                                NOT FOR PUBLICATION WITHOUT THE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-4412-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE TEPANECATLTEPALE,
a/k/a JOSE M. TEPALE,

     Defendant-Appellant.
____________________________

                    Submitted February 6, 2019 – Decided February 19, 2019

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 16-07-0592.

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

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Ali Y. Ozbek, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jose Tepanecatltepale appeals from an April 21, 2017 judgment

of conviction following a jury trial for first-degree attempted murder, N.J.S.A.

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

2C:12-1(b)(1); third-degree possession of a knife for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and fourth-degree unlawful possession of a knife, N.J.S.A.

2C:39-5(d). We affirm.

      The following facts are taken from the record. Beginning in January 2016,

the victim, Fidel Cabrera, rented a room in the first-floor apartment of a

residence located on Center Street in Clifton. Cabrera's room was rented from

Jorge Mesa, who had rented the entire three-bedroom apartment from the owner,

and sublet the two remaining bedrooms to Cabrera and defendant. Cabrera had

not met defendant before the night of the incident because he had a different

work schedule, and defendant had only been living in his room for

approximately three weeks.

      On January 10, 2016, at approximately 1:00 a.m., Cabrera entered the

hallway of the apartment. A man opened the door, emerged from the middle

bedroom, and approached him. The man grabbed Cabrera by the shoulder, said

"hello friend" in Spanish, and stabbed him in the stomach. Cabrera pushed the

man back, retreated to his bedroom, and locked the door. Cabrera called 9-1-1


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                                       2
and said "[a] guy stabbed me, he lives here, he stabbed me." Cabrera was

hospitalized and had emergency surgery to repair a punctured colon and

lacerated liver.

      Police responded to the residence and found no signs of forced entry.

They discovered a bloodstained shirt on the floor of the apartment and

surveillance footage from a bar next door, which showed a shirtless man running

at approximately 1:30 a.m.

      Detective Michael Panepinto interviewed Cabrera at the hospital. Cabrera

stated he had never met defendant. When Cabrera returned home from the

hospital, he observed defendant moving belongings out of the middle bedroom.

Cabrera called Panepinto and told him he recognized defendant as the individual

who stabbed him. Panepinto assembled a photographic array containing one

photo of defendant and five other individuals. Cabrera identified defendant's

photo from the array and indicated he was sixty-to-seventy percent certain it

depicted the man who stabbed him.

      At trial, Cabrera testified the light in the middle bedroom was on and

provided enough illumination for him to see defendant's face during the attack.

Cabrera also identified defendant in court. He stated the only discrepancy was

that defendant's face looked "chubbier" in the photograph than it did in person.


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                                       3
      After defendant was arrested, he gave police a video recorded statement,

which was also played for the jury. In it, defendant stated he worked at a local

delicatessen until 3:00 p.m. and then returned home. He then visited his sister's

home from 5:30 p.m. to 7:30 p.m. and stopped at a local sports bar on the way

home at approximately 8:30 or 9:00 p.m.         Defendant stated he consumed

approximately four or five beers and stayed at the bar until 11:00 p.m. He stated

he was not intoxicated and was "stabilized."

      He then left the bar for his sister's home, where he stayed until 12:30 a.m.

Defendant stated he went to the Ukrainian Center in Passaic to see his brother

perform. There he drank four more beers and walked home. Defendant stated

he "blacked out" around 1:30 a.m. and woke up at his brother's house, which

was located several blocks from his apartment. Defendant claimed he had a

history of blacking out, which he believed was caused by repeated head trauma.

      Defendant stated he woke up in the clothes he had been wearing the night

before. He claimed he learned of the stabbing when he returned home at 10:00

a.m. Defendant stated he had never met Cabrera because defendant worked

often and slept when he returned home.

      In addition to the aforementioned evidence, Mesa testified a knife was

missing from the apartment. The knife used in the incident was never recovered.


                                                                          A-4412-16T2
                                        4
Mesa also testified his bedroom door was shut at the time of the incident and he

did not see anything, but heard a noise which sounded like someone running out

of the apartment.

