                        NOT FOR PUBLICATION WITHOUT THE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-4076-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANGEL CARLO,

     Defendant-Appellant.
_______________________________

              Argued October 24, 2017 – Decided August 1, 2018

              Before Judges Leone and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 15-
              02-0342.

              Margaret R. McLane, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Margaret R. McLane, of counsel and on the
              briefs).

              Tiffany M. Russo, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney;
              Tiffany M. Russo, of counsel and on the
              brief).

PER CURIAM
     Defendant Angel Carlo appeals from his April 25, 2016 judgment

of conviction.   We affirm.

                                  I.

     At trial, the victim T.A. testified as follows.       On October

29, 2014, he encountered a man he frequently saw around his North

Newark neighborhood over the past six or seven years.      He did not

know the man's first or last name, but knew the man as "Rage."

     Rage called out to him, and T.A. approached and greeted Rage.

Rage responded in a hostile, intimidating, and offensive manner,

with a raised voice and threatening body language.       That angered

T.A. and the two began to fight.       After two to three minutes, he

knocked Rage to the ground, and walked to his nearby home.

     A few hours later, at around 8:45 p.m., T.A. left his house

to go to a nearby fast-food restaurant.          One block from the

restaurant, he again encountered Rage, who was standing near

Broadway and Delevan, an area known as "D Block."     Rage acted calm

and friendly towards T.A., but T.A. was scared Rage might have a

gun because Rage had his hands in his pockets during the encounter.

T.A. spoke for a few minutes to resolve their earlier conflict,

and initiated a handshake.

     T.A. started walking away.    When he was approximately twenty

paces away, he heard a gunshot behind him.      He turned around and

saw Rage was pointing a handgun at him.     T.A. started to run away.

                                  2                           A-4076-15T3
He heard three more gunshots behind him.     Two of the bullets hit

him in the back of his right thigh and exited through the front

of his leg, and the other grazed his calf.

     T.A. made it to the restaurant and told a police officer he

had been shot.   T.A. was rushed to the hospital, bloody but alert.

     Newark Detective Feliberto Padilla went to the scene, where

four .380 caliber shell casings were found. A nearby restauranteur

had heard four shots.   No gun was recovered.

     Detective Padilla went to the hospital and spoke to T.A., who

said he was shot by Rage.   T.A. described Rage as a short man with

a pony tail wearing a gray hoodie with black markings who was from

"D Block."

     Detective Padilla testified that he used the information

provided by T.A. to search social media using the word "Rage."

Padilla found a video on YouTube that had been filmed in "D Block"

and that featured a man who fit T.A.'s description of Rage and who

was wearing a gray hoodie with black markings.      From the video

Padilla took a still, cropped photo showing that man.

     A few hours later, when T.A. was released from the hospital,

Detective Padilla took him to the police department and showed him

the photo.   T.A. identified the man in the photo as Rage and as

the man who shot him.



                                 3                          A-4076-15T3
       Detective    Padilla    discovered   the   name   of    the   man     T.A.

identified as Rage in the photo was Angel Carlo.            Padilla obtained

a clearer photo of defendant, drove to T.A.'s house, and showed

that second photo to T.A. before dawn.          T.A. identified defendant,

the man in the second photo, as Rage and as the man who shot him.

       On October 31, the police located and arrested defendant.                He

was wearing the same gray hoodie with the same black markings.

       At trial, T.A. testified to these two identifications. He

also made an in-court identification of defendant as Rage, saying

he had no doubt defendant was the man who shot him.

       Defendant testified he had seen T.A. in his neighborhood

around Broadway and Delevan during the spring and summer of 2014,

but did not know him.          Defendant testified T.A. could not have

seen   him   in    earlier    years   because   defendant     was   in   prison.

Defendant told the jury that he was convicted of a second-degree

offense and a third-degree drug offense and sentenced to six years

and three years respectively in State prison, and was incarcerated

from July 18, 2005, to October 25, 2010.           Defendant added that on

May 9, 2011, he was imprisoned for three years and six months for

a parole violation, and was not released until April 24, 2014.

       Defendant denied encountering T.A., talking to him, fighting

with him, shooting him, having a gun, or shooting a gun on October

29.    Defendant also denied being at the scene when the shooting

                                        4                                A-4076-15T3
occurred on October 29, even though he could not remember where

he was.    Defendant reasoned on cross-examination:

           Q.   How do you know that you weren't              on
           Broadway and Delevan on October 29, 2014?

           A.     'Cause I know I ain't shoot 'em.

           Q.     I didn't ask that.

           A.   You asked me how I know if I wasn't there.
           I can't be – if I didn't shoot him, I can't
           be there.   So, I know I ain't do it, so I
           wasn't there.

           Q.   Can you explain to me how the fact that
           you didn't shoot him means you couldn't have
           been in the area?

           A.     I wasn't.    Easy.   I didn't shoot him.

           Q.   All right. Do you know where you were
           on the evening of October 29th, 2014?

           A.     No, I can't – can't recall.

           Q.   So,     you    can't   say   where   you   were.
           Correct?

           A.     No.

           Q.   So the only place you can say something
           about is that you weren't on Broadway.
           That's –

           A.   Yes, because I know I ain't shoot him.
           So, I can say that I wasn't in the area.

     The   jury    convicted    defendant    of   first-degree     attempted

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1); second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree unlawful


                                       5                             A-4076-15T3
possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a).   The trial court sentenced him to eighteen years in prison

with an 85% period of parole ineligibility under the No Early

Release Act, N.J.S.A. 2C:43-7.2.

