SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3206-18

 A-3951-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRESE HARRIS,

Defendant-Appellant.

_______________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDULLAH STEWART,

Defendant-Appellant.

_______________________

Argued (A-3206-18) and Submitted (A-3951-18) 

December 9, 2021 – Decided March 10, 2022

Before Judges Alvarez and Haas.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3206-18

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 16-10-2978, 

17-07-2031 and 17-08-2284.

Zachary G. Markarian, Assistant Deputy Public 

Defender, argued the cause for appellant Tyrese Harris 

(Joseph E. Krakora, Public Defender, attorney; Zachary 

G. Markarian, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for 

appellant Abdullah Stewart (John A. Albright, 

Designated Counsel, on the brief).

Kaili E. Matthews, Deputy Attorney General, argued 

the cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Kaili E. Matthews, of 

counsel and on the brief).

Theodore N. Stephens II, 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

We consolidate for decision co-defendants Tyrese Harris and Abdullah 

Stewart's appeals from their convictions and sentences. We affirm.

The State established the following during Harris and Stewart's trial.

1

Between 8:30 and 9:00 p.m. on May 4, 2017, Ricardo Rios and his wife Marcie 

Ramos were walking home from a grocery store in a residential area in Newark. 

1

 The jury acquitted Nathan Fluitt, a third co-defendant who drove the car in 

which defendants were stopped.
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Two men wearing ski masks approached the couple from behind. The man in 

front wore a red shirt, a white jacket, and dark pants. He pointed a handgun at 

Rios, demanding Rios's wallet and cell phone. The other man stood behind the 

first, dressed all in black. Rios handed over his wallet. The men then asked 

Ramos "if [she] had something to give them." Ramos said she had nothing.

As the two men walked away toward Adams Street, Rios surreptitiously 

followed them because he anticipated they would discard his wallet after 

emptying the cash. Once on Adams Street, Rios saw the men remove their ski 

masks before approaching a passerby, Jorge Inaguazo, who was walking home 

from work. 

The location where Inaguazo encountered the two men was well-lit. 

Inaguazo described the man who stood to his right as approximately the same

height as himself, slender, and as wearing black pants, a black jacket, and a wool 

cap. He described the man on his left, who had facial hair, as wearing black 

pants and a red and white shirt. They asked Inaguazo for directions to Ferry 

Street.

After Inaguazo gave the men directions, they stood for a few moments

before leaving. When they walked away, Rios approached Inaguazo and asked 

him to call police. He did so, and he and Rios followed the men. Inaguazo and 
4

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Rios watched them rob an elderly man in an alley, take his backpack and wallet, 

and head towards Oliver Street. 

Rios and Inaguazo observed the men get into a black Ford Expedition,

which drove away. Rios found Officer Michael Maldonado sitting in his squad 

car and told him that he had just been robbed. As the two men spoke, a third 

victim, Edwin Cruz, approached Maldonado to report that he too had been 

robbed.

Cruz told the officer he had just arrived home from work when two black 

men in ski masks ran up from behind him as he approached his door. One of 

them wore a black jacket and pointed a handgun at Cruz. The other wore a white 

jacket. Cruz gave the men his cell phone and his backpack, which contained his 

wallet and other items. Cruz watched the two men escape in a "big . . . black" 

vehicle he described as a "truck." Police later recovered security camera film 

that recorded that robbery. 

Maldonado contacted dispatch to put out a be-on-the-lookout (BOLO) for 

two light-skinned black males in a black Ford Explorer. Maldonado later 

changed the vehicle description to a black Ford Expedition.

Officers Gabriel Serrano and Steven Calero, on patrol in a marked police 

vehicle, responded to the BOLO just before 10:30 p.m. when they spotted a 
5

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black Ford Expedition stopped at a red light. The officers followed, eventually 

maneuvering in front of the Expedition, and "slowed down." When the light 

turned green and the Expedition drove forward and passed the police vehicle, 

the officers "observed two black males" sitting in the front seats. After running 

the Expedition's plates and finding nothing suspicious, the officers activated 

their vehicle's lights to pull the Expedition over.

The Expedition turned left, ignoring a red light, and Serrano informed

dispatch "[w]e have a Ford Explorer." He radioed that "[t]he Ford Explorer is 

refusing to stop." Eventually, it pulled over in front of some barricades on 

Edison Street outside the Prudential Center. The officers left their vehicle with 

weapons drawn and ordered the driver to turn the engine off. They noticed a 

third black male in the back seat, who passed something to the front passenger. 

