STATE OF NEW JERSEY VS. DURRELL HEARD (15-08-1935, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4003-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DURRELL HEARD, a/k/a
DURRELL A. HEARN,

     Defendant-Appellant.
________________________

                   Submitted November 9, 2020 - Decided January 13, 2021

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Criminal Division, Essex County, Indictment No. 15-
                   08-1935.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Daniel S. Rockoff, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Emily M. M. Pirro,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from the denial of his motion to suppress the out-of-

court identifications and from his conviction after a jury trial.         He also

challenges his sentence, asserting it is inconsistent with the verdict, and the

judgment of conviction (JOC) differs from the orally pronounced sentence. We

affirm.

                                      I.

      Defendant was charged in an indictment with first-degree murder,

contrary to N.J.S.A. 2C:11-3a(1)-(2) (count one); second-degree conspiracy to

commit robbery, contrary to N.J.S.A. 2C:5-2 (count two); three counts of first-

degree robbery, contrary to N.J.S.A. 2C:15-1 (counts three, four, and five); first-

degree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count six); second-

degree unlicensed possession of a firearm, contrary to N.J.S.A. 2C:39-5(b)

(count seven); and second-degree possession of a firearm for an unlawful

purpose, contrary to N.J.S.A. 2C:39-4(a) (count eight).

                                      A.

      The charges arose out of events that took place on January 8, 2015 in a

fast food restaurant where defendant and co-defendant Leon Trent robbed

several individuals – Tyreese Barkley, Jahod Onque, and Tykwan Crenshaw –


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and defendant shot and killed Crenshaw.1 At the time, Hasim Salimi was

working in the restaurant and he witnessed the shooting.

        After the shooting, Barkley gave a statement to police. He described the

shooter as 6'2", with brown skin, dreadlocks, and wearing a vest over a

sweatshirt. Barkley described the accomplice as heavyset, dressed all in black,

and with a black do-rag on his head.

        Salimi also gave an initial statement to police that day. Salimi said he saw

several people, including defendant, in his restaurant just prior to the shooting.

He stated he was in the back area of the restaurant near the freezer when he

heard a gunshot. Although he could not see the shooter at that point, he did see

Crenshaw holding his hands up, saying "no, no, no" and then falling to the floor.

Salimi ran closer and saw defendant with his right arm down at a 45-degree

angle towards Crenshaw who was laying on the floor. He described the shooter

as six feet tall with an average build. He said the shooter had dreadlocks and

was wearing a vest.

        In the days after the shooting, Essex County Prosecutor's Office (ECPO)

detectives retrieved surveillance footage from the area of the restaurant in the

minutes before and just after the homicide. In their review of the footage, the


1
    Trent was charged in counts two, three, four, five, and six of the indictment.
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detectives spotted two individuals who matched the descriptions Barkley and

Salimi had given of the perpetrators in their initial statements. A detective from

Irvington identified the men in the surveillance footage as Trent and defendant.

The detectives made some still photographs of defendant and Trent from the

footage.

      A week after the shooting, the police asked Salimi to come to the ECPO.

When he arrived, Salimi gave a second recorded statement to Detectives David

Fontoura and James Ventola. His description of the events was similar to his

first statement – he was in the back of his store, heard one shot, ran to the front,

and saw defendant shoot Crenshaw a second time. He also described how the

accomplice seemed to be standing as a lookout and added that he heard

defendant say "you robbed my man last week" before shooting Crenshaw.

      Fontoura showed Salimi the still photo, stating: "My partner . . . had a

chance to review some surveillance footage and we have a still image of a few

individuals.   Tell me do you recognize anyone in this photo?"               Salimi

immediately identified defendant as the shooter.

      Salimi then picked defendant's photograph out of a six-person, blind-

administered photo array. He was certain defendant was the shooter. Afterward,

Fontoura re-entered the room and stated, "[a]nd just for the record, the male you


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identified is known to the [ECPO] as Durrell Heard whose SBI number is

721168 Delta."

      At the suppression hearing, Salimi testified that he identified defendant as

the shooter in the surveillance still photo "[b]ecause I saw him, he was the

shooter." He denied identifying defendant in the still photo only based on the

person having dreadlocks. He stated that he was not instructed by anyone to

identify defendant in the photo or to say he was the shooter.