    Defendant appeals, arguing:

          POINT I - THE PROSECUTION'S HIGHLY IMPROPER
          COMMENTS ON DEFENDANT'S POST-ARREST SILENCE,
          CROSS-EXAMINATION OF DEFENDANT ABOUT HIS
          NICKNAME, AND DEMANDS THAT DEFENDANT PRESENT
          AN ALIBI REQUIRE REVERSAL OF DEFENDANT'S
          CONVICTIONS. (Not Raised Below).

          A.   Introduction.

          B.   Right to Silence.

          C.   Flipping the Burden of Proof.

          D.   Improper Questions    About    Defendant's
               Nickname.

          E.   This   Egregious   Misconduct   Requires
               Reversal of Defendant's Convictions.

          POINT    II   -    WHEN    THE   DEFENSE   WAS
          MISIDENTIFICATION, THE FAILURE TO INSTRUCT THE
          JURY ON HOW TO EVALUATE THE RELIABILITY OF THE
          PHOTO    SHOW-UP    IDENTIFICATIONS   REQUIRES
          REVERSAL OF DEFENDANT'S CONVICTIONS.      (Not
          Raised Below).

                               II.

    On appeal, defendant challenges for the first time some

prosecutorial questioning and argument.      "Because he failed to

object at trial, we review the challenged comments for plain

                                6                           A-4076-15T3
error."    State v. Pressley, 232 N.J. 587, 593 (2018).                  We must hew

to that standard of review.

       Under the plain error standard, "defendant has the burden to

show   that    there   is    an   error,       that   the   error   is   'clear'    or

'obvious,' and that the error has affected 'substantial rights.'"

State v. Chew, 150 N.J. 30, 82 (1997) (quoting, and ruling "[o]ur

law is the same" as, United States v. Olano, 507 U.S. 725, 734

(1993)).      An error is not clear or obvious "unless the error is

clear under current law" at the time of appellate consideration.

Olano, 507 U.S. at 734; see Henderson v. United States, 568 U.S.

266, 279 (2013); Johnson v. United States, 520 U.S. 461, 468

(1997).    To show an effect on substantial rights, defendant has

the burden of proving the error was "clearly capable of producing

an unjust result."          R. 2:10-2.         "To warrant reversal on appeal,

the prosecutor's misconduct must be 'clearly and unmistakably

improper' and 'so egregious' that it deprived defendant of the

'right to have a jury fairly evaluate the merits of his defense.'"

Pressley, 232 N.J. at 593-94 (citation omitted).

       "'Generally, if no objection was made to the improper remarks,

the remarks will not be deemed prejudicial.'"                  State v. R.B., 183

N.J. 308, 333 (2005) (citation omitted).                "[W]hen counsel does not

make a timely objection at trial, it is a sign 'that defense

counsel did not believe the remarks were prejudicial.'"                   Pressley,

                                           7                                 A-4076-15T3
232 N.J. at 593-94 (citation omitted).       "Defendant's lack of

objections . . . weighs against defendant's claim that errors were

'clear' or 'obvious.'    Indeed, '[i]t [is] fair to infer from the

failure to object below that in the context of the trial the error

was actually of no moment.'"    State v. Nelson, 173 N.J. 417, 471

(2002) (alterations in original) (citation omitted).

                                  A.

     Defendant now claims that the prosecutor commented on post-

arrest silence.   The now-challenged comments addressed defendant's

claim that he was not at the scene of the crime but was unable to

remember where he was.

     On direct examination, defendant denied being at Broadway and

Delevan at around 8:45 p.m. on October 29, 2014.    He testified he

did not "have any idea where [he was]," "I don't remember. . . .

I don't remember where I was."1    He testified he did not learn he

was charged with shooting T.A. until he was arraigned in March

2015.2   Defendant implied, and later testified, that in March 2015


1
  Defendant added that he "was in the vicinity of North Newark,"
but clarified he said that just "[b]ecause [he] lived in North
Newark."
2
  This was inconsistent with defendant's other testimony that he
first heard T.A.'s name when he got arrested on October 31, 2014,
and that his arrest was "the first time [he] even heard that there
was a shooting on Broadway." It was also inconsistent with Officer
Luis Santiago's testimony that defendant was aware he was being


                                  8                         A-4076-15T3
it was "tough for [him] to remember where [he was] on October 29,

2014."

    The prosecutor opened his cross-examination by asking:

         Q.   Mr. Carlo, how would you characterize
         your memory?

         A.    It's okay.

         Q.   When was the first date you learned of
         the name [T.A.]?

         A.    In March, when I got indicted.

         Q.   Okay.   And what happened on October 31st,
         2014?

         A.    I was arrested.

         Q.    And what were you arrested for?

         A.    Shooting [T.A.].

         Q.   Did they tell you what you were arrested
         for?

         A.    No.

         Q.    So they refused to tell you any charges?

         A.    Yes.

         Q.    And they refused to tell you a victim?

         A.    Yes.

    Defendant then testified that he "asked the [two] officers"

who "took [him] to the precinct," but they said: "You'll find out


"arrested for his involvement in a shooting" that occurred two
days earlier.

