NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Cecilia X. Chen appeals an order entered following a Rule 104 hearing on the admissibility of identification evidence. The hearing was conducted on remand from and as directed by the Supreme Court. State v. Chen, 208 N.J. 307, 329-30 (2011), modifying State v. Chen, 402 N.J.Super. 62 (App. Div. 2008). After taking testimony for four days, Judge DeStefano followed the procedures and applied the standards articulated in Chen to the facts as he found them to be, and he concluded that the victim's identification was properly admitted. See id. at 326-27. Consequently, the judge entered an order upholding defendant's convictions in accordance with the Court's direction.1 See id. at 329-30.

On appeal, defendant contends that the evidence does not support the determination and that the judge failed to explain why he did not address some of the factors. Defendant also urges us to reverse based on her allegations of improper prosecutorial conduct and a pattern of conduct on the judge's part suggesting partiality toward the State. For the reasons set forth in this opinion, we reject defendant's claims of error, and substantially for the reasons set forth in the Judge DeStefano's comprehensive written opinion of December 21, 2011, weaffirm.

I

Some background information is essential to provide context for our discussion of defendant's claims. A jury found defendant guilty of attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On appeal, the most significant issue defendant raised was the admissibility of an identification made by the victim, Helen Kim, after her husband, JC Kim, showed her pictures of defendant.

JC was not home at the time of the assault and did not see Helen's assailant. JC had dated defendant before marrying Helen, and even though JC and defendant had not spoken for about four and one-half years, defendant called him three days before Helen was attacked. After hearing Helen's description of the assailant who entered their home and seeing a sketch she had drawn of her assailant, JC suspected that defendant was the assailant.

JC found defendant's website and showed Helen pictures of defendant that she had posted. Defendant and others were depicted, and Helen identified defendant as the woman who assaulted her. As previously noted, Helen's identification was admitted without a hearing assessing the reliability of her identification in light of JC's suggestive conduct.

In Chen, the Court determined that the trial "court's traditional gatekeeping role to ensure that unreliable, misleading evidence is not presented to jurors," warranted a new approach to admission of identifications made under suggestive circumstances attributable to private, as opposed to state, actors.2 208 N.J. at 311. Under Chen, a Rule 104 hearing prior to admission of an identification is required if the identification was made "under highly suggestive circumstances," attributable to a private actor, that "could lead to a mistaken identification." Ibid. In adopting this approach, the Court recognized the "pivotal role identification evidence plays in criminal trials, and the risk of misidentification and wrongful conviction from suggestive behavior" present whether or not the actor is a member of a law enforcement agency. Id. at 326.

On the day the Court released its opinion in Chen, it also decided State v. Henderson, 208 N.J. 208 (2011). Henderson establishes a new framework for assessment of identifications made in the wake of suggestive behavior by state actors. 208 N.J. at 288-92. It requires consideration of specified "system variables" — factors "within the control of the criminal justice system," — and a non-exhaustive list of "estimator variables" — conditions "over which the legal system has no control." Id. at 218.

Whether attributable to a state or private actor, a three-step process is required. Chen, supra, 208 N.J. at 326-27. The first step is the only step that differs with the status of the actor. Id. at 327.

Where there is no state action the steps are as follows.

In the end, the judge must weigh the evidence presented and determine "from the totality of the circumstances" whether "defendant has demonstrated a very substantial likelihood of irreparable misidentification." Henderson, supra, 208 N.J. at 289.

Because the Supreme Court concluded that defendant satisfied the first step by making the showing necessitating a Rule 104 hearing, the judge's task on remand commenced and ended with the second and third steps of the Chen approach. Chen, supra, 208 N.J. at 328-29. The Court provided specific guidance for the judge in considering whether the State showed that the identification was reliable, and whether defendant established a very substantial likelihood of irreparable misidentification:

II

We have considered defendant's objections to Judge DeStefano's factual findings, assessment of credibility, application of the system and estimator variables in accordance with Chen and Henderson and the alleged inadequacy of his explanation for not considering each and every variable. We have undertaken consideration of these issues with the understanding that the Court has stressed that a reviewing court may reverse a conviction if it "determines that identification evidence should not have been admitted in accordance with the above standards." Henderson, supra, 208 N.J. at 295.

The Court has not, however, suggested that the well-established standards of appellate review are inapplicable in identification cases. A "trial court's findings at the hearing on the admissibility of identification evidence are `entitled to very considerable weight.' That is, the trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)); see also State v. Locurto, 157 N.J. 463, 470-71 (1999). Moreover, reviewing courts "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses...." State v. Johnson, 42 N.J. 146, 161 (1964). In short, an appellate court appreciates that its "reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." State v. Nash, 212 N.J. 518, 540 (2013).

Applying the foregoing standards, we conclude that there is no basis for disturbing the judge's conclusion that defendant failed to establish "a very substantial likelihood of irreparable misidentification." That conclusion is supported by substantial credible evidence in the record and a proper application of Chen.

Defendant argues that the judge did not address every variable identified in Henderson, but Henderson requires exploration and weighing of "all relevant system and estimator variables." 208 N.J. at 288. In our view, it does not require a court to address variables that are negated by the judge's factual findings. Where multiple factors guide a determination, the question is not whether the decision-maker has parroted each one or "outlin[ed] every step taken en route to his decision," but whether the factors implicated by the evidence and supporting the conclusion have been identified. State v. Sutton, 80 N.J. 110, 117 (1979) (discussing review of a prosecutor's decision to deny pre-trial intervention).

