SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3696- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. CRAIG E. GREENE, Defendant-Appellant.

_________________________

Submitted April 15, 2024

– Decided May 17, 202 4 Before Judges Gilson, Bishop-Thompson, and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 21

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- 0537. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Samuel Clark Carrigan, Assistant Deputy Public Defender, of counsel and on the briefs).
La Chia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3696

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PER CURIAM Defendant, Craig E. Greene, was convicted after trial of armed robbery and related offenses. O n December 17, 2021 , he was sentenced to an aggregate prison term of thirteen year s subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We reverse. We derive the following facts from the record, focusing on those facts necessary for adjudication of the issues before us. This case in volves a robbery and theft committed on the same day in Maple Shade Township. On June 5, 2019, the Maple Shade Animal Hospital was robbed by a man armed with a knife. La ter that same day, a man stole cash from an Acme grocery store. In a single indictment, the State charged defendant with both crimes. Defendant filed a motion to sever. The trial court denied the application, and defendant was tried for bo th crimes in August
2021.
At trial, defendant testified he took money from a cash register at the Acme grocery store to purchase the drugs he possessed when arrest ed . However, defendant denied being responsible for the armed robbery of the animal hosp ital. The jury convicted defendant of the theft and drug charges. They deadlocked as to the robbery charges. Following a second trial held in September 20 21 , defendant was3 A- 3696

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convicted on the robbery charges. Defendant appeals the convicti on and sentence pertaining only to the second trial. In mid-afternoon on June 5, 2019, Patrick Middleton, a customer service representative, was seated at the front desk of the Maple Shade Anim al Hospital. A man wearing a hooded sweatshirt (hoodie) and armed with a knife entered through the door, approached Middleton, and demanded, "Give me the money." Repeating this demand, the man held a knife within one foot of Middleton's face. Middleton opened a cash drawer under the desk. The robber reached in, removed the cash, and fled. Also working at the hospital that day was Vicky Raimund o, a veterinarian technician. She did not witness the robbery but assisted others in leaving the hospital during its occurrence via a separate doorway. As she exited the b uilding, Raimundo spotted the suspect and watched him cross the street. She monitored him until he left the area. Later that evening, detectives from the Maple Shade Police Departmen t asked Raimundo to review a photo array. She selected defendant' s photo with eighty-five to ninety percent confidence. A third person, Victoria Flake, was a receptionist at the hospital . She was not working at the time of the robbery but heard of the suspect's des cription from coworkers. She reported to police that the evening before the inci dent, a man matching4 A- 3696

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the suspect's description came into the hospital and asked h er to make change for bus fare. Detectives presented a photo array to Flake, who selected defendan t' s photo. She testified she was " about [ninety-five] , [ninety-six] percent sure " th e photo she selected was the man who had asked for change. Detectives never present ed Middleton with a photo array. Based on the photo identifications of Raimundo and Flake , police officers arrested defendant, charging
him with the robbery. Through the investigation that followed, police recovered a dark blue hoodie in the area of the robbery matching the descriptio n of what the robber wore. A DNA sample taken from the hoodie matched a buccal swab sample taken from defendant. Upon arrest, police also recovered from defendant a sum of money in the same amount of the stolen sum. Middleton, Raimundo, and Flake all made in-court identifications of defendant. On September 30, 2021, the jury returned a guilty verdi ct on the counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2); fourth-degree unl awful possession of a weapon (knife), N.J.S.A. 2C:39-5(d); and third- degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d). In December, the trial court imposed an aggregated prison term of thirteen-years NERA for all offenses, including a sentence for an unrelated crime to which defendant pled g uilty. Defendant raises three arguments on appeal.5 A- 3696

- 21 POINT I THE TRIAL COURT ERRED WHEN IT DID NOT PROVIDE THE CURRENT MODEL JURY CHARGE REGARDING THE STATE’S FAILURE TO PR ESENT AN ELECTRONIC RECORD OF THE OUT- OF

COURT IDENTIFICATION PROCEDURE. (Not raised below).
POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO EXCLUDE MIDDLETON’S UNRELIABLE IN -COURT IDENTIFICATION AND DID NOT PROPERLY INSTRUCT THE JURY ON HOW TO ASSESS ITS RELIABILITY.
POINT III THE TRIAL COURT ERRED IN REASONING AT SENTENCING THAT A PARTICULAR AGGRAVATING FACTOR IS ALWAYS PRESENT.
A. The Jury Instruction on Record of Out- Of -Court Identification Procedure.
A s to defendant’s first point , both parties acknowledge that the trial court administered an outdated identification charge. While the trial took place in September 2021, the charge administered did not contain language from a model jury charge modified in May 2020. The updated charge concerned ho w the jury sh ould assess a photo lineup where the procedure was not recorded by police. Defendant argues that failure to administer the updated charge und ermined the6 A- 3696

