State v. McNeil

HUMPHREYS, J.A.D.

(concurring).

I concur in the reversal and remand. The judge’s refusal to give an identification charge in a case based almost solely on identification cannot be upheld under State v. Green, 86 N.J. 281, 291, 430 A.2d 914 (1981). Identification was in this case, as it was in Green, “a fundamental and essential trial issue.” Ibid. Consequently, the jury must be given a proper legal instruction on that issue. Id. at 292, 430 A.2d 914. The refusal to give such an instruction in a case in which there was no other substantial evidence of the defendant’s guilt mandates a reversal of the conviction. Ibid.

The other “errors” perceived by my colleagues are not significant enough to warrant reversal of a criminal conviction, especially those matters not raised by the defendant either at trial or on appeal. See State v. Macon, 57 N.J. 325, 333, 273 A.2d 1 (1971) (Weintraub, C.J.) (“It may be inferred from the failure to object that in the context of the trial, the error was actually of no moment.”). This is not a case in which cumulative errors resulted in an unfair trial. This is simply a trial in which the judge refused to give the jury a crucial instruction on the legal principles which must govern the jury’s decision. Such a conviction cannot be sustained.