The two front occupants tried to exit the Expedition, but the officers blocked 

them in by forcing both of the vehicle's doors closed.

When backup arrived, the officers arrested the Expedition's three 

occupants. Fluitt was the driver, Harris the front passenger, and Stewart was in 

the backseat. At trial, Serrano testified the Expedition had been travelling up to 

forty or forty-five miles per hour, but acknowledged that the police report stated 
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the vehicle's speed was twenty-five miles per hour and that "the suspect 

voluntarily stopped and surrendered." 

Detective Wilmorys Velazquez considered "the possibility of getting a 

search warrant" but instead decided to obtain consent to search from the 

vehicle's owner. At trial, Velazquez referred to the owner as "Kenya Turnage." 

Velazquez drove to Turnage's home to obtain her written consent, returned to 

the scene, and searched the Expedition. He found cell phones, wallets, keys, 

masks, gloves, a sweater, a fanny pack containing cash, and a handgun. The 

phones and wallets belonged to the victims. Forensic testing later confirmed 

Stewart's DNA profile matched DNA taken from one of the ski masks, a glove, 

and a grey hooded sweatshirt also found in the Expedition.

The police drove Rios, Cruz, and Inaguazo individually from the station 

where they had been taken to be interviewed to an area outside the Prudential 

Center to try and identify the culprits. Officers showed Rios three men, but he

could only identify one of them based solely on his clothing—a red shirt and 

black pants. A few minutes after the identification, police gave Rios his wallet 

back. Rios described seeing the officers with "a packet with all the ID's of a 

bunch of people. Mine included." Rios made the identification, which was 

recorded in writing, at about 11:10 p.m.
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Inaguazo's identification was recorded in writing. In the blank where the 

identification form prompted documentation of a witness's "own words" and 

statement of confidence, an officer had written: "Suspect he saw walking on 

Chestnut St. and asked 'where is Ferry St.'" The form stated Inaguazo first saw 

the men around 9:30 p.m., and that the identification procedure took place at 

11:16 p.m.

When police drove Inaguazo to identify the detained men, he was alone in 

the car. He was shown two individuals standing in the street, one by one. 

Inaguazo identified them as the ones who asked him for directions and robbed

the older man. He said the lighting was bright in the area of the identification. 

Inaguazo was shown the individual wearing the black clothing first, whom he 

identified in court as Harris. He described the second person as wearing a tshirt that was "between kind of white and red . . . [and] a cap," and identified

him in court as Stewart. He testified he was 100% certain of both identifications.

Cruz testified the police drove him to "a street" and showed him two men 

at once. He could identify neither "because [he] never saw [their faces]" during 

the robbery, but he confirmed they were "the same height" and had the same 

body types as his robbers—one skinnier, one heavier. Afterward, police took 

Cruz back to the station to retrieve his cell phone, wallet, and iPad.
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Defendants moved for a Wade-Henderson2 hearing, seeking to suppress 

the show-up identification. Neither defendant included trial submissions with 

the appellate record, and both relied on their briefs at oral argument before the 

trial judge. From the judge's oral decision, however, it appears that defendants 

challenged the identification procedure based on racial bias, the inherent 

suggestibility of show-up identifications, and the fact that witnesses viewed 

defendants in handcuffs.

The trial judge found that "[t]he identification of the defendants occurred 

at the same date as the allege[d] offense . . . less than two hours after the alleged 

incidents occurred. The officers followed the proper procedures, [and] 

completed a show[-]up identification worksheet for each witness that performed 

an identification." The judge noted that the officers told the witnesses the 

perpetrators might not be included in the show-up and that they "should not feel 

compelled to make an identification."

The judge further found it was "not clear from the record whether 

defendants were indeed in handcuffs" during the identification. Regardless, she 

stated that presenting the defendants in handcuffs "may be suggestive" but 

2 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208, 

300 (2011).
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would not be "per [se] improper and unconstitutional." Due to the "closeness in 

time of the identification to the alleged offense, and the officers' adherence to 

protocol," the judge found the identification was not impermissibly suggestive. 

She denied defendants' motion.

Defendants also moved to suppress the evidence seized from the 

Expedition as the fruits of an unconstitutional search. According to the relevant 

computer-aided dispatch (CAD) report, the BOLO actually described a black 

Expedition containing two black males, not three.

