                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4267-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PAUL A. FLORA,

     Defendant-Appellant.
______________________________

              Submitted June 7, 2018 – Decided September 7, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 15-
              10-1952.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stefan Van Jura, Deputy Public
              Defender II, of counsel and on the brief).

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel J. Marzarella,
              Chief Appellate Attorney, of counsel; William
              Kyle Meighan, Senior Assistant Prosecutor, on
              the brief).

PER CURIAM

        Defendant Paul A. Flora appeals from a judgment of conviction

entered after a jury found he committed one count of second-degree
eluding, N.J.S.A. 2C:29-2(b).       On appeal, he argues that the trial

court erred by failing to instruct the jury about its use of a

witness's in-court identification of defendant, even though he did

not request the instruction.         For the reasons that follow, we

affirm.

       Defendant's     conviction   arose       from    a   police      officer

identifying him as the driver of a vehicle that took off at a high

rate of speed after the officer stopped the driver and directed

him to step out of the vehicle. The events leading to the vehicle's

stop took place on an evening in August 2015 when Toms River police

officer Sean Smith was assigned to control traffic at a road

construction project within the community.             The construction area

was illuminated by existing street lights and additional lighting

provided by the construction company.

       When the officer arrived at the site, he parked his marked

vehicle with its lights flashing in the road's closed left lane

near the construction.       He was in full uniform and wore a neon

safety vest, similar to the vests being worn by the construction

workers at the site.

       At approximately 10:00 p.m., Smith was performing his duties

when   he   heard    screeching   tires   and    observed    a   blue    truck,

identified as a Chevy Trailblazer stopped in the closed left lane

within a few inches behind his parked police vehicle.                     Smith

                                     2                                  A-4267-16T3
approached the vehicle but before he arrived, the truck began to

reverse. Smith verbally directed the driver to stop and the driver

complied.

     When Smith arrived at the vehicle, he approached the driver's

side window, placed his hands on the truck, and spoke to the

driver.     Smith described the driver as an approximately fifty-

year-old white male.     In response to Smith's inquiry, the driver

told him that he was coming from Seaside. During the conversation,

Smith detected the odor of alcohol.      He directed the driver to

step out of the truck.     Instead of complying, the driver put the

vehicle into gear and took off at a high rate of speed.     As the

vehicle began to leave, Smith jumped back to avoid being injured

and observed the truck cutting into traffic without signaling.

     For safety reasons, Smith decided not to pursue the truck and

instead notified dispatch and called in the vehicle's plate number

in an attempt to identify the driver.   Dispatch personnel informed

Smith that the vehicle was registered to defendant.   When he later

returned to headquarters, Smith used the information he obtained

from dispatch to locate photographs of the registered owner from

electronic records. The photographs he obtained were of defendant,

who Smith testified was the man driving the truck, though he

admitted he could only recall the driver being a white male with

short gray hair.

                                  3                         A-4267-16T3
     After defendant's arrest, a grand jury indicted him, charging

defendant with the single count of second-degree eluding.     At his

trial, the State called as witnesses Smith and a construction

worker who observed Smith's interaction with the truck's driver.

Defendant called a defense investigator who testified about his

telephone conversation with the testifying construction worker.

During Smith's testimony, he identified defendant as the driver

of the truck.    In addition, the court admitted into evidence

defendant's vehicle registration.    Defendant did not object to the

in-court identification or the admission of the registration.       On

cross-examination, defense counsel questioned Smith regarding his

initial stop of defendant and whether he ever identified himself

as a police officer to defendant.     Smith responded that although

he never explicitly told defendant that he was a police officer,

that it was "implied" because he was standing by his police vehicle

and was in uniform.

     After the State rested, defendant moved unsuccessfully for

an acquittal, contending only that the State failed to prove

defendant had knowledge he was eluding.   After the defense rested,

and during the ensuing charge conference, defendant did not request

a jury charge relating to Smith's identification of him.1     During


1
   See Model Jury Charges (Criminal), "Identifications: In-Court
and Out-of-Court Identification" (rev. July 19, 2012).

                                 4                           A-4267-16T3
summations,   defense   counsel    did   not   raise   an   identification

argument.   Rather, he again argued that the State failed to prove

defendant had knowledge he was eluding the officer.

     When the court charged the jury, it did not include the

identification     charge   and   defendant    never   objected   to    its

omission.   However, the court charged the jury that the State had

to prove beyond a reasonable doubt that defendant was the driver

of the truck. It also charged the jury with the remaining elements

of eluding and noted that according to the statute, there was a

rebuttable presumption that the registered owner was the driver

of the vehicle, which the jury could choose to accept or reject.

     After considering the evidence, the jury returned its verdict

convicting defendant of the one charge.          The trial court later

sentenced defendant to a five-year term of imprisonment.               This

appeal followed.

     On appeal, defendant specifically argues:

                 POINT I

                 DEFENDANT WAS DENIED HIS RIGHTS TO
                 DUE PROCESS AND A FAIR TRIAL BY THE
                 TRIAL COURT'S FAILURE TO PROVIDE ANY
                 IDENTIFICATION INSTRUCTION TO THE
                 JURY. U.S. CONST. AMENDS. V, VI AND
                 XIV; [N.J. CONS. ART. I, ¶ ¶ 1, 9,
                 10]. (Not Raised Below).