      Defendant did not testify at trial. However, his attorney argued that

defendant was mistakenly identified as the attacker because he was asleep at his

brother's home at the time of the stabbing. Defense counsel also argued that

defendant lacked motive to commit the crime and asserted the more likely

explanation was Cabrera had interrupted a burglary by an unknown assailant ,

who had crawled through the middle bedroom window and stabbed him.

      Defendant was convicted on all counts and sentenced to an aggregate term

of thirteen years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This

appeal followed.

      Defendant raises the following points on appeal.

            POINT I - WHERE IDENTIFICATION WAS THE
            CENTRAL ISSUE IN THE CASE, TWO
            SIGNIFICANT ERRORS IN THE IDENTIFICATION
            JURY INSTRUCTION DENIED DEFENDANT DUE
            PROCESS AND A FAIR TRIAL. (Not Raised Below).

                    ....

                    B.   THE COURT INSTRUCTED THE
                    JURY   THAT   TWO   WITNESSES
                    IDENTIFIED DEFENDANT AS THE


                                                                        A-4412-16T2
                                       5
                   ASSAILANT WHEN, IN FACT, ONLY
                   ONE DID.

                   C.  THE COURT FAILED TO GUIDE
                   THE    JURY   ON    HOW    PRE-
                   IDENTIFICATION    INSTRUCTIONS
                   ADMINISTERED TO THE VICTIM
                   COULD BE TAKEN INTO ACCOUNT
                   WHEN       EVALUATING      THE
                   IDENTIFICATION EVIDENCE.

                   ....

             POINT II – PROSECUTORIAL ERROR IN THE
             OPENING STATEMENT DENIED DEFENDANT A
             FAIR TRIAL. (Not Raised Below).

             POINT III – THE TRIAL COURT'S FAILURE TO
             SUA SPONTE CHARGE THE DEFENSE OF
             INTOXICATION DENIED DEFENDANT DUE
             PROCESS AND A FAIR TRIAL. (Not Raised Below).

                                          I.

      "[A]ppellate courts are empowered, even in the absence of an objection,

to acknowledge and address trial error if it is 'of such a nature as to have been

clearly capable of producing an unjust result[.]'" State v. Robinson, 200 N.J. 1,

20 (2009) (quoting R. 1:7-5). "Further, our appellate courts retain the inherent

authority to 'notice plain error not brought to the attention of the trial court[,]'

provided it is 'in the interests of justice' to do so." Ibid. (alteration in original)

(quoting R. 2:10-2). "Under that [plain error] standard, defendant has the burden


                                                                              A-4412-16T2
                                          6
of proving that the error was clear and obvious and that it affected his substantial

rights." State v. Morton, 155 N.J. 383, 421 (1998).

      "Correct jury charges are essential to a fair trial and failure to provide a

clear and correct charge may constitute plain error." State v. Holden, 364 N.J.

Super. 504, 514 (App. Div. 2003). Indeed, erroneous instructions on matters or

issues that are material to the jury's decision are presumed to be reversible error.

State v. Warren, 104 N.J. 571, 578-79 (1986). Moreover, if a jury instruction is

particularly "crucial to the jury's deliberations on the guilt of a criminal

defendant," then "'[e]rrors [having a direct impact] upon these sensitive areas of

a criminal trial are poor candidates for rehabilitation' under the plain error

theory." State v. Jordan, 147 N.J. 409, 422-23 (1997) (quoting State v. Simon,

79 N.J. 191, 206 (1979)).

      "The trial court must give a clear explanation of the applicable law to

provide the jury with an adequate understanding of the relevant legal principles."

State v. Hackett, 166 N.J. 66, 85 (2001) (citing State v. Burgess, 154 N.J. 181

(1988)). In reviewing any claim of error "[t]he charge must be read as a whole

in determining whether there was any error[,]" State v. Torres, 183 N.J. 554, 564

(2005), and the effect of any error must be considered "in light 'of the overall




                                                                            A-4412-16T2
                                         7
strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting

State v. Chapland, 187 N.J. 275, 289 (2006)).

                                          A.

