SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 2549

- 19

STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

TIMOTHY E. PARRISH,

a/k/a TIMOTHY E. PARRISH

, JR.,

Defendant

- Appellant

.

______________________________

Submitted January 11, 2022

– Decided July 1 9 , 202 2

Before Judges Fisher and Smith.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No. 15

- 11

-

2024.

Joseph E. Krakora, Public Defender, attorney for

appellant (David A. Gies, Designated Counsel, on the

briefs).

Lori Linsk e y, Acting Monmouth County Prosecutor,

attorn ey for respondent (Melinda A. Harrigan, Special

Deputy Attorney General / Acting Assistant Prosecutor,

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM

A jury convicted defendant of one count of attempted murder, N.J.S.A.

2C:5

- 1 and N.J.S.A. 2C:11

- 3, one count of second

- degree aggravated assault,

N.J.S.A. 2C:12

- 1 (b) (1), two weapons charges, N.J.S.A. 2C:39

- 4 (a) and N.J.S.A.

2C:39

- 5 (b)

, and a certain persons charge

, N.J.S.A. 2C:39

- 7 (b) (1) . Defendant

was sentenced to an extended term of sixty years on the attempted murder

conviction

, consecutive to ten years on the second

- degree aggravated assault

charge. Each of those sentences was subject to eighty

- five percent parole

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

- 7.2.

The jud ge imposed concurrent terms on the remaining weapons convictions.

Defendant appeals, and we affirm.

I.

Victims Roberto Diaz and Frank LaVacca were shot on December 27,

2014 at approximately 2:00 a.m. in an alley near East Main Street in Freehold

Borough. Police responded to the scene

. First aid responders transported Diaz

and LaVacca separately to the Jersey Shore Medical Center in Neptune. A

police officer accompanied Diaz on his trip to the hospital, Freehold Officer

Zandra Vega.3 A

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D etective John Reiff of the Freehold Police Department began an

investigation of the shooting by searching the alley and securing a copy of a

nearby café's surveillance video footage. Upon returning to police headquarters,

Detective Reiff viewed the video, and recognized defendant's brother, Tahir

Parrish, as someone he knew from the community. Detective Reiff then showed

the footage to Officer Vega, first as a still shot which depicted the moment of

the shooting, then the entire video. Officer Vega recog nized both victims, Tahir

Parrish, and defendant. Tahir Parrish, when questioned by police, stated that his

brother Timothy fired a weapon in the alley. In the hospital

, police showed

Diaz, one of the victims, a photo array . He identified defendant, not by name,

but as a "familiar face."

Defendant was indicted and charged with two counts of first

- degree

attempted murder, first

- degree unlawful possession of a weapon, second

- degree

unlawful possession of a weapon, and a second

- degree certai n

- persons offense.

Before trial , defendant moved to challenge the admissibility of Officer Vega's

identification. Counsel and the court differed on the basis for defendant's

position. The court initially framed the issue as one of witness reliability, b ut

t rial counsel argued that the facts did not quite fit a classic witness reliability4 A

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challenge in that Officer Vega knew defendant for many years before the

shooting.

Defendant instead posited that the prejudicial effect of Officer Vega's

testimony outwe ighed its probative value under N.J.R.E. 403. Defendant's

position was that the State was going to present two eyewitnesses to the

shooting, Tahir Parrish and Diaz. He argued the court should not allow the

testimony of a uniformed officer to identify the shooter on the video.

The court considered defendant's application under both theories,

rejecting the Rule 403 argument and concluding that defendant failed to show

suggestiveness, a necessary precursor to holding a Wade

- Henderson 1 hearing.

Defendant was tried and a jury convicted him

. On appeal, d efendant

argues the following :

POINT ONE

THE MOTION JUDGE ERRED WHERE SHE DID

NOT CONDUCT A "CONFIRMATORY

IDENTIFICATION" HEARING TO DETERMINE

THE POLICE OFFICER'S FAMILIARITY WITH

D EFENDANT.

1 United States v. Wade , 338 U.S. 218 (1967) ; and State v. Henderson , 208 N.J.

208 (2011).5 A

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THE TRIAL JUDGE DID NOT CONSIDER THE

REAL

- TIME CONSEQUENCES WHEN DECIDING

TO IMPOSE A SIXTY

- YEAR EXTENDED TERM

SENTENCE. (Not Raised Below)

POINT THREE

THE CIRCUMSTANCES DO NOT WARRANT A

FINDING THAT DEFENDANT IS UNLIKELY TO

BE REHABILITATED SO AS TO SERVE AS A

BASIS TO IMPOSE A CONSECUTIVE TERM.

II.

Denial of a Wade hearing is reviewed for abuse of discretion. State v.

Ruffin

, 371 N.J. Super. 371, 391 (App. Div. 2004); State v. Kounelis

, 258 N.J.

Super. 420, 428 (App. Div. 1992); State v. Ortiz

, 203 N.J. Super. 518, 522 (App.

Div. 1985). See also State v. Anthony

, 237 N.J. 213, 234 (2019) ( Rule 3:11(d)

"empowers the court, 'in its sound discretion and consistent with appropriate

case la w' to 'declare the identification inadmissible, redact portions of the

identification testimony, and/or fashion an appropriate jury charge

. . . .'")

.

In State v. Pressley , 232 N.J. 587, 592

- 93 (2018), the Court discussed

confirmatory identifications, "which [are] not considered suggestive[,]" in

which "a witness identifies someone he or she knows from before but cannot6 A

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identify by name." Even if police show only one photograph to such a witness,

the procedure is not considered suggest ive. Ibid.

