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                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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         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-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