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integrity of the conviction. The State argues the charge administ ered by the trial court was adequate, because the lineup procedure was in fact recor ded, but simply not introduced at trial. Thus, the State contends that any failure to administer the updated charge did not constitute plain error, because the o mitted portion of the charge given was not relevant. There are several time-tested principles that guide us on questions concerning jury charges. "An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). A jury charge should be reviewed in its en tirety to determine the overall effect of the charge. State v. Delibero, 149 N.J. 90, 106-07 (1997). "[I]f on reading the charge as a whole, 'prejudicial erro r does not appear, then the verdict must stand.'" State v. Ramseur, 106 N.J. 123, 280 ( 1987) (quoting State v. Council, 49 N.J. 341, 342 (1967)). "A jury char ge is presumed to be proper when it tracks the model jury charge verbatim becau se the process to adopt model jury charges is 'comprehensive and thorough.' " State v. Berry, 471 N.J. Super. 76, 107 (App. Div. 2022) (quoting State v. R .B., 183 N.J. 308, 325 (2005)). Because there was no objection to the jury charge at trial, we eva luate the consequence of an errant charge under the plain error standard. In the co ntext of a7 A- 3696

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jury charge, "plain error requires demonstration of 'legal impro priety in the charge prejudicially affecting the substantial rights of the defendant an d sufficiently grievous to justify notice by the reviewing court and to con vince the court that of itself the error possessed a clear capacity to bring about an u njust result.'" State v. Montalvo, 229 N.J. 300, 321 (2017) (quoting State v. Chapland , 187 N.J. 275, 289 (2006) ; s ee also State v. Burns, 192 N.J. 312, 341 (2007); State v. Jordan , 147 N.J. 409, 422 (1997). "The error must be evaluated 'in light of the overal l strength of the State's case.'" State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)). We review a trial court 's instruction on the law de novo. Fowler v. Akzo Nobel Chemicals, Inc., 251 N.J. 300, 323 ( 2022); State ex rel. Comm’r of Transp. v. Marlton Plaza Assocs., L.P., 426 N.J. Super. 337, 347 (App. Div. 2012). At the time of the offense, Rule 3:11 required law enforcement to "contemporaneously record the identification proced ure," either with a written verbatim account of the exchange between officers a nd the witness "or, if feasible, electronically." R. 3:11(b) (2019). If there was no record of the important details of the out- of -court identification procedure, the court could "fashion an appropriate jury charge to be used in e valuating the reliability of the identification." R. 3:11(d) (2019).8 A- 3696

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In 2019, the Supreme Court held, where unrecorded e yewitness identification is essential to the State's case, th e jury needed to be instructed on the requirements of Rule 3:11 and be informed that law enforcement failed to abide by that rule. State v. Anthony, 237 N.J. 21 3 (2019). In Anthony , the Court asked the Criminal Practice Committee to revise sub section (b) of the rule to emphasize the Court's preference for audio-visual r ecordings of the identification process. Id. at 23 1-32. The rule was amended to reflect this preference, effective June 2020. R. 3:11(b) ("A law enforcement officer shall electronically record the out- of -court identification procedure in video or audio format, preferably in an audio-visual format."). T he model charge was correspondingly amended to reflect this rule change :

Where there is a failure to electronically record a n identification procedure, you have not been provide d with a complete picture. By way of example, without a recording of the identification procedure, you cann ot hear the tone or inflection of the witness or polic e officer's voices. Audio captures not only the word s spoken between an administrator and an eyewitness b ut also tone, and video preserves expressions or gestu res as well. That type of information can help the jur y accurately assess witness confidence, any feedback the witness may have received, and the overall reliabil ity of an identification

– and thus help guard against mistaken identifications. You should weigh later testimony or statements about tone, gestures and demeanor with great caution and care, as later9 A- 3696