The record shows that Officer Vega knew defendant from living in the

same community. She had encountered him multiple times over a twenty

- year

period and knew his father and Tahir

. Before becoming a police officer, Vega

was a counselor in a y outh counseling program that defendant's younger

siblings, including Tahir

, participated in

. She last saw defendant a few weeks

before the shooting

, and she testified that she was "100% certain" of her

identification of defendant in the alleyway video.

Given Officer Vega's familiarity with defendant over two decades

,

including years whe n she was a neighbor to defendant's father and counselor to

defendant's siblings prior to becoming a police offi cer, we find no suggestive

aspect to this identification. 2 Regardless of what label this identification process

is given, we are not persuaded by defendant's arguments that Officer Vega's

prior contact was "minimal

, " and warranted further scrutiny. Defe ndant argues

2 We reject defendant's argument that People v. Rodriquez

, 593 N.E.2d 268

( N.Y. 1992) should apply here in support of the principle that a separate

"confirmatory identification hearing" should be conducted by the court when a

confirmatory identification fact pattern reveals itself. Pressley tells us that

Wade principles control here

. Pressley , 232 N.J. at 591

- 92. N o separate analysis

is required in our jurisprudence. Ibid.7 A

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that a dditional d etails

, such as the length of any conversation s between Officer

Vega and defendant, the presence of defendant's father at some of their

encounters, or the fact "a few weeks" elapsed between the last time Officer Vega

saw defendant and the shooting

, were necessary to establish reliability on this

record. We disagree, and we find the motion court did not abuse its discretion

in denying a Wa de hearing.

III.

We deferentially review a trial court's sentencing determination and do

not substitute our judgment for that of the sentencing court. State v. Rivera

, 249

N.J. 285, 297 (2021). We affirm unless the sentencing guidelines are violated,

the aggravating and mitigating factors found are not based upon competent

credible evidence in the record, or the trial court's application of the sentencing

guidelines make the sentence so clearly unreasonable as to shock the judicial

conscience

. State v. Roth

, 95 N.J. 334, 364

- 65 (1984).

The sentencing court found that defendant's criminal history started with

six contacts as a juvenile, culminating in his committing an offense at age

seventeen for which he was waived to adult criminal court. The record showed

defendant pled guilty to second

- degree aggravated assault in that case

, and that

he was sentenced to a ten

- year term of incarceration with an eight

- year term of8 A

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parole ineligibility in 2004. The sentencing court noted that the current matter

represented defendant's second adult offense, with both offenses involving acts

of violence.

The court found aggravating factors three, N.J.S.A. 2C:44

- 1(a)(3), six,

N.J.S.A. 2C:44

- 1(a)(6), and nine

, N.J.S.A. 2C:44

- 1(a)(9), based on its

cons ideration of the extensive record, including surveillance video which

captured relevant events, before, during, and after the shooting. The court

considered and rejected defense arguments for mitigating factors three and four,

N.J.S.A. 2C:44

- 1(b), explici tly finding no basis in the record for their

application. The court found no other mitigating factors. The sentencing court

went on to conduct a proper Yarbough 3 analysis as it imposed consecutive

sentences.

Although we may consider allegations of errors or omissions not brought

to the court's attention if they meet the plain error standard under Rule 2:10

- 2,

we frequently decline to consider issues not raised be low nor properly presented

on appeal. See State v. Walker , 385 N.J. Super. 388, 410 (App. Div. 2006).

Recognizing that we are not bound to address arguments on appeal not raised in

the trial court, we proceed with an analysis of points II and III of the d efendant's

3 State v. Yarbough , 100 N.J. 627, 643

- 44 (1985).9 A

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argument, as the merits of point II, which were not raised before the trial court,

are sufficiently intertwined with the merits of point III, which were. We address

defendant's point II using the plain error standard.

Defendant argues for the first time before us that the sentencing court

failed to consider the real

- time consequences of the imposition of a sixty

- year

extended term sentence on the attempted murder conviction. We are not

persuaded. The sentencing court explicitly addressed the issue:

[t]he aggregate sentence that this [c] ourt has imposed is

a 70

- year period of incarceration. 85 percent of that

needs to be served before he will be eligible for parole.

That amounts to 25,550 days and 21,718 days needs to

be done before he's eligible for parole. That's 58 years

and four months.

The record shows the court was aware of defendant's age at the time of

sentencing, thirty

- three

, and it fully explained to him the consequences of the

full seventy

- year sentence as well as the parole ineligibility term

. " We

recognize, as the trial court recognized, that defendant may spend the rest of his

life in jail." State v. Liepe , 239 N.J. 359, 379 (2019). The trial court's "task was

not to ensure defendant's eventual release, but to devise a sentence

commensurate w ith defendant's crimes." Ibid. Reviewing this point on appeal

using the plain error standard, we cannot say that the court's findings were

" clearly capable of producing an unjust result." Rule 2:10

- 2.10 A

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Defendant next argues that the "circumstances" in th is record do not

"indicate that defendant is the type of repetitive offender not likely to be

rehabilitated

. . . ." State v. Mosch

, 214 N.J. Super. 457, 464 (App. Div. 1986).

H e contends that without this finding, it was error for the sentencing court to

impose a consecutive term. We find no merit in the argument

, as the sentencing

court made detailed findings, including : defendant 's engagement in anti

- social

behavior since the age of fourteen; the absence of provocation for the shoot ing;

and the fact that defendant was out on parole for a previous violent offense when

he shot Diaz and LaVacca. The court did not abuse its discretion when it found

defendant was not likely to be rehabilitated and that imposition of consecutive

sentences was appropriate for protection of the public.

To the extent that we have not addressed any remaining arguments by

defendant, it is because they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11

- 3(e)(2).

Affirmed.