      Defendant argues the trial judge erroneously attributed defendant's

identification to Panepinto, who was "only involved in producing the

photographic array." Specifically, defendant challenges the following passage

from the jury charge on identification:

                  The State has presented the testimony of . . .
            Cabrera and . . . Panepinto. You will recall that these
            witnesses identified the defendant in court as the person
            who committed attempted murder, aggravated[]
            assault, possession of a weapon for [an] unlawful
            purpose and unlawful possession of a weapon.

                  The State also presented testimony that on a prior
            occasion before this trial, these witnesses identified the
            defendant as the person who committed these offenses.

                  According to the witnesses, their identification of
            the defendant is based upon the observations and
            perceptions that they made of the perpetrator at the time
            the offense was being committed.

      The aforementioned statement did not constitute reversible error. At the

outset, we note defendant did not object to the instruction. 1 This is because


1
  Counsel's failure to object to jury instructions not only "gives rise to a
presumption that he did not view [the charge] as prejudicial to his client's


                                                                         A-4412-16T2
                                          8
Panepinto identified defendant in court as the individual he arrested and charged

with committing the offense. Panepinto explained defendant's arrest was based

on the information he obtained during his investigation, namely, the

observations he made immediately after the incident, at the scene, and the

interviews of Cabrera and defendant. In the context of this case, the instruction

would not have confused the jury and was not capable of creating an unjust

result. Hence, we find no plain error.

      Defendant claims the State failed to elicit evidence regarding the

instructions Cabrera was given prior to the photo array identification of

defendant. He argues the judge should have read the jury the model charge for

in-court and out-of-court identifications. He asserts the failure to provide the

instruction "deprived the jury of the information it needed to properly assess the

identification."

      Generally, "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), which requires instruction "about the various factors that

may affect the reliability of an identification[.]" State v. Henderson, 208 N.J.



case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered a
waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91,
104 (2013).
                                                                          A-4412-16T2
                                         9
208, 296 (2011). Whether the failure to provide a jury instruction regarding

identification is "plain error depends on the strength and quality of the State's

corroborative evidence rather than on whether defendant's misidentification

argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2005). Thus, the

failure to provide a jury instruction regarding identity is not error when there

"exists substantial corroborating evidence, where the identification o f the

witness is positive, certain and consistent, or where defense counsel is able to

attack the credibility of identification testimony through cross-examination and

closing argument." State v. Salaam, 225 N.J. Super. 66, 71 (App. Div. 1988)

(citations omitted).

      Again, we note defendant did not object to the jury instruction.

Notwithstanding, the judge gave a thorough and extensive instruction, which

addressed the State's burden of proving the identity of defendant and the

elements of the offenses charged, the in-court and out-of-court witness

identifications of defendant, and the nature of the photo array identification

process. After describing the latter, the judge stated the following:

                  In this case, it [is] alleged that the person who
            presented the lineup knew the identity of the suspect
            and it is also alleged that the police . . . did not
            compensate for that fact by conducting the procedure in
            which the officer did not see the photos as the witness
            looked at them.

                                                                         A-4412-16T2
                                       10
                   You may consider this factor when you consider
            the circumstances under which the identification was
            made and when you evaluate the overall reliability of
            the identification. You may consider whether the
            witness was exposed to opinions, descriptions or
            identifications given by other witnesses to photographs
            or newspaper accounts or to any other information or
            influence that may have affected the independence of
            his or her identification.

                   Such information can affect the independent
            nature and reliability of a witness' identification and
            inflate the witness' confidence in the identification.
            You are also free to consider any other factor based on
            the evidence or lack of evidence in the case that you
            consider relevant to your determination whether the
            identifications were reliable.

                  ....

                   The ultimate issue of the trustworthiness of an
            identification is for you to decide. If after consideration
            of all of the evidence you determine that the [S]tate has
            not proven beyond a reasonable doubt that [defendant]
            was the person who committed these offenses, then you
            must find him not guilty.

      Considering the jury charge as a whole and in light of the overall strength

of the State's case, as we must, we find no cause to reverse. The jury charge

here was extensive, and we have only recited a portion of it. Moreover, neither

side presented evidence concerning the instructions given to Cabrera prior to

being shown the photo array. Thus, it was not an issue of concern for the jury.


                                                                          A-4412-16T2
                                       11
Regardless, Cabrera identified defendant as the attacker before he ever saw the

photo array, and he identified him in court. Therefore, the failure to include the

model instruction on the photo array identification was not reversible error.