                                  9                        A-4076-15T3
when you get to the precinct."        Defendant testified he "ask[ed]

again" at the precinct, but no one would tell him.       He testified

that on November 1, 2014, he "kept asking, at the [county jail],"

when he "ask[ed] the [corrections officer]," who told him "what

the charges are."    Defendant testified "they did not" tell him

"where the incident allegedly occurred," or "what time it allegedly

occurred."

     Defendant's testimony prompted this exchange:

          Q.   Did you ask?

          A.   No.

          Q.   You didn't want to know?

          A.   No.   I know I ain't do it.

          Q.   But wouldn't it be important for you to
          know where you were allegedly at?

          A.   If I asked a question, it's me – giving
          a reason. I'll ask my charge. Okay, now I
          know my charges.    I got to go through a
          process. I still got to come to court.

     Defendant now claims that exchange was a comment on silence.

New Jersey "has a strong tradition of protecting the right to

remain silent."   State v. Kucinski, 227 N.J. 603, 622 (2017).

     However, defendant did not remain silent.         He admittedly

asked the police officers, and "kept asking, at the County" jail.

"If a defendant elects to speak to the police . . . , then he has

not remained silent — he has spoken."       Id. at 624 (citing State

                                 10                           A-4076-15T3
v. Tucker, 190 N.J. 183, 189 (2007)).               "As to the subject matter

of his statements, the defendant has not remained silent at all."

Tucker, 190 N.J. at 189 (quoting Anderson v. Charles, 447 U.S.

404, 408 (1980)).         Regarding the subject of what he was being

accused of doing, defendant was asking questions and thus was not

silent.

      Given defendant's testimony that he could not remember where

he was when the crime occurred because the police officers he

asked would not tell him when or where the crime was committed,

the prosecutor could legitimately inquire if he asked for that

information on November 1 from the helpful corrections officer who

told defendant other information about the crime.                       Defendant

admitted that he had not, and that on November 1, he would "have

known where he was two days prior."             The prosecutor could point

out this inconsistency in defendant's questioning, which cast

doubt on his claim that his alleged inability to remember where

he   was   when    the   crime   occurred     was    due   to   the    refusal      of

authorities to tell him when and where the crime occurred.

      "This   inconsistency      [wa]s    a   permissible       area   for    cross-

examination."       Kucinski, 227 N.J. at 624; see Charles, 447 U.S.

at 408-09.        If a defendant is not silent but rather talks to

police, the prosecutor can cross-examine about "inconsistencies

in [his] several statements" to police.              Tucker, 190 N.J. at 190.

                                     11                                      A-4076-15T3
"[W]hether the asserted inconsistencies by a defendant are between

two or more statements or between a statement and testimony at

trial,   the    State    may   seek   to     impeach   the   validity   of   those

statements.      In both instances, the defendant has not remained

silent and therefore, any inconsistency may be challenged."                  Ibid.

The prosecutor could likewise point out the inconsistencies in

defendant's questioning of the officers.

     Defendant cannot testify that officers would not tell him

when or where the crime occurred, and then keep from the jury that

he only asked the helpful corrections officer about the charges

and not about where or when the crime occurred.                   "'A defendant

cannot have it both ways.           If he talks, what he says or omits is

to be judged on its merits or demerits, and not on some artificial

standard that only the part that helps him can be later referred

to.'"    United States v. Fambro, 526 F.3d 836, 842 (5th Cir. 2008)

(citation omitted); see Kucinski, 227 N.J. at 623.

     Defendant also now complains about this exchange:

            Q.   And after November 1st, you stopped
            asking about where the alleged incident
            happened and things of that nature?

            A.   Once I knew my charges, it was over. Now,
            I wait for court.

     This exchange is problematic, because there was no evidence

defendant      spoke    to   any   officer    after    November   1.    However,


                                       12                                A-4076-15T3
defendant opened the door to this exchange when he claimed no one

told him when and where the crime occurred until his arraignment

in March 2015.   The "opening the door" doctrine "permits 'a party

to elicit otherwise inadmissible evidence when the opposing party

has made unfair prejudicial use of related evidence.'"                State v.

Prall, 231 N.J. 567, 582-83 (2018) (citation omitted).                In State

v. Jenkins, 299 N.J. Super. 61 (App. Div. 1997), the defendant

claimed "he tried to explain to the police what happened but that

they ignored him" on the day of arrest, and he was never given the

opportunity to provide a statement later.                 Id. at 68.         The

prosecutor   argued   in   closing    that      the   defendant    "never   once

talk[ed] to the Prosecutor's Office."             Id. at 66.      We held that

"the   prosecutor's   comments   in       the   present   matter    concerning

defendant's post-arrest silence ordinarily would be improper," but

the "defendant 'opened the door' to this otherwise protected area,

justifying the prosecutor's comments on defendant's post-arrest

silence."    Id. at 68-69 (citing McGautha v. California, 402 U.S.

183, 213 (1971)); see State v. Morton, 155 N.J. 383, 418 (1998)

(citing Jenkins).

       In any event, this exchange was not prejudicial.              It merely

elicited what was implicit in the earlier exchange, namely that

defendant stopped asking once he got the corrections officer to

tell him his charges.

