SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2854-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAMADEE KAMARA,

Defendant-Appellant.

Argued telephonically February 15, 2019 –

Decided May 15, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 13-10-2016.

Susan L. Romeo, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Susan L. Romeo, of counsel 

and on the brief).

Jaimee M. Chasmer, Assistant Prosecutor, argued the 

cause for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney; Erin M. Campbell, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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-2854-16T3

Defendant Mamadee Kamara was indicted for three crimes related to the 

armed robbery of L.B.1 A jury convicted defendant of first-degree robbery, 

N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5(b)(1). Defendant was sentenced to an aggregate

term of twelve years in prison, with periods of parole ineligibility and parole 

supervision as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

Defendant appeals his convictions and sentence. He argues (1) it was 

improper to admit portions of his recorded police interview where the officers 

questioned him about his financial circumstances and allegedly mocked his 

religious beliefs; and (2) the court abused its discretion in denying his request 

for a Wade2 hearing concerning his identification. He also contends that his 

sentence should be reversed because the court failed to properly weigh

aggravating factor nine, the need for deterrence. Having reviewed defendant's 

arguments in light of the applicable law, we affirm in part and remand with 

direction that the trial court conduct a full Wade hearing.

 

1 We use initials to protect the privacy interests of the victim and witnesses.

2 United States v. Wade, 388 U.S. 218 (1967).
3

A-2854-16T3

I.

The evidence at trial established that at approximately 11 a.m. on March 

20, 2013, L.B. was robbed at the corner of University Avenue and Market Street 

in Newark. L.B. testified that as she was walking on Branford Place, she noticed 

a young African-American male walking closely behind her. At the next 

intersection, L.B. turned left on to University Avenue and the man continued 

walking straight on Branford Place. L.B. walked north on University Avenue 

until the road intersected with Market Street where she turned right. As she was 

turning, L.B. heard footsteps and then saw the man from Branford Place standing 

in front of her and pointing a gun at her chest. The man told L.B.: "[D]on't 

move or I will kill you, give me your pocketbook."

L.B. let go of her pocketbook, the man grabbed her pocketbook and as he 

ran away, L.B. screamed for help. At approximately that time, B.P., who was 

then working for the Newark Downtown District and was in the area, looked up 

and saw a man point a gun at L.B., take her pocketbook, and run away. B.P. 

came over to L.B., who told him that she had just been robbed. B.P. then chased 

the robber.

B.P. testified that he followed the robber, but stayed approximately forty 

to fifty feet behind him because he knew he was armed. When the robber 
4

A-2854-16T3

reached Martin Luther King Jr. Boulevard, he stopped and began pacing up and 

down the sidewalk. B.P. saw a car pull up and the robber entered the rear 

passenger side of the vehicle, which then left. B.P. walked into the road to see 

the vehicle's license plate as it drove away, and he was able to make out the 

license plate number. Thereafter, B.P. gave that license plate number to the 

police.

Meanwhile, L.B. had tried to follow B.P. and the robber, but lost sight of 

them. L.B. worked as a secretary in the prosecutor's office, and a work colleague 

was driving on University Avenue when she observed L.B. and pulled over to 

check on her. L.B. told the colleague she had been robbed and the colleague 

called 911.

The police responded, and L.B. and B.P. thereafter gave statements to the 

police. Both described the robber. L.B. described the robber as approximately 

five-feet-eleven-inches tall, a young African-American man with a thin build. 

She also told the police that the robber had "distinct eyes" that "were kind of

slanted" and "like oriental."

Thereafter, a detective from the Newark Police Department began 

investigating the robbery. By tracing the license plate number given by B.P., 

the detective learned that the motor vehicle was registered to the girlfriend of 
5

A-2854-16T3

defendant and defendant had received motor vehicle summonses while driving 

that vehicle. Consequently, the detective determined that defendant was a 

person of interest and he compiled photo arrays. The detective and other officers 

from the Newark Police Department then contacted both L.B. and B.P. to see if 

they could identify defendant from a photo array.

