NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from convictions for offenses arising from an attack that culminated in the shooting deaths of two juveniles, Naeem Jackson and Joel Ferguson. We affirm.

Shortly before midnight on July 13, 2007, sixteen year old Joseph McKinney was at the corner of Sanford Avenue and Mount Vernon Place in Newark, waiting for a bus with his girlfriend, Aleesha Felton, and her cousin, LaShawnah Harris. A man, later identified as Michael Thompson,1 walked up to McKinney and punched him in the face. When McKinney fought back, defendant and his codefendants, Fuquan Cromwell, James Grate, and Jaron Winkey, joined Thompson in the fight. McKinney broke free and ran away.

As Felton and Harris fled, Harris called Jackson her boyfriend, and told him McKinney "just got jumped at the bus stop." Jackson and his friend, Joel Ferguson, rode to the corner of Sanford Avenue and Mount Vernon Place on a bicycle. One of the men knocked Jackson and Ferguson off their bicycle, and the five surrounded the two, stomping, kicking, and punching them. Defendant removed a gun from his waistband and shot Jackson and Ferguson, who died as a result of their gunshot wounds.

On July 18, 2007, Detective Keith Sheppard of the Newark Police Department met with Felton and McKinney. McKinney provided an audio statement and a question-and-answer statement to the police.2 McKinney stated he was jumped by a "group of dudes" who started "cracking" him. When "one of the dudes ... looked like he was walking towards [him and] holding a gun ... [McKinney] ripped [his] shirt off and broke free and ran up the street." McKinney hid in a backyard, where he watched the "dudes that jumped [him]" walk past, start to chase his girlfriend, and then walk back toward him and the corner of Mount Vernon Place and Ellery Avenue. He heard a male voice scream as if "he was being jumped," followed by footsteps running and four gunshots. He ran to his aunt's house and met up with Felton and Harris. McKinney said that the two shooting victims were his friends. McKinney identified photographs of Thompson, Winkey, and defendant. He described defendant as a 5'9", light-brown skinned male with dreadlocks who wore jeans and a blue and white polo shirt, and stated he was the "guy who chased [him] and had on a blue and white striped shirt."

Patrick Hall observed the shooting from a block away. He called 911 and was at the scene when the police arrived. Detectives Sheppard and James Wright responded to the scene and drove Hall and three teenagers related to his girlfriend to police headquarters. Sheppard interviewed Hall, and Wright interviewed the three teenagers. Hall provided police with a written statement. No photo identifications were attempted at the time.

Based on the identifications made by McKinney, police arrested Thompson and Winkey for aggravated assault on July 26, 2007. Sheppard interviewed Winkey, who provided an audiotaped statement exculpating himself and implicating defendant, Cromwell, and Grate in the assault. Winkey identified defendant as the shooter. On August 6, 2007, police arrested Cromwell and

Grate.

On August 15, 2007, Sheppard met with Hall "to show him a photo array." Hall identified defendant from the photos as the shooter. On August 23, 2007, Hall returned to the police station for a third time and gave a third statement. Hall also identified Winkey as one of the assailants.

Defendant surrendered after arrest warrants were issued for him and Winkey for homicide. On April 18, 2008, a grand jury sitting in Essex County returned an indictment charging defendant with two counts of first-degree murder (counts one and two), in violation of N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a handgun (count three), in violation of N.J.S.A. 2C:39-5(b); second-degree possession of a firearm for unlawful purposes (count four), in violation of N.J.S.A. 2C:39-4(a); third-degree conspiracy to commit aggravated assault (count five), in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b); and second-degree aggravated assault (count six), in violation of N.J.S.A. 2C:12-1(b).

Winkey pled guilty to second-degree aggravated assault pursuant to a plea agreement in which he agreed to cooperate and give truthful testimony in the trial against the remaining defendants. Defendant, Cromwell, and Grate (collectively, the defendants) proceeded to trial.

At trial, Winkey recanted the statement he gave to police, stating he was not with defendants on the night of the shootings and did not witness the shootings. Following a Rule 104 hearing, the court admitted a redacted audio recording of the statement that Winkey made to police into evidence, and it was played for the jury. A redacted audio recording of Winkey's plea hearing, in which Winkey identified defendant as the shooter, was also played for the jury.

The parties stipulated that defendant did not have a permit to carry a handgun. Defendant did not testify and presented no witnesses at trial. At the close of the State's case, the trial judge entered a judgment of acquittal on count five, which charged conspiracy to commit aggravated assault. The jury convicted defendant of the two counts of murder, and firearm offenses (counts one through four), acquitted him of second-degree aggravated assault, but convicted him of the lesser included offense of simple assault (count six).

