NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

PER CURIAM.

After a jury trial, defendant Dontae K. Edmond was found guilty of second-degree robbery, N.J.S.A. 2C:15-1, and acquitted of two related weapons charges and of aggravated assault. The trial court imposed a nine-year custodial sentence, subject to a parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentence was to run concurrent with an unrelated weapons conviction from a March 2009 indictment.

The key disputed issue at trial was the identity of the robber, who was described by the victim as having worn a distinctive green leather jacket. The jacket was linked to defendant after he went to a hospital emergency room for a gunshot wound while wearing a green jacket. Police showed that jacket to the victim, who identified it as matching the one worn by his assailant.

Defendant appeals his conviction and sentence on a variety of grounds. For the reasons we explain, infra, we remand this matter to the trial court to develop the record and consider the legal issues further concerning the process used in the seizure of the jacket.

In particular, the trial court shall address additional evidence proffered by the State concerning this hospital's procedures in handling patient clothing, as well as additional legal authorities that concern a hospital patient's privacy interests in his clothing. Apart from these issues relating to the jacket evidence, we reject all other arguments that defendant raises on appeal.

I.

The State's evidence detailed the following course of events, some of which is arguably unclear or inconsistent with respect to the activities at the hospital that led to the robbery victim's identification of the jacket.

At about 12:30 a.m. on March 24, 2011, the robbery victim, a male in his thirties, went to a pharmacy in Paterson. While inside the pharmacy, the victim picked up a prescription and withdrew $400 from an ATM. As the victim left to return home, he noticed a man wearing a shiny green jacket and blue jeans walking across the street.

Moments later, the man in the jacket crossed the street and approached the victim from the front, pointing what appeared to be a black gun at him. The victim testified that the assailant waved the apparent gun at him in his left hand and "said, `Do you know what it is?' So, I just gave him the money in pocket [sic]." In addition to the $400 the victim had just withdrawn from the ATM, he gave the assailant an additional $80 already in his possession. The money was all in dominations of twenty-dollar bills.

The victim later described his assailant as a black male wearing a hood that covered his face. Aside from those details, the victim estimated that his assailant was a few inches smaller than his own height of six feet, one inch. After taking the money, the assailant fled, and the victim ran in the opposite direction. Within a few seconds, the victim heard a gunshot go off from the same direction that the assailant had fled.

The victim ran back to the pharmacy and called 9-1-1 at 1:18 a.m. He described the green jacket on the call. After police arrived, the victim told them about the incident, and described the assailant as wearing a green leather jacket with blue jeans. Patrolman Kevin Kunzig interviewed the victim for less than ten minutes, and then drove him to his home. Kunzig radioed the victim's description to surrounding police units.

Elsewhere in Paterson, police received reports from St. Joseph's Hospital of a gunshot wound to a patient wearing a green jacket. The police consequently began to investigate whether there was any connection between the gunshot patient and the reported robbery. According to Patrolman Diorys Turbides, at about 1:30 a.m. defendant checked himself into the hospital with a gunshot wound to his left leg, having been driven there by his girlfriend. Patrolman Turbides questioned defendant, treating him in the capacity of a shooting victim, and reported the shooting to his supervisors.

Police Officer Abdelmonim Hamdeh responded to the call from Patrolman Turbides, and arrived at the hospital between 1:20 and 1:40 a.m. Hamdeh also took a statement from defendant, likewise regarding him at that point as a shooting victim. Officer Hamdeh testified that hospital staff "signed over" defendant's property to him, which included a green jacket. Included in the property bag was a sealed envelope containing 23 twenty-dollar bills and one two-dollar bill, totaling $462. Officer Hamdeh testified he put the bag next to a chair near defendant while monitoring him in his room.

Although Officer Hamdeh testified that he remained outside defendant's room and interacted with no other officers at the hospital, two other Paterson police officers, Detective Carlos Charon and Patrolman Kunzig, who we discuss, infra, gave conflicting accounts. Hamdeh testified he never interacted with Detective Charon or saw the victim identify the clothing or attempt to identify defendant.

Within a few hours, Patrolman Kunzig returned to the robbery victim's home and drove him to the hospital to potentially identify a suspect. Kunzig testified that he and his sergeant logically connected the victim's description of his assailant with defendant's green jacket. According to the victim, police left him in the car and brought him a green jacket and pair of blue jeans.1 The victim identified the clothing at trial by stating, "looks like something the guy was wearing that robbed me." Later, the victim testified that it was "the same green jacket."

Police then brought the victim into the emergency room and twice attempted to have him identify defendant. The victim was unable to do so. As he testified: "I didn't see the guy[`s] face, I'm not going to say it was him. And I told the officers, I said, I'm not going to say it's this man sitting in the bed, because I never seen his face."

