                        NOT FOR PUBLICATION WITHOUT THE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-0819-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAIQUAN CRUEL,

     Defendant-Appellant.
___________________________

              Submitted on June 6, 2017 – Decided July 14, 2017

              Before Judges Gilson and Sapp-Peterson.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 14-
              09-2260.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jaime Beth Herrera, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Barbara
              A.   Rosenkrans,  Special  Deputy   Attorney
              General/Acting   Assistant  Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        A jury convicted defendant Daiquan Cruel of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1).                He was sentenced to
eight   years   in   prison   subject       to   eighty-five    percent    parole

ineligibility as prescribed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.      Defendant appeals his conviction arguing that

there was insufficient evidence to identify him as the assailant

and that the jury instructions were inadequate.                We affirm.

                                     I.

       The charge against defendant arose from the beating of his

uncle, S.C.1    The State's theory was defendant assaulted his uncle

after learning that the family dog had been taken away because it

had bitten one of the uncle's sons.

       Defendant had previously lived with his uncle, his uncle's

girlfriend,     K.C.,   and   the   uncle's      two   sons,    T.C.    and   C.C.

Defendant also often visited his uncle and the uncle's family.

       The assault on the uncle occurred on April 28, 2014.               At that

time, the uncle was living in an apartment with his two sons and

K.C.    K.C. is blind.

       The uncle testified that he was drinking heavily on April 28,

2014, and he had limited recollection of that day.                     He recalls

drinking alcohol on the front porch of his apartment building.

Later, he recalls going inside and passing out on a mattress,

which was in the front living room of the apartment.                    The next


1
  To protect the privacy interests of the victim and witnesses, we
use initials.

                                        2                                 A-0819-15T2
thing the uncle remembers was waking up in a hospital room.

Accordingly, the uncle had no recollection of the assault and

could not identify his assailant.

       Following the assault, the uncle was in a coma for a week and

he was hospitalized for almost three weeks.             He testified that

after his release from the hospital, he had problems with the left

side of his body, including not being able to walk straight. In

addition, the uncle testified that he had a hard time remembering

things.

       The   uncle's   son,   T.C.,   who   was   seventeen   at   the     time,

testified that on the day of the assault the family dog had bitten

him.   The dog was brought to the apartment by T.C.'s aunt, who was

defendant's mother.      After the dog bit T.C., the police responded

and ultimately the Humane Society took the dog.

       T.C. went on to testify that at some time between 1 a.m. and

2 a.m. on April 29, 2014, he was woken by a commotion.              T.C. got

up and found his father on the mattress in the front living room.

His father was bleeding profusely from his head and he was not

responsive.     T.C. stated that he did not see anyone else in the

apartment at that time besides his brother and K.C.            T.C. recalls

hearing K.C. on the phone speaking with a 911 operator.            T.C. also

observed that the front door of the apartment was open, the chain

had been "popped," and a chair and a bucket had been knocked over.

                                      3                                  A-0819-15T2
       K.C.'s recollection and testimony differed from the testimony

of T.C.    K.C. testified that she had been asleep for several hours

in her bedroom and she woke up when she heard T.C. yelling.        She

recalls T.C. stating "[h]e's killing him. He's killing him."      K.C.

asked T.C. what he was talking about and T.C. responded:        "Day-

Day, he's killing him."     Day-Day was the nickname for defendant.

       K.C. called 911.     While she was on the phone with a 911

operator, she yelled "Day-Day, what are you doing?" K.C. testified

that she knew defendant was in the apartment because T.C. told her

he was there and because she heard defendant telling his uncle:

"I'm gonna be here every day [un]til you get my dog back."

       At trial, the State played a recording of K.C.'s 911 call.

Initially, K.C. requested an ambulance.       She then stated: "Day-

Day!    Leave, Day-Day!   Day-Day!   Please I got an ambulance coming

- -."     K.C. went on to explain to the 911 operator that she is

blind and she could not see what was going on.      At one point, on

the 911 recording, someone in the background asked, "[K.C., you're]

calling the cops on me?"      Then K.C. responded: "No. I'm calling

the ambulance!"      Later, an emergency medical personnel asked:

"Okay, but why is your son saying, 'you calling the cop on me'"

and K.C. responded:       "No, that's not my son, that's my, um, my

husband's nephew."