Calero testified at the motion hearing that when he turned his sirens and 

lights on to try and stop the Expedition, "[t]here was some resistance, you know, 

an eluding . . . ." Calero initially described the Expedition as travelling at a 

"high rate of speed" despite eventually acknowledging the car's speed was only 

twenty-five miles per hour, well below the speed limit. The judge denied 

defendant's suppression motion: "the officers had a right to search for the 

vehicle for the protection of the public since an alleged handgun was involved 

in two robberies in the immediate area of the Prudential Center." In reciting the 

facts, the judge also noted that the Expedition "made an improper lane change. "

The trial judge denied the motion despite finding that Calero was not a 

credible witness. She ultimately concluded the stop was lawful because:
10 A-3206-18

In this case officers heard a BOLO broadcast 

informing the officers that two armed robberies had just 

occurred and the suspects were using a . . . black Ford 

Expedition that was occupied by at least two black 

males, [five foot eight] inches tall, wearing dark 

clothing, and in possession of a black handgun.

Defense argues that the officer called in a black Ford 

Explorer and thus there was no probable cause to stop 

the defendants and that they were driving a black Ford 

Expedition. 

The Court . . . takes note that the BOLO, 

according to a police report submitted into evidence, 

was in fact for a black Ford Expedition, despite the 

responding officers stating that they were in pursuit of 

a black Ford Explorer. Thus[,] the Court finds that the 

investigative stop of the vehicle was lawful.

Therefore, the trial judge found reasonable and articulable suspicion for the stop. 

The detectives obtained the owner's valid consent to search, 

notwithstanding defense counsel's argument that the vehicle owner was a 

"Kenya Turnage" while the consent was signed by a "Tanika Turnage." The 

owner of the vehicle was Tanika Turnage according to Division of Motor 

Vehicle records, and both names were written on the consent to search form. 

The victims' wallets and cell phones were thus lawfully seized. 

During the trial, when the State rested, Stewart's attorney unsuccessfully 

sought a judgment of acquittal with regard to Ramos because nothing was taken 
11 A-3206-18

from her. The judge denied that application because the words used clearly 

established a robbery—the threat of force while committing a theft. 

Both defense counsel requested a "feedback instruction" with regard to 

the identifications. The trial judge did not give the charge, focusing on the fact

the witnesses were individually transported and thus did not have the 

opportunity to speak to each other about the show-up. 

When the State asked for the jury to be instructed as to attempted robbery

regarding Ramos, both defense counsel strenuously objected, arguing that 

neither defendant had notice of an attempt charge. Thus, the trial judge did not 

grant the State's application. 

During deliberations, Harris's parents claimed they overheard jurors in a 

hallway outside the jury room discussing conspiracy, vacation plans, and the 

length of the deliberations. One juror is alleged to have said "we want to get 

this over with today[,]" while another responded "no, hopefully tomorrow or 

Monday." Harris's parents said when the jurors noticed them, one of the jurors 

ended the conversation, stating "we should be talking about football."

As a result, the judge conducted individual voir dire of each juror. Juror 

number one testified that another juror had mentioned her concern that she 

would be "unable to reschedule" her upcoming vacation plans. Juror six stated 
12 A-3206-18

"one of the Jurors has vacation next week, so in the event that it does extend to 

that period, she would not be able to continue to be one of the deliberators." 

Another juror stated in the hallway that he or she had "changed their mind[]" 

about something.3

When asked point-blank whether any jurors wanted to finish deliberations 

soon, juror ten testified "people might have said that, but not meaning it the way 

that it might have been taken. . . . Nobody is rushing to judgment just so they 

can leave." Yet another juror confirmed that some jurors had briefly continued 

a discussion of conspiracy in the hallway before another juror reminded them to 

stop. As she spoke to individual jurors, the judge remarked that the jury was 

not to rush to judgment.

Defendants moved for a mistrial, contending that roughly half the jury was 

exposed to outside deliberations and heard comments about another's impending 

vacation plans. The judge found the conversation not to have been substantive, 

therefore she denied the motion. She further stated that she repeatedly reminded 

the jury during the lengthy voir dire process that they could not discuss the case 

outside of the jury deliberation room. Not all jurors were told during the 

3 The transcript reads: "One of the [j]urors was . . . saying that they changed 

their minds about (indiscernible)."
13 A-3206-18

individual voir dire, however, not to reach a verdict just to accommodate a 

panelist's vacation plans. However, neither defense attorney requested such an 

instruction to be given to the panel.