      Barkley was also asked to come to the ECPO to give a second recorded

statement. Once there, Fontoura and Ventola stated: "We asked you to come in

here today because we wanted to show you a picture of a possible suspect and

wanted to see if you can identify this person." Ventola added, "if you recognize

this person just let us know as the person who robbed you, victim of a robbery,

and -- and/or the same person that -- responsible for the shooting. So, this is a

surveillance photo."

      Barkley immediately stated he recognized both men in the photo. He

identified defendant as the person who shot Crenshaw and Trent as the one who

robbed them. Barkley testified at the suppression hearing that he did not know

if the shooter would be in the still photo until the police showed it to him, and

when they did, he identified defendant because he "saw his face as clear as day,"


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and stated "I know it's him because I know his face." Barkley confirmed he was

sure defendant and Trent were the perpetrators of the crime, "[b]ecause I

identified those faces." He denied that anyone directed him to identify the two

men.

       Barkley then picked defendant and Trent out of two separate photo arrays

with two different detectives. He denied that anyone told him that the person he

had picked out of the surveillance still would be in the photo array, or that he

had picked the right people out of the photo arrays. When Fontoura came back

into the room, he stated, "[f]or the record the male you identified is known to

the [ECPO] as Durrell Heard whose [SBI] Number is 334741 Delta."

       When Trent was later questioned, he admitted to being at the scene of the

crime and identified himself and defendant on the surveillance still photo.

                                        B.

       Defendant moved to suppress Salimi's and Barkley's out-of-court

identifications of him.    The motion was denied in a well-reasoned written

decision. The court stated:

             Here, the photo array procedure was not significantly
             suggestive by itself. It was not a show up identification.
             It was administered in a double[-]blind manner. The
             detectives who conducted the photo arrays did not
             know who the suspect was or if his photo was included
             in the array. The detectives provided adequate pre-

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identification instructions to the witnesses. The photo
arrays were comprised of six photos, five of which were
of men who looked similar to [d]efendant. There was
only one suspect, [d]efendant, included in each photo
array. Detectives did not provide feedback on the
witnesses' identifications.

Defendant focuses his argument on the fact that each
witness was shown a surveillance still of [d]efendant
and . . . Trent shortly before the photo array was done.
This issue falls under the system variable of multiple
viewings. The process of first showing the witnesses a
still photo of [d]efendant makes it difficult to know
whether the subsequent photo array identification was
based on their memories of the original event or on the
still photo they had just viewed. See [State v.
Henderson, 

208 N.J. 208

, 255 (2011)]. This is
particularly true given that the still photo and the photo
arrays were shown to the witnesses close in time on the
same day.

With regard to the identifications by . . . Salimi and . . .
Barkley from the single surveillance camera still, it is
true that [d]efendant met his burden of producing some
evidence tied to a system variable that demonstrates
that the identifications are suggestive. However, under
the totality of the circumstances and through the
application of the reliability factors, . . . Salimi and . . .
Barkley's identifications are reliable.

In addressing the identification by . . . Salimi, the State
did offer proof that the identification was reliable. As
to the system variables, there is no evidence that the
police told . . . Salimi that the shooter was in the still
photograph and no evidence that the police told . . .
Salimi that he had to identify someone. Defendant was
not the only one in the photograph. Finally, there is no


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                              7
evidence that the detectives provided feedback during
or after the procedure.

As to the estimator variables and the reliability factors,
. . . Salimi had ample opportunity to view [d]efendant
at the time of the incident. . . . Salimi saw [d]efendant
for sixteen seconds, which were not fleeting glimpses.
The lighting was also abundant in the . . . restaurant and
he was less than 20 feet away from the shooter. There
were no obstructions between . . . Salimi and
[d]efendant's face. Defendant also was not wearing a
disguise.

Second, . . . Salimi was attentive during the shooting.
There is no evidence that . . . Salimi was under any
stress at the time of the incident. Furthermore, because
the gun was not pointed at . . . Salimi nor could . . .
Salimi see the gun from his position, . . . Salimi was not
focused on the weapon.

Third, the evidence shows that . . . Salimi's prior
description matches [d]efendant's physical appearance.
Fourth, . . . Salimi's level of certainty when identifying
[d]efendant is clearly satisfied in this case. There is no
evidence that . . . Salimi hesitated in his identification.

Finally, only six days elapsed between the shooting and
. . . Salimi's identification. It is unlikely that his
memory of the incident would have significantly faded
in six days.       Thus, under the totality of the
circumstances, . . . Salimi's identification was reliable.