Defendant was sentenced to two consecutive terms of life imprisonment on the two first-degree murder charges (counts one and two). Count four was merged into counts one and two. Pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the trial judge determined defendant was ineligible for parole for a period of sixty-three years, nine months, and three days. And, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), defendant was deemed ineligible for parole for a period of thirty-seven years and six months. On the unlawful possession of a handgun conviction (count three), defendant was sentenced to a concurrent five-year term of imprisonment. For the simple assault conviction (count six), defendant was sentenced to a consecutive term of six months.

Defendant presents the following arguments in his appeal:

Defendant raises the following additional arguments in his pro se supplemental brief:

After reviewing these arguments in light of the record and applicable legal principles, we find that none have any merit.

I.

Defendant first argues that the admission of Winkey's prior inconsistent statement was error because the statement was unreliable, self-serving and uncorroborated. We disagree. A review of the record in light of the applicable legal principles shows that the evidence was properly admitted.

At trial, Winkey recanted his prior statements. He testified he was not with any of the defendants on the night of the shooting and did not witness the murders. At the prosecution's request, the trial judge conducted a Gross hearing to determine whether Winkey's prior out-of-court statement was sufficiently reliable to be admitted in evidence. To satisfy the requirements of N.J.R.E. 803(a)(1) here, Winkey's prior statement had to be inconsistent with his trial testimony and either "contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability" or "given under oath subject to the penalty of perjury at a trial. . . ." N.J.R.E. 803(a)(1). In addition, the State was required to prove the reliability of the prior statement by a fair preponderance of the evidence. Gross, supra, 121 N.J. at 15. Because Winkey's prior statement satisfied the procedural requirements of the rule, the only issue was whether it was sufficiently reliable to be admitted.

Winkey testified that he was arrested for aggravated assault on July 26, 2007, and brought to police headquarters. He testified the police "whooped [his] ass." He said the officers showed him pictures and asked him to "say he was there, and when [he] didn't want to say he was there, they whooped [his] ass some more[.]" Winkey testified that the tape recording was stopped and started while he was abused. As to defendant, Winkey testified that the officers just told him to "say he was there" but did not tell him to say defendant shot the two victims. Sheppard also testified at the Gross hearing and denied Winkey's account of police beatings and threats.

The trial judge set forth his credibility findings, stating "Detective Sheppard was direct, forthright, and honest." He found Winkey "incredible, because his testimony that he simply made up details to satisfy the detectives defies reason to me, and it seemed ... to be patently false." The trial judge reviewed the factors that favored the reliability of the prior statement and those that militated against such a finding and concluded that the State had proven the reliability of the statement by a fair preponderance of the evidence.

Winkey identified defendant as the shooter not only in his prior statement to police but also in the factual basis he gave under oath to support his guilty plea, which was also admitted into evidence and not subject to admissibility challenges on hearsay grounds. In addition, as the trial judge noted, Winkey's prior statement identifying defendant as the shooter was corroborated by the testimony of the independent eyewitness.

We discern no abuse of discretion in this ruling. See State v. Burns, 192 N.J. 312, 340 (2007). Moreover, the trial judge gave appropriate instructions to the jury regarding the assessment of this evidence.

II.

Prior to trial, defendant filed a motion to suppress the out-of-court identification made by Hall and requested a Wade hearing. The motion concerned a photographic array of six photographs provided in discovery. Counsel argued that defendant had a lighter complexion than that of the others included in the photographic array and that Hall's description of the shooter did not match defendant. After reviewing the photographs in the array, the trial judge denied the request for a hearing, finding nothing about defendant's photograph or the procedure employed that was impermissibly suggestive. Defendant does not challenge this ruling on appeal.

On cross-examination at trial, Hall testified he had been shown "a bunch of pictures" and when asked to clarify what he meant by a "bunch," Hall stated, "a lot of pictures ... about 20, 30 pictures." He was not asked to sign any of the photos at that time. He said he was later shown the six-photograph array, identified the photo of defendant and signed it on the back. He also agreed that it was "fair to say" that the photo he identified was included among the original "bunch" of photos he was shown.5

On appeal, defendant contends that the trial court committed plain error in failing to conduct a Wade hearing sua sponte following this testimony. To prevail on this argument, defendant would have to show that the court's failure to act sua sponte had the clear capacity to produce an unjust result. R. 2:10-2. In other words, if the court had conducted the Wade hearing, Hall's out-of-court identification would have been suppressed and he would have been acquitted.