The jury convicted defendants of the following charges: second-degree 

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count 

one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two, five, and eleven); 

third-degree theft by unlawful taking,4 N.J.S.A. 2C:20-3(a) (counts three and 

six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) 

(count eight); and second-degree possession of a weapon for unlawful purposes, 

N.J.S.A. 2C:39-4(a) (counts nine, ten, and thirteen).5 Both Stewart and Harris 

were less than twenty-six years of age at the time of the incident.

On January 28, 2019, defendants were sentenced. The judge imposed 

concurrent fifteen-year prison terms upon Stewart, subject to eighty-five percent 

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

for the robberies, and merged the remaining convictions, except for a concurrent 

4

 Harris's judgment of conviction lists count three as a fourth-degree offense.

5

 The jury found defendants not guilty of fourth-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(4) (counts four, seven, and twelve) and third-degree 

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a) (counts 

fifteen and sixteen). 
14 A-3206-18

sentence of five years with forty-two months' parole ineligibility for unlawful 

possession of a handgun. The judge found aggravating factors three, six, and 

nine, and no factors in mitigation. See N.J.S.A. 2C:44-1. Harris received a 

thirteen-year sentence subject to eighty-five percent parole ineligibility under 

NERA for the robberies, and on the unlawful possession of a weapon charges, 

received a concurrent sentence of five years' imprisonment subject to forty-two 

months of parole ineligibility. The remaining offenses were merged into the 

robberies.

Now on appeal, Stewart raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S MOTION FOR A WADE HEARING 

CONCERNING THE SHOW[-]UP OUT-OF-COURT 

IDENTIFICATION PROCEDURE UTILIZED BY 

POLICE WHICH INCLUDED PRESENTATION OF 

THE DEFENDANTS IN HANDCUFFS TO THE 

PARTICIPANTS.

POINT II

THE TRIAL COURT'S ORDER DENYING 

SUPPRESSION OF ITEMS SEIZED FROM THE 

EXPEDITION MUST BE REVERSED.

A. The description of the suspects as "two black 

males" in a black Ford Explorer did not provide 

police with reasonable and particularized 
15 A-3206-18

suspicion to justify the investigatory stop of three 

black males traveling in a Ford Expedition.

B. Even if the stop was lawful, the warrantless entry 

into and search of the vehicle were not justified 

by an exception to the warrant requirement.

POINT III

THE LOWER COURT ERRED IN DENYING 

DEFENDANT'S MOTION FOR JUDGMENT OF 

ACQUITTAL ON COUNTS [ELEVEN] AND 

[THIRTEEN], AS THE STATE ADMITTED THAT IT 

HAD PRESENTED ABSOLUTELY NO EVIDENCE 

THAT A THEFT OCCURRED FROM RAMOS; 

ALTERNATIVELY, ATTEMPT WAS AN 

ESSENTIAL ELEMENT OF ROBBERY AND THE 

JUDGE'S REFUSAL TO INCLUDE IT IN THE 

CHARGE WAS REVERSIBLE ERROR.

A. When the State presented insufficient evidence to 

sustain all elements of armed robbery, i.e. a theft, 

under Count [eleven], the motion for judgment of 

acquittal should have been granted.

B. Under circumstances in which nothing is taken 

from the alleged victim, attempt is an element of 

robbery, and the court's failure to instruct the jury 

accordingly necessitates reversal.

POINT IV

FOLLOWING VOIR DIRE WHICH 

OVERWHELMINGLY ESTABLISHED JUROR 

MISCONDUCT, THE DENIAL OF DEFENDANT'S 

MOTION FOR A MISTRIAL DENIED HIM A FAIR 

TRIAL; ALTERNATIVELY, EXPLICIT 

INSTRUCTIONS ON FURTHER DELIBERATIONS 
16 A-3206-18

WERE NECESSARY TO SALVAGE SOME 

SEMBLANCE OF UNTAINTED DELIBERATIONS.

A. Jurors' vacation plans and deliberation outside 

the jury room had the clear capacity to result in a 

verdict subject to those outside influences in a 

manner inconsistent with the evidence and law.

B. After it was revealed that jurors had vacation 

plans that would interfere with fair deliberations 

on the case, the lower court erred when it failed 

to instruct the jury on further deliberations.

