RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3432-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.M.,
Defendant-Appellant.
_____________________________
Submitted September 11, 2017 – Decided September 28, 2017
Before Judges O'Connor and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 09-12-2137.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant M.M.1 appeals from his convictions for attempted
sexual assault, sexual contact, child abuse and luring. He claims
the court erred by failing to instruct the jury on identification
and the assessment of statements attributed to him, and by
permitting a police officer to testify concerning statements made
by the victim. Having considered defendant's arguments under the
applicable law, we affirm.
I.
Defendant was indicted for fourth-degree criminal sexual
contact, N.J.S.A. 2C:14-3(b) (count one), second-degree attempted
sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count
two), fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-
3 (count three), third-degree terroristic threats, N.J.S.A. 2C:12-
3(b), and fourth-degree luring, N.J.S.A. 2C:13-6 (count five).
Defendant chose not to appear at the jury trial on the charges.2
The trial evidence shows that seventeen-year-old S.D. and her
three-year-old brother went to a local market and saw defendant
standing outside. S.D. knew defendant because over a two-month
period she frequently patronized a nearby "chicken store"
defendant said he owned. Defendant had given S.D. free food at his
1
We employ initials and pseudonyms to protect the privacy of the
victim.
2
Defendant's absence from the trial is not an issue on appeal.
2 A-3432-15T4
store, offered her a part-time job, and gave her his telephone
number, which she had saved in her cell phone.
After defendant and S.D. spoke briefly outside of the market,
he offered to drive S.D. and her brother home. S.D. accepted the
offer and she and her brother entered defendant's car. As defendant
drove away from the market, he told S.D. that he needed to stop
at his home. When they arrived at what S.D. understood was
defendant's home, she and her brother accompanied defendant to the
front door, where they were let into a basement apartment by
another man.
S.D. and her brother initially sat in the apartment living
room with the unidentified man, and defendant went into a bedroom.
After a short time, defendant called S.D. into the bedroom. She
entered the bedroom with her brother and they sat on a bed.
Defendant also sat on the bed and began touching S.D.'s back and
breasts, and told her he "wanted to make love" to her. The
unidentified man entered the bedroom room, and defendant spoke to
him in a language S.D. did not understand. The man then took
S.D.'s brother into the living room.
Defendant put his legs and body on S.D. causing her to recline
on the bed with defendant on top of her. He repeated that he wanted
to make love to her, groped her breasts and put his tongue in her
ear. S.D. screamed and yelled that she did not "want to do this"
3 A-3432-15T4
and repeatedly said "no." Defendant pushed up S.D.'s shirt, touched
her breasts and attempted to remove her pants.
S.D. said she was going to call the police, and defendant
said he would kill her if she did so. He choked S.D., punched her
face as she continued to yell and scream, and pushed her against
a wall. The unidentified man knocked on the bedroom door and said
people were outside of the apartment. S.D. was then able to flee
the apartment with her brother.
S.D. cried and told two women and a man who stood outside the
apartment that a man tried to rape her. They advised her to call
the police, but S.D. left and returned home with her brother.
Upon returning home, S.D. spoke with her grandmother. They
went to the police station where S.D. gave a statement about what
occurred. The police subsequently brought S.D. to defendant's
store, where she identified him and he was arrested. During trial,
S.D. also identified a photograph of defendant.
The jury found defendant guilty of second-degree attempted
sexual assault, third-degree luring, fourth-degree criminal sexual
contact, and fourth-degree child abuse. Following merger,
defendant was sentenced on the second-degree attempted sexual
assault charge to a five-year custodial term subject to the
requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, and
Megan's Law, N.J.S.A. 2C:7-1 to -3, and the special sentence of
4 A-3432-15T4
parole supervision for life, N.J.S.A. 2C:43-6.4. He received a
concurrent three-year sentence on the third-degree luring charge.3
This appeal followed.
Defendant makes the following arguments:
POINT I
THE COURT'S FAILURE TO PROVIDE ANY
IDENTIFICATION INSTRUCTION REQUIRES THE
REVERSAL OF DEFENDANT'S CONVICTIONS. (Not
Raised Below).
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL
AND DUE PROCESS OF LAW DUE TO THE ERRONEOUS
ADMISSION OF HEARSAY EVIDENCE. (Not Raised
Below).