                                         B.

      Defendant claims the court's failure to charge the defense of intoxication

denied him due process and a fair trial.         He asserts "[t]he evidence was

undisputed that [he] was so severely intoxicated that he 'blacked out' and had no

memory of the night after about 1:30 a.m."               He asserts under these

circumstances, "an instruction on intoxication was clearly indicated by the

record."

      "[W]hen the requisite culpability for a crime is that the person act

'purposely' or 'knowingly,' evidence of voluntary intoxication is admissible to

disprove that requisite mental state." State v. Cameron, 104 N.J. 42, 53 (1986).

In order for intoxication to diminish "the capacity to act purposely or knowingly,

the intoxication must be of an extremely high level; it must have caused a

'prostration of faculties' in the defendant." State v. Sette, 259 N.J. Super. 156,

170 (App, Div. 1992) (quoting Cameron, 104 N.J. at 54). "[A] jury issue arises

only if there exists a rational basis for the conclusion that defendant's 'faculties'




                                                                             A-4412-16T2
                                        12
were so 'prostrated' that he or she was incapable of forming an intent to commit

the crime." State v. Mauricio, 117 N.J. 402, 418-19 (1990).

      In Cameron, our Supreme Court addressed the extreme level of

intoxication necessary to satisfy the "prostration of faculties" test. The Court

stated:

                   [I]t is not the case that every defendant who has
            had a few drinks may successfully urge the defense.
            The mere intake of even large quantities of alcohol will
            not suffice.       Moreover, the defense cannot be
            established solely by showing that the defendant might
            not have committed the offense had he been sober.
            What is required is a showing of such a great
            prostration of the faculties that the requisite mental
            state was totally lacking. That is, to successfully
            invoke the defense, an accused must show that he was
            so intoxicated that he did not have the intent to commit
            an offense. Such a state of affairs will likely exist in
            very few cases.

            [Cameron, 104 N.J. at 54 (alteration in original)
            (citation omitted) (quoting State v. Stasio, 78 N.J. 467,
            495 (1979)).]

      Futher, the Court noted:

            [S]ome of the factors pertinent to the determination of
            intoxication sufficient to satisfy the test of "prostration
            of faculties" . . . are the following: the quantity of
            intoxicant consumed, the period of time involved, the
            actor's conduct as perceived by others (what he said,
            how he said it, how he appeared, how he acted, how his
            coordination or lack thereof manifested itself), any odor
            of alcohol or other intoxicating substance, the results of

                                                                          A-4412-16T2
                                       13
            any tests to determine blood-alcohol content, and the
            actor's ability to recall significant events.

            [Cameron, 104 N.J. at 56.]

      The defendant in Cameron had stated she felt "'pretty intoxicated,' 'pretty

bad,' and 'very intoxicated.'" Ibid. The Court in Cameron found a voluntary

intoxication instruction was not warranted because the statements were "no more

than conclusory labels, of little assistance in determining whether any drinking

produced a prostration of faculties." Ibid.

      In State v. R.T., 411 N.J. Super. 35 (App. Div. 2009), we reviewed the

factors set forth in Cameron in the context of a sua sponte jury instruction on

voluntary intoxication.    411 N.J. Super. at 50-51.      In R.T., the defendant

confessed to police that he drank excessively and potentially molested his

nephew while intoxicated. Id. 40-41. We noted the lack of blood alcohol tests

and other indicia of alcohol consumption, such as an odor, to corroborate his

claim of alcohol consumption.         Id. at 50.    Moreover, the victim only

corroborated that defendant had a drinking habit. Id. at 51. We concluded the

"evidence would be entirely insufficient to establish the extremely high level of

intoxication required by the [c]ourt to qualify as a defense as well as to create a

jury question on defendant's intoxication." Ibid.