                                     13                                 A-4076-15T3
      The prosecutor also questioned whether defendant would have

had to wait for his arraignment in court to find out where and

when the crime occurred "if you simply asked," whether there was

"a down side from asking," and whether defendant saw "any purpose

in asking."    Those questions did not ask whether defendant had

remained silent.     Rather, they asked why, a valid area of inquiry

concerning his November 1 questioning of the corrections officer.

Moreover, neither the questions nor the answers were prejudicial.

Defendant merely reiterated that once "I know my charges," "I

didn't see no point in asking" because "they're not gonna let me

go" and "I still have to come to court."

      Furthermore, the prosecutor's questions were not "'clearly

and   unmistakably   improper.'"        Pressley,   232   N.J.    at    593-94

(citation   omitted).     Defendant     cites   cases   where    prosecutors

commented on defendants' failure to tell the police exculpatory

information, but this case involves defendant asking questions.

      Defendant cites State v. Deatore, 70 N.J. 100 (1976), State

v. Lyle, 73 N.J. 403 (1977), State v. Muhammad, 182 N.J. 551

(2005), and State v. Tilghman, 345 N.J. Super. 571 (App. Div.

2001).   In Deatore, the prosecution on cross-examination asked

defendant, "over objection, a series of questions bearing on his

failure to make any exculpatory statement to the police after he

was arrested." 70 N.J. at 104, 107, 115. In Lyle, the prosecution

                                   14                                  A-4076-15T3
on cross-examination and extensively in closing questioned why the

defendant      did   not    tell      the   police      the   exculpatory   story    he

testified to at trial, namely that the victim had lunged at him

with   a   screwdriver.          73    N.J.      at   408-10.     In   Muhammad,    the

prosecution in opening, questioning, and over objection at closing

questioned why the "defendant did not give to the police the

exculpatory account that his counsel provided to the jury."                         182

N.J. at 562-63, 566, 572-73.                  Tilghman likewise relied on the

principle that "a defendant is under no obligation to volunteer

to the authorities at the first opportunity the exculpatory story

he later tells at his trial." 345 N.J. Super. at 574, 576 (quoting

Deatore, 70 N.J. at 115).3

       Those    cases      are     plainly       distinguishable,      because     here

"defendant did not remain silent."                    Tucker, 190 N.J. at 186, 190

(distinguishing Muhammad); see Kucinski, 227 N.J. at 618-21; State

v. Marks, 201 N.J. Super. 514, 532 (App. Div. 1985).                        Moreover,

those cases prohibited prosecutors from commenting on the failure

of the defendant to tell police an exculpatory story.                       Defendant

cites no cases making clear it is error to comment on defendant's


3
  Similarly, the seminal case about comment on silence, Doyle v.
Ohio, 426 U.S. 610 (1976), involved a prosecutor trying "to impeach
a defendant's exculpatory story, told for the first time at trial,
by cross-examining the defendant about his failure to have told
the story . . . at the time of his arrest." Id. at 611.


                                            15                                A-4076-15T3
questions to the police.    We have found no such case.4      Thus,

defendant has failed to show any "error was clear under current

law."   Henderson, 568 U.S. at 270.

    Defendant also now claims the prosecutor's closing argument

commented on his silence.   However, the prosecutor's argument was

that defendant's story "[d]oesn't make any sense" because of what

he said to the officers:

          First, he says to you that he asked two
          officers what was the basis of what he is being
          charged for. And then, all of a sudden, washed
          his hands of it. Didn't ask another one. Let
          me ask you a question:      What is the first
          thing that anyone does when they're accused
          of doing something? All right, what are you
          saying I did – what are you saying I did? What
          are the charges that you're leveling at me?
          Because I want to know so that I can defend
          myself.

          Mr. Carlo says, yeah, I asked the two officers
          who drove me in the car, . . . and they said
          we'll tell you down at the station.      And I
          asked them again but when they didn't tell me,
          that was it. I was done asking.

          He asked the CO later when he gets to [the
          county jail] and the [corrections officer]
          actually does look it up for him and tells him
          his charges. Then Mr. Carlo doesn't ask him
          either.   He's got someone who's amenable to
          helping him out and he doesn't ask him, hey,
          where did they say that I had this gun?

4
  The only published case we found citing Doyle and involving a
defendant asking a question found error because the prosecutor
"comment[ed] on defendant's failure to offer his exculpatory
explanation at the time of his arrest."   People v. Beller, 386
N.E.2d 857, 858-62 (Ill. 1979).

                                16                          A-4076-15T3
     The     prosecutor's     argument      commented       on   the    questions

defendant    asked,    not   on   silence.      As    set    forth     above,   the

prosecutor    was     entitled    to   point   out    the    inconsistency        in

defendant's pretrial questions to attack the credibility of his

claim he could not remember where he was during the crime because

the officers would not tell him where or when the crime occurred.

     The part of the prosecutor's first paragraph beginning "Let

me ask you a question" might have been improper if defendant had

not spoken to the officers.            However, it was not impermissible

because defendant admittedly questioned the police officers and

the corrections officer, and because the prosecutor was arguing

the inconsistency in defendant's questions.