Approximately three weeks after the robbery, on April 10, 2013, three 

detectives went to L.B.'s home to conduct a photo array. The array was 

administered by a detective who was not involved in the investigation. L.B. 

selected the photograph of defendant as the robber. That identification 

procedure was audio recorded and detailed in a subsequent police report dated 

April 22, 2013, which was authored by the lead investigating detective. At trial, 

L.B. explained that she was confident in her photograph selection. L.B. also 

identified defendant at trial.

The next day, on April 11, 2013, the detectives created a second photo 

array and showed that array to B.P. Again, the detective who presented the array 

was not involved in the investigation. B.P. selected the photograph of 

defendant. As with the identification by L.B., B.P.'s out-of-court identification

procedure was audio recorded, and later detailed in the lead detective's April 22, 

2013 police report.
6

A-2854-16T3

Defendant was arrested on April 12, 2013. Following his arrest, he was 

given his Miranda3rights, which he waived. Defendant then participated in a 

recorded interview with detectives. During that interview, defendant told the 

detectives he was in Newark on the date and time of the robbery. He stated that 

while he was driving to work, at approximately 11 a.m., he observed a man with 

a gun running on Branford Place and that man was being chased by a second 

man in a yellow jacket. Defendant was not able to recall what the man with the 

gun looked like, other than that he was a "black kid" wearing a hoodie. 

Defendant denied knowing the person he saw running and denied that person 

got into the car with him. Defendant also denied having anything to do with the 

robbery.

While being questioned by the police, defendant acknowledged that he 

never notified the police of what he saw. In explaining why he had not called 

the police, defendant stated that based on his religion he did not get involved in 

things that did not concern him. The police then asked defendant what religion 

he practiced, and defendant responded that he was Muslim.

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).
7

A-2854-16T3

The detectives also questioned defendant about his financial and familial 

circumstances. During that questioning, defendant stated that he had a bank 

account and he sent money to his family in Africa.

In October 2013, a grand jury indicted defendant for three crimes related 

to the armed robbery. On February 20, 2015, in preparation for trial, defense 

counsel requested a Wade hearing, contending that the out-of-court photo array 

identifications by L.B. and B.P. should be excluded from the trial due to law 

enforcement officers' suggestiveness. At the time the request was made, 

defendant was not present in court.

The trial court did not hold a hearing on that request. Instead, the court 

heard oral arguments by counsel and reviewed the audio recordings of the photo 

arrays. On March 13, 2015, the court issued a written decision denying the 

request for a Wade hearing. Based on its review of the recorded photo arrays, 

the court concluded that defendant had made no showing of suggestiveness. The 

court's initial decision referenced only the identification made by B.P. 

Thereafter, the court supplemented its decision on April 16, 2015, and denied 

the request for a Wade hearing concerning the identifications made by both L.B. 

and B.P.
8

A-2854-16T3

Pretrial, the State also moved to admit a redacted audio recording of 

defendant's statement. The court conducted a hearing. During that hearing, 

defense counsel objected to the admission of defendant's statement describing 

the method he used to send money to his family in Africa and his agreement to 

testify in court. After hearing oral argument and testimony from the lead 

detective, the court granted the State's motion to admit defendant's statement 

with the redactions requested by defense counsel.

In September 2016, a four-day jury trial was conducted. At trial, there 

was testimony that the lead detective on the investigation spoke with L.B. and 

B.P. alone before they were shown their photo arrays. In that regard, the 

detective who conducted the photo array for L.B. testified that when the 

detectives went to the home of L.B. to show the photo array, the lead detective 

initially went into L.B.'s apartment by himself. The lead detective also testified 

at trial that when B.P. was shown a photo array, he initially walked B.P. into the 

interview room, opened the statement concerning the photo array, and went over 

that statement with B.P. Thereafter, the detective who was not involved with 

the investigation conducted the photo array. Defense counsel did not renew his 

request for a Wade hearing based on the testimony that was given at trial.
9

A-2854-16T3

After hearing the evidence at trial, a jury convicted defendant of firstdegree armed robbery, second-degree possession of a weapon for an unlawful 

purpose, and second-degree unlawful possession of a handgun.