Detective Charon was with the Paterson Police Department's CeaseFire unit that investigates non-fatal shootings. He arrived at the hospital before 3:00 a.m. to interview defendant. Charon testified at trial that Officer Hamdeh retrieved defendant's property from under the emergency room bed and gave it to him, which he later tagged and logged. Hamdeh testified, however, that he did not see Charon until he later transported defendant to the police station.

Detective Charon interviewed defendant for approximately twenty to twenty-five minutes. Because defendant's pants had a hole on the inside, and not out, the detective doubted defendant's account that he did not shoot himself. Some time that same morning, Charon visited the scene where defendant reported being shot. He found no physical evidence of a shooting, but did not ask any neighbors if they heard any shots.2

At some point, Officer Hamdeh transported defendant and his property to police headquarters. Detective Charon interviewed defendant and then the victim at the station at around 5:00 a.m. Police again attempted to have the victim identify defendant. Again, he could not identify defendant as the assailant, but described his assailant to Detective Charon as "a black male, five foot nine, thin, wearing a dark colored hooded sweater, shiny green leather jacket, blue jeans and black boots." After obtaining this description and the victim's identification of defendant's jacket,3 Detective Charon testified that his suspicions were confirmed that there was a connection between the two incidents. Police then arrested defendant. In a subsequent search of defendant's home, police did not recover a weapon.

Over the course of the pretrial hearings, the trial court ruled on several suppression motions. Specifically, the court suppressed: (1) statements made by defendant to police before he mentioned he was left-handed, and (2) the jacket identification made by the victim at the police station. The court denied, however, defendant's motion to suppress the identification of his jacket the victim made at the hospital.

A five-day trial ensued, where the State presented testimony from Detective Charon, Officer Hamdeh, Patrolman Kunzig, Patrolman Turbides, and the victim. Defendant waived his right to testify and presented no witnesses.4

After deliberating for two days, the jury returned a guilty verdict on the lesser-included offense of second-degree robbery and found him not guilty on all other charges.

Defendant subsequently pled guilty to second-degree possession of a weapon for an unlawful purpose from the March 2009 indictment. In conjunction with that plea, the trial court sentenced defendant on February 27, 2013 to nine years with 85% parole ineligibility for the second-degree robbery, to run concurrently with a five-year sentence with an eighty-five percent parole ineligibility period on the weapons offense.

This appeal followed. Defendant raises the following points in his brief:

We consider each of these arguments in a revised and reorganized manner.

II.

A.

The critical legal issues on appeal, which prompt us to remand this matter to the trial court, revolve around the police's warrantless seizure of defendant's jacket in the hospital before presenting it to the robbery victim for identification. Although these issues were addressed in considerable depth within multiple days of pretrial suppression hearings, substantial additional questions of law and fact concerning the jacket evidence have now emerged on appeal that deserve further attention.

Among other things, the trial court has not yet had occasion to analyze — in light of case law from other courts applying the Fourth Amendment to hospital-based factual settings — whether defendant had a reasonable and constitutionally-protected privacy interest in his jacket at the hospital after being admitted for emergency care as the asserted victim of a shooting. In addition, the record remains murky and conflicted on the precise chronology of events, including exactly how and where defendant's jacket was confiscated by the police at the hospital.

The trial court should also consider, in the first instance, testimony or other appropriate evidence about information the State has tendered for the first time on appeal in an uncertified letter from a St. Joseph's Hospital representative. The letter purports to set forth the hospital's general procedures for handling patient garments and property, and for dealing with police requests for a patient's belongings relating to an investigation.

1.

Defendant argues that, as a patient in the hospital's emergency room, he had a constitutionally-protected privacy interest in his clothing and other personal belongings. He contends that the police officers impermissibly violated his privacy rights by seizing his jacket out of those belongings without a warrant, and then bringing the jacket to the robbery victim for identification.

In considering the search-and-seizure issues relating to defendant's jacket, we are guided by several well-established principles. As a general matter, persons have a constitutional right to keep their belongings free from warrantless search and seizure by law enforcement officials, unless a recognized exception to the warrant requirement applies. See generally State v. Hempele, 120 N.J. 182, 203 (1990) (finding a privacy interest in the collection of an individual's personal belongings) (citing United States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 2171, 72 L. Ed. 2d 572, 592 (1982)); State v. Holmgren, 282 N.J.Super. 212, 216 (App. Div. 1995) (holding police must have justification to violate a person's reasonable expectations of privacy and to search "his or her wallet, purse or bag without consent").

Those principles were applied by our Supreme Court in the specific context of a hospital room in State v. Stott, 173 N.J. 343 (2002). The defendant in Stott was involuntarily committed to a psychiatric hospital after a suicide attempt. Id. at 349. The defendant shared a hospital room with another patient. The room contained a bed, nightstand, and wardrobe that could be locked with a key given to each patient. Ibid. Two weeks after being admitted, the defendant and his roommate took heroin and Xanax before going to bed. Id. at 349-50. Overnight, the other patient died, and police were called to investigate. Id. at 350. Hospital staff removed the patient from the room, and police, without a warrant, searched for drugs, eventually finding four Xanax tabs in the hem of a curtain. Ibid.