- 21 recollections may be less accurate than an electron ic record. . . . You may take into account the police failure to pre serve a record of the identification procedure when you evaluate the identification evidence in this case. The absence of either an electronic recording or contemporaneous written record permits but does not compel you to conclude that the State has failed to prove that the identification was in fact made and, if so, accurately reported by the State's witnesses. [Model Jury Charges (Criminal), "Identification: In

Court and Out- of -Court Identifications" (rev. May 18, 2020) (citations omitted).] The omitted portion of the challenged jury instruct ion applies to the purported failure by police to record out- of -court identification procedures for witnesses Raimundo and Flake. Defendant argues tha t the trial court should have issued the above instruction after the State d id not present to the jury an electronic recording or contemporaneous written acc ount of their identification procedures at trial. By omitting this instruction, defendant maintains the trial court plainly erred in a manner "clearly capable of producing an unjust result. " Defendant urges that the verdict be vacated and tha t the trial court be instructed to hold a Wade/Henderson hearing to determine the reliabi lity and admissibility of the out- of -court identifications. See U.S. v. Wade, 388 U.S. 218 (1967) ; State v. Henderson, 208 N.J. 208 (2011). Under Anthony , "a defendant will be10 A- 3696

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entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and [Rule] 3:11 are not followed and no ele ctronic or contemporaneous, verbatim written recording of the identification pr ocedure is prepared." Anthony , 237 N.J. at 233 (citing State v. Delgado, 188 N.J . 48 (2006)). The State asserts it did make an audio-visual recording of Flake and Raimundo's participation in the photo array and sen t a copy and transcript of the recording to defendant in pre-trial discovery. The State argues there is no case law requiring the out- of -court identification procedure recording to be admitted into evidence

– only that it be recorded. Because the State contends defendant was given a copy of the recording before trial, it argues defendant had the opportunity to request a Wade/Henderson hearing or contest the jury instruction

. The State conjectures that trial counsel chose to d o neither because the recording was decidedly not to defendant’s advantage

. In reply, defendant argues the reliability of the o ut- of -court identifications was a question of fact for the jury to decide and t hat the State's decision not to present a recording of the identification procedure deprived the jury from accessing "essential information about what occurre d during the photo array procedures."11 A- 3696

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In this case, the State elected not to present reco rdings of the out

- of -court identifications procedures and asks us to assume th at those identifications were indeed recorded. Moreover, defense counsel did not request a Wade/Henderson hearing. On appeal, defendant contends the record ings in question were not provided to his trial counsel. Neither the recordi ngs nor the transcripts of the identifications procedures for Flake and Raimu ndo are part of the record on appeal. R. 2:5 -4(a). From the record, therefore, we cannot dete rmine if there were audio- vi sual recordings of the Flake and Raimundo identific ations
pr ocedures, and if so, whether defense counsel was pr ovided with the recordings and elected not to pursue a pre-trial hearing. Irrespective of their availability to this court fo r review, we agree with defendant that the jurors were entitled to examine the recorded pre-trial identifications procedures. R. 3:11 provides the f ramework for preservation of the identification procedures employed so that coun sel and the trial court are in a position to assess the reliability of a given ide ntification, including system and estimator variables. See Henderson, 208 N.J. at 218. Should the trial court determine the procedure sufficiently reliable, the jury ultimately decides the question. The model and supplemental identificatio n jury instructions presume12 A- 3696

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either that the jury will have for its consideratio n an audio-visual record, or, in the event none was created, that the model charge b e administered. Absent a definitive understanding of the procedural status of this matter, and a failure to administer the model charge then i n effect, the purpose of the rule is undermined, leading to plain error "clearly capable of producing an unjust result." Identification of the robber was the central issue in dispute at trial. Therefore, the juror need ed clear instructions on how to a ss ess out- of -court identifications. Without those instructions, the j ury may well have reached an unjust result. We caution that it is not here decided that the Sta te must in all instances present at trial an audio-visual recording of ident ification procedures. At the least, however, a record must be made from which an appellate court ma y make a determination with certainty whether the strictur es of Rule 3:11 were followed. In reaching this conclusion, it is important to not e the emphasis the State placed on the lineup procedure in its closing and th e absence of a corresponding juror charge to aid the jurors on this issue. In h is closing, the prosecutor said:

So it's 5:55 p.m., Victoria Flake and Vicky Raimund o take part in a photo array, a photo lineup[,] at th e Maple Shade Police Department[,] and they each select a photograph of Craig Greene.13 A- 3696