POINT III
DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S
FAILURE TO CHARGE THE JURY REGARDING THE
PROPER ASSESSMENT OF STATEMENTS ALLEGEDLY MADE
BY HIM. (Not Raised Below).
II.
Defendant raises two challenges to the court's final jury
instructions. He first contends the court erred by failing to
provide an instruction on identification. Second, he argues the
3
Defendant's sentence is also concurrent to a three-year custodial
term on a third-degree bail jumping, N.J.S.A. 2C:29-7, charge to
which he pled guilty under a separate indictment.
5 A-3432-15T4
court failed to instruct the jury regarding statements he allegedly
made to S.D.
Defendant's arguments concerning the jury instructions are
raised for the first time on appeal. Where a defendant does not
object to a jury charge but challenges the charge on appeal, we
review for plain error and determine if the alleged error is
"clearly capable of producing an unjust result." State v. Montalvo,
229 N.J. 300, 321 (2017) (quoting R. 2:10-2). Defendant must
demonstrate "[l]egal impropriety in the charge prejudicially
affecting [his] substantial rights . . . and sufficiently
grievous to justify notice by the reviewing court and to convince
the court that of itself the error possessed the clear capacity
to bring about an unjust result." State v. Camacho, 218 N.J. 533,
554 (2014) (citation omitted).
"[T]rial counsel's failure to request an instruction
[generally] gives rise to a presumption that [counsel] did not
view its absence as prejudicial to his client's case." State v.
McGraw, 129 N.J. 68, 80 (1992) (alteration in original). We
evaluate a claim of prejudice "'in light of the totality of the
circumstances — including all the instructions to the jury, [and]
the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207
(2008) (alteration in original) (citation omitted). An "error in
a jury instruction that is 'crucial to the jury's deliberations
6 A-3432-15T4
on the guilt of a criminal defendant' is a '"poor candidate[] for
rehabilitation" under the plain error theory.' Nevertheless, any
alleged error also must be evaluated in light 'of the overall
strength of the State's case.'" State v. Burns, 192 N.J. 312, 341
(2007) (citations omitted); accord State v. Walker, 203 N.J. 73,
90 (2010). We apply these standards to defendant's two challenges
to the court's jury instructions.
A.
The court's final jury instructions did not include a specific
charge about S.D.'s in-court and out-of-court identifications of
defendant.4 Defendant did not request an instruction on the issue
of identification and did not object to the court's failure to
include the instruction in the final jury charge. Defendant argues,
however, that the court's failure to provide the instruction
violated his rights to due process and a fair trial and requires
reversal of his convictions.
"[A]s a matter of general procedure a model identification
charge should be given in every case in which identification is a
legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App.
Div. 2003). "When identification is a 'key issue,' the trial court
must instruct the jury on identification, even if a defendant does
4
See generally Model Jury Charges (Criminal), "Identification;
In-Court and Out-Of-Court Identifications" (2012).
7 A-3432-15T4
not make that request." State v. Cotto, 182 N.J. 316, 325 (2005);
accord State v. Green, 86 N.J. 281, 291 (1981). Identification is
a key issue where "[i]t [is] the major, if not the sole, thrust
of the defense . . . ." Green, supra, 86 N.J. at 291.
The circumstances here are vastly different from those in
Green, where the Court deemed identification a key issue requiring
a specific identification instruction. Ibid. In Green, the victim
did not know the defendant, the crime was committed at night in
the dark, the victim's description of the assailant conflicted
with defendant's physical characteristics, there were no other
witnesses to the crimes and the defendant challenged the
identification at trial. Ibid.
Here, defendant was well-known to S.D. Over a two-month
period, S.D. frequently saw and spoke with defendant at his store,
and he offered her employment and gave her his telephone number,
which she saved in her phone. S.D. immediately and consistently
identified defendant as her assailant and there was no challenge
to her identification at the trial.5 To the contrary, in his
5
Under the circumstances presented, we are not persuaded that the
absence of other corroborating evidence and other witnesses
supporting S.D.'s identification rendered identification a key
issue at defendant's trial. Although the absence of evidence
corroborating an identification may be a circumstance rendering
identification a key issue in a trial, Green, supra, 86 N.J. at
291; State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984),
8 A-3432-15T4
summation defense counsel conceded defendant was "wrong to flirt
with a young girl" and characterized the case as a "he said, she
said" dispute between S.D. and defendant.