     Moreover,      the   prosecutor's      closing   did    not     discuss    the

problematic issue of defendant's failure to ask questions after

November 1.     At the conclusion of the quoted argument, defense

counsel objected on other grounds, but did not claim the prosecutor

was commenting on silence.             The trial court overruled those

objections, but warned the prosecutor that he was "treading close

to post [arrest] silence" if he commented on defendant's failure

to ask subsequent questions: "You can't talk about his silence.

You can talk about the conversation he had[.]"                   The prosecutor

said "Okay" and turned to other topics in his closing.


                                       17                                  A-4076-15T3
    Defendant has not shown that any error was "'so egregious'

that it deprived defendant of the 'right to have a jury fairly

evaluate the merits of his defense.'"      Pressley, 232 N.J. at 593-

94 (citations omitted).

                                  B.

    Defendant also argues that in the comments above and other

comments, the prosecutor flipped the burden of proof, by implying

defendant had the burden to present evidence.        However, nothing

in the comments discussed above said anything about defendant

having to produce evidence at trial.       The same is true about the

other comments defendant cites.

    Defendant cites this exchange during his cross-examination,

which the prosecutor essentially quoted in his closing:

         Q.   Did you ever ask your grandfather if he
         remembered where you were on October 29th,
         2014?

         A.   No, I haven't spoken to my grandfather
         since I been incarcerated.

         Q.   Did you ever speak to your girlfriend
         about if she knew where you were on October
         29th, 2014?

         A.   I haven't spoke to her neither.

              . . . .

         Q.   But you didn't       reach     out   for   your
         girlfriend at all?

         A.   No.

                              18                                A-4076-15T3
          Q.    Wasn't worth it?

          A.    No.

                . . . .

          Q.   . . . And if you knew where you were and
          were able to present an alibi, that would
          increase your chances of not being convicted?

          A.    Yes.

          Q.   And let's clarify.   I'm not asking you
          to tell them where you were. I'm asking you
          to ask them where you were. Wouldn't that be
          useful for you to know?

          A.    Yes. . . .

     After quoting that exchange in his closing, the prosecutor

argued: "He didn't call his girlfriend.                He didn't call his

grandfather.   In fact, he said he did not even think about the

incident."     The    prosecutor   then   quoted   a    later   exchange    in

defendant's cross-examination, after defendant agreed that "being

charged with something I didn't do" and "sitting in the county

[jail] for 17 months" had "been a nightmare."5

          Q.   Did you spend time trying to remember
          where you were on the night of the charges?

          A.    No.

          Q.    You didn't give it any thought?

          A.    Umm, no.

5
  Defense counsel had argued in opening that the period between
defendant's arrest and trial had been "a 467 day nightmare."

                                   19                                A-4076-15T3
            Q.   You didn't want to put an end to your
            nightmare?

     The prosecutor then argued in closing to the jurors:

            You guys are human beings. You guys have life
            experience, common sense.     Does that make
            sense to you?    Is that how you know human
            beings to act? . . . [W]hy wouldn't you take
            even the most elementary of efforts to see if
            you could put an end to that nightmare? Is
            that consistent with how human beings act? Or
            is that irrational?        And unbelievable?
            Implausible?

     Defendant did not object to the quoted portions of either the

cross-examination or the closing.            Thus, he must show plain error,

and overcome the presumption he did not think the comments were

prejudicial.    Pressley, 232 N.J. at 593; R.B., 183 N.J. at 333.

     The    challenged      statements       were     another   effort    by   the

prosecutor to counter defendant's testimony that he was not present

at Broadway and Delevan when the crime occurred but could not

remember where he was.           The prosecutor's questions and arguments

suggested that defendant could have jogged his memory of where he

was by speaking with his grandfather with whom he was living, by

speaking to his girlfriend, or by trying to remember where he was

when the crime occurred. The prosecutor was contending defendant's

admitted    failure   to    do    so   showed   his    testimony   that   he   was

elsewhere    when     the   crime      occurred       was   "unbelievable"     and

"implausible."

                                        20                                A-4076-15T3
       Nothing in the prosecutor's questions or arguments suggested

that defendant had a burden of proof, or that he had to call either

his grandfather or girlfriend as witnesses.            Rather, they were

aimed at what the prosecutor told the jury the case was all about:

"Credibility.    One of the two people who took the stand lied to

you.    It's as plain as that.     Your job is to figure out who was

the person who lied to you?"

       Defendant claims the prosecutor shifted the burden by later

arguing to the jurors: "Have any of you ever been caught in a

complete nightmare and taken no efforts whatsoever to put an end

to that nightmare, despite it costing you nothing to do so?"

However, the prosecutor then stated: "I suspect it hasn't because

it doesn't happen in the real world.           It doesn't happen in the

real world because it's not truth and what that means is that you

know who was lying."    Again, the prosecutor made clear that he was

challenging the credibility of defendant's testimony.           Defendant

cannot claim "the State impermissibly shifted the burden of proof

to the defense" when the prosecutor was making a different point.

See State v. Loftin, 146 N.J. 295, 389 (1996); State v. Zola, 112

N.J. 384, 427 (1988).

       "Prosecutors can sum up cases with force and vigor, and are

afforded   considerable   leeway   so   long    as   their   comments   are

'reasonably related to the scope of the evidence presented.'"