Defendant was then sentenced on November 18, 2016. On the conviction 

of first-degree armed robbery, defendant was sentenced to twelve years in prison 

subject to NERA. The conviction for second-degree possession of a weapon for 

an unlawful purpose was merged with the armed robbery conviction. Defendant 

was also sentenced to a concurrent term of five years for the conviction of 

second-degree unlawful possession of a handgun. Ten days later, on November 

28, 2016, the court held a supplemental sentencing proceeding to advise 

defendant that as part of his sentence for armed robbery, he was subject to a 

five-year period of parole supervision following his release from prison as 

required by NERA.

II.

On appeal, defendant makes three arguments, which he articulates as 

follows:

POINT I – IT WAS PLAIN ERROR FOR THE COURT 

NOT TO SANITIZE THE EXTENSIVE PORTIONS 

OF DEFENDANT'S TAPED STATEMENT WHERE 

THE POLICE: 1) QUESTIONED DEFENDANT'S 

FINANCES AND LIFESTYLE, SUGGESTING THAT 

HE COMMITTED THE ROBBERY BECAUSE, 
10 A-2854-16T3

ALTHOUGH HE HAD A FULL-TIME JOB, HE WAS 

TOO POOR TO AFFORD THE CAR, APARTMENT, 

FURNITURE, CLOTHES AND FINANCIAL 

ASSISTANCE THAT HE PROVIDED TO HIS 

FAMILY IN AFRICA, AND 2) MOCKED 

DEFENDANT'S RELIANCE ON HIS MUSLIM 

RELIGIOUS BELIEFS.

POINT II – THE TRIAL COURT ABUSED ITS 

DISCRETION AND VIOLATED DEFENDANT'S 

CONSTITUTIONAL RIGHTS WHEN IT DENIED 

HIS REQUEST FOR A HEARING PURSUANT TO 

UNITED STATES V. WADE, 388 U.S. 218 (1967), 

WITHOUT PROVIDING DEFENDANT WITH: 1) 

THE OPPORTUNITY TO SUBMIT EVIDENCE 

THAT SHOWED A COURSE OF IMPROPER 

CONDUCT BY THE POLICE BEFORE 

PRESENTATION OF THE PHOTO ARRAYS, AND 

2) THE OPPORTUNITY TO BE PRESENT AT THE 

PRETRIAL PROCEEDINGS ON THAT ISSUE.

POINT III – DEFENDANT'S SENTENCE MUST BE 

REVERSED BECAUSE, IN THE ABSENCE OF ANY 

FINDINGS ON A NEED FOR SPECIFIC 

DETERRENCE, THERE WAS NO SUPPORT FOR 

THE TRIAL COURT'S FINDING THAT THE 

SINGLE AGGRAVATING FACTOR OF THE NEED 

FOR GENERAL DETERRENCE SUBSTANTIALLY 

OUTWEIGHED THE MITIGATING FACTOR THAT 

DEFENDANT HAD NO PRIOR CRIMINAL 

RECORD.

Having reviewed these arguments in light of the record and law, we affirm

the ruling on defendant's statement and his sentence, but remand for a full 
11 A-2854-16T3

hearing on the out-of-court identifications. We will address the arguments in 

the order they were raised by defendant.

A. Defendant's Statement to Law Enforcement Officers

Defendant first argues that his conviction should be reversed because the 

court erred in admitting certain parts of his recorded statement to law 

enforcement officers. Specifically, defendant contends that the jury heard the 

officers insinuate that defendant robbed the victim because he did not have 

enough money to finance the lifestyle he maintained for his family and heard 

the officers mock defendant's religious beliefs.