The record shows that identification was neither a contested
nor key issue at trial. See Cotto, supra, 182 N.J. at 326 (finding
identification was a key issue where defendant challenged the
credibility of the State's witnesses and offered an alibi defense);
Davis, supra, 363 N.J. Super. at 562 (finding identification
instruction is required where the instruction addresses "the sole
basis for [the] defendant's claim of innocence"). We are therefore
convinced the trial court did not err by failing to give a specific
identification charge in the absence of a request for it. Cotto,
supra, 182 N.J. Super. at 325.
Moreover, we consider the court's failure to sua sponte give
a specific identification instruction under the totality of the
circumstances including the evidence presented, the arguments of
counsel and the court's other instructions. Adams, supra, 194 N.J.
at 207. Again, S.D.'s familiarity with defendant and her
identification of defendant were not disputed issues at trial.
that is not the case here because defendant was known to S.D. and
S.D.'s identification of defendant was not challenged at trial.
We recognize an identification instruction is required even where
a "defense's claim of misidentification, although thin, [is] not
specious," Davis, supra, 363 N.J. Super. at 561, but here there
was simply no claim of misidentification made during the trial.
9 A-3432-15T4
Instead, defendant's trial strategy was to challenge the
thoroughness of the police investigation and the credibility of
S.D.'s version of the events. Also, although the court did not
give a specific identification instruction, it explained that the
jury must find beyond a reasonable doubt that defendant committed
the offenses in order to find him guilty. Based on all of the
circumstances presented, we are not convinced that the failure to
give a specific identification charge was clearly capable of
producing an unjust result. R. 2:10-2; Camacho, supra, 218 N.J.
at 554.
B.
We next address defendant's argument that the court erred by
failing to sua sponte instruct the jury concerning its evaluation
of S.D.'s testimony about defendant's statements. More
particularly, defendant claims the court erred by failing to
instruct the jury regarding S.D.'s testimony that defendant said
he wanted to "make love to" her. Defendant argues the charge was
required under State v. Hampton, 61 N.J. 250 (1972) and State v.
Kociolek, 23 N.J. 400 (1957). We find no merit in defendant's
argument.
In Hampton, the Court directed that following a court's
determination a defendant's statement is admissible under Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
10 A-3432-15T4
the jurors shall be instructed that "they should decide whether
in view of all of the circumstances the defendant's confession is
true," and "[i]f they find that it is not true, then they must
treat it as inadmissible and disregard it for purposes of
discharging their function as fact finders on the ultimate issue
of guilt or innocence." Hampton, supra, 61 N.J. at 272.
Here, the court did not err by failing to give the Hampton
instruction because it is required only "in a case where there has
been a pretrial hearing involving the admissibility of the
statement on the grounds of an alleged violation of the defendant's
Miranda rights or involuntariness." State v. Baldwin, 296 N.J.
Super. 391, 397 (App. Div. 1997). The trial court was not requested
or required to determine the admissibility of defendant's
statements about his desire to make love to S.D. and, therefore,
the court did not err by failing to give a Hampton charge. Ibid.;
see also N.J.R.E. 104(c) (codifying the Court's holding in
Hampton); State v. Wilson, 335 N.J. Super. 359, 366-677 (1997)
(finding there was no requirement to provide a Hampton charge
because the statements at issue were volunteered to non-police
witnesses), aff'd, 165 N.J. 657 (2000).
In Kociolek, the Court considered testimony describing
statements attributed to the defendant. Kociolek, supra, 23 N.J.
at 417-21. The Court observed there was "an inherent weakness" in
11 A-3432-15T4
such testimony due to "faulty memory, [and] the danger of error
in understanding and repetition," and explained that the
"antidote" for the problems inherent in such testimony is "an
instruction to the jury against trusting overmuch the accuracy of
such testimony." Id. at 421. The Court has held that Kociolek
"directs that the court must instruct the jury of the inherent
weakness of oral statements." State v. Morton, 155 N.J. 383, 428
(1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.
2d 306 (2001).
To be sure, the court did not give a Kociolek charge to the
jury here. That does not, however, end the inquiry. Although our
Supreme Court has directed that a Kociolek charge be given whether
or not specifically requested by a defendant, the failure to give
this charge is not plain error per se. State v. Jordan, 147 N.J.