                                     4                        A-0819-15T2
    Thereafter, T.C. got on the 911 call and stated that his

father "just got beat up" in the living room.   When asked if the

person who beat up his father was still there, T.C. responded:

"No, I just - - he broke in and did it. And then he ran."      T.C.

never identified or mentioned defendant during the 911 call.

    Defendant also testified at trial.   He denied assaulting his

uncle and stated that he was not at the apartment at the time of

the assault.   He went on to testify that he became aware of the

assault the next day.

    Several days after the assault, defendant was arrested and,

thereafter, he was indicted for aggravated assault and third-

degree terroristic threats, N.J.S.A. 2C:12-3(b).   After hearing

the evidence, including the witnesses' testimony, the jury found

defendant guilty of aggravated assault, but acquitted him of the

charge of terroristic threats.

                                 II.

    Defendant now appeals his conviction and argues:

         POINT I – THE CONVICTION FOR AGGRAVATED
         ASSAULT SHOULD BE VACATED BECAUSE THE STATE
         FAILED TO PROVE THE OFFENSE BEYOND A
         REASONABLE DOUBT

         POINT II – THE TRIAL COURT'S FAILURE TO
         PROVIDE ANY GUIDANCE TO THE JURY AS TO HOW TO
         ASSESS   THE   RELIABILITY   OF   THE   VOICE
         IDENTIFICATION AND THE COURT'S FAILURE TO
         PROVIDE A HAMPTON/KOCIOLEK CHARGE REQUIRES
         REVERSAL OF DEFENDANT'S CONVICTION

                                  5                       A-0819-15T2
     A.    The Sufficiency of the Evidence: Voice Identification

     Defendant argues that the only witness who identified him was

K.C., and because K.C. is blind, she only identified him by his

voice.    Defendant then contends that K.C.'s voice identification

was insufficient to prove beyond a reasonable doubt that he was

the assailant.

     A lay witness can identify the voice of a speaker provided

the witness' opinion "(a) is rationally based on the perception

of the witness and (b) will assist in understanding the witness'

testimony or in determining a fact at issue."    N.J.R.E. 701; see

also State v. Perez, 150 N.J. Super. 166, 170 (App. Div.), certif.

denied, 75 N.J. 542 (1977).    Voice-identification testimony "is

generally admissible provided that the witness has an adequate

basis for comparison of defendant's voice with the voice which he

[or she] identifies as that of the accused."    State v. Johnson,

138 N.J. Super. 579, 582 (App. Div.), certif. denied, 71 N.J. 340

(1976).    To satisfy the first requirement of N.J.R.E. 701, the

witness' "perception . . . [must] rest on the acquisition of

knowledge through use of one's sense of . . . hearing."   State v.

McLean, 205 N.J. 438, 457 (2011).

     Generally, the admission of a voice identification is subject

to the same test of suggestiveness and reliability as any other

identification.    State v. Clausell, 121 N.J. 298, 328 (1990)

                                 6                         A-0819-15T2
(citing Johnson, supra, 138 N.J. Super. at 582); see also State

v. Henderson, 208 N.J. 208, 218-19 (2011) (setting forth the

standard     for   determining     the    admissibility     of     eyewitness

identification).

     Here, K.C. was familiar with and knew defendant.                  Moreover,

she identified defendant without any prompting or suggestion by

law enforcement officers.

     Defendant     argues   that   K.C.'s     voice     identification         was

unreliable because K.C. was under stress at the time of the

incident,    she   acknowledged    that     defendant    did     not    have     a

particularly distinctive voice, and the police had failed to

confirm that K.C. had the ability to identify defendant. We reject

all of these arguments because they go to the weight, but not the

admissibility, of the voice identification.

     K.C. testified that she had lived with defendant for over a

month and that defendant occasionally visited his uncle and her.

Accordingly, K.C. had conversed with defendant and had heard his

voice on other occasions.     K.C. also testified that she recognized

defendant's voice "[b]y the tone . . . like the deepness or the

softness."     Consequently, K.C. testified that she was familiar

with and recognized defendant's voice.

     Thus, it was for the jury to determine whether K.C.'s voice

identification was believable.       The jury made that determination.