                                   21                              A-4076-15T3
Pressley, 232 N.J. at 593 (quoting State v. Timmendequas, 161 N.J.

515, 587 (1999)).    "A prosecutor may respond to defense claims,

even if the response tends to undermine the defense case." Nelson,

173 N.J. at 473.    It is "not improper for a prosecutor to comment

on the credibility of a defendant's testimony."    State v. Darrian,

255 N.J. Super. 435, 458 (App. Div. 1992); see State v. Lazo, 209

N.J. 9, 29 (2012). Also, "[i]t is not improper for the prosecution

to suggest that the defense's presentation was imbalanced and

incomplete."    Timmendequas, 161 N.J. at 593.

     Defendant argues this case resembles State v. Jones, 364 N.J.

Super. 376 (App. Div. 2003).    In Jones, the prosecutor asked the

jury why the defense had not "dusted the gun for prints to disprove

that his fingerprints were on there?     Maybe the defendant knows

something we don't, that it is his gun."      Id. at 382.    Defense

counsel objected, the court refused to give a curative instruction,

and we agreed that comment "unfairly suggested to the jury that

he had a burden to introduce evidence."     Id. at 381.     Here, by

contrast, the prosecutor did not suggest defendant had to perform

tests or call witnesses, or "the possible results" if he had.     Cf.

id. at 383.    Moreover, defendant did not object, making it "'fair

to infer from the failure to object below that in the context of

the trial the error was actually of no moment.'"   State v. Ingram,

196 N.J. 23, 42 (2008) (quoting Nelson, 173 N.J. at 471).

                                 22                          A-4076-15T3
      In any event, any error in the prosecutor's statements was

cured by the trial court's instructions.         Loftin, 146 N.J. at 389.

In its opening instructions, and in its final charge immediately

after the prosecutor's summation, the trial court instructed the

jury in essentially the same language: "The burden of proving each

element of a charge beyond a reasonable doubt rests upon the State

and that burden never shifts to the defendant.           The defendant in

a criminal case has no obligation or duty to prove his innocence,

or   offer   any   proof   relating   to   his   innocence."   The     court

repeatedly reiterated that "[t]he State has the burden of proving

the defendant guilty beyond a reasonable doubt."

      "We presume the jury followed the court's instructions."

State v. Smith, 212 N.J. 365, 409 (2012).           Such instructions can

be sufficient to cure even direct references to a defendant's

failure to introduce evidence. State v. Patterson, 435 N.J. Super.

498, 505-06, 513-14 (App. Div. 2014) (ruling the instructions

cured the prosecutor's comments that the defendant "could have

produced some testimony" to support the defense position "but we

don't have any"); State v. Munoz, 340 N.J. Super. 204, 215-17

(App. Div. 2001) (ruling the instructions cure a prosecutor's

argument that the defense "haven't brought [the defendant] up" to

the jurors so they could observe him closely); see also State v.

Hill, 199 N.J. 545, 564-65, 569 n.9 (2009). Thus, defendant cannot

                                      23                             A-4076-15T3
show the prosecutor's comments were "clearly capable of producing

an unjust result[.]"      R. 2:10-2.

                                   C.

     Defendant concedes that his nickname "Rage" was properly

admitted, but now contends the prosecutor improperly questioned

him about it.   Defense counsel first questioned him about it on

direct examination.    Defendant testified that almost "everybody"

calls him Rage, and that Rage was his nickname in the neighborhood

since he was fourteen when friends jokingly called him Rage as the

opposite of Angel, his given name.

     On cross-examination, the following exchange occurred:

          Q.    Is the opposite of angel rage?

          A.    Yes and no.

                . . . .

          Q.   Is it just you who has this opposite
          nickname?

          A.    No.

          Q.   There's others who are nicknamed opposite
          for what their name is?

          A.    No.

          Q.    So it's just you?

          A.   No. I'm saying -- I ain't gonna say they
          names is opposite of they names. I can't say
          that. A nickname is a nickname. People give
          you nicknames.


                                  24                       A-4076-15T3
            Q.   Sure.          But    yours   is   the   one   that's
            opposite?

            A.     That's what I was given to me, yes.

            Q.   Quasi opposite, because it's yes and no
            opposite of angel?

            A.   It was given to me because it's opposite
            of my name when I was young.

     Defendant now complains the prosecutor "tried to show through

cross-examination that Mr. Carlo must be lying about his nickname"

by "pointing out that his nickname was not the exact opposite of

his given name."      We discern no clear purpose for this exchange.

     Nonetheless, defendant cannot show plain error.                The absence

of an objection "'suggests that defense counsel did not believe

the remarks were prejudicial.'"               R.B., 183 N.J. at 333 (citation

omitted).        Nothing   in    the    exchange    was   inflammatory.       Most

importantly, both before and after the exchange, the trial court

instructed the jury it could not draw any adverse inference from

defendant's nickname.

     When defendant was first identified as Rage at trial, the

trial court on its own initiative instructed the jury:

            Please keep in mind that a nickname alone does
            not constitute evidence of guilt or a
            propensity to commit crime.     Many times, a
            nickname, in and of itself, may be interpreted
            to have different meanings. Regardless of the
            nickname associated to the defendant by this
            witness, you must disregard any inference as
            to the meaning behind the nickname. It may

                                         25                               A-4076-15T3
         only . . . be considered by you as a means of
         identifying an actual person, and for no other
         purpose, either during the trial or during
         your deliberations in this case.