                                                                           A-4412-16T2
                                       14
      Here, defendant's claims regarding his intoxication were based solely on

his own uncorroborated testimony.       Defendant told police he did not feel

intoxicated after drinking at a bar between 8:00 and 9:00 p.m., before the

incident. He also stated he did not feel intoxicated at approximately 11:00 p.m.

and instead felt "stabilized." Despite his alcohol consumption, defendant stated

he was "still able to control [him]self" and only felt "a little drowsy." Defendant

stated his blackout was not due to alcohol consumption, but a history of head

trauma. Thus, the record lacked any evidence of intoxication, and contained

evidence to the contrary. For these reasons, the trial judge did not err by failing

to instruct the jury on a voluntary intoxication defense.

                                        II.

      Defendant argues the prosecutor's opening statement informed the jury

Panepinto had concluded defendant was the perpetrator of the crime, and this

comment deprived him of a fair trial. Specifically, defendant points to the

following statements by the prosecutor:

            In his investigation [Panepinto] was trying to eliminate
            suspects and eliminate alternative theories, so he could
            come to the right conclusion.

                  Now, through his review of the scene, the
            collection of evidence, and speaking to witnesses, . . .
            Panepinto was able to definitively conclude that it was,


                                                                           A-4412-16T2
                                       15
            in fact, the defendant who had stabbed . . . Cabrera in
            that first-floor apartment . . . on January 10th, 2016.

      Opening statements and summations of counsel are not evidence. State v.

Timmendequas, 161 N.J. 515, 578 (1999). The purpose of opening statements

are to better prepare the jury to understand the evidence, and such statements

are limited to the facts that counsel intends to prove. State v. Wakefield, 190

N.J. 397, 442 (2007).

      Prosecutorial misconduct is not a basis for reversal unless the conduct

"was so egregious that it deprived [the] defendant of a fair trial." State v.

DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J. 547,

565 (1990)). That is, the prosecutor's conduct must have been "'clearly and

unmistakably improper,' and must have substantially prejudiced defendant's

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

Wakefield, 190 N.J. at 438 (quoting State v. Papasavvas (I), 163 N.J. 565, 625

(2000)). Considerable leeway is afforded to prosecutors in presenting their

arguments at trial "as long as their comments are reasonably related to the scope

of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). However, a

prosecutor must not "express his or her personal belief or opinion as to the truth

or falsity of any testimony or evidence or the guilt of the defendant." State v.



                                                                          A-4412-16T2
                                       16
Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards For Criminal Justice,

§3-5.8(b) (2d ed. 1980)).

      When, as here, a defendant fails to object to the prosecutor's comments at

trial, the allegedly "improper remarks . . . will not be deemed prejudicial."

Timmendequas, 161 N.J. at 576. Notwithstanding defendant's failure to object,

he relies on State v. Rivera, 437 N.J. Super. 434 (App. Div. 2014), a case that is

clearly distinguishable. There, the prosecutor's opening included a PowerPoint

presentation, which declared "Defendant: GUILTY OF: ATTEMPTED

MURDER." Id. at 447 (emphasis omitted).

      Here, during his opening statement, the prosecutor had already informed

the jury that Cabrera identified defendant as the individual who stabbed him,

before addressing the police investigation. Based on Cabrera's identification,

the prosecutor stated Panepinto's investigation led him to conclude defendant

had committed the stabbing and left the jury to decide the result based on the

evidence.   Taken in context, the prosecutor's remarks on the investigation

explained what the State intended to prove and the evidence it would present at

trial, and did not impart an opinion on the veracity of the evidence.

      The trial judge's instruction to the jury prior to the start of trial reinforced

these principles. In pertinent part, the judge stated:


                                                                              A-4412-16T2
                                        17
                  The first order of business will be the
            prosecutor's opening statement.        In the opening
            statement, the prosecutor will present the State's
            contentions and will outline what he expects to prove.
            Following that, defense counsel if he chooses will make
            an opening statement.

                  What is said in opening statements is not
            evidence. The evidence will come from the witnesses
            [who] testify and from whatever documents [or]
            tangible items that are received into evidence.

      The judge repeated a similar instruction before the jury deliberated.

Additionally, the jury received detailed instructions regarding the elements of

the crimes charged, including the mens rea required to prove them. Thus, the

jury was clearly informed as to the distinction between evidence and argument.

Finally, considering the substantial evidence supporting defendant's guilt the

prosecutor's remarks did not constitute reversible error.

      Affirmed.




                                                                       A-4412-16T2
                                       18
