STATE OF NEW JERSEY VS. GLENFORD G. FINDLAY (17-04-0886, ESSEX COUNTY AND STATEWIDE), A-3909-18

Background

Early-morning (3:30 a.m.) carjacking of Tikah Arrington on Aug. 31, 2016; assailants arrived in a two-person vehicle, one armed and took Arrington's car. Victim reported descriptive details to police and surveillance video corroborated the incident.
Police initially showed Arrington a large photo array (over 650 photos); she flagged eight photos but later rejected updated versions of the two she had flagged.
On Sept. 1, 2016, a six-photo array (video recorded) resulted in Arrington identifying co-defendant Dashawn Ward; an arrest warrant issued. On Sept. 7, 2016, a second six-photo array (video recorded) administered by Det. Baugh resulted in Arrington identifying defendant Findlay as the driver.
Baugh only partially completed the Photo Array Eyewitness Identification Procedure Worksheet: several items (including whether the witness asked about the procedure, whether Arrington had been spoken to previously, and clear documentation of level-of-confidence questioning) were left blank or inconsistently recorded.
Defendant moved for a Wade hearing; the motion judge held a testimonial hearing, reviewed videos, found the detectives ‘‘sloppy’’ in paperwork but concluded there was no suggestiveness or very substantial likelihood of irreparable misidentification, terminated the hearing without exploring estimator variables and left those issues for cross-examination at trial.
After conviction (carjacking and weapons offenses), defendant challenged (1) denial/termination of the Wade hearing and prejudicial identification procedures and (2) the sentence (claiming aggravating factor six double‑counted elements/criminal history). The Appellate Division affirmed.

Issues

Issue	State's Argument	Findlay's Argument	Held
Whether pretrial photo identifications were impermissibly suggestive requiring suppression/continued Wade hearing	Procedures were double‑blind in practice; missing worksheet entries were sloppy but not suggestive; recordings and testimony show no suggestion; judge properly ended hearing and left estimator variables to jury	Missing/omitted answers (including level of confidence) and unrecorded pre‑array contacts created a very substantial likelihood of irreparable misidentification and required fuller Wade inquiry	No suggestiveness shown by preponderance; judge did not err in terminating hearing before estimator variables and leaving those to jury; identification admissible
Whether sentence was excessive because judge improperly applied aggravating factor six (double counting)	Judge permissibly considered defendant’s juvenile/adult record and prior conduct to find factor six; did not rely solely on statutory elements/grade	Judge relied improperly on the seriousness/grade of the offense and double counted criminal history when applying aggravating factor six	Appellate court found competent, credible evidence for factors; no impermissible double counting; sentence affirmed

Key Cases Cited

United States v. Wade, 388 U.S. 218 (1967) (establishes pretrial identification hearing principles)
State v. Anthony, 237 N.J. 213 (2019) (defendant must proffer evidence of suggestiveness tied to a system variable to obtain a Wade hearing)
State v. Henderson, 208 N.J. 208 (2011) (framework for evaluating reliability of eyewitness identification, includes system and estimator variables)
State v. Green, 239 N.J. 88 (2019) (no automatic exclusion when identification record is incomplete; reliability analysis required)
State v. Dalziel, 182 N.J. 494 (2005) (aggravating factor six may include uninterrupted history of criminality)
State v. Lawless, 214 N.J. 594 (2013) (court must avoid double counting elements of the crime as aggravating factors)
State v. Tillery, 238 N.J. 293 (2019) (permissible to consider criminal history across multiple aggravating/mitigating factors)
State v. McDuffie, 450 N.J. Super. 554 (App. Div. 2017) (criminal record is not an element of the offense and may be considered in sentencing)