Defendant did not object to the admission of the portions of the recorded 

statement he gave to law enforcement officers that he now challenges. Indeed, 

defendant twice failed to object to these portions of his statement. Accordingly, 

we review the admission of those statements for plain error. R. 2:10-2. Under 

that standard, reversal is only appropriate if the error was "clearly capable of 

producing an unjust result." State v. McKinney, 223 N.J. 475, 494 (2015) 

(quoting R. 2:10-2).

It is improper for the State to use poverty or lack of financial means as 

evidence of a defendant's motive to commit a crime. State v. Mathis, 47 N.J. 

455, 472 (1966) ("[T]here must be something more than poverty to tie a 
12 A-2854-16T3

defendant into a criminal milieu."); State v. Terrell, 359 N.J. Super. 241, 247 

(App. Div. 2003); State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978).

Accordingly, "[t]he introduction of evidence regarding whether or not a 

defendant has a regular source of income is, when a collateral issue, prohibited 

in any form." Terrell, 359 N.J. Super. at 247. Courts have ordered new trials or 

reversed convictions based on admission of such evidence when elicited from a 

defendant or other witnesses and when referenced by the State in opening or 

closing arguments. See Mathis, 47 N.J. at 469-72; Terrell, 359 N.J. Super. at 

247-48; State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988) (ordering a 

new trial after the assistant prosecutor "used his summation . . . to suggest that 

defendant committed the crimes with which he was charged because he was 

without funds").

Here, defendant has not shown, and there is nothing in the record

indicating, that the admission of his statement to law enforcement officers was 

clearly capable of producing an unjust result. The State did not question any of 

the trial witnesses about defendant's financial circumstances, nor did the State 

suggest in its opening or closing arguments that defendant had committed the 

crime due to his financial circumstances. The questions posed to defendant and 

his responses, which the jury heard when defendant's recorded statement was 
13 A-2854-16T3

played, did not directly suggest that defendant committed the robbery because 

of his financial circumstances. Instead, those questions were more in the nature 

of general background questions. Thus, the situation here is distinguishable 

from the facts in Mathis, Terrell, and Sherman.

Moreover, there was strong evidence linking defendant to this crime. The 

victim and a witness identified defendant as the robber. The police also located 

defendant based on a license plate number which, after investigation, proved to 

be the license to the car of his girlfriend and there was a record that defendant 

had driven that car.

Defendant also argues that his conviction should be reversed because he 

was prejudiced when the detectives mocked his religious beliefs. The record 

does not support that contention. While questioning defendant, the detectives 

did ask him about his religion when defendant asserted that he had not called 

the police after seeing a man running on the sidewalk with a gun because of his 

religious beliefs. A review of the record shows that this exchange was relatively 

brief in duration and did not contain any mocking of defendant's religion. 

Instead, defendant was asked whether there was anything in his religion, 

including within the Koran, which would prohibit him from reporting a crime to 
14 A-2854-16T3

the police. Heard in context, the questioning cannot be reasonably construed as 

mocking defendant's religious beliefs.

B. The Request for a Wade Hearing

Next, defendant argues that the trial court abused its discretion in denying 

his request for a Wade hearing. In connection with that argument, defendant 

also contends that the court converted a status conference, at which defendant 

did not appear, into an argument on whether defendant was entitled to a Wade

hearing.

We review a denial of a request for a Wade hearing under an abuse of 

discretion standard. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985). 

See also State v. Henderson, 208 N.J. 208, 290-91 (2011). Generally, we will 

not disturb a trial court's finding that the photographic identification procedures 

were reliable if there is sufficient credible evidence in the record to support that 

finding. State v. Adams, 194 N.J. 186, 203 (2008). Moreover, even if a 

reviewing court finds that the trial court should have conducted a Wade hearing, 

but also finds that the identification procedures did not result in "a very 

substantial likelihood of irreparable misidentification," the ruling can still be 

affirmed. State v. Anthony, ___ N.J. ___,___ (2019) (slip op. at 35) (quoting 
15 A-2854-16T3

Henderson, 208 N.J. at 289); State v. Cherry, 289 N.J. Super. 503, 517 (App. 