In addressing the identification by . . . Barkley, once
again, the State did offer proof that the identification
was reliable. Similarly[] to the identification by . . .
Salimi, there is no evidence that the police told . . .
Barkley that the shooter was in the still photograph.
The detectives informing . . . Barkley that they had a

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                            8
possible suspect is not sufficient to demonstrate that the
detectives significantly influenced . . . Barkley's
identification. There was also no evidence that the
police told . . . Salimi that he had to identify someone
or that his identification was correct.

[B]arkley had ample opportunity to view [d]efendant at
the time of the incident. . . . Barkley saw [d]efendant
prior to the robbery, as he was waving the gun around
while the robber was collecting the money, and during
the shooting, which were not fleeting glimpses. As
mentioned above, the lighting was also abundant in the
. . . restaurant. There were no obstructions between
. . . Barkley and [d]efendant's face . . . [d]efendant was
not wearing a disguise.

Second, . . . Barkley was attentive during the shooting.
. . . [T]here is no evidence that . . . Barkley was under
any stress at the time of the incident. Furthermore,
because the gun was not pointed at . . . Barkley, [he]
was not focused on the weapon.

Third, the evidence shows, as it did for . . . Salimi's
identification, that . . . Barkley's prior description
matches [d]efendant's physical appearance.

Fourth, . . . Barkley's level of certainty when identifying
[d]efendant as the shooter is clearly satisfied in this
case. There is no evidence that . . . Barkley hesitated
in his identification.

Finally, only six days elapsed between the shooting and
. . . Barkley's identification. In comparison to . . .
Salimi's memory, it is unlikely that his memory of the
incident would have significantly faded in six days.
Thus, under the totality of the circumstances, . . .
Barkley's identification was reliable.


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                            9
             Therefore, because the out-of-court identifications of
             [d]efendant by . . . Salimi and . . . Barkley are reliable,
             they will not be suppressed, and the State may also
             elicit in-court identifications by these two witnesses as
             well.

                                         C.

      Defendant was tried before a jury in November and December 2017. Both

Salimi and Barkley testified. In addition, the third robbery victim – Onque –

was called as a witness. He stated that he was standing three feet from defendant

at the time of the robbery and right next to Crenshaw when defendant shot

Crenshaw. Onque stated that defendant entered the restaurant and said "this is

a shake[,]" which Onque knew meant he was about to get robbed. When Onque

was questioned by police in February 2015, he described the shooter as having

dreadlocks, wearing a hoodie and jeans, and missing about four front teeth. At

trial, defendant displayed his teeth for the jury, showing that he had missing or

rotted top teeth. Onque testified that defendant accused Crenshaw of robbing

Trent before shooting Crenshaw.

      Onque's identification of defendant in a blind-administered photo array in

February 2015 was not challenged. During the array, Onque stated he was

"positive" defendant was the one who shot Crenshaw, because "I'll never forget

that day."


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                                        10
      Trent also testified, identifying himself as the lookout and defendant, his

cousin, as the shooter. Trent told the jury that he and defendant planned to rob

the restaurant. He also informed the jury that he had pled guilty earlier that year

to conspiracy to commit robbery and robbery. The plea agreement required him

to testify truthfully at defendant's trial. The State recommended a ten-year

sentence with an eighty-five percent parole disqualifier.

                                        D.

      During the charge to the jury, the judge advised them that Trent was

indicted for conspiracy to commit robbery, three counts of first-degree robbery,

and felony murder. He further stated that Trent had pled guilty to conspiracy to

commit robbery and first-degree robbery of Crenshaw.             The judge then

instructed: "Evidence of . . . Trent's plea of guilty may be used only to determine

the credibility or believability of the witness' testimony."

      The judge continued, stating:

            You may consider such evidence along with all the
            other factors that I mentioned previously in determining
            the credibility of the witness. However, you may not
            use . . . Trent's plea of guilty as evidence that this
            defendant is guilty of conspiracy to commit robbery or
            first-degree robbery for which defendant is charged."

