How Out of Court and In-Court Identification of Defendant Can Require a New Trial

State v. Balloutine

Appellate Docket No.: A-4894-17T4

Decided October 5, 2020

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

In an unpublished opinion, the Appellate Division of New Jersey required a new trial when a trial court failed to provide out of court identification jury charges and only gave the jury in court identification jury charges, when police identified the defendant both out of court and in court during trial.

In State v. Balloutine, defendant George M. Balloutine was found guilty of third degree distribution of a controlled dangerous substance (“CDS”), specifically testosterone propionate, N.J.S.A. 2C:35-5(a)(1) and -5(b)(13) (count one); third degree possession of testosterone propionate, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree distribution of another CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count 3); and third-degree possession of heroin, N.J.S.A. 2C:35- 10(a)(1) (count four).

The trial court sentenced defendant on count three to an extended term of seven years with a three-year parole disqualifier, and a concurrent term of four years on count one. The other counts merged for sentencing purposes.

The State’s theory of the case was that defendant was a drug dealer who had been referred to by a confidential informant as a man named “George.” The State further established that an undercover officer from the county prosecutor’s office purchased steroids from a person believed to be “George” on one occasion and purchased heroin from the same man five days later. Defendant contended that he had been mistakenly identified as the drug-dealing “George,” and presented three alibi witnesses who testified defendant had been with relatives on the evening of the second drug sale.

At the ensuing trial, the State presented testimony from the undercover detective, who described his investigation and his interactions with the informant and the drug seller. The detective identified defendant in the courtroom as the person who had sold him the steroids two-and-a-half years earlier on June 17 and the heroin on June 22.

Defendant did not testify in his own defense. However, he presented alibi testimony from his brother, his mother, and a friend. With some slight variations of the exact times, they each corroborated that, on the evening of June 22, defendant was at his mother’s house during the time the State claimed he was on Clark Street dealing in the heroin.

The trial judge provided the jury with in court identification instructions, despite the detective receiving out of court identification of the defendant, then identifying him in court. The jury found defendant guilty and defendant appealed.

The Appellate Division reversed and remanded for a new trial under the plain error rule, in light of the trial court’s failure to provide the jury with a combined model charge on guidance of both out of court identifications as well as in court.  These provide very important information about identifications made to avoid wrongful identifications.

This case is important to understand that identification is often a very common defense in cases such as CDS and drug deals.  Often times detectives and police observe individual’s clothing and obtain vague descriptions of individuals before making an arrest. These arrests are often made at night when it is harder to see people’s faces.  An experienced criminal defense lawyer can use these factors to make sure your rights are protected in a wrongful identification case.  Whether it be through weak eyewitness testimony, or vague descriptions of a defendant, the State must always prove identification first, and it is an important step to begin a rigorous defense.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.


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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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