     According to defendant, his identification "as the driver of

the Trailblazer was a crucial and contested issue in the case[,]"

                                    5                              A-4267-16T3
which required the trial court to deliver an identification charge

to the jury even though defendant did not request the charge.          In

support, defendant relies upon the Supreme Court's opinions in

State v Henderson, 208 N.J. 208 (2011),2 and State v. Sanchez-

Medina, 231 N.J. 452 (2018).     We find his reliance on those cases

inapposite and his contention to be without merit.

     We review a "missing instruction on identification . . . for

plain error." Sanchez-Medina, 231 N.J. at 468 (citations omitted).

The error must be "clearly capable of producing an unjust result

. . . ."     R. 2:10-2.   Courts "review for plain error the trial

court's obligation to sua sponte deliver a jury instruction when

a defendant does not request it and fails to object at trial to

its omission."    State v. Alexander, 233 N.J. 132, 141-42 (2018)

(citations    omitted).    We   consider   "[d]efendant's   failure    to

'interpose a timely objection [to] constitute[] strong evidence

that the error belatedly raised here was actually of no moment.'"


2
   In Henderson, a defendant challenged an identification on the
ground police officers had unduly influenced the eyewitness. 208
N.J. at 217. The eyewitness initially expressed doubt about the
identity of the perpetrator, but was able to confidently identify
the defendant after meeting with investigators. Id. at 223-24.
The Court identified numerous factors that can affect the ability
of a witness to remember and identify perpetrators of crimes,
resulting in misidentifications, and ordered an amplified,
comprehensive jury charge. Id. at 298-99. The Model Jury Charges
(Criminal),    "Identification:    In-Court    and    Out-of-Court
Identifications" (rev. July 19, 2012) was then drafted and adopted
by the Court.

                                   6                            A-4267-16T3
State v. Tierney, 356 N.J. Super. 468, 481 (App. Div. 2003)

(quoting State v. White, 326 N.J. Super. 304, 315 (App. Div.

1999)).      Absent a request to charge or objection, "there is a

presumption that the charge . . . was unlikely to prejudice the

defendant's case."       State v. Singleton, 211 N.J. 157, 182 (2012)

(citing State v. Macon, 57 N.J. 325, 333-34 (1971)).                Any alleged,

plain "error must be evaluated 'in light of the overall strength

of the State's case.'"         Sanchez-Medina, 231 N.J. at 468 (quoting

State   v.    Galicia,   210   N.J.   364,     388   (2012))    (addressing     an

identification issue where "[d]efendant's convictions rest largely

on the testimony of four victims, only one of whom could identify

him"    as   "[t]he   witnesses'      descriptions     of   their    assailants

varied").

       In    Sanchez-Medina,    the    Court    made    clear    that   "[w]hen

eyewitness identification is a 'key issue,' the trial court must

instruct the jury how to assess the evidence—even if defendant

does not request the charge."         Id. at 466 (quoting State v. Cotto,

182 N.J. 316, 325 (2005)).         However, in order for the failure to

deliver the charge to be plain error, identification must be "a

critical issue at trial that defendant disputed."               Id. at 469; see

also Cotto, 182 N.J. at 325.           An issue is made a "key issue" if

it is "the major, if not the sole, thrust of the defense . . . ."

State v. Green, 86 N.J. 281, 291 (1981).

                                        7                                A-4267-16T3
      Applying these guiding principles, we conclude defendant's

contention on appeal is without merit because defendant never

raised identification as an issue at trial.                       At best, it was

alluded to only in defense counsel's opening statement when he

mentioned that there was no surveillance video of defendant at the

crime scene and no statement by him admitting he was the driver.

Those comments alone did not create a "key issue" as to Smith's

in-court identification of defendant.

      Also, not only was the issue of identification not "critical"

or "disputed" by defendant at trial, but the eluding statute

contains a "rebuttable presumption" that as the vehicle's owner,

he was the operator when Smith stopped the vehicle and directed

the driver to step out.             See N.J.S.A. 2C:29-2(b).           There was no

evidence adduced at trial to rebut that presumption, and the trial

court properly charged the jury as to the presumption, including

its right to not "draw the . . . inference" if it did want to rely

upon the presumption.

      Where, as here, identification was not an issue at all, the

trial     court    did    not     err   by   failing   to   sua   sponte   give    an

identification charge.            See State v. Gaines, 377 N.J. Super. 612,

625-27     (App.     Div.       2005)    (finding      failure    to   provide     an

identification charge was not plain error where identification was

not   a    key    issue     and    there     was   overwhelming     identification

                                             8                              A-4267-16T3
evidence); cf. State v. Davis, 363 N.J. Super. 556, 561 (App. Div.

2003) (holding an identification instruction was required where a

misidentification defense "although thin, was not specious").

      Moreover, the jury was otherwise clearly instructed that the

State must prove beyond a reasonable doubt that defendant committed

the   crimes   for   which   he   was       charged.   Under   all   of   the

circumstances presented, we are not convinced that the court's

failure to sua sponte give an identification charge had the clear

capacity to bring about an unjust result.

      Affirmed.




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