During a suppression hearing, the lead police officer in Stott testified that nothing prevented the police from stationing an officer at the hospital room door and obtaining a search warrant, but that he felt he did not need to obtain one. Id. at 351. The trial court agreed, and denied defendant's motion to suppress. Id. at 353.

The Supreme Court reversed, holding that "a hospital room is more akin to one's home than to one's car or office," and therefore the defendant had a reasonable expectation of privacy there. Id. at 355. The Court considered in its analysis a Florida appeals court case explicitly finding no reasonable expectation of privacy in an emergency room. Id. at 356 (citing Buchanan v. State, 432 So.2d 147, 148 (Fla. Dist. Ct. App. 1983)). The Florida court held in Buchanan it was unreasonable for a patient to expect a privacy interest "in a busy hospital emergency room where medical personnel were constantly walking in and out and where he could have expected to remain only a few hours at most." Buchanan, supra, 432 So.2d at 148.

In analyzing the factual circumstances in Stott, the Court found the duration of the patient's hospital stay important, as was whether a patient would "shower, dress, rest, and sleep[]" in the room. Stott, supra, 171 N.J. at 355. The Court reasoned that "a patient admitted for long-term care may enjoy a greater expectation of privacy than one rushed to an emergency room and released that same day." Ibid. The Court emphasized that the space in a long-term care room was part of a broader living area for the defendant, and that "[i]t is the room as a whole that implicates the expectation of privacy in this setting." Id. at 357. Accordingly, the Court held in Stott that the police violated the defendant's privacy by not first obtaining a warrant to conduct a search in his long-term care room. Id. at 362.

By contrast to the facts in Stott, the situation here involves a patient in the less-private confines of a hospital emergency room. Unlike the defendant in Stott who stayed long term at a hospital, where the room had a door, and contained a wardrobe the defendant could lock, defendant here had none of those things. Id. at 349, 355. Here, defendant laid on a bed in a curtained area for a brief period of time and could not lock up any of his belongings. Indeed, his presence in the emergency room was akin to the emergency scenario explicitly hypothesized by Stott, consistent with the Florida court in Buchanan, as one not triggering a privacy interest. The room where police encountered defendant was not a living area but a busy hospital emergency room, where defendant only stayed temporarily. See Stott, supra, 171 N.J. at 355. Hence, the trial court correctly found that the police did not impermissibly infringe upon defendant's rights by observing him in the emergency room or by entering his only partially-enclosed space there.

2.

A different, and more difficult, question arises, however, concerning the police seizure of defendant's jacket and other personal belongings. Although the record is not entirely clear on the subject, it appears that at some point following defendant's admission into the emergency room, his garments were gathered in a bag by hospital staff and then placed in his room. As we have noted, at least one officer, Hamdeh, testified that he observed that bag on the floor of defendant's area in the emergency room, and that the green jacket was laid on top of that bag in plain view. Regardless of the precise sequence of events, it appears that one of the officers at the hospital took possession of the jacket without defendant's consent and without a warrant. The jacket was then shown to the robbery victim, a step that we will discuss, infra.

Defendant argues that the police had no constitutional justification for seizing his jacket without a warrant. The State, in response, largely relies upon the "plain view" exception to the warrant requirement.

Under the governing law as of the time of the events in this case,5 the plain view exception applies where the State establishes the following predicates: (1) a police officer is lawfully present in the viewing area; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is "`immediately apparent'" to the officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed. 2d 695 (1984). Here, the State contends that the officers were in the emergency room lawfully, that they spotted defendant's green jacket inadvertently, and that, given the radio report of a robbery committed by a man with a green jacket, the jacket readily could be regarded as potential contraband from that crime.

During the oral argument on appeal, defense counsel refined his argument on these issues. Specifically, defense counsel asserted that defendant does not object to the hospital temporarily having possession of his belongings while he was being treated in the emergency room. Nor does defendant, according to his counsel's position, object to the hospital retaining his items temporarily at the request of the police, if his items are suspected of being contraband, while they attempt to secure a warrant. What defendant does challenge is the authority of the police to seize a patient's garments without his permission or without a warrant issued by a neutral magistrate. Defendant maintains that the plain view doctrine does not justify the police invading his privacy in his clothing in such a warrantless manner.

In connection with his clarified arguments, defendant has submitted a supplemental brief at our invitation. The brief calls our attention to authority from other jurisdictions dealing with the application of the Fourth Amendment to clothing or other belongings possessed by an individual in a hospital. According to defendant, such case law shows that St. Joseph's Hospital became a bailee when it took possession of his garments. Moreover, he argues that he did not waive his constitutionally-protected interest in those items to allow the bailee to give them to the police, or for the police to seize them from his possessions without a warrant.