POINT V

THE IDENTIFICATION CHARGE WAS 

INCOMPLETE AND NOT TAILORED TO THE 

FACTS OF THIS CASE, AND THEREFORE, THE 

CHARGE DEPRIVED DEFENDANT OF HIS RIGHT 

TO A FAIR TRIAL.

POINT VI

A REMAND FOR RESENTENCING FOR 

CONSIDERATION OF THE YOUTH MITIGATING 

FACTOR, "THE DEFENDANT WAS UNDER 

[TWENTY-SIX] AT THE TIME OF THE 

COMMISSION OF THE OFFENSE," IS 

NECESSARY.

On appeal, Harris raises the following points:

POINT I

A GENERIC DISPATCH THAT BLACK MEN HAD 

FLED A ROBBERY IN A BLACK FORD SUV DID 

NOT PROVIDE REASONABLE AND 

ARTICULABLE SUSPICION TO STOP 
17 A-3206-18

DEFENDANTS' CAR NEARLY AN HOUR LATER 

IN DOWNTOWN NEWARK ON AN EVENING 

WITH HEAVY TRAFFIC. THE EVIDENCE FOUND 

IN THE CAR SHOULD BE SUPPRESSED.

POINT II

THE TRIAL COURT ERRED IN REFUSING TO 

CONDUCT A WADE HEARING BEFORE 

ADMITTING THE UNRECORDED AND HIGHLY 

SUGGESTIVE SHOW[-]UP IDENTIFICATION AND 

AN UNRELIABLE IN-COURT IDENTIFICATION.

A. The Court Erred In Denying a Pre-Trial Hearing 

Because Police Did Not Record the Show[-]up 

Identification Procedure.

B. The Court Also Erred in Denying a Wade

Hearing Despite Extensive Evidence of 

Suggestiveness Indicating the Identifications 

Were Unreliable.

C. The Court Erred in Permitting Inaguazo to Make 

an In-Court Identification of Harris and Stewart 

Because the In-Court Identification Was Tainted 

by the Suggestive Show[-]up Identification.

D. The Court's Failure to Hold a Pre-Trial Wade

Hearing Was Prejudicial and Compels Reversal 

of Defendant's Convictions.

POINT III

THE TRIAL COURT ERRED IN REFUSING TO 

CHARGE THE JURY REGARDING THE EFFECT 

OF FEEDBACK AND TO TAILOR THE CHARGE 

TO REFERENCE RIOS'S IDENTIFICATION.
18 A-3206-18

POINT IV

AFTER CONDUCTING A VOIR DIRE OF THE JURY 

ABOUT THEIR DELIBERATIONS, THE TRIAL 

COURT ERRED IN MAKING OFF-THE-CUFF 

REMARKS TO EACH JUROR INDIVIDUALLY 

RATHER THAN CHARGING THEM ALL 

PURSUANT TO THE MODEL CHARGE ON 

FURTHER JURY DELIBERATIONS.

POINT V

THE CUMULATIVE EFFECT OF THE 

AFOREMENTIONED ERRORS DENIED 

[DEFENDANT] A FAIR TRIAL.

POINT VI

THIS COURT SHOULD REMAND FOR 

RESENTENCING FOR THE TRIAL COURT TO 

RECONSIDER DEFENDANT'S SENTENCE BASED 

ON THE NEW MITIGATING FACTOR, "THE 

DEFENDANT WAS UNDER [TWENTY-SIX]

YEARS OF AGE AT THE TIME OF THE 

COMMISSION OF THE OFFENSE."

I.

We combine our discussion of Stewart's first point and Harris's second, 

that the trial court's failure to conduct a Wade hearing was reversible error. A

conviction following an erroneous ruling on a Wade-Henderson motion will not 
19 A-3206-18

be overturned if the ruling was harmless beyond a reasonable doubt. State v. 

Jones, 224 N.J. 70, 85 (2016); see also Henderson, 208 N.J. at 300.6

Defendants contend they were entitled to a hearing because the requisite 

show-up identification procedures worksheets were not completed, or were 

completed incorrectly. In addition, defendants were handcuffed when presented 

to the eyewitnesses.

This show-up was somewhat unusual in that the victims could only

identify their assailants by their clothing, as the robbers wore masks which 

obscured their features. Only Inaguazo, who saw the men in an encounter free 

of situational stress,7could identify the robbers' facial features, weight, and 

relative size. 