Div. 1995).

Identifications of a defendant are often critical evidence. See Anthony, 

___ N.J. at ___ (slip op. at 2). Accordingly, pretrial identification procedures 

must comply with due process. If a process is overly suggestive, the 

identification may be excluded to protect defendant's constitutional rights. 

Foster v. California, 394 U.S. 440, 443 (1969); Henderson, 208 N.J. at 285-87

(first citing Manson v. Brathwaite, 432 U.S. 98, 112-16 (1977); then citing State 

v. Madison, 109 N.J. 223, 239 (1988)). To safeguard a defendant's 

constitutional rights, law enforcement officials must document their 

identification procedures. See R. 3:11; Anthony, ___ N.J. at ___ (slip op. at 2, 

17-21); Henderson, 208 N.J. at 278, 298; State v. Delgado, 188 N.J. 48, 63 

(2006).

Rule 3:11 enumerates the documentation requirements for pretrial 

identification procedures. Specifically, Rule 3:11(a) provides that "[a]n out-ofcourt identification resulting from a photo array, live lineup, or showup

identification procedure conducted by a law enforcement officer shall not be 

admissible unless a record of the identification procedure is made." The rule 

then details how law enforcement should record identification procedures and 
16 A-2854-16T3

what type of information should be included in that recording. See R. 3:11(b) 

to (c); Anthony, ___ N.J. at ___ (slip op. at 20-21) (quoting R. 3:11). Relevant 

to this appeal, the record should include, "the identity of any individuals with 

whom the witness has spoken about the identification, at any time before, 

during, or after the official identification procedure, and a detailed summary of 

what was said." R. 3:11(c)(8).

Where a record "is lacking in important details" and law enforcement 

could have obtained and preserved those details, Rule 3:11 authorizes the trial 

courts in their "sound discretion and consistent with appropriate case law" to (1) 

"declare the identification inadmissible," (2) "redact portions of the

identification testimony," and (3) "fashion an appropriate jury charge to be used 

in evaluating the reliability of the identification." R. 3:11(d); accord Anthony, 

___ N.J. at ___ (slip op. at 21) (quoting R. 3:11(d)).

A defendant may request a pretrial hearing to evaluate the reliability and 

admissibility of a pretrial identification. Such a hearing is commonly known as 

a Wade hearing. There is no absolute right to a Wade hearing and such a hearing 

is not granted in every case involving an out-of-court identification. Henderson, 

208 N.J. 288-89; State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). To 

obtain a Wade hearing, a defendant is usually required to show "some evidence 
17 A-2854-16T3

of suggestiveness that could lead to a mistaken identification." Henderson, 208 

N.J. at 288. "That evidence, in general, must be tied to a system—and not an 

estimator—variable." Id. at 288-89. System variables are factors within the 

control of the criminal justice system. Id. at 247. Estimator variables, in 

contrast, "are factors related to the witness, the perpetrator, or the event itself 

—like distance, lighting, or stress—over which the legal system has no control." 

Ibid. If a court finds that the procedure was impermissibly suggestive, then the 

State must "offer proof to show that the proffered eyewitness identification is 

reliable[.]" Id. at 289. "[T]he ultimate burden remains on the defendant to prove 

a very substantial likelihood of irreparable misidentification." Ibid.