Defendant emphasizes in this regard United States v. Neely, 345 F.3d 366 (5th Cir. 2003), in which the federal appeals court required the suppression of a defendant's clothing that hospital staff had given to the police for testing. The facts in Neely have several parallels to the present case. The defendant in Neely allegedly robbed a bank. Id. at 367. During his ensuing escape, he accidentally caused a red-dye pack placed in the stolen money to explode, covering his clothing in dye. Ibid. In the melee, the defendant also accidentally shot himself. Ibid. The defendant called an ambulance from his apartment, and both police and emergency responders arrived at his home. Id. at 368. The defendant rode in an ambulance to the hospital, where medical staff then removed the defendant's stained clothing and placed it in a bag in a storeroom. Ibid. Police later requested and received the clothing from hospital personnel without defendant's consent, and used the stained clothing to link the defendant to the bank robbery. Ibid.

At the suppression hearing in Neely, a hospital employee testified that clothing removed from a gunshot victim was considered "to belong to the patient even while in the hospital's possession [and] that the staff at [the hospital] does not consider the hospital to be an owner of the clothes." Id. at 368. The district court denied the motion to suppress, holding the defendant had no reasonable expectation of privacy in the clothing because he had voluntarily consented to the hospital's treatment and because the clothes were in the hospital's possession at the time they were given to police. Id. at 369.

On appeal in Neely, the Fifth Circuit reversed. It found that once the hospital took possession of the defendant's clothing, "the hospital becomes a bailee and the employees have no authority to permit the police to search or test the clothes without the consent of the patient." Id. at 369-70 (quoting People v. Yaniak, 738 N.Y.S.2d 492, 495-96 (N.Y. Cnty. Ct. 2001)). The court found that the government presented no evidence that the defendant had waived his rights, and found the hospital's policy to place the clothes in a separate room suggested "that it was holding the clothes for him until he recovered." Neely, supra, 345 F.3d at 370. Absent a warrant, the court held, the government violated his Fourth Amendment right against unreasonable seizure. Id. at 371.

Along the same lines, in Commonwealth v. Williams, 923 N.E.2d 556, 558 (Mass. App. Ct. 2010), the Massachusetts state appellate court cited to Neely and adopted a similar analysis. In Williams, police were called to the emergency room to interview the defendant, who had claimed to be a victim of a knife wound. Id. at 557. After the defendant refused to talk to the police, officers grabbed the defendant's bloody clothing, which had been placed in a plastic bag by hospital staff. Ibid. When a detective removed the items from the hospital bag, he found a clear plastic bag containing crack cocaine. Id. at 558. The Massachusetts trial court suppressed the evidence, and relied on Neely to find an illegal warrantless seizure had occurred. Ibid.

The Massachusetts appellate court affirmed the order of suppression in Williams. Id. at 559. The court reasoned that the hospital, by placing the clothing into a bag "in accordance with [its] policy and for the sole purpose of safeguarding effects," did not consider itself the owner of the defendant's belongings. Ibid. Further, the court found that the defendant's "vigorous protest" demonstrated that he did not expect his belongings to be turned over to police. Ibid. Without a warrant, the court held in Williams, the seizure was unreasonable, as the defendant did not forfeit his rights to his property. Id. at 559-60.

No reported cases in our State to date have endorsed, repudiated, or cited to Neely and Williams. Nor is there a published opinion in New Jersey expressly resolving the constitutionality of a warrantless police seizure of a patient's clothing or personal belongings from a hospital emergency room. Although the plain view doctrine might aid the State's position here, there is no definitive authority in New Jersey holding that the doctrine may be applied to allow police to confiscate personal belongings of a hospital patient that are suspected to be evidence of a crime. We decline to resolve that critical question in the abstract based upon the present incomplete and inconsistent record.6

Moreover, as previously noted, the present record is unclear on exactly how police procured defendant's jacket before showing it to the victim. That important factual question should be resolved definitively before the legal implications of Neely and Williams are addressed, assuming purely for the sake of discussion that those cases have any analogous or persuasive significance in New Jersey.

3.

A further dimension arises from the State's presentation to us, in its own supplemental appellate submission, of a letter from St. Joseph's Hospital's Director of Emergency and Trauma. That letter is not in certification or affidavit form, see Rule 1:6-6, and defendant has objected to its consideration for the first time on appeal.

Without discussing the letter at length here, it makes several contentions about the hospital's policies that may bear upon the constitutional and legal analysis in particular. The representation states that: (1) the hospital does not take possession of a patient's clothing or other belongings unless the patient is unable to secure them due to his or her physical or mental condition; (2) the hospital may bag the patient's property and keep it in the room with the patient or the patient may hold them; (3) hospital security staff will take money, jewelry, or other valuables for a patient and place them in a safe; and (4) if emergency department staff are notified by police that an investigation is being conducted, any clothing (if removed from the patient) and other belongings and valuables are placed in a bag, and given to the requesting officer.