This show-up occurred prior to the Supreme Court's decision in State v. 

Anthony, 237 N.J. 213 (2019). That case requires police to electronically record 

a show-up, or make some other contemporaneous written record of the 

6

Jones analyzed the identification at issue under the pre-Henderson framework. 

However, it appears that the harmless error rule survived Henderson.

Henderson, 208 N.J. at 300 ("We do not review the record for harmless error 

only because the parties have not yet argued that issue.").

7

 See Henderson, 208 N.J. at 262 ("We find that high levels of stress are likely 

to affect the reliability of witness identifications. . . . [S]tress . . . must be 

assessed based on the facts presented in individual cases.").
20 A-3206-18

procedure. Id. at 233-34. Defendants argue the failures to complete the forms 

properly or to comply with Rule 3:11 warranted a Wade hearing. In Anthony, 

the Court held defendants are entitled to Wade hearings when the documentation

requirements of Rule 3:11 are not heeded, even without other evidence of 

suggestiveness. The show-up in this case, however, preceded Anthony. 

Show-ups are not per se unconstitutional. Nor were defendants'

handcuffs, standing alone, impermissibly suggestive. On that point, the judge 

made no finding as to whether defendants were handcuffed.

It is clear from the record, however, that Rios, Inaguazo, and Cruz all 

viewed defendants separately. They did not discuss their identifications with 

the officers or with each other. The identifications were clearly significant: 

Fluitt, who the eyewitnesses did not identify at the show up, was not convicted. 

In reviewing the record, it appears that Inaguazo's out-of-court and in-court 

identifications were pivotal. The show-up occurred less than two hours after the 

robberies. See State v. Wright, 444 N.J. Super. 347, 362-63 (App. Div. 2016). 

Defendants bear the burden to demonstrate that the police failed to create an 

adequate record of the show-up, resulting in an unjust result. Henderson, 208 

N.J. at 238-39.
21 A-3206-18

No doubt, police could have been more thorough in documenting the 

show-up. However, they implemented some basic safeguards during the process 

supporting the judge's conclusion the show-up was not impermissibly 

suggestive. 

The officers who drove the victims and Inaguazo past defendants had no 

knowledge of the identifiers that had been previously given. It is 

constitutionally permissible for the suspects to be handcuffed in this situation. 

The record does not contain any indication that Rios, Inaguazo, and Cruz spoke 

to each other before or after. Each viewed the suspects individually.

Nor do we agree that return of the victims' stolen items constituted

feedback. The victims were entitled to get their property back. This fast police 

work involved a vehicular chase on a crowded street in front of a busy

entertainment venue. Police had to act quickly. Under these circumstances, the 

show-up at issue was not impermissibly suggestive. The incomplete or 

erroneously completed forms in this case did not, prior to Anthony, require a 

Wade hearing.

II.

On appeal, we uphold the findings of a trial judge where "supported by 

sufficient credible evidence in the record." State v. Boone, 232 N.J. 417, 425–
22 A-3206-18

26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). Factual findings 

warrant reversal only where so clearly mistaken that the interests of justice 

demand intervention. Id. at 426 (citing State v. Elders, 192 N.J. 224, 244 

(2007)). No deference is owed to the trial court's conclusions of law, which are 

reviewed de novo. Ibid. (citing State v. Watts, 223 N.J. 503, 516 (2015)).

Both defendants challenge the trial court's decision denying the motion to 

suppress evidence seized as a result of the car stop. But for the fact that the 

vehicle was identified by the victims and Inaguazo, this case might fall within 

the parameters of State v. Nyema, ___ N.J. ___ (2022). In this case, however, 

police had reasonable suspicion to make the investigatory stop. See State v. 

Williams, 192 N.J. 1, 9 (2007) (Williams I). 

Reasonable suspicion is a less demanding standard than probable cause. 

State v. Stovall, 170 N.J. 346, 363 (2002). It requires only that "specific and 

articulable facts . . . taken together with rational inferences from those facts, 

give rise to a . . . suspicion of criminal activity." Williams I, 192 N.J. at 9 

(quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). However, even if a stop is 

unsupported by reasonable suspicion, a suspect must comply. Id. at 11. 