Our Supreme Court recently recognized an exception to the requirement 

that a defendant must show some evidence of impermissible suggestiveness that 

could lead to a mistaken identification. In that regard, in Anthony, the Court 

held that a defendant is "entitled to a pretrial hearing on the admissibility of 

identification evidence if Delgado and Rule 3:11 are not followed and no 

electronic or contemporaneous, verbatim written recording of the identification 

procedure is prepared." Anthony, ___ N.J. at ___ (slip op. at 26-27). Indeed, 

"[i]n such cases, defendants will not need to offer proof of suggestive behavior 

tied to a system variable to get a pretrial hearing." Id. at ___ (slip op. at 27). In 
18 A-2854-16T3

reaching its holding, the Court explained that "defendants need a full record of 

the identification procedure to gather possible evidence of suggestiveness." Id.

at ___ (slip op. at 26). The Court went on to stress that "[t]he failure to provide 

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

suggestive behavior that may have tainted an identification." Id. at ___ (slip op. 

at 26).4

Here, the identifications of defendant as the armed robber by L.B. and 

B.P. were crucial evidence leading to defendant's conviction. Based on the 

evidence adduced at trial, it appears that the recordings did not fully capture the 

conversations between the witnesses and the lead investigating detective. 

Accordingly, we remand for a Wade hearing to explore those unrecorded 

conversations.

When defendant requested a pretrial hearing concerning the identification 

made by B.P., he argued that B.P.'s statements to the police included certain 

discrepancies. In that regard, defendant argued that there was a discrepancy in 

B.P.'s description of the car that defendant entered, the license plate that B.P. 

 

4 The decision in Anthony was issued after this appeal was argued. Counsel for 

defendant submitted a letter in accordance with Rule 2:6-11(d) contending that 

the reasoning in Anthony was applicable to defendant's appeal. The State did 

not respond to that letter.
19 A-2854-16T3

collected, and the distance at which B.P. made his identification. Defendant 

also challenged B.P.'s ability to see what he claimed to see concerning the car. 

With regard to the identification made by L.B., defendant argued that one of the 

investigating detectives told L.B. that she would be examining photographs of 

individuals that may contain a suspect.

As previously noted, the trial court did not hold a hearing. Instead, the 

court listened to the audio recordings of the out-of-court identifications made by 

both B.P. and L.B. The trial court found that the procedures used were 

consistent with the procedures required by Henderson. The court also noted that 

defendant's arguments regarding the identification made by B.P. only went to 

estimator variables and, thus, did not show any suggestive conduct by the police.

With regard to the identification made by L.B., the trial court found that

the blind administrator's instructions were consistent with the instructions called 

for by Henderson. The court then went on to hold that the remarks by the 

investigating detective, which preceded the appropriate instructions, did not 

establish suggestiveness.

On appeal, defendant does not challenge the court's findings regarding the 

initial request for a Wade hearing. Rather, defendant presents a new ground to 

support his request. That is, he relies on testimony from trial to argue that the 
20 A-2854-16T3

lead investigating detective met with B.P. and L.B. prior to their photo arrays. 

Defendant concedes, however, that he did not renew his request for a Wade

hearing at trial when that testimony was first heard.

Regarding L.B.'s pretrial identification, defendant relies on trial testimony 

of the detective who administered the photo array. That detective testified that 

before she conducted the photo array, the lead detective spoke with L.B. 

privately for a few minutes. In that regard, the detective testified as follows:

[Assistant Prosecutor:] What happened when you 

arrived at the home?

[Detective:] I remained outside with [a 

third detective]. [The lead 

detective] went in, and he then 

came back out a few minutes 

later.

[Assistant Prosecutor:] What happened next?

[Detective:] I went - - I went into the 

apartment, and showed the 

victim six photographs.

[Assistant Prosecutor:] At what point did [the lead 

detective] give you the 

photographs?

[Detective:] In the - - in the hallway.

On cross-examination, the detective explained further:
21 A-2854-16T3

[Defense Counsel:] And you get out of the car, and 

you make your way into 

[L.B's] house, and only [the 

lead detective] goes in to 

speak to her initially; correct?

[Detective:] Correct.

. . . .

[Defense Counsel:] How long was he in there with 

her before you went - - end up 

going in showing the photo 

array?

[Detective:] I didn't time it, but a few 

minutes.

