case.'" 245 N.J. 

at 13 (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)). There, the 

officers apprehended the defendant shortly after the robbery occurred and 

observed defendant dropping a machete – the robbery weapon – and the robbery 

proceeds while fleeing. Id. at 18. Although the Court concluded that the error 

withstood plain error scrutiny given the "significant" "circumstantial evidence 

of the robber's identification," the Court stressed "that in similar narrative 

situations, a reference to 'defendant,' which can be interpreted to imply a 

defendant's guilt . . . should be avoided in favor of neutral, purely descriptive 

terminology such as 'the suspect' or 'a person.'" Ibid.

Here, the State's case rested on Thomas's and Pollard's identifications and 

eyewitness testimony, the black jacket, and the surveillance footage. Notably, 

three of Holmes's four references to defendant as the shooter came during a 
20 A-1872-19

contentious back-and-forth with defense counsel about the ability of Thomas to 

obtain a clear view of the shooter. There was no weapon recovered, no forensic 

evidence, and no ballistics evidence tying defendant to the crime. As the judge 

noted, "[t]he identification of the person who shot the deceased is the crux of 

the case." Because the State's case hinged on identification, we are satisfied that

the repeated improper bolstering of the credibility of the identification testimony 

by the lead detective assigned to investigate the case was clearly capable of 

producing an unjust result. R. 2:10-2. Thus, we are constrained to reverse the 

convictions and remand for a new trial.

Based on our decision, we need not address defendant's remaining 

arguments. However, for the sake of completeness, we briefly address 

defendant's contention that he was entitled to a Wade hearing based on Thomas's

remarks during the photo identification procedure and law enforcement's failure 

to comply with Rule 3:11(c)(10) in conducting the identification procedure, both 

of which demonstrated suggestiveness that may have tainted the identification. 

It is undisputed that when she was first shown the photo array, Thomas 

exclaimed: "Oh God, they told me to remember the number of the picture." In 

admitting the identification testimony and denying defendant's request for a 

hearing, the trial judge acknowledged that the statement was "a little odd" 
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because "she was told to remember the number of one of the photos." 

Nonetheless, the judge concluded that the "statement in a vacuum does not, in 

this [c]ourt's estimation warrant a full hearing." The judge noted there was 

nothing "to suggest that [Thomas] was somehow told to identify a particular 

number, or a particular photo." Instead, in assessing the reliability of her 

identification testimony, the judge relied heavily on the fact that Thomas knew 

defendant. 

The double-blind administrator conducting the identification procedure

did not ask Thomas to explain who she spoke to or why she was told to remember 

a number. At trial, Thomas confirmed that she had spoken to Holmes prior to 

the identification procedure. Holmes also testified that she spoke with Thomas 

about the procedure before her identification. Despite the clear showing that a

conversation occurred between Thomas and Holmes about the identification 

procedure before it was administered, there was no recording or account of that 

interaction as prescribed under Rule 3:11(c)(10), requiring law enforcement 

officers to record "the identity of any individuals with whom the witness has

spoken about the identification procedure, at any time before, during, or after 

the official identification procedure, and a detailed summary of what was said. " 
22 A-1872-19

The Henderson Court "held that when defendants can show some evidence 

of suggestiveness tied to a system variable, they are entitled to explore all 

relevant system and estimator variables at a pretrial hearing to try to challenge 

the admissibility of the identification." State v. Anthony, 237 N.J. 213, 226

(2019) (citing Henderson, 208 N.J. at 288-93). In Anthony, the Court

"modif[ied] the Henderson framework" to make clear that "a defendant will be 

entitled to a pretrial hearing on the admissibility of identification evidence 

if . . . Rule 3:11 [is] not followed and no electronic or contemporaneous, 

verbatim written recording of the identification procedure is prepared." 237 N.J. 

at 233. "[D]efendants need not offer proof of suggestiveness in order to obtain 

this remedy." State v. Guerino, 464 N.J. Super. 589, 619 (App. Div. 2020)

(citing Anthony, 237 N.J. at 233-34). Law enforcement's inability to provide 

the information "should not deprive defendants of the opportunity to probe about 

suggestive behavior that may have tainted an identification." Anthony, 237 N.J. 

at 233. Here, because Rule 3:11(c)(10) was not followed, we agree that 

defendant presented sufficient evidence to justify a Wade hearing. However, 

we express no view on the outcome of the hearing. 

Our disposition does not require us to address defendant's sentencing 

arguments.
23 A-1872-19

Reversed and remanded for a new trial. We do not retain jurisdiction.