            The law requires that the testimony of such a witness
            be given careful scrutiny. In weighing his testimony,
            therefore, you may consider whether he has a special

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                                       11
            interest in the outcome of the case and whether his
            testimony was influenced by the hope or expectation of
            any favorable treatment or reward or by any feelings of
            revenge or reprisal. If you believe this witness to be
            credible and worthy of belief, you have a right to
            convict the defendant of conspiracy to commit robbery
            and first-degree robbery of Tykwan Crenshaw on . . .
            Trent's testimony alone, provided, of course, that upon
            a consideration of the whole case, you're satisfied . . .
            beyond a reasonable doubt of the defendant's guilt on
            those charges.

                                       E.

      Defendant was convicted on all charges. He was sentenced on March 5,

2018 to a fifty-five-year prison term for first-degree murder (count one), subject

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

fifteen-year prison terms for robbery (count four and five) and stated the

sentences for count four and five would run concurrent to each other, but

consecutive to count one. The remaining counts merged or were made solely

concurrent. The Judgment of Conviction (JOC) entered that day also indicated

that defendant's sentence on counts four and five was consecutive to the sentence

on count one, but concurrent with each other and all unmerged charges.

However, the judge listed the total custodial term as eighty-five years.

      On March 12, 2018, the Department of Corrections (DOC) advised the

sentencing court that the JOC reflected an eighty-five-year sentence, although


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the aggregate term imposed by the sentences on each count only added to

seventy years. The DOC asked the court for clarification. The court issued a

letter and amended JOC. The letter stated "per [the] letter from DOC, dated

3/12/18 – counts [four and five] should run consecutive to count [one] [and]

consecutive to each other."

                                   II.

      On appeal, defendant presents the following arguments:

            I.  DID THE COURT ERR IN DENYING A
            MOTION TO SUPPRESS IDENTIFICATIONS FROM
            TWO OUT-OF-COURT PHOTO ARRAYS?

            II. DID THE COURT ERRONEOUSLY INVITE
            THE JURY TO USE CO-DEFENDANT'S GUILTY
            PLEA AS SUBSTANTIVE EVIDENCE THAT
            DEFENDANT WAS GUILTY OF THE HOMICIDE
            AND WEAPONS OFFENSES?

            III. IS A REMAND             FOR   RESENTENCING
            REQUIRED?

            a.    Was the Judgment of Conviction inconsistent
            with the court's oral sentence?

            b.    Was the court's rationale for consecutive terms
            inconsistent with the verdict?

            c.    Was defendant's refusal to speak at sentencing
            held against him as an aggravating factor?




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                                    13
                                     A.

      Defendant argues the trial court erred in denying his motion to suppress

the out-of-court identifications made by Barkley and Salimi. In reviewing the

denial of a motion to suppress an out-of-court identification, we must uphold

the trial judge's factual findings so long as those findings are supported by

sufficient credible evidence in the record. State v. Wright, 

444 N.J. Super. 347

,

356 (App. Div. 2016). We owe particular deference to findings of fact that are

based on "a trial judge's assessment of the credibility of a witness he has

observed firsthand."

Id. at 357.

      Defendant contends the still photo of him taken from surveillance footage

shown to Salimi and Barkley prior to the photo array irreparably tainted their

identifications of defendant as the perpetrator of the homicide. In addition,

defendant asserts the detective's statement made after the identification – "for

the record" the person you identified was "known to the [ECPO] as Durrell

Heard" – was improper feedback that tainted the identifications.

      To challenge an out-of-court identification, "defendant has the initial

burden of showing some evidence of suggestiveness that could lead to a

mistaken identification." State v. Henderson, 

208 N.J. 208

, 288 (2011). Once

a hearing has been granted, the State must present proof that the identification


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                                      14
is reliable.

Id. at 289.

The State's burden to offer proof is the same as the burden

of producing evidence described in N.J.R.E. 101(b)(2), which is sometimes

referred to as the burden of going forward. State v. Henderson, 433 NJ. Super.

94, 107 (App. Div. 2013).        "The burden of producing evidence has been

described . . . 'as so light as to be little more than a formality.'"

Ibid. (quoting State v.

Segars, 

172 N.J. 481

, 494 (2002)). The evidence need not be persuasive,

the State must merely "provide evidence on the issue that is germane to the

inquiry with sufficient clarity so that the opposing party has a full and fair

opportunity to respond."

Ibid. Although the State

must present proof that the identification is reliable, it

is defendant's ultimate burden "to prove a very substantial likelihood of

irreparable misidentification."