The recording of the photo array procedure with L.B. begins with the lead 

detective speaking with L.B. alone for approximately one minute and eighteen 

seconds before leaving the room, at which time the blind administrator detective 

enters. During that initial discussion with L.B., the lead detective confirmed 

L.B.'s identity, the location of the identification procedure, and explained that 

he was there with other law enforcement officials for the purpose of conducting 

a photo array. L.B. agreed to participate in the identification procedure, and at 

that time, the lead detective left the room. Based on the blind administrator 

detective's testimony that the lead detective spoke with L.B. for "a few minutes" 

before she conducted the photo array, it is unclear whether the recording 
22 A-2854-16T3

captured the entirety of L.B.'s conversation with the lead detective, as the 

recording includes a conversation that is less than two minutes in duration.

As to B.P.'s pretrial identification, defendant relies on the lead detective's 

testimony, when he stated:

[Lead Detective:] We met with [B.P.]

[Assistant Prosecutor:] Where?

[Lead Detective:] On the street. I contacted 

him. . . . We found him. We 

told him that we made some 

developments. We told him 

we needed him to come back 

to the office with us. He 

alerted his supervisor, advised 

him. He was okay, and 

authorized him to come with 

us, and then we brought him 

back to the office.

[Assistant Prosecutor:] So, the photo array was done at 

your office?

[Lead Detective:] Yes.

. . . .

[Assistant Prosecutor:] And at what point did you 

hand off the photo array?

[Lead Detective:] Again, I walked [B.P.] into the 

interview room, I opened the 

statement, went over the same 

things I did with [L.B.]. I 
23 A-2854-16T3

excused myself out of the 

room. Went up to [the blind 

administrator], handed her the 

array package, and said, you're 

ready, can you go show this.

The recording of the photo array procedure with B.P. begins with the lead 

detective speaking with B.P. in the presence of another detective for 

approximately two minutes before both detectives leave the room, at which time 

the blind administrator enters. During the initial recorded discussion with B.P., 

the lead detective confirms B.P.'s identity and contact information, the location 

of the identification procedure, and then explains the photo array procedure, 

which B.P. agrees to participate in. At that time, the two detectives leave the 

interview room. There is no recording or contemporaneous written account as 

to any conversation between B.P. and the investigating detectives during the 

drive to the police station or the walk to the interview room.

Accordingly, the trial testimony suggests there were unrecorded 

conversations between the witnesses and the lead investigating detective 

immediately before the pretrial identification procedures. We, therefore, hold

defendant is entitled to a full Wade hearing. See Anthony, ___ N.J. at ___ (slip 

op. at 26-27). Under Rule 3:11(c), law enforcement was required to provide a 

detailed summary of any conversations between a witness and other individuals 
24 A-2854-16T3

with whom the witness discussed the identification before the official 

identification procedure occurred. See R. 3:11(c)(8). The record provided to us 

contains no such detailed summary.

We note that Anthony did not directly address the instant situation where 

evidence of unrecorded conversations involving the pretrial identification 

procedures first came to light at trial and defense counsel did not renew a request 

for a Wade hearing. Nonetheless, the witness identifications were crucial at 

defendant's trial, and thus, defendant should have an opportunity to explore the 

reliability of those identifications due to the witnesses' conversations with the 

lead investigating detective prior to identifying defendant in the photo arrays. 

Consequently, we remand for such a hearing consistent with the requirements 

set forth in Wade, Henderson, Delgado, and Anthony.

We express no view as to the outcome of the Wade hearing on remand. 

If, however, "damaging evidence about feedback, witness confidence, or some 

other factor that affects memory is developed at the hearing, [defendant] may 

have a strong case and [may] be entitled to a new trial." Anthony, ___ N.J. at 

___ (slip op. at 33-34). In such a circumstance, the trial court will need to make 

a decision on whether defendant is entitled to a new trial. Alternatively, if the 

evidence presented at the hearing does not show that any violations of Rule
25 A-2854-16T3

3:11(d) were "clearly capable of producing an unjust result," and that the outof-court identifications were reliable, then defendant's convictions can stand. 