As a preliminary matter, we note that the identification procedure and trial in this case were completed before the Supreme Court decided State v. Henderson, 208 N.J. 208 (2011), in which it articulated a new legal standard for assessing eyewitness identification evidence and established guidelines for identification procedures. Id. at 288-93, 300-02. The Court explicitly stated that the revised principles would "apply purely prospectively[.]" Id. at 220.

Therefore, the standard applicable to our review is the two-step test for determining the admissibility of eyewitness identification evidence enunciated in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and formally adopted by State v. Madison, 109 N.J. 223, 232-33 (1988). In applying the two-step test,

The Court stressed that the determination to exclude the evidence

Defendants are not automatically entitled to a Wade hearing. State v. Ruffin, 371 N.J.Super. 371, 391 (App. Div. 2004). To be entitled to a Wade hearing, a defendant must proffer "some evidence of impermissible suggestiveness." State v. Ortiz, 203 N.J.Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Defendant presents three arguments as to why the out-of-court identification procedure was impermissibly suggestive.

Defendant argues that the procedure did not comply with the Attorney General Guidelines because police did not document the photo lineup or preserve the photos used. (See Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures § I.E.9 (2001) (requiring that "the photos" and the "presentation order" of a photo lineup be preserved); Attorney General Guidelines, supra, § II.E (requiring that photo lineups be documented). The State submits that the procedure followed for the six-photo array did comply with these guidelines and, because Hall's review of the additional photographs "was tantamount to viewing a mug shot book," it was not subject to the guidelines.

The record is insufficient to permit us to determine whether the review of the additional photographs was akin to looking through a mugshot book. The fact that this procedure may have violated the Attorney General Guidelines is not, however, dispositive.6 Without more, this alleged violation fails to satisfy defendant's initial burden to present "some evidence of impermissible suggestiveness." Ortiz, supra, 203 N.J. Super. at 522

Defendant's remaining arguments explicitly rely upon principles articulated in Henderson, which state that the reliability of an identification may be compromised if a "blind" procedure is not used or the witness is subject to "mugshot exposure." Id. at 250, 255-56.

Defendant contends that showing Hall a group of twenty to thirty photographs that included defendant's photograph, followed by the six-photo array created the risk of "mugshot exposure" discussed by the Court in Henderson:

Defendant also relies upon Henderson to argue the identification procedure was impermissibly suggestive because the six-photo array was shown to Hall by a "non-blind administrator." See id. at 249. It is argued that Sergeant Miguel Arroyo, who administered the photo array, had previously witnessed McKinney identify defendant.7 In Henderson, the Court observed that a non-blind procedure "can affect the reliability" of an out-of-court identification procedure and "can increase the likelihood of misidentification." Id. at 249-50.

Even if the Henderson principles were applicable here, neither the use of a non-blind procedure nor the prior display of photos renders the procedure impermissibly suggestive per se. In setting forth guidelines for future identification procedures, the Court identified factors that had the potential for suggestiveness and an adverse impact on the reliability of the identification. The Court emphasized that "to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification[,]" id. at 288, and that "the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification." Id. at 289.

Defendant's arguments thus rest upon alleged violations of the Attorney General Guidelines and principles set forth in Henderson that do not apply to his case. These allegations do not equate with evidence of suggestiveness. We therefore conclude that the evidence fails to satisfy the first prong of the Manson/Madison test. See Herrera, supra, 187 N.J. at 503.

"[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Thus, even if the identification procedure were impermissibly suggestive, the second prong of the Manson/Madison test requires a determination as to whether the identification was nevertheless reliable. Herrera, supra, 187 N.J. at 503-04.

Factors relevant to an assessment of the reliability of the identification include: (1) the opportunity of the eyewitness to view the criminal at the time of the crime; (2) the eyewitness's degree of attention; (3) the accuracy of the eyewitness's prior description of the criminal; (4) the level of certainty demonstrated by the eyewitness at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Adams, 194 N.J. 186, 204 (2008) (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

We consider these factors here. Hall testified that he was walking with his girlfriend's daughter and her two cousins on Mount Vernon Place toward a gas station located on the corner of Sanford Avenue and Mount Vernon Place on the evening of the homicide. He was less than a full block away from the bus stop when he noticed a "crowd of kids" beating a "kid on [a] bike." There was a street light directly over where the assault occurred. There were no cars on the street. Hall testified, "I seen everything that was going on. I did." He stepped out into the middle of the street. Hall saw the crowd disperse and then saw the shooter point his gun, saw the flash of gunfire and saw "one kid [fall] by the fire hydrant." He testified that he saw only one person shooting and only one gun. He did not see the second person shot.

Hall provided the police officers with a physical description of the shooter and said he was wearing a black and white striped shirt. He told them he had seen defendant in the area previously, on the basketball courts in the park.