- 21 We know how the photo lineup goes . It’s hardly debatable. Victoria Flake is [ninety-five] percent sure that Craig Greene is the individual that she saw ma king change for the day before. Vicky Raimundo, as you heard her consistently testify today, [eighty-five] to [ninety-five] percent sure that Mr. Greene is the individual that she saw and she chased out of the animal hospital. She selected the photograph then, a coup le hours after it took place. She pointed at him in c ourt today, two years after it took place and gave you t he same story, it was Craig Greene. (Emphasis added). The jury, however, was not given the opportunity to see the photo procedure the prosecutor referenced in closing. So , the jurors did not "know how the lineup [went]." Here, the gap between what the jurors were told occurred during the lineup procedure and what actua lly occurred is unbridgeable , thus, clearly capable of producing an unjust result

. B. The In-Court Identification and Jury Instruction on that Procedure All three of the State's fact witnesses made in-court identifi cations o f defendant. As to Middleton, there was no out- of -court identification. After full briefing was completed in this case, the Supreme Court issued its decision in State
v. Wa ts on , 254 N.J. 558 (2023) , instituting new procedures concerning first-time incourt identification witnesses. Watson involved a bank rob bery in which the bank teller selected an individual other than the defendant, Quintin Watson, in an initial14 A- 3696

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photo lineup. The teller was later called at trial and permitte d to testify. Before appearing in court, the teller met with the prosecutor, who advised defendant would be seated at defense counsel’s table

. In court , the teller identified Watson as the culprit, and he was convicted. There was no other corroboratin g evidence. Recognizing the potency of an in-court identification and w ary of the reliability of coached eyewitness testimony absent corroborative evidence, th e Court instituted new procedures concerning first-time in-court identification witnesses. The Court held that henceforth, (1) the State must file a motion in limine when it intends t o conduct a first-time in-court identification, followed by a hearing where the parties and the court explore whether good reason exists; (2) prosecuto rs must disclose in writing anything discussed with a witness during trial preparation that relates to an upcoming in-court identification; (3) any hearing needed to determine admissib ility should be conducted and resolved before start of trial. Id . at 588. In a post-briefing submission, the State notes that the ho lding in Watson is prospective and thus not applicable to this case. Also, poi nting to the DNA evidence and the corroborative sums of cash recovered from defendant, the State sug gest s that
Watson' s safeguards are not a concern , because in Watson there were no corroborative proofs

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While not retrospective in application, the holding in Watso n informs our analysis

. Because we find plain error with respect to defendant’s second argument, we need not reach the question of plain error on the in-court i dentification. We note, however, that in any new trial, the procedures set forth in W atson will apply and will need to be followed. Further, to avoid any other error, we poin t out that the charge administered by the trial court erroneously read:

The State has presented the testimony of Vicky Raimundo and Patrick Middleton. You will recall th at these witnesses identified the defendant in court a s the person who committed the offenses of [a]rmed [r]obbery , [u]nlawful [p]ossession of a [w]eapon and [p]ossession of a [w]eapon for an [u]nlawful [p]urpo se. The State has also presented testimony that on a pr io r occasion before this trial, these witnesses identified the defendant as the person who committed the aforementioned offenses. (E mphases added ). The second witness to make an identification on a prior occa sion was Flake, not Middleton. Moreover, the court should have tailored its charge as to Midd leton and administered the model charge for in-court identification only. Henderson, 308 N.J. at 302; see also Sanchez-Medina, 231 N.J. at 466 (citation omitted) ; Model Jury Charges (Criminal) , “Identification: In

- Court Identification Only” (rev. July 19, 2012).16 A- 3696

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To ensure compliance with our evolving jurisprudence and in t he interests of justice , we direct that on remand Middleton's first-time in-court ident ification must be scrutinized pursuant to Watson.
C. Remarks at Sentencing Because we reverse defendant' s conviction, we do not reach defendant's third argument concerning the trial court's comments about aggravatin g factor nine

" always " being present. We are confident the court is mindful of the di stinction between specific and general deterrence, and the need to articulate i ts findings in imposing sentence after making an individualized assessment of defe ndant based on the facts of the case. See State v. Jaffe, 220 N.J. 114, 122 (2014); N.J.S.A. 2C: 44

- 1(a)(9). Reversed and remanded for new trial. Before the new trial, the trial court shall determine whether to conduct a Wade/Henderson hearing with resp ect to Flake and Raimundo and whether to conduct a Watson hearing with respect to Middl eton. We do not retain jurisdiction.