See id. at ___ (slip op. at 34) (quoting R. 2:10-2). That determination will also 

need to be made in the first instance by the trial court after the full Wade hearing.

In light of the remand for a full Wade hearing, we need not reach 

defendant's argument that he should have been present when the court initially 

addressed the request for a Wade hearing. Defendant will have the right to be 

present at the hearing we are directing on remand. In that regard, we point out 

that criminal defendants generally have the "right to be present in the courtroom 

during every 'critical stage' of the trial." State v. Reevey, 417 N.J. Super. 134, 

149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363 (App. 

Div. 1991)). See also R. 3:16(b) (providing that a "defendant shall be present 

at every stage of the trial").

C. The Sentence

Finally, defendant argues that his sentence should be vacated because the 

sentencing court erroneously weighed the applicable aggravating and mitigating 

factors. We disagree.

We review sentencing determinations under a deferential standard. State 

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 
26 A-2854-16T3

(2013)). We do not substitute our judgment for the judgment of the sentencing 

court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180 

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we 

will affirm a sentence unless

(1) the sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by the 

sentencing court were not based upon competent and 

credible evidence in the record; or (3) "the application 

of the guidelines to the facts of [the] case makes the 

sentence clearly unreasonable so as to shock the 

judicial conscience."

[State v. Miller, ___ N.J. ___, ___ (2019) (slip op. at 

15-16) (alteration in original) (quoting State v. Fuentes, 

217 N.J. 57, 70 (2014)).]

At sentencing here, the court found aggravating factor nine, the need for 

deterrence. N.J.S.A. 2C:44-1(a)(9). The court also found one mitigating factor; 

that defendant had no prior criminal record. N.J.S.A. 2C:44-1(b)(7). The court 

placed significant weight on aggravating factor nine and determined that that 

aggravating factor "substantially" outweighed the mitigating factor. The court's 

findings concerning aggravating factor nine and mitigating factor seven are 

supported by credible evidence in the record. Moreover, we discern no abuse of 

discretion in the court's balancing of the aggravating factor relative to the 

mitigating factor.
27 A-2854-16T3

On appeal, defendant argues the court improperly relied on the harm 

suffered by the victim in determining that aggravating factor nine substantially 

outweighed mitigating factor seven. At sentencing, however, the court 

explained that it weighed aggravating factor nine "very heavily" for two reasons: 

(1) defendant committed a first-degree offense; and, (2) that offense was "a very 

traumatic experience for [the victim] as it would be for anyone." In evaluating 

the need for deterrence, the courts may consider the degree of the offense and 

the gravity and harm of the crime. See Fuentes, 217 N.J. at 79 ("[D]emands for 

deterrence are strengthened in direct proportion to the gravity and harmfulness 

of the offense." (alteration in original) (quoting State ex rel. C.A.H. & B.A.R., 

89 N.J. 326, 337 (1982))); State v. Carey, 168 N.J. 413, 426 (2001) ("The need 

for public safety and deterrence increase proportionally with the degree of the 

offense."). Accordingly, the court did not abuse its discretion in finding a 

compelling need for deterrence after considering the degree of the offense that 

defendant committed and the gravity and harm of that offense.

Just as importantly, we discern no abuse of discretion in the court's 

imposition of the sentence. Defendant was found guilty of one first-degree 

crime (armed robbery), and two second-degree crimes (possession of a weapon

for an unlawful purpose and unlawful possession of a handgun). The court 
28 A-2854-16T3

correctly merged the possession of a weapon for unlawful purpose with the 

robbery conviction. The court then imposed a twelve-year sentence for the firstdegree crime, which was below the mid-range for a first-degree crime (ten to 

twenty years). The court also imposed a concurrent sentence of five years for 

the conviction of second-degree unlawful possession of a handgun. That 

sentence was within the guidelines and does not shock the judicial conscience.

Affirmed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.