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N.J.S.A. 2C:15-1. Defendant was sentenced to life in prison with no eligibility for parole under the "Three Strikes Law," N.J.S.A. 2C:43-7.1. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4098-07T44098-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, vs. LUIS A. RIVERA, Defendant-Appellant. __________________________________

Submitted: June 9, 2010 - Decided: Before Judges Cuff, Payne and C.L. Miniman. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-1418. Yvonne Smith Segars, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM A jury found defendant Luis A. Rivera guilty of first degree armed robbery, contrary to N.J.S.A. 2C:15-1. Defendant was sentenced to life in prison with no eligibility for parole under the "Three Strikes Law," N.J.S.A. 2C:43-7.1. On Saturday afternoon, May 27, 2006, Robert Witkowski and his wife, Joan, were on their way to a friend's house for a cook-out when they stopped at Raritan Liquors in Sayreville. They drove into the store parking lot in their minivan between 2:30 and 3:00 p.m. As they parked, Mrs. Witkowski noticed a man, who appeared to be very agitated, walking continuously back and forth in front of the store talking to himself. She noticed the man was wearing a tan baseball cap, a tan buttoned down shirt, and tan pants.
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The Witkowskis ignored the man, entered the liquor store and made their purchase. The owner assisted Mr. Witkowski with placing the beer into the van. Mr. Witkowski entered the driver's side of the car. Mrs. Witkowski sat in the passenger's side, but as she was about to close the door, the man in the tan outfit pulled the door open. He jumped in front of her, straddled her feet, pulled out a knife and demanded money. Mr. Witkowski, who had difficulty hearing, began to exit the van believing the intruder was asking for directions. The assailant then said, "Don't you move. You want her to die[?]" and kept moving the knife towards Mrs. Witkowski's throat. Mrs. Witkowski advised her husband that the man wanted money. Mr. Witkowski gave the man a $50 bill and the man left. Mrs. Witkowski attempted unsuccessfully to call the police. Mr. Witkowski followed the man in their car as he ran down the street. When the man ran up an exit ramp from Routes 9 and 35, Mr. Witkowski ended the pursuit. The couple proceeded directly to a friend's house because the friend's son-in-law, Jason Mater, was a police officer. Shortly thereafter, Mater responded to his in-law's house and called the Sayreville Police Department. The Sayreville Police Department simultaneously dispatched several officers to investigate the crime and search for the assailant. The South Amboy Police Department aided in the search. Sayreville Police Sergeant Mark Zambyrzycki was dispatched at approximately 3:36 p.m. to search for the assailant. He was looking for a well-spoken, clean-shaven Hispanic male wearing a baseball cap and a tan buttoned down shirt. Sgt. Zambyrzycki drove to the Circle Motor Lodge, approximately two miles from Raritan Liquors, about the same time that South Amboy Police Officer Jamie Norek arrived at the motel. Norek stopped in the front parking lot of the establishment and observed a man climbing through the window of a room. The man, later identified as defendant, was Hispanic and wore tan pants and a white sleeveless shirt. Norek apprehended defendant, handcuffed him and frisked him. He found a $50 bill and one quarter. Sgt. Zambyrzycki soon learned from South Amboy officers that they had apprehended the robbery suspect. After defendant was apprehended, Patrolman Wortley transported the Witkowskis from their friend's house to the motel to attempt to make an identification of the suspect. Sgt. Robert Lasko of the Sayreville Police Department testified that Mrs. Witkowski was too upset to even attempt to identify the suspect. Mr. Witkowski, however, identified the suspect as the robber from approximately twenty feet away. Mr. Witkowski died on April 9, 2007. At trial, Sgt. Lasko testified that Mr. Witkowski was able to partially identify defendant at the motel on the day defendant was apprehended. Sgt. Lasko testified as follows:
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Mr. Witkowski had stated they were the pants and the shoes the suspect was wearing and he resembled but the suspect had a buttoned down shirt and hat and the suspect didn't have it at the time and he couldn't be a hundred percent because the guy didn't have the shirt and hat. The shoes and the pants matched the general description of the suspect and his looks matched the suspect that had robbed them. At trial, Mrs. Witkowski testified that she did not get out of the car at the motel, but was able to see the man in police custody. She noted that the suspect wore a white sleeveless T-shirt. She also made an in-court identification of defendant as the person who put the knife to her throat and robbed her. An attendant at the nearby Exxon station testified that between 3:00 p.m. and 4:00 p.m. on May 27, he saw a Hispanic man between the ages of twenty-five to thirty, wearing a tank top, walking north on Route 9 and 35. He was not, however, able to identify defendant as that man. An attendant at the other gas station in the vicinity also saw a similarly clad man at about the same time. This man had asked for employment two or three days earlier. The attendant identified defendant in court as the man who sought employment and walked by the station a short while after the Witkowski robbery. A tape of a video surveillance system at the liquor store shows a man clad as described by Mr. Witkowski outside the store. The man's face is not discernible. On appeal, defendant raises the following arguments: POINT I THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED BY THE ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS IDENTIFYING HIM AS THE PERPETRATOR OF THE ROBBERY BY ROBERT WITKOWSKI, A VICTIM EYEWITNESS WHO DID NOT TESTIFY AND HAD NOT BEEN PREVIOUSLY CROSS-EXAMINED (Not Raised Below). POINT II JOAN WITKOWSKI'S IN COURT IDENTIFICATION OF DEFENDANT, MADE WITHOUT ANY FINDING THAT THIS IDENTIFICATION WAS RELIABLE, DENIED DEFENDANT DUE PROCESS OF LAW AND REQUIRES THE REVERSAL OF HIS CONVICTIONS (Partially Raised Below). The State agrees that evidence of Mr. Witkowski's identification at the motel should not have been admitted at trial. It argues, however, that the error was harmless because it submitted other evidence identifying defendant as the robber through Mrs. Witkowski and relied on her identification of defendant at trial to overcome the inadmissible evidence. We disagree. During the trial, Sgt. Lasko related that Mr. Witkowski made a partial identification of defendant during the show-up at the motel. He related that Mr. Witkowski got out of the car and walked to within twenty feet of the apprehended man. In response to a question by the court, Sgt. Lasko testified that Mr. Witkowski made a partial identification; in a follow-up question by the prosecutor, Lasko offered more information. The following exchanged occurred:
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THE COURT: Sergeant, let me ask you a question. There was this identification procedure. Was an identification made? [SGT. LASKO]: I would say a partial identification. THE COURT: Was there a positive ID? [SGT. LASKO]: The way Mr. Witkowski said to me it wasn't a hundred percent but. THE COURT: So there was no positive ID? [SGT. LASKO]: No positive a hundred percent. .... [THE PROSECUTOR]: What do you mean by not a hundred percent? [SGT. LASKO]: Myself? [THE PROSECUTOR]: Yes. [SGT. LASKO]: Mr. Witkowski had stated they were the pants and shoes the suspect was wearing and he resembled but the suspect had a buttoned down shirt and hat and the suspect didn't have it at the time and he couldn't be a hundred percent because the guy didn't have the shirt and hat. The shoes and the pants matched and the general description of the suspect and his looks matched the suspect that had robbed them. Sgt. Lasko then informed the jury that after the Witkowskis left the scene, "the suspect was brought back to headquarters." Through Sgt. Lasko's testimony, the State presented evidence that one of the victims identified defendant as the person who demanded money from the other at knifepoint. Contrary to the State's argument that this admittedly inadmissible testimony was meaningless to the outcome, the jury also learned that the identification by the nowdeceased victim and eyewitness was considered strong enough to arrest defendant. Moreover, Lasko clearly conveyed to the jury the unmistakable impression that Mr. Witkowski was in charge of his emotions to such a degree that he left the safety of a police car and approached to within twenty feet of the suspect. By contrast, Mrs. Witkowski's in-court identification of defendant was preceded by a description of her shortly after the robbery as "extremely upset and distraught" and "too upset." In fact, she was so upset that she informed Sgt. Lasko that she could not attempt an identification at the motel. At trial, she admitted she "was too far away to see him really, and I was so upset." In addition, in the course of her in-court identification, she referred to details provided to her by her deceased husband about the suspect's clothing. This testimony raised the specter that her identification was informed by that of her deceased husband. Furthermore, when we examine the admissible evidence concerning identification, the only evidence is that of Mrs.