Although we need not decide the issue here, the latter stated policy amounts to, in essence, "automatic turnover" of patient belongings to the police on request. Such a policy appears, at least at first blush, to clash with principles expressed in Neely and Williams, which recognize a hospital patient's inherent privacy in his or her garments and belongings and protection from warrantless police confiscation.7

4.

Another potentially critical dimension to these issues not addressed yet by the trial court is whether defendant's claimed status as a purported victim of a shooting by a third party eliminates or diminishes his asserted right of privacy to his garments. For example, defendant's pants, which had a bullet hole, would clearly appear to be evidence of a reported potential crime, and an item as to which defendant, in claiming that he was a shooting victim, waived any privacy interest. It is less clear, however, that defendant's jacket, which had no bullet hole, should be regarded in the same fashion. The nature of defendant's report of a shooting and the reasons for his hospitalization might also bear upon the analysis.8

The record also should be developed to explore the practical necessity of the police seizing the jacket when it did, in light of defendant's medical condition and the ongoing activities at the hospital. In particular, it is not clear from the existing record whether or not it would have been feasible for the police to ask the hospital to hold the jacket for safekeeping while it attempted to get a warrant from a neutral magistrate.

In sum, these intricate legal and factual issues are best evaluated initially by the trial court on remand. We appreciate that the trial court previously devoted considerable time and attention to suppression issues in multiple days of proceedings. Even so, we cannot with confidence on the present record resolve the constitutionality of the warrantless police action affecting the admissibility of the jacket, which was surely a pivotal ingredient of the State's evidence at trial. We therefore remand these issues for further exploration by the trial court in a renewed suppression hearing.

B.

We turn to defendant's arguments concerning the procedures used in the robbery victim's identification of the green jacket. As we have noted, on the 9-1-1 call, the victim described his assailant as a black male wearing a green leather jacket. After the victim called 9-1-1, Patrolman Kunzig responded to the scene of the robbery. The victim described his assailant to Kunzig as a "black male . . . thin, bald, dark skin, wearing green leather jacket, black boots and blue jeans." The patrolman radioed the victim's description to nearby officers. The patrolman drove the victim home.

About a half hour later, Patrolman Kunzig received a dispatch describing a shooting elsewhere in Paterson that seemed to fit the description of the victim's assailant, and he returned to the victim's home. He testified at the suppression hearing that he told the victim that "there is a subject [sic] being treated at the hospital for a gunshot wound and that he was fitting the same description as the person that robbed [the victim]." The patrolman brought the victim down to the hospital to potentially identify defendant and his clothing. On the drive over, the patrolman reiterated that "there's a male at the hospital fitting the same description" as the person who robbed the victim.

The victim gave a similar account during the suppression hearing. He testified that after he gave his initial statement to police, officers called him an hour later saying "somebody with the same description you gave was in the hospital" and brought him to the hospital. During the drive, officers told the victim, "we're going to show you the clothes because it's a coincidence that it's the exact same description that you gave us." (Emphasis added).

According to Kunzig, he brought the victim to the area at the hospital just outside the emergency room. Following an instruction from his sergeant, Kunzig stated that he grabbed defendant's green jacket, which he said was on top of a property bag on the floor next to the bed. The patrolman brought the jacket back to the victim, who said it "was definitely the jacket that the assailant was wearing."

In his own differing account, the victim testified that the officers went inside the hospital, retrieved the green jacket and pants, and brought them back to him while he was still sitting in the patrol car. The victim identified both items of clothing as being worn by his assailant.

Despite this discrepancy between Patrolman Kunzig and the victim about where police showed the victim the jacket, the trial judge found the exact location inconsequential. The judge noted that neither Kunzig nor the victim neither testified that police had shown the jacket in defendant's presence.

As we have previously noted, police then brought the victim inside the emergency room in an attempt to identify defendant. The victim unsuccessfully tried to view defendant from a distance, and then walked by him in the emergency room bed. As noted, he could not identify defendant, as he never saw his assailant's face.

Patrolman Kunzig prepared a report about the reported robbery. His report did not contain any information about the identification procedure allegedly because at the time he wrote it: "it wasn't definitive that [defendant] was the male who was involved in the robbery[.]" On cross examination, Kunzig asserted that he did not think the identification procedure at the hospital was significant enough to include in a report. More than a year later, and one month before trial, Patrolman Kunzig ultimately wrote a supplemental report at the request of the prosecutor, which detailed the identification procedure at the hospital.

With respect to the process used to identify the jacket, the trial judge found that Patrolman Kunzig improperly told the victim that police had a suspect that fit the victim's description. The judge characterized Kunzig's statements as having "a whole lot of suggestibility in there," and finding that the victim "kind of was programmed" prior to him making the identification.

The judge also found the victim "made pretty careful observations of this jacket and rightfully so[,]" and that having viewed the jacket himself, the judge found it to be "very distinctive." In fact, the judge remarked, "I don't think I've ever seen a jacket of that nature in my entire life. . . . This is the one and only green, highly shiny olive green, if you will, jacket I have ever seen."