With the support of adequate credible evidence in the record, the judge found that JC did not show Helen photographs that included defendant until she had shown him a sketch of her assailant that she drew on her own. He further found that JC did not tell Helen that he believed defendant was the perpetrator and did not point her out; he told her he was going to show her pictures of his former girlfriend, which were posted on her website. The judge recognized that because defendant called the Kim home days before, an inescapable connection between JC's ex-girlfriend and the assailant had been made.

The judge also considered and made findings on the multiple photographs Helen viewed before identifying defendant as her assailant, and he concluded that this was not significant based on testimony, which he credited, asserting that the earlier photos lacked clarity. He further found that defendant looked at the photos "a lot" in the first two of the eleven months preceding her selecting a photograph of defendant from an array prepared by the police. But the judge did not consider that second photo identification as adding any weight to Helen's prior identification.

These facts are relevant to system variables — blind administration, pre-identification instructions, lineup construction, multiple viewings, private actors and other identifications made. See Henderson, supra, 208 N.J. at 289-90. Thus, contrary to defendant's claim, the judge did not disregard system variables. Rather, he found the pertinent facts and did not discount those favoring a determination that this identification process was "highly suggestive." Indeed, Judge DeStefano repeatedly noted that the Supreme Court had already determined that JC's words and actions were highly suggestive, and he did not make any contrary determination. He made the factual findings to assign weight to evidence pertinent to the system variables. That is a necessary step in the process of making the ultimate determination that Henderson requires, which is the weighing of evidence to determine "from the totality of the circumstances" whether "defendant ha[d] demonstrated a very substantial likelihood of irreparable misidentification." Id. at 289.

Thus, while the judge's discussion of system variables in Part I of his opinion focuses on three system variables, multiple viewings, avoiding feedback and recording confidence, we cannot conclude he disregarded any relevant factor. For example, there was no "show-up" in this case and, therefore, no point in mentioning that system variable.

Defendant's arguments — that the judge's decision is inadequate, lacks adequate support in the record and fails to account for inconsistencies in Helen's and JC's testimony — have too little merit to warrant any further discussion. Judge DeStefano provided detailed findings on the facts and circumstances of the crime that gave Helen a good opportunity to observe her assailant prior to being under the stress of an attack at knife point. The judge also compared Helen's initial description of the assailant and defendant's appearance. He further noted that the eyeglasses worn by the assailant and found at the scene matched a description, given by a witness who knew defendant, of glasses defendant wore. Accepting that JC's actions were highly suggestive and that Helen was focused on the attack, not the assailant, once the assault commenced, Judge DeStefano concluded that those facts were "overwhelmingly mitigated by the duration of Helen's interactions with her assailant before the attack and the numerous observations she made of her assailant at that time." Consistent with the Court's observation "that in most cases, identification evidence will likely be presented to the jury," Chen, supra, 208 N.J. at 328, Judge DeStefano concluded that this was "not one of those rare cases where highly suggestive procedures so taint the reliability of an identification that the evidence should have been barred from a jury's consideration."

As previously noted, we affirm substantially for the reasons set forth in the judge's opinion.

III

Defendant's objection to the prosecutor's conduct is based upon meetings the prosecutor and a detective had with Helen and JC between the Supreme Court's decision in Chen and the remand hearing. There were two meetings with JC and Helen and one additional meeting with Helen. At those meetings, Helen and JC were given copies of statements, photographs, pertinent trial exhibits and transcribed testimony. The Kims were asked to recount and questioned on their recollection of the events during those meetings.

Defendant argues that the witness preparation plainly violated Henderson. In Henderson, the Court noted:

After discussing "substantial research about confirmatory feedback," the Court concluded that because "confirmatory feedback can distort memory," steps should be taken in circumstances where an eyewitness' confidence may be relevant. Id. at 253-54. Thus, the Court directed: "To avoid possible distortion, law enforcement officers should make a full record— written or otherwise—of the witness' statement of confidence once an identification is made. Even then, feedback about the individual selected must be avoided." Id. at 254.

As we understand Henderson, its discussion of feedback has no relevance to witness preparation. In short, it pertains to the feedback tainting the identification process, a concern that was immaterial to preparation for a hearing on the admissibility of an out-of-court identification made over five years earlier. At this point, witness preparation was a matter relevant to an assessment of the credibility of Helen, JC and the detective at the Rule 104 hearing but not capable of tainting Helen's initial identification.

IV

Defendant's objections to the judge's conduct are wholly unwarranted. In the context of an evidentiary hearing, where the judge is the finder of fact, objections based on judicial comment allegedly "bolstering" the credibility of the witness is illogical. As the finder of fact, the judge has the responsibility to assess the credibility of witnesses and their testimony. In this context, we cannot understand how a judge's comment could bolster or undermine a witness' credibility in his or her own mind. Moreover, the comments to which defendant points cannot be understood as bolstering credibility or as indicating the judge made a determination in that regard before hearing all of the testimony.

To the extent defendant contends the judge improperly limited cross-examination and interposed questions, we disagree. A judge properly intervenes to prevent badgering and limit repetitive and irrelevant questions. See, e.g., State v. Medina, 349 N.J.Super. 108, 130-32 (App. Div.), certif. denied, 174 N.J. 193 (2002). Moreover, while a judge serving as the trier of fact cannot become an advocate, a judge has discretion to ask questions clarifying testimony and to inquire about facts pertinent to the legal issues the judge must resolve. Our review of the record, including each instance defendant cites to support this claim, discloses no abuse of discretion or hint of partiality.

Affirmed.