         Therefore, I instruct you that you must not
         use this evidence to decide that the defendant
         is a bad person, or has a tendency to commit
         crimes, simply because this may or may not be
         his nickname.    That is, just because this
         witness may have known this defendant by a
         certain nickname cannot, and must not, lead
         you to conclude that the defendant must be
         guilty of the offenses charged here. You must
         not consider this evidence for that purpose.

         Understand, also, as I have previously
         instructed you, a defendant is presumed
         innocent and that presumption stays with him
         until the State has proven guilt beyond a
         reasonable doubt, if that is the conclusion
         that you come to at the end of the case. You
         cannot utilize the fact that an individual is
         known by a certain nickname [t]o infer his
         guilt. Understood? Thank you.

    The trial court essentially repeated the first and third

paragraphs of that instruction in its final charge, and added:

         Whether the defendant and that particular
         nickname are associated is for you to decide.
         The use of a nickname cannot, and should not,
         be considered by you for any other purpose,
         other than for possible identification of an
         individual mentioned during this trial. You
         cannot infer that based upon someone's
         nickname that he has any predisposition to
         commit a crime or otherwise perform any bad
         act.

    "[T]he court's limiting instruction[s] to the jury regarding

the use of [defendant's nickname] prevented any prejudice to the


                              26                          A-4076-15T3
defendant."     State v. Paduani, 307 N.J. Super. 134, 146-47 (App.

Div.   1998);   see   State   v.   Parker,    216   N.J.   408,   420    (2014)

(requiring "'some tangible form of prejudice'" where the defendant

objects to use of a false name).             This exchange was innocuous,

particularly    in    comparison    to   defendant's    description     of   his

criminal history to the jury.             It was not "clearly capable of

producing an unjust result."        R. 2:10-2.

                                     III.

       Lastly, defendant on appeal challenges for the first time

the identification section of the trial court's final charge.

However, when the court gave the parties opportunities to comment

on the draft charge, defense counsel made only two comments

unrelated to identification, and said she did not have anything

else to add.       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).

Moreover, "[d]efendant's failure to 'interpose a timely objection

constitutes strong evidence that the error belatedly raised here

was actually of no moment.'"         State v. Tierney, 356 N.J. Super.

468, 481 (App. Div. 2003) (citation omitted).                "[T]here is a

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

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

                                     27                                 A-4076-15T3
      Defendant complains that in giving the pertinent portions of

the Model Jury Charge (Criminal), "Identification: In-Court and

Out-of-Court Identifications" (rev. July 19, 2012) [Model Charge],

the   trial   court   did   not   give    the   part   addressing   "a    showup

procedure."    The State argues the showing of a single photo to a

witness is not a showup.

      "Showups are essentially single-person lineups: a single

suspect is presented to a witness to make an identification.

Showups often occur at the scene of a crime soon after its

commission."    State v. Henderson, 208 N.J. 208, 259 (2011).                   As

that language suggests, showups have traditionally involved the

witness seeing a single suspect live and in person.                 See id. at

261 (ruling officers "should instruct witnesses that the person

they are about to view may or may not be the culprit"); State v.

Herrera, 187 N.J. 493, 504 (2006) ("showups by definition are

suggestive because the victim can only choose from one person,

and, generally, that person is in police custody").

      However, a decision issued after trial may suggest that

showing a single photo to the witness is a showup.              In Pressley,

the defendant contended that showing a witness a single photograph

"was essentially a showup."          232 N.J. at 590.         The concurring

justice agreed it was a "photographic showup."                Id. at 595-98

(Albin, J., concurring). The Court found no basis for suppression:

                                     28                                  A-4076-15T3
"Although    showups   are   inherently   suggestive,   'the   risk    of

misidentification is not heightened if a showup is conducted'

within two hours of an event.    Here, the identification took place

within an hour."   Id. at 592 (quoting Henderson, 208 N.J. at 259).

     We assume without deciding that just as there are "live and

photo lineups," that there can be live and "photo showup[s]."

Henderson, 208 N.J. at 222, 251, 260, 277.        We also assume the

trial court should have given the portion of the Model Charge for

"a showup procedure":

            In this case, the witness identified the
            defendant during a "showup," that is, the
            defendant was the only person shown to the
            witness at that time.     Even though such a
            procedure is suggestive in nature, it is
            sometimes necessary for the police to conduct
            a "showup" or one-on-one identification
            procedure. Although the benefits of a fresh
            memory may balance the risk of undue
            suggestion, showups conducted more than two
            hours after an event present a heightened risk
            of misidentification. Also, police officers
            must instruct witnesses that the person they
            are about to view may or may not be the person
            who committed the crime and that they should
            not feel compelled to make an identification.
            In determining whether the identification is
            reliable or the result of an unduly suggestive
            procedure, you should consider how much time
            elapsed after the witness last saw the
            perpetrator,    whether     the    appropriate
            instructions were given to the witness, and
            all other circumstances surrounding the
            showup.

            [Model Charge at 6-7.]


                                  29                            A-4076-15T3
       Defendant claims that had the jury been properly instructed,

it would have been able to consider the length of time between

T.A.'s viewing of the shooter and the two photo show-ups, and the

suggestive     nature           of          showups.              However,     the      trial   court's

identification instruction was broad enough to allow the jury to

consider both factors.

