                                NOT FOR PUBLICATION WITHOUT THE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-5327-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS W. CARDOZA,

     Defendant-Appellant.
______________________________

                    Submitted November 12, 2019 – Decided February 12, 2020

                    Before Judges Ostrer, Vernoia and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 15-06-0464.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Milton S. Liebowitz, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant, Carlos Cardoza, appeals from his trial convictions for first -

degree robbery, possession of a weapon for an unlawful purpose, and unlawful

possession of a weapon. Defendant also challenges the ten-year sentence he

received.

      Defendant raises a number of contentions on appeal, including that (1) he

was denied the right to present evidence of third-party guilt; (2) the State

engaged in spoliation of evidence; (3) the trial court improperly denied

defendant's request for a Clawans1 charge and his request for a jury instruction

concerning a purported "showup" identification; and (4) the trial judge erred

when delivering the witness identification charge to the jury. We have reviewed

the record in light of the applicable legal principles and conclude there is no

basis either to overturn the jury verdict or the sentence.     With one minor

exception, no errors were committed at trial, much less the cumulative errors

defendant asserts.    The one exception—the trial court's reference in its

identification jury charge to "the" weapon rather than "a" weapon—does not rise

to the level of plain error. That isolated misstatement, made in the course of


1
  State v. Clawans, 38 N.J. 162 (1962). A Clawans charge permits a jury to
draw an adverse inference against an opposing party when the party's failure to
present evidence "raises a natural inference that the party so failing fears
exposure of those facts would be unfavorable to him [or her]." Id. at 170 (citing
2 Wigmore on Evidence § 285 (3d ed. 1940)).
                                                                         A-5327-16T3
                                       2
delivering lengthy and accurate jury instructions, was not capable of producing

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

                                         I.

       Defendant was indicted on six counts, including two separate robbery

charges and related weapons offenses. The charges stemmed from two incidents

on separate dates at a gas station-convenience market. During the first incident,

which occurred February 3, 2015, the robber made off with between $200 to

$240. The second incident occurred two nights later when the victim bel ieved

the robber returned, but the victim was able to lock himself inside the attendant's

booth, preventing the suspect from entering.

       Defendant was tried before a jury and convicted of the three counts

relating to the February 3, 2015 incident, i.e., first-degree robbery, fourth-degree

unlawful possession of a weapon, and third-degree possession of a weapon for

an unlawful purpose. The jury acquitted defendant of the robbery and related

charges associated with the second incident. The judge merged the weapons

convictions into the robbery conviction and sentenced defendant to ten years

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.




                                                                            A-5327-16T3
                                         3
                                        II.

                        A. Incident on February 3, 2015

      On the night of February 3, 2015, the victim, Oscar Perdomo, was working

as an attendant at a gas station-convenience market in Elizabeth. At around 8:00

p.m., Perdomo went into the attendant's booth to eat a sandwich when he saw

someone approach the booth. Although the person partially concealed his face

with a scarf, Perdomo could see his eyes and part of his nose. Perdomo believed

the individual was white or Hispanic. Perdomo also noticed the person was "a

little bit taller" than he is, meaning a little taller than five feet, six inches.

Evidence showed defendant was five feet, seven inches tall. The approaching

person was wearing a blue jacket with white stripes on the chest.

      The suspect entered the booth, pushed Perdomo up against the cash

register, and held a knife against him. The knife had a black handle and was

between nine and eleven inches long. Speaking in Spanish, the robber told

Perdomo to "give him the money." Perdomo complied with the demand and

gave the assailant between $200 and $240.

      Perdomo watched as the robber walked away slowly. Perdomo promptly

called the police, but the robber left the area before they arrived.




                                                                          A-5327-16T3
                                         4
                        B. Incident on February 5, 2015

      Two days later, around 8:00 p.m., Perdomo saw "the same man" at the gas