Williams I also established the following three-factor test to determine 

whether physical evidence is sufficiently attenuated from unconstitutional 
23 A-3206-18

police conduct so as to remain admissible: "(1) the temporal proximity between 

the illegal conduct and the challenged evidence; (2) the presence of intervening 

circumstances; and (3) the flagrancy and purpose of the police misconduct." Id.

at 15.

The bottom line is that a black SUV—be it an Explorer or an Expedition—

was identified as being driven by the robbers. Defendants were stopped after 

refusing to pull over and ignoring a red light, although the judge found the 

testifying officer not credible regarding the vehicle's speed. The stop occurred 

near the crime scene. The directive to stop a vehicle containing two black men 

in a black Expedition or Explorer sufficed to justify the investigatory stop here. 

Once the vehicle was stopped and the occupants removed, the subsequent 

search was supported by the valid consent of the owner. As both of the owner's 

possible names were used, we are satisfied that the owner gave valid and 

voluntary consent to the search. Thus, the stop was supported by reasonable 

suspicion, and the subsequent search by the owner's consent. 

III.

Stewart and Harris both contend the jury instructions were fatally flawed. 

Stewart also contends his motion for mistrial should have been granted because 
24 A-3206-18

juror "misconduct" occurred—namely, the jurors' conversations regarding the 

case and impending vacation plans. 

The point lacks merit. The trial judge individually voir dired each juror, 

and all confirmed they did not feel compelled to rush to judgment. Each juror

responded appropriately. We review decisions denying motions for a mistrial 

for abuse of discretion. State v. Smith, 224 N.J. 36, 47 (2016). The record does 

not support the claim that an abuse of discretion occurred here. 

Harris contends the judge erred by failing to instruct the jury as if they 

had deadlocked. The jury here did not deadlock—in fact, the concern was that 

they would rush through deliberations. But each individual juror denied any

intent to rush to judgment. The juror deadlock instruction was not requested. 

There was no plain error.

Furthermore, the judge charged the jury with the same language now 

relied upon by defense counsel on appeal. The language defense counsel claims 

should have been given—that jurors must not "surrender [their] honest 

conviction as to the weight or effect of evidence solely because of the opinion 

of [their] fellow jurors, or for the mere purpose of returning a verdict"—was 

included in the general closing charge:

[i]n the course of your deliberations do not hesitate to 

re-examine your own views and change your opinion if 
25 A-3206-18

convinced it is erroneous, but do not surrender your 

honest conviction as to the weight or effect of the 

evidence solely because of the opinion of your fellow 

jurors or for the mere purpose of returning a verdict."

This point will not be discussed further. See R. 2:11-3(e)(2).

"Proper jury instructions are essential to ensuring a fair trial." State v. 

Robinson, 165 N.J. 32, 40 (2000). We are satisfied that the judge's instruction 

with regard to identification adequately served its purpose.

The record is devoid of any facts that establish the witnesses received 

feedback. The judge gave the model jury charge on identification. See Model 

Jury Charges (Criminal), "Identification: In-court and out-of-court 

identifications, (rev. May 18, 2020). Even if the court only mentioned Inaguazo 

as identifying defendants in court, that cannot be described as error—he is the 

only one who saw defendants without masks. Just because she named only 

Inaguazo does not mean that the jury would have ignored the balance of the 

instruction discussing eyewitness evidence in some detail. There is no question 

that Rios and Cruz identified the perpetrators only by clothing, and thus could 

not identify the perpetrators in the courtroom. The judge did not err by failing 

to give the feedback instruction.
26 A-3206-18

IV.

Both defendants contend that since they were under the age of twenty-six, 

they should receive the benefit of a remand resentence hearing because N.J.S.A. 

2C:44-1(b)(14) was enacted after their sentence date. In State v. Bellamy, 468 

N.J. Super. 29 (App. Div. 2021), we considered that very argument. We 

concluded that Bellamy was not a stand-alone basis for a resentence as 

defendants urge here.

V.

Stewart argues that the court wrongfully denied his motion for a judgment 

of acquittal on count eleven, alleging first-degree robbery as to Ramos, and 

count thirteen, alleging possession of a weapon for an unlawful purpose as to 

Ramos. Defendant relies on State v. Gonzalez, 318 N.J. Super. 527 (App. Div. 

1999), in which the State did not produce evidence a victim was actually robbed. 

Id. at 533. The judge in that case failed to instruct the jury about attempt to 

commit robbery where the actual charge was felony murder. Id. at 536. We 

reversed because the attempted robbery was a necessary predicate to the felony 

murder offense. 