The judge criticized Patrolman Kunzig for failing to document the initial identification immediately. Yet the judge also found the officer did not do it "with any evil motive," chalking up the omission to inexperience.

Although the judge concluded that Patrolman Kunzig's statements to the victim were suggestive, he held that they were not so unduly suggestive as to suppress the identification of the jacket. The judge ruled the victim's identification was reliable essentially because of two factors:

Further, the judge found the victim's later inability to identify defendant on request actually enhanced the reliability of his identification of the jacket. "I mean, if he was looking to be unreliable and just say things, all he had to do was say, yeah, that's the jacket, and therefore, naturally yeah, that's the guy. [The victim] was being honest and candid." The court ruled that the denial demonstrated the victim "was not so tainted to the point that he just agreed with everything the police were showing him."

Defendant argues that the State's failure to initially document the victim's identification of defendant's jacket and the officer's suggestive comments violated his constitutional rights. We disagree.

Out-of-court witness identification procedures in New Jersey now must follow rigorous standards, so as not to be overly suggestive due to the evolution of the science and the law regarding identifications. See generally State v. Henderson, 208 N.J. 208 (2011). In Henderson, the Court canvassed a variety of factors that scientific studies have shown may confound what otherwise might appear to be an eyewitness's reliable identification of a criminal wrongdoer. Id. at 218. These confounding factors include so-called "system variables" (factors within the control of the criminal justice system, such as suggestive aspects of lineup and photo array procedures), and "estimator variables" (factors outside of the control of the criminal justice system, such as the distance between a victim and an assailant, poor lighting, stress, personal characteristics, and memory decay). Ibid. In light of these variables, which can lead to the conviction of a misidentified innocent person, Henderson instructs that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications, and [] juries must receive thorough instructions tailored to the facts . . . to evaluate the identification evidence they hear." Id. at 302.

To address such reliability concerns, the Court in Henderson prospectively "revise[d] the State's framework for evaluating eyewitness identification evidence." Id. at 287. Among other things, the Court has elected to modify, see id. at 285-96, the applicable legal standard regarding eyewitness identification admissibility, formerly known as the "Manson/Madison" test. See generally Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (reciting a two-part test of impermissive suggestiveness and reliability); see also State v. Madison, 109 N.J. 223, 232-33 (1988) (adopting the federal approach in Manson to guide the courts of this State), displaced by Henderson, supra, 208 N.J. at 285.

Critically, all of the reported cases that defendant cites on this point concern improper identifications of people, not physical objects. Defendant nonetheless advocates that the enhanced criteria for identifications under Henderson should also apply to object identification, because police could be unduly suggestive toward witnesses during those object identifications as well. No reported case to date has extended Henderson to object identification, and we decline the invitation to do so here.

Although the Court has required police to document a witness's out-of-court identification of people in order to be admissible, the Court has not imposed a similar procedural requirement on physical objects.

In State v. Delgado, 188 N.J. 48, 50 (2006), a pre-Henderson case, the Court created a procedural requirement that police document the "dialogue between witness and police during an identification procedure" of a person. Id. at 50-51. Notably, however, the Court explicitly rejected in Delgado a similar procedural requirement to document the identification of a van. Id. at 67. The Court reasoned that due process concerns about the identification of persons are much greater than the identification of physical objects. Ibid. Further, the Court found important that the jury had the opportunity to view testimony and the physical objects at issue, and was able to determine for itself the weight of the evidence or the suggestive nature of the identification. Id. at 68. The Court affirmed the trial judge and concluded that no error was committed, let alone plain error. Ibid.

Last year, the Supreme Court held that the requirements of Henderson apply when a witness identifies a defendant in a police lineup, based upon the clothing he is wearing. State v. Jones, 224 N.J. 70, 93 (2016). The State argued in Jones that suggestive language by police did not implicate Henderson because the witness was identifying the jacket, not the person. Ibid. Although the Court in Jones agreed that Delgado generally did not apply to physical objects, identifying a blue-and-white jacket while being worn by a suspect does implicate due process concerns, more than identifying a weapon or vehicle. Id. at 94. Tellingly, the Court distinguished in Jones the procedure of a suggestive lineup while a defendant wears the clothes allegedly worn by an assailant from that of a general witness's identification of clothing:

Because police required the suspect in Jones to don the clothing in question at the lineup, the Court found police violated Henderson and reversed, remanding it for a new trial. Id. at 96.

Here, defendant misplaces his reliance on the procedural safeguards for identification mandated by the Court in Delgado and Henderson. He incorrectly asserts that Patrolman Kunzig needed to document the jacket identification in the same manner as an in-person identification would need to be documented. As in Delgado, where the jury could evaluate the merits of the van identification, the jury here viewed the jacket, the conflicting testimony on identification, defendant's stipulation about other jackets sold in the area, and the victim's own testimony. The court did not err in allowing the jury to make this assessment.