The physical description Hall gave was that the shooter was a "black male" with "medium length hair, ... stocky, medium to dark complexion ... between the age of 17 to early 20's." Sheppard described defendant at the time of his arrest as being 5'7" tall and weighing 150 pounds. He was twenty-one years old and had dreadlocks.

On the photograph identification form Hall signed, he stated he identified photograph # 5 as the person who had been wearing the

The photo display report prepared by Arroyo stated, "The witness was calm. He viewed the photos and positively identified photo # 5 as the person with a black/white shirt who shot the person on the ground."

Hall identified defendant in court as the person he saw pull the trigger that night. He testified that defendant looked different than he did on the night of the shooting. Hall stated he believed that defendant had "dreds" that were "about shoulder length or longer" at the time of the shooting.

Thus, after he moved into the middle of the street, Hall was able to observe the shooting from approximately one-half block away. The events he witnessed were illuminated by a streetlight and unobstructed by any cars on the street. He was able to notice details such as the general appearance of the shooter and his clothing and testified that he saw the flash of gunfire. It is evident from his testimony that he was not a casual observer but rather, aside from calling 911 and fumbling with his phone, the beating and shooting occupied his attention. His description of the shooter is reasonably similar to defendant. Defendant has attempted to cast doubt on the accuracy of the initial description by noting Hall described the shooter's hair as of medium length and did not mention he had dreadlocks. However, at trial, when Hall was asked if there was any difference in defendant's appearance since the shooting, he noted specifically that defendant had "dreds" on the night of the homicides. Hall's level of certainty was reflected in his statement, "I seen everything that was going on. I did." In addition, the photo display report stated he calmly and positively identified defendant's photo. The approximate one-month delay between the shooting and the photo identification is not so long as to seriously call into question the reliability of the identification.

After evaluating the relevant factors, we are convinced that the evidence fails to show "a substantial likelihood of irreparable misidentification," see Madison, supra, 109 N.J. at 234, and that, in fact, Hall's out-of-court identification of defendant was reliable and admissible. See Herrera, supra, 187 N.J. at 503-04. As we have noted, defendant has relied upon speculation and has not presented any evidence of actual suggestiveness that would trigger the need for a Wade hearing. Therefore, the court's failure to order such a hearing sua sponte was not error, let alone plain error. R. 2:10-2.

III.

We have considered defendant's remaining arguments, including those set forth in his supplemental pro se brief, in light of the record and the applicable law and find they lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.

Defendant contends the trial judge committed plain error in failing to discharge one juror after she informed the court that her employment had been terminated and in failing to make inquiry of the jurors after the foreperson asked to be relieved of the responsibility to read the verdict in open court.

After the juror advised the court that her employment had been terminated, the judge questioned her as to whether she had been able to listen and concentrate on the evidence up to that point and ascertained that she had not been distracted by her employment situation. The judge then asked her:

The judge asked if she had any questions or concerns regarding her ability to continue to serve and the juror replied she had none. Counsel for defendant did not question juror number two's ability to serve and did not object to her service. It was within the judge's discretion to determine whether or not to excuse the juror. See State v. Williams, 171 N.J. 151, 165 (2002); Rule 1:8-2(d)(1). We discern no abuse of discretion here, let alone plain error. R. 2:10-2.

Defendant also argues that the trial court committed plain error in allowing the jury to select a new foreperson without inquiring as to whether the jury had been tainted. After the trial judge designated juror number one as the foreperson of the jury and advised her that she would announce the verdict, she sent out the following note:

The judge shared the communication with counsel and later stated on the record:

The judge invited counsel to respond but there was no objection placed on the record. The record thus reflects that, after receiving the juror's note, the judge reviewed the note with counsel and all agreed to the procedure followed. There was no abuse of discretion and no plain error here.

It was also a matter within the trial judge's discretion to determine whether or not to exclude evidence that Hall had a prior conviction for aggravated manslaughter. See State v. Harris, 209 N.J. 431, 439 (2012). Hall was arrested in 1984 and sentenced in 1987. Initially, the State only asked that the conviction be sanitized pursuant to State v. Sands, 76 N.J. 127 (1978), and the judge so held. Thereafter, the State recast its motion and asked that the conviction be excluded. The judge granted that motion, stating:

The record clearly establishes that the trial court considered the severity of the offense, the conviction's bearing on credibility, the lack of intervening convictions, and the passage of time since the offense. We conclude that the decision to exclude the evidence of Hall's conviction on the ground of remoteness was a proper exercise of judicial discretion. See Harris, supra, 209 N.J. at 439.

Affirmed.