Ibid. Defendant may cross-examine

the State's

witnesses and present his own witnesses and relevant evidence related to system

and estimator variables to meet this burden.

Ibid. If, under the

totality of the

circumstances, defendant meets this burden, the court will suppress the out-of-

court identification.

Ibid. Although the Rules

of Evidence apply in pre-trial

evidentiary hearings, they may be relaxed "to admit relevant and trustworthy

evidence in the interest of justice." R. 101(a)(3)(E).




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                                        15
      A defendant's evidence of suggestiveness "must be tied to a system

[variable] – and not an estimator – variable." 

Henderson, 208 N.J. at 288-89

.

System variables are "factors . . . within the control of the criminal justice

system."

Id. at 247.

Examples of system variables include:

            1. Blind Administration.    Was the lineup procedure
            performed double-blind?

                  ....

            2. Pre-identification instructions. Did the administrator
            provide neutral, pre-identification instructions warning
            that the suspect may not be present in the lineup and
            that the witness should not feel compelled to make an
            identification?

            3. Lineup Construction. Did the array or lineup contain
            only one suspect embedded among at least five
            innocent fillers? Did the suspect stand out from other
            members of the lineup?

            4. Feedback. Did the witness receive any information
            or feedback, about the suspect or the crime, before,
            during, or after the identification procedure?

            5. Recording Confidence. Did the administrator record
            the witness' statement of confidence immediately after
            the identification, before the possibility of any
            confirmatory feedback?

            6. Multiple Viewings. Did the witness view the suspect
            more than once as part of multiple identification
            procedures? Did police use the same fillers more than
            once?


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                                       16
            7. Showups. Did the police perform a showup more
            than two hours after an event? Did the police warn the
            witness that the suspect may not be the perpetrator and
            that the witness should not feel compelled to make an
            identification?

            8. Private Actors. Did law enforcement elicit from the
            eyewitness whether he or she had spoken with anyone
            about the identification and, if so, what was discussed?

            9. Other Identifications Made. Did the eyewitness
            initially make no choice or choose a different suspect
            or filler?

            [Id. at 248-61, 289-90.]

      Estimator variables are "factors related to the witness, the perpetrator, or

the event itself . . . over which the legal system has no control."

Id. at 247.

Estimator variables include: stress, weapon focus, duration, distance and

lighting, witness characteristics, characteristics of the perpetrator, memory

decay, race-bias, opportunity to view the criminal at the time of the crime,

degree of attention, accuracy of prior description of the criminal, level of

certainty demonstrated at the confrontation, and the time between the crime and

the confrontation.

Id. at 261-72, 291-92.

      Here, the system variable at issue is "multiple viewings", as the ECPO

detectives showed Salimi and Barkley the surveillance photo of defendant prior

to the photo array. "Viewing a suspect more than once during an investigation


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can affect the reliability of the later identification."

Id. at 255.

"[S]uccessive

views of the same person can make it difficult to know whether the later

identification stems from a memory of the original event or a memory of the

earlier identification procedure."

Ibid. However, multiple viewings

do not automatically warrant suppression of

an out-of-court identification.     To determine whether a multiple viewing

identification should be suppressed, the question becomes "whether under the

'totality of the circumstances' the identification was reliable even though the

confrontation procedure was suggestive." State v. Herrera, 

187 N.J. 493

, 503

(2006) (quoting Neil v. Biggers, 

409 U.S. 188

, 199 (1972)). A number of factors

are considered in making this determination: (1) the opportunity of the witness

to view the criminal at the time of the crime; (2) the witness's degree of attention;

(3) the accuracy of the witness's prior description of the criminal; (4) the level

of certainty demonstrated by the witness at the confrontation; and (5) the length

of time between the crime and the confrontation. 

Henderson, 208 N.J. at 238

.

"These factors are to be weighed against 'the corrupting effect of the suggestive

identification itself.'"

Ibid. (quoting Manson v.

Brathwaite, 

432 U.S. 98

, 114

(1977)).




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                                        18
      Defendant argues that Salimi's identification is tainted because Fontoura

asked Salimi to assist in identifying those responsible for the "shooting

homicide" that Salimi had witnessed. In addition, Fontoura told Salimi he had

found a "still image" of "surveillance footage." Defendant contends that these

statements signaled to Salimi that the suspects were in the photo.