A defendant may be convicted of robbery if in the course of committing a 

theft or attempted theft he "(1) [i]nflicts bodily injury or uses force upon another; 
27 A-3206-18

or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily 

injury; or (3) [c]ommits or threatens immediately to commit any crime of the 

first or second degree." State v. Farrad, 164 N.J. 247, 256-57 (2000) (quoting 

N.J.S.A. 2C:15-1(a)); see also State v. Whitaker, 200 N.J. 444, 459 (2009) 

(quoting Farrad, 164 N.J. at 573) ("Committing or attempting to commit a theft 

is a necessary element of the crime of robbery."). Use of a deadly weapon 

elevates robbery to a first-degree crime. State v. Williams, 218 N.J. 576, 587-

88 (2014) (Williams II); N.J.S.A. 2C:15-1(b).

"A person is guilty of theft 'if he unlawfully takes, or exercises unlawful 

control over, movable property of another with purpose to deprive him thereof.'" 

Whitaker, 200 N.J. at 459-60; N.J.S.A. 2C:20–3(a). A person is guilty of 

attempting to commit a crime when he: 

(1) Purposely engages in conduct which would 

constitute the crime if the attendant circumstances were 

as a reasonable person would believe them to be; (2) 

When causing a particular result is an element of the 

crime, does or omits to do anything with the purpose of 

causing such result without further conduct on his part; 

or (3) Purposely does or omits to do anything which, 

under the circumstances as a reasonable person would 

believe them to be, is an act or omission constituting a 

substantial step in a course of conduct planned to 

culminate in his commission of the crime.

[N.J.S.A. 2C:5-1(a).]
28 A-3206-18

In other words, "a defendant can be convicted of robbery, even if the theft 

is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise 

unlawful control over the property of another (3) while threatening another with, 

or purposely placing another in fear of, immediate bodily injury." Farrad, 164 

N.J. at 258 (citing State v. Sein, 124 N.J. 209, 215 (1991) (emphasis added)).

Generally, "an attempt or conspiracy to commit a crime of the first degree 

is a crime of the second degree[.]" N.J.S.A. 2C:5-4(a). "Otherwise[,] an attempt 

is a crime of the same degree as the most serious crime which is attempted, and 

conspiracy is a crime of the same degree as the most serious crime which is the 

object of the conspiracy[.]" Ibid.

The trial court has an independent duty "to ensure that the jurors receive 

accurate instructions on the law as it pertains to the facts and issues of each case, 

irrespective of the particular language suggested by either party." State v. 

Reddish, 181 N.J. 553, 613 (2004). Further, "a trial court has an independent 

obligation to instruct on lesser-included charges when the facts adduced at trial 

clearly indicate that a jury could convict on the lesser while acquitting on the 

greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "[I]nadequate" 

jury charges warrant reversal. State v. Jackmon, 305 N.J. Super. 274, 290 (App. 

Div. 1997).
29 A-3206-18

However, "[m]istakes at trial are subject to the invited-error doctrine. 

Under that settled principle of law, trial errors that were induced, encouraged or 

acquiesced in or consented to by defense counsel ordinarily are not a basis for 

reversal on appeal. . . ." State v. A.R., 213 N.J. 542, 561 (2013) (citations 

omitted). "In other words, if a party has 'invited' the error, he is barred from 

raising an objection for the first time on appeal." Ibid. Because defendants' 

attorneys actively objected to the requested attempt instruction, the invited error 

doctrine bars this argument.

Ramos stood by her husband while defendants pointed a gun at her and 

asked if she had anything to give them. When the State requested an instruction 

on attempt, defendants objected. Even on the merits, we find no error. 

Defendants threatened Ramos in the course of committing a theft. Only the fact 

that she had nothing to give defendants thwarted the theft. 

VI.

Finally, Harris contends that the cumulative errors warrant reversal. We 

do not agree. No errors occurred, and none of the alleged errors constituted an 

unfairness that prejudiced his right to a fair trial. The trial was fair. Nothing in 

the record "raise[s] a reasonable doubt as to whether the error[s] led the jury to 
30 A-3206-18

a result it otherwise might not have reached." See State v. Macon, 57 N.J. 325, 

336 (1971); State v. Weaver, 219 N.J. 131, 155 (2014).

Affirmed.