       The   trial      court               instructed            the   jury       to   consider      "the

circumstances under which the identification was made."                                                "In

evaluating the reliability of the witness's identification, you

should also consider the circumstances under which any out-of-

court identification was made, and whether it was the result of a

suggestive procedure.                   In that regard, you may consider everything

that   was   done       .       .       .       by    law       enforcement    .    .   .   during    the

identification process."                         Finally, the court instructed the jurors

that they were "also free to consider any other factor, based on

the    evidence     .       .       .       ,    that       you     consider       relevant     to    your

determination whether the identifications were reliable."

       Thus, under the trial court's identification instruction, the

jury was able to consider whether showing the witness a single

photo was "a suggestive procedure."                                 It is a "commonsense notion

that    one-on-one          showups                  are    inherently    suggestive"           and    "by

definition are suggestive because the victim can only choose from

one person."      Herrera, 187 N.J. at 504.                             The jury could draw that

                                                           30                                    A-4076-15T3
commonsense conclusion from the obvious fact that the photos only

displayed one person, defendant.

     Moreover,      the    other   factor      making   in-person      showups

suggestive was not present here.             Defendant was not "in police

custody" having just been arrested for the crime, but was a free

man depicted in a still photo.      Ibid.      Further, the Model Charge's

comment that a showup "is suggestive in nature" would have been

offset by its comment that "the benefits of a fresh memory may

balance the risk of undue suggestion."           Model Charge at 7.

     The    trial   court's   instruction      also   allowed    the   jury    to

consider how much time elapsed after the witness last saw the

perpetrator.   Further, the court specifically instructed the jury:

"Memories   fade    with   time.    As   a    result,   delays   between      the

commission of the crime and the time an identification is made can

affect the reliability of the identification.           In other words, the

more time that passes, the greater the possibility that a witness's

memory of a perpetrator will weaken."

     Moreover, T.A. saw the still photo only about five hours

after he last saw defendant.       While "more than two hours after the

event," Model Charge at 7, "an approximate five-hour period between

the incident and the [showup] identification does not subvert the

reliability of the identification procedure."             Herrera, 187 N.J.

at 509. T.A. saw the second, clearer photo only a few hours later.

                                    31                                  A-4076-15T3
Thus, "the times between the initial encounters and the later

photo identifications were relatively short."             State v. Adams, 194

N.J. 186, 205-06 (2008) (finding no "substantial likelihood of

misidentification" where "the [photo showup] identifications were

made within two days of the incident"); see id. at 192-93; id. at

210 (Albin, J., concurring).

     Defendant also complains the trial court's identification

instruction did not include the part of the Model Charge discussing

multiple viewings.        Id. at 6.        However, that part is primarily

intended to address the "risk of 'mugshot exposure' and 'mugshot

commitment.'"     Henderson, 208 N.J. at 255.         "Mugshot exposure is

when a witness initially views a set of photos and makes no

identification, but then selects someone — who had been depicted

in the earlier photos — at a later identification procedure."

Ibid.     "Mugshot commitment occurs when a witness identifies a

photo that is then included in a later lineup procedure."                Id. at

256. Neither risk was present here, as T.A. identified defendant's

photo the first time he saw it, and the second procedure involved

a different photo of defendant.

     In    any   event,    it   is   "significant"    that    T.A.   was   not

identifying "'a stranger'" he had never seen before the incident.

Herrera, 187 N.J. at 507. Rather, this resembled "a 'confirmatory'

identification,     which       is   not     considered    suggestive.        A

                                      32                              A-4076-15T3
confirmatory       identification   occurs      when    a    witness      identifies

someone he or she knows from before but cannot identify by name.

For example, the person may be a neighbor or someone known only

by   a    street   name."   Pressley,     232    N.J.       at   592-93   (citation

omitted).     T.A. knew defendant by sight for a substantial period,

frequently saw him in their neighborhood, knew his street name,

had talked and fought with him earlier that day, and had just

spoken to him and shaken hands with him, but just did not know his

birth name.

         In addition, before seeing any photo, T.A. was able to

accurately describe defendant and his gray hoodie with black

markings.     Defendant was still wearing it at the time of arrest,

and was wearing it in the video.          Finally, T.A.'s identification

was unequivocal.

         Under these circumstances, defendant cannot show prejudice

from the omission of the showup and multiple-viewing parts in the

trial court's identification instruction.               See State v. Robinson,

165 N.J. 32, 46-47 (2000).      The court's identification instruction

otherwise contained all the pertinent portions of the Model Charge,

including that "[t]he burden of proving the identity of the person

who committed the crime is upon the State," and that "the State

must prove beyond a reasonable doubt that this defendant is the

person who committed the crime."          Model Charge, at 1; see State

                                     33                                      A-4076-15T3
v. Cotto, 182 N.J. 316, 326-27 (2005); cf. State v. Sanchez-Medina,

231 N.J. 452, 468-49 (2018) (reversing where the court failed to

give any instructions on identification).    Defendant has failed

to show the omission was "clearly capable of producing an unjust

result."   Alexander, 233 N.J. at 142 (quoting R. 2:10-2).

     Defendant's remaining arguments lack sufficient merit to

warrant discussion.   R. 2:11-3(e)(2).

     Affirmed.




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