                                     7                                   A-0819-15T2
Accordingly, there was sufficient evidence to prove beyond a

reasonable doubt that defendant assaulted his uncle.

     B.   The Jury Instructions on Voice Identification

     The trial court instructed the jury on how it must evaluate

the voice identification of defendant. Using the model jury charge

on identification, the judge tailored the charge to the voice

identification provided by K.C.       Specifically, the jury was told

(1) defendant disputed that the State had presented sufficient

reliable evidence to establish beyond a reasonable doubt that he

was the person who committed the alleged offense; (2) the State

had the burden of proving the identification of defendant as the

person who committed the offense beyond a reasonable doubt; (3)

the jury had to critically analyze the identification testimony;

(4) the jury needed to consider a number of factors, including (a)

the witness' opportunity to "hear and degree of attention;" (b)

the witness' level of stress; (c) the amount of time a witness had

to perceive an event; (d) the distance between the witness and the

alleged   perpetrator;   (e)   the     confidence   in   the   witness'

identification and the witness' level of certainty; and (f) the

time lapse and the potential for memories to fade.        The jury was

also instructed that it was to consider whether the witness was

exposed to opinions, descriptions, or identifications given by



                                  8                             A-0819-15T2
other witnesses, or to any other information or influence that may

have affected the independence of the witness' identification.

     On appeal, defendant contends that the trial court failed to

properly     instruct     the    jury    on    how   to      evaluate       a     voice

identification. Thus, defendant argues that the trial court should

have provided specific instructions on how the jury should analyze

a voice identification and how such an identification differs from

an eyewitness identification.

     Defendant did not object to the jury instructions at trial.

Accordingly,    we    review     the    instructions      for    plain      error      to

determine whether the alleged error had the capacity to lead to

an unjust result.       R. 2:10-2.      In making this evaluation, we focus

on the importance of jury instructions and recognize that erroneous

jury charges on a matter "'fundamental and essential or . . .

substantially        material'        [are]    almost      always          considered

prejudicial."        State v. Maloney, 216 N.J. 91, 104-05 (2013)

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

     When the error is fundamental, there is a presumption of

reversible    error     "that   can    only   be   excused      if   the    error      is

determined to be 'harmless beyond a reasonable doubt.'"                         Id. at

105 (quoting State v. Collier, 90 N.J. 117, 123 (1982)).                               An

alleged error must be considered "in light of 'the totality of the

entire charge.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting

                                         9                                      A-0819-15T2
State v. Chapland, 187 N.J. 275, 289 (2006)).                        Moreover, the

failure    to   "interpose      a    timely     objection       constitutes    strong

evidence that the error belatedly raised . . . was actually of no

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

1999), certif. denied, 163 N.J. 397 (2000).

     Here, we find no error in the jury instructions and, in

particular, we find no plain error.                  The instructions conveyed

that K.C.'s identification of defendant was an essential issue in

this case. The jury was instructed on how to consider and evaluate

the voice identification provided by K.C. The instructions advised

the jury that the identification testimony must be critically

analyzed and provided the factors that should be used in that

analysis.        The   focus    of        the   trial   court's     identification

instructions related to the reliability of the identification made

by K.C.    See Henderson, supra, 208 N.J. at 291-92.

     C.     The Absence of a Hampton/Kociolek Charge

     Defendant also argues that the trial court committed plain

error by not sua sponte giving a charge concerning K.C.'s testimony

that she recalled defendant stating, "I'm gonna be here every day

til you get my dog back."           Accordingly, defendant argues that the

trial court should have provided a charge concerning a witness'

testimony regarding statements made by defendant, see State v.

Kociolek,   23    N.J.   400,       421    (1957),   and    a    charge   concerning

                                           10                                 A-0819-15T2
defendant's oral statements, see State v. Hampton, 61 N.J. 250,

272 (1972).

     Having reviewed the jury charges in light of defendant's

arguments, we find no plain error.        At trial, defendant focused

his defense on contending that he was not present and did not

commit the assault.     Consequently, defendant was contending that

someone   else   made   the   statement   heard    by   K.C.   The   jury

instructions clearly set forth defendant's contentions and how the

jury should evaluate those contentions.           Accordingly, the trial

court did not commit plain error in not sua sponte giving Hampton

and Kociolek charges.

     Affirmed.




                                  11                             A-0819-15T2