The enhanced Henderson factors do not need to be applied here. Unlike the court in Jones, which held the suggestive identification of a jacket worn by a suspect in a police lineup was not permissible, the police in this case did not create that problem. Id. at 96. Instead, the police here showed the victim the suspect's jacket without defendant wearing it, and, moreover, outside defendant's presence. These facts align with what Jones termed an "analogous case to precedent" like Delgado. Simply put, the Court has not held object identification to the same standard as an identification involving a person. Jones, supra, 224 N.J. at 93-94.

In sum, because the trial court did not err by not employing the more rigorous standard under Henderson to the identification for physical objects, and the identification procedure was not unduly suggestive, we affirm the trial court's rulings on this issue. That said, the admissibility of the victim's identification of the jacket remains contingent on the validation of the police seizure of the jacket itself, previously discussed in Part II(A), supra. Hence, if on remand, the police seizure of the jacket is declared invalid, the victim's subsequent identification of it when presented by the police also must be suppressed.

C.

Defendant contends that he was unconstitutionally deprived of a fair trial because the trial court did not take sufficient corrective action to assure that the jury disregarded comments by Detective Charon and Officer Hamdeh during their testimony suggesting that he did not want to answer police questions about the person who he had initially claimed had shot him. Because such additional corrective action was not requested of the trial court, we consider this issue on appeal under a harmless error standard of review. State v. Macon, 57 N.J. 325, 337-38 (1971); R. 2:10-2.

Prior to trial, the court ruled after the suppression hearing that all statements defendant made to police after speaking to Detective Charon in the hospital, including his later statements at the police station, were inadmissible because the police had not adhered to Miranda9 requirements for protecting his constitutional rights against self-incrimination. Nevertheless, Officer Hamdeh and Detective Charon each made two fleeting references during their trial testimony to defendant's silence.

Specifically, Hamdeh mentioned that he transported defendant to the police station for questioning as a victim. Before Hamdeh amplified on that subject any further, the trial court swiftly intervened, sua sponte, and prohibited the State from probing into it further.

Later, during cross-examination by defense counsel of Detective Charon, the detective mentioned that defendant "didn't want to talk to us any more" when police interviewed him at headquarters. Again, the judge intervened, sua sponte, striking that portion of the detective's testimony and advising the jury not to consider it. The judge also offered defendant's trial counsel a curative instruction about defendant's silence, which counsel declined. The silence was not mentioned in either side's closing.

Given these circumstances, we are satisfied that the trial court took appropriate steps to ensure that defendant was not prejudiced by impermissible considerations relating to his silence in the presence of the police officers. This is not a situation in which the prosecution exploited a defendant's silence in a manner contrary to his constitutional rights. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Lyle, 73 N.J. 403, 410 (1977) (applying Doyle and its principles). In both cited instances, regarding the two testifying officers, the judge carefully and prudently curtailed the officers' statements. The judge struck Charon's brief reference to defendant's decision to discontinue talking with the police. There is no harmful error here whatsoever of a constitutional dimension that would mandate a new trial.

D.

Defendant argues that the trial court should have stricken as irrelevant, sua sponte, the robbery victim's testimony that the police returned to him money that they had confiscated from defendant's person. According to the victim, shortly before the robbery, he withdrew $400 from an ATM, in addition to $80 he already possessed. Officer Hamdeh testified that the hospital later turned over to the police $462 taken from defendant. The victim testified that about five or six months after the robbery, the police "returned to him" $480 in twenty-dollar bills.

Defendant's trial counsel did not object to this brief discussion. The return of the funds to the victim was not even mentioned in the prosecutor's summation.

Defendant contends that the numerical disparity between the $480 returned to the victim and the $462 taken from him signifies that the jury should not have been permitted to hear testimony about these funds, and that he was thereby denied of a fair trial. We disagree.

The numerical difference between $462 and $480 is de minimis in the context presented. It is certainly conceivable that the victim might have misremembered exactly how much money he possessed at the moment he was robbed. It is likewise conceivable that the hospital did not accurately count the cash defendant possessed on his admission to the emergency room. Because the respective amounts are at least close, the proofs meet the minimal test of relevance under N.J.R.E. 401 (deeming evidence relevant if it has a mere "tendency" to prove or disprove a fact of consequence).

We reject defendant's argument that this situation is remotely comparable to a prosecutor's confusion of a "bloodstain" with "paint" during the closing argument in Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L. Ed. 2d 690 (1967). Here, the discrepancy about the funds is merely one of the quantity, not the nature, of an item. Moreover, as we have noted, the State did not even bring up the "return" of the funds in closing argument. There is simply no reversible error presented.

E.