      Defendant's arguments are not supported by the record. The following

exchange takes place in Salimi's recorded statement:

            [FONTOURA]: [M]y partner . . . had a chance to
            review some surveillance footage and we have a still
            image of a few individuals. Tell me do you recognize
            anyone in this photo?

            [SALIMI]: This one.

            [FONTOURA]: This guy here with the dreadlocks?

            [SALIMI]: Yes.

            [FONTOURA]: Okay. And this is the individual you
            described to me the night of the shooting?

            [SALIMI]: Yeah.

            [FONTOURA]: Okay. And this is the individual you
            saw do what?

            [SALIMI]: Shooting the guy.

      Fontoura did not tell Salimi he had to choose an individual in the still

photo, nor did he state that the perpetrators were in the photo, or that Salimi's

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                                      19
identification was correct. Salimi testified during the suppression hearing that

he identified defendant in the surveillance photo "[b]ecause I saw him, he was

the shooter." He also testified that he did not pick defendant out solely because

of his dreadlocks.

      Defendant's challenge to the photo array procedure also lacks merit. He

contends that the photo array, which included defendant's photograph, conveyed

police approval of Salimi's identification of defendant in the still photo.

However, after Salimi identified defendant in the surveillance photo, Fontoura

excused himself from the room and another detective came in and conducted the

photo array. The detective instructed, in pertinent part:

            In a moment I will show a number of photographs one
            at a time. You may take as much time as you need to
            look at each of them. You should not conclude that the
            person who committed the crime is in the group merely
            because a group of photographs are being shown to you.

            The person who committed the crime may or may not
            be in the group. And mere[] display of the photograph
            is . . . not meant to suggest that the police believe that
            the person who committed the crime is in the
            photographs.

            You do not have to select any photograph. If you don't
            understand anything that I'm telling you stop me. . . .
            There is no significance in the order in which the
            photographs are displayed. Even if you select a
            photograph all of the photographs will be shown to you.


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                                       20
             Tell me immediately if you recognize anyone in the
             photographs.

                   ....

             If you do select a photograph please don't ask me
             whether I agree or disagree to support your selection. I
             do not know whom the suspect [is], if he or she is in the
             lineup, or what photograph he or she may be present in.
             It is your choice alone that counts. Please do not
             discuss whether or not you selected a photograph with
             any other witness.

      Salimi was shown six photos; he identified defendant in the third one. The

inclusion of defendant's photograph in the photo array does not demonstrate that

the detectives conveyed to Salimi their approval of his identification of the still

photo. There is no logic to defendant's assertion that the detectives should not

have included his photograph in the photo array; there would be little to no value

to the photo array if it were exclusively conducted with photographs of non -

suspects. Moreover, when questioned about the identification at trial, Salimi

testified that he did not pick defendant out of the lineup because of the still

photo. He stated he selected him because he saw defendant shoot Crenshaw

inside his restaurant.

      Defendant also asserts that the statement "just for the record, the male you

identified is known to the [ECPO] as Durrell Heard whose SBI number is

721168 Delta," was impermissible feedback, telegraphing to Salimi that

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                                       21
defendant was a bad actor. This statement was made after the identification and

defendant has not established that Salimi found this statement to be anything

more than a recitation of defendant's name.

      Defendant reiterates his arguments with regard to Barkley's out-of-court

identification. We equally find them without merit. On January 16, 2015, after

Barkley gave detectives a second statement, he was asked to review a still

photograph from surveillance footage of the restaurant area:

            [VENTOLA]: Okay. And I remember . . . speaking to
            you the day it happened. . . . [T]hroughout the
            investigation we were able to obtain some surveillance
            photos. One of them on Springfield Avenue and we
            wanted to bring it to your attention and show it to you
            and then we also wanted to bring another detective in
            just to show you a few pictures . . . is that okay?

            [BARKLEY]: Yeah.

            [VENTOLA]: I just want to bring your attention to a
            photo. And please if you recognize this person just let
            us know as the person who robbed you, victim of a
            robbery, . . . and/or the same person . . . responsible for
            the shooting. So, this is a surveillance photo. Do you
            recognize anyone? Who do you recognize?

            [BARKLEY]: Both of them.

            [VENTOLA]: You recognize both          . . . [o]kay. Are
            these the individuals you described    to me the night of
            the incident? Okay. And which           one of these two
            individuals actually was the one       that robbed you?


                                                                          A-4003-17T2
                                       22
            Okay. He robbed you. And which one actually shot?
            And he's the one who shot?