409, 428 (1997) (noting it would be "a rare case where failure to
give a Kociolek charge alone is sufficient to constitute reversible
error"). "Where such a charge has not been given, its absence must
be viewed within the factual context of the case and the charge
as a whole to determine whether its omission was capable of
producing an unjust result." State v. Crumb, 307 N.J. Super. 204,
251 (App. Div. 1997) (finding "no reported case in which a failure
to include a Kociolek charge has been regarded as plain error"),
certif. denied, 153 N.J. 215 (1998).
12 A-3432-15T4
S.D. was cross-examined concerning her version of the events
and defendant's statements. The court carefully and thoroughly
instructed the jurors about their evaluation of the credibility
of witness testimony. Moreover, defendant's statements concerning
his desire to make love to S.D. were not of great significance
when considered in the context of her detailed testimony about
defendant's actions. Accordingly, the court's failure to give a
Kociolek instruction was not clearly capable of producing an unjust
result. R. 2:10-2; see also State v. Feaster, 156 N.J. 1, 72-73
(1998) (finding no plain error in failing to give a Kociolek charge
even though the defendant's incriminating oral statements were "at
the heart of the State's case against defendant"), cert. denied,
532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
III.
Defendant also argues he was deprived of his right to a fair
trial by officer Alexa Pizzaro's testimony describing statements
made by S.D. Pizzaro testified without objection that S.D. said
she and her brother were walking home and met a man S.D. knew from
a "chicken store," that the man was going to give her and her
brother a ride home, that they stopped at a house, and that while
at the house the man grabbed her breasts and tried kissing her.
Defendant argues the testimony constituted inadmissible hearsay
13 A-3432-15T4
and impermissibly bolstered S.D.'s credibility, and therefore
deprived him of his right to a fair trial.
The State argues the testimony was not hearsay because it was
not offered to prove the truth of S.D.'s statements. See N.J.R.E.
801(c) (defining hearsay evidence as a "statement, other than one
made by the declarant while testifying a trial . . . , offered in
evidence to prove the truth of the matter asserted"); see also
State v. Long, 173 N.J. 138, 152 (2002) (finding the hearsay rule,
N.J.R.E. 801(c), applies when testimony is offered to prove the
truth of the statement attributed to the declarant). The State
contends the testimony was not hearsay because it was introduced
to show Pizzaro's state of mind and to explain why Pizzaro took
certain actions. See, e.g., State v. Frisby, 174 N.J. 583, 592
(2002) (explaining there are circumstances permitting a police
officer to testify, based generally on hearsay evidence,
concerning the course of the officer's investigation).
We need not address the merits of the State's assertion
because it is wholly unsupported by the evidentiary record. Pizzaro
never testified that she took any action based on S.D.'s
statements. Thus, there is no evidentiary support for the State's
contention that Pizzaro's recounting of S.D.'s statements did not
constitute inadmissible hearsay testimony. See N.J.R.E. 801(c) and
N.J.R.E. 802.
14 A-3432-15T4
We agree Pizzaro's testimony constituted impermissible
hearsay, N.J.R.E. 802, and that it was error to admit the testimony
at trial. However, "[b]ecause no objection was advanced with
respect to that hearsay evidence at trial, it must be judged under
the plain-error standard: that is, whether its admission 'is of
such a nature as to have been clearly capable of producing an
unjust result.'" Frisby, supra, 174 N.J. at 591 (2002) (quoting
R. 2:10-2).
Based upon our review of the record, we are not persuaded
Pizzaro's testimony was clearly capable of producing an unjust
result. First, we can infer defendant did not perceive the
testimony as prejudicial because there was no objection to it at
trial. See State v. Nelson, 173 N.J. 417, 471 (2002) (finding that
failure to object to testimony permits an inference that any error
in admitting the testimony was not prejudicial); see also State
v. Singleton, 211 N.J. 157, 182 (2012) (finding that a failure to
object to a jury instruction permits a presumption the instruction
"was unlikely to prejudice the defendant's case"). Pizzaro's
testimony was brief and it was followed by S.D.'s detailed
testimony concerning the circumstances surrounding the commission
of the crimes. Moreover, S.D.'s version of the events was subject
to detailed cross-examination during which her credibility was
vigorously tested. We discern no basis to conclude that Pizzaro's
15 A-3432-15T4
brief recitation of statements made by S.D. "possessed the clear
capacity to bring about an unjust result." Camacho, supra, 218
N.J. at 554.
Defendant's remaining contentions are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
16 A-3432-15T4