As another point of claimed trial error, we likewise reject defendant's argument that Detective Charon gave improper lay opinion in his testimony about the police department's "Shot Spotter" system, in violation of N.J.R.E. 701 and 702. The detective did not address in his testimony the mechanics of the system, or offer any expert opinions explaining its operation. He merely testified that no gun shots were reported by the system on the evening of the robbery within the City of Paterson. The detective said no more than that. He was not improperly presented as a lay witness on an expert topic. Cf. State v. McLean, 205 N.J. 438, 460-63 (2011) (disallowing lay opinions by police officers on subject matters that are confined to the special knowledge of a qualified expert witness). No objection was interposed, and we discern no plain error by the court in allowing this particular testimony.

F.

In two related arguments concerning the verdict, defendant contends that (1) the trial court improperly charged second-degree robbery as a lesser-included offense of first-degree robbery, thereby providing the jury with a verdict option it should not have considered, and (2) the second-degree robbery conviction must be set aside because it is inconsistent with the jury's acquittal of him on the weapons-related counts. We disagree with both of these points.

A defendant is guilty of robbery when, in course of committing a theft, he: "(1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposefully puts him in fear of immediate bodily injury; or (3) [c]ommits or threatens to commit any crime of the first or second-degree." N.J.S.A. 2C:15-1(a). Generally, robbery is graded as a second-degree felony, unless the State proves the "actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).

In order to convict a defendant appropriately on a lesser-included offense, the jury must have a rational basis to acquit him of the greater offense but convict him of the lesser-included offense. State v. Thomas, 187 N.J. 119, 133 (2006). Even when such a charge is not sought by trial counsel, a judge may instruct a lesser-included offense "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Id. at 136.

In State v. McKinney, 223 N.J. 475 (2015), the Supreme Court analyzed a first-degree robbery conviction where the trial judge mistakenly instructed the jury with first and second-degree robbery, when only first-degree robbery had been charged in the indictment. Id. at 499. Although the judge in that case issued a curative instruction, he did not clarify that if the jury found the defendant did not commit robbery with a weapon, then the jury should find him not guilty of first-degree robbery. Id. at 500-01. The Court reversed the defendant's conviction, and further instructed trial courts in instances of discovered error in a jury instruction "to specifically inform the jury that it must find the defendant not guilty if it fails to find an element beyond a reasonable doubt." Id. at 502.

Here, the trial court did not commit the same mistake as occurred in McKinney. Although the State only charged with first-degree robbery in the indictment, defendant here acquiesced through his counsel with the judge's suggestion to also have the lesser-included offense of second-degree robbery included in the jury charge. By contrast, in McKinney, all counsel and the court had agreed that second-degree robbery should not be included in the jury charge. Id. at 484. Further, unlike the defendant in McKinney, where the trial court failed to distinguish the crucial exonerating element of the lack of a weapon, the trial judge here stated to the jurors numerous times that if they found defendant did not have a weapon, they must find him not guilty of first-degree robbery. Cf. id. at 500-01.

By convicting defendant of second-degree robbery and not first-degree robbery, the jury apparently concluded that defendant committed a theft from the victim without a weapon present. Although the victim testified that he saw the person who robbed him appear to have been pointing a gun, the victim could have been mistaken in that regard. Indeed, no gun was ever recovered from defendant or near the scene of the robbery. There was a sufficient rational basis in the evidence, as the trial judge wisely envisioned, for the jury to be unpersuaded beyond a reasonable doubt that the State had proven the use of a weapon during the robbery. The lesser-included charge was sensibly provided.

Moreover, even if, for the sake of argument, we accept defendant's claim that the robber of the victim must have been armed, defendant's acquittal on the weapons counts does not require his second-degree robbery conviction to be set aside. "[A] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). When the jury's reasoning in finding a defendant guilty of one offense but not guilty of a different offense is unclear, "we should not speculate as to whether the [allegedly inconsistent] verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant." State v. Grey, 147 N.J. 4, 11 (1996).

G.

Defendant's final point, claiming that his nine-year NERA sentence is "manifestly excessive", requires little comment. We are satisfied that the trial court appropriately discussed and weighed the pertinent aggravating and mitigating factors. These include, on the aggravating side of the analysis, his two adult convictions for offenses occurring close in time. On the mitigating side they include his post-arrest cooperation with other law enforcement investigations and his familial circumstances.

The judge at sentencing manifestly adhered to the requirements recently underscored by the Supreme Court in State v. Case, 220 N.J. 49, 65 (2014) and State v. Fuentes, 217 N.J. 57, 63, 73 (2014). We discern no abuse of discretion or "clear error of judgment that . . . shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (emphasizing that appellate courts should generally refrain from "second-guessing" sentencing decisions by trial courts).

III.

Affirmed in part and remanded in part. We do not retain jurisdiction. If the trial court on remand concludes that suppression of the jacket evidence is now required, it shall order a new trial at which that evidence is excluded. Conversely, if the court once again determines that the jacket evidence should not have been suppressed, defendant may file a new appeal from that ruling. In the meantime, his conviction and sentence remain unaltered.