            [BARKLEY]: Uh-huh.

                   ....

            [VENTOLA]: We're going to step out. We're going to
            have another detective come in. He's going to show you
            a couple photographs. And just see if you recognize
            anyone in the photographs as either of these two males.

      Another detective then came into the room to conduct the photo array. He

gave Barkley the same instructions previously given to Salimi. Barkley stated

that he understood them.

      As he reviewed the photographs, Barkley recognized defendant in the

fourth one. He told the detective that the man in photograph number four was

the shooter. As with Salimi, Fontoura re-entered the room and told Barkley the

man he picked from the photo array was "known to the [ECPO] as Durrell Heard

whose [SBI] Number is 334741 Delta."

      We reject defendant's arguments regarding the photo array for the reasons

stated above. During the suppression hearing, Barkley stated that he did not

know if the shooter would be in the still photo until the police showed it to him .

When they did, he could identify defendant because he "saw his face as clear as

day." He stated, "I know it's him because I know his face." In addition,


                                                                           A-4003-17T2
                                       23
defendant's long dreadlocks in the photo also matched Barkley's description of

the shooter. There is no evidence that Barkley was given any guidance to help

him identify the shooter.

      When Barkley was asked about Fontoura's statement at the end of the

process, he said "They didn't – they didn't say if I was right or wrong. They said

okay. And they took the pictures away." Barkley also testified that police did

not tell him that the person he saw in the still photo would be in the photo array.

      The descriptions Salimi and Barkley gave police immediately after the

incident matched defendant's appearance on the surveillance photo. Barkley

stated defendant was wearing a vest and long dreads, walking with another,

chubbier man who was wearing all black and a black do-rag. Salimi's initial

statement was even more specific: the shooter was wearing a black vest over a

white sweater. The only person on the surveillance video at the time of the

shooting wearing a black vest over a white shirt was defendant.

      The surveillance video was taken from the area outside the restaurant

minutes before the crime occurred, and depicts people fleeing the scene

moments after it occurred. Defendant does not dispute that the footage and still

photograph made from it shows him and Trent. And, both witnesses stated that

they identified defendant in the still photo and again in the photo array because


                                                                           A-4003-17T2
                                       24
they recognized him as the man they saw in the restaurant robbing the customers

and shooting Crenshaw.

      In addition, the witnesses' testimony was corroborated by certain physical

evidence. Salimi recalled a second shot hitting the doorframe, and indeed, a

bullet was discovered in the doorframe. Barkley stated the gun was a .38

revolver. The bullets recovered at the crime scene belonged to a .38 revolver.

      The trial judge found Fontoura, Salimi, and Barkley credible. According

that finding and the deference it is owed, we are satisfied defendant has not

demonstrated "a very substantial likelihood of irreparable misidentification"

requiring the suppression of the out-of-court identifications. See 

Henderson, 208 N.J. at 289

(holding that a court should suppress the identification only if it

"finds from the totality of the circumstances that defendant has demonstrated a

very substantial likelihood of irreparable misidentification."). The presence of

a single, potentially suggestive factor does not defeat an eyewitness

identification. See State v. Adams, 

194 N.J. 186

, 203-206 (2008) (based on the

totality of the circumstances, there was sufficient evidence in the record for the

trial court to conclude that, despite the clear suggestive nature of the

identification procedures, the identifications were reliable and did not result in

a substantial likelihood of misidentification).


                                                                           A-4003-17T2
                                       25
                                       B.

      Defendant argues for the first time that the court erred in giving the

following instruction to the jury regarding co-defendant Trent: "[Y]ou may not

use [Leon] Trent's [guilty plea] as evidence that this defendant is guilty of

conspiracy to commit robbery or first-degree robbery for which defendant is

charged." Defendant contends this instruction was "grossly prejudicial" because

the model jury charge is more general and precludes jurors from using a co -

defendant's guilty plea as "evidence that this defendant is guilty of the crimes

that he/she is charged with." See Model Jury Charges (Criminal), "Testimony

of a Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006). He asserts that

this charge gave the jury implicit permission to use Trent's guilty plea as

evidence that defendant was guilty of all the other offenses he was charged with.

