State v. Luis A. Rivera, unpublished opinion, App. Div. Docket No. A-4098-07T4 (July 19, 2010) – Conviction for New Jersey Robbery reversed on appeal.
“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…. 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…. 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.”