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Witkowski. The surveillance tape depicts a man clad as described by the victims but does not depict his face. Two gas station attendants saw a man walk by their stations after the robbery, but both stated the man was wearing a white t-shirt and no cap. Only one of the attendants could identify defendant as that man. The issue comes before us as plain error. Although defense counsel objected to a question posed by the prosecutor to Sgt. Lasko as he was about to relate Mr. Witkowski's identification at the show-up at the motel, the objection was directed to a question as phrased by the prosecutor that assumed an identification of the suspect as the robber had occurred. The question was rephrased, but defendant did not object to the out-of-court identification testimony at the time. Defendant formulated an argument regarding the unreliability of Mrs. Witkowski's identification, but did so in the context of a motion to dismiss the charges pursuant to Rule 3:18. Following the charge and during deliberation by the jury, defendant sought to strike the identification testimony as unreliable. The judge rejected the application noting that a Wade hearing is reserved for out-of-court identifications, and he had provided a thorough instruction to the jury on the manner in which it should consider and evaluate an in-court identification. Due to the belated manner in which the issue was presented to the court, which allowed the inadmissible evidence to be heard by the jury, we treat the issue on appeal in accordance with the plain error standard. R. 2:10-1; State v. Macon, 57 N.J. 325, 333 (1971). Based on the evidence adduced at trial, we conclude that the admission of Mr. Witkowski's identification of defendant at a show-up within an hour of the robbery cannot be considered harmless error. A show-up is an inherently suggestive identification procedure. State v. Herrera, 187 N.J. 493, 504 (2006). Defendant was arrested based on Mr. Witkowski's identification. The only admissible identification testimony appears informed by a prior identification by a loved one during an inherently suggestive procedure. In short, we hold that the admission of Mr. Witkowski's prior identification is error of such a nature as to have been clearly capable of producing an unjust result. We, therefore, reverse the conviction and remand for a new trial.

Reversed and remanded. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967). Due to our disposition of this issue, we do not address directly the admissibility of Mrs. Witkowski's in-court identification. (continued) (continued) 10
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