      Defense counsel did not object to this jury instruction. Therefore, we

review for plain error. See R. 1:7-2; State v. Wakefield, 

190 N.J. 397

, 473

(2007) ("[T]he failure to object to a jury instruction requires review under the

plain error standard."). Where there is a failure to object, a reviewing court

presumes the instruction was "not error" and "unlikely to prejudice defendant's

case." State v. Singleton, 

211 N.J. 157

, 182 (2012).




                                                                         A-4003-17T2
                                      26
      It cannot be disputed that "[c]orrect charges are essential for a fair trial."

State v. Martin, 

119 N.J. 2

, 15 (1990). "[T]he court must explain the controlling

legal principles and the questions the jury is to decide."

Ibid. We “evaluate any

alleged error in a portion of a jury charge in the context of the entire charge."

State v. Marshall, 

173 N.J. 343

, 355 (2002).

      To sustain a showing of plain error, a defendant must demonstrate "legal

impropriety in the charge prejudicially affecting the substantial rights of the

defendant and sufficiently grievous to justify notice by the reviewing court and

to convince the court that of itself the error possessed a clear capacity to br ing

about an unjust result." State v. Nero, 

195 N.J. 397

, 407 (2008). Defendant has

not met his burden here where four eyewitnesses identified defendant as the

perpetrator of the charged crimes. He was seen at the scene of the crime

participating in the robberies of Onque and Barkley and shooting Crenshaw.

      Moreover, the judge gave the jury limiting instructions that Trent's guilty

plea could only be used to assess his credibility, and that his plea to robbery and

conspiracy to commit robbery could not be used as evidence against defendant

for the same charges. In addition, defense counsel conducted an extensive cross-

examination of Trent, highlighting his inconsistent statements to police, and

arguing to the jury during his summation that Trent was lying to "save himself."


                                                                            A-4003-17T2
                                       27
In light of the overwhelming evidence against defendant, we cannot discern that

the limiting instruction regarding Trent effected any change in the case's

outcome.

                                       C.

      Defendant also challenges his sentence, contending the amended JOC is

inconsistent with the court's oral pronouncement of his sentence. We agree that

the trial judge was inconsistent at times during the sentencing hearing regarding

the concurrent or consecutive nature of counts four and five. And the initial

JOC listed counts four and five as running concurrent to each other. However,

a reading of the sentencing transcript in conjunction with the JOCs as well as

the judge's clarification reflects the clear intention of the court was for the

fifteen-year sentences on counts four and five to run consecutively to each other

and to the fifty-five-year sentence imposed on count one.

      We support our conclusion with the following evidence. After explaining

the various sentences, the judge stated: "Your earliest eligibility for release on

parole based on the published parole eligibility tables will be [seventy-two]

years, three months, and nine days." This calculation is 85% of an eighty-five-

year sentence. In addition, each of the JOCs lists an aggregate prison term of

eighty-five years.   Finally, when the judge was asked to clarify his intent


                                                                          A-4003-17T2
                                       28
regarding counts four and five, he amended the JOC to indicate counts four and

five were to run consecutive to each other as well as to count one.

       "[S]entences can be upheld where the sentencing transcript makes it

possible to readily deduce the judge's reasoning." State v. Miller, 

205 N.J. 109

,

129 (2011). A court can "safely discern the sentencing court's reasoning when

the record is clear enough to avoid doubt as to the facts and principles the court

considered and how it meant to apply them."

Id. at 130.

       Here, the sentencing transcript and the court's clarification make the

judge's intended sentence easy to "readily deduce." The judge intended to

sentence defendant to an aggregate eighty-five-year term; fifty-five years on

count one, fifteen years on count four, and fifteen years on count five, all running

consecutively.

       We discern no merit in defendant's argument that the court's sentence was

inconsistent with the jury's verdict.        The judge carefully considered each

Yarbough2 factor and placed his extensive findings on the record. Because he

found the murder of Crenshaw took place to facilitate the robbery of him, he ran

the sentence on count one concurrent to count three, but consecutive to counts




2
    State v. Yarbough, 

100 N.J. 627

, 643-44 (1985).
                                                                            A-4003-17T2
                                        29
four and five, as the murder was a separate act from the robbery of the other

victims.

      The jury convicted defendant on all counts, therefore finding that

defendant killed Crenshaw with a separate, purposeful criminal intent apart from

the other charged offenses. We are satisfied that the imposition of a consecutive

sentence is supported by the credible evidence in the record.

      Any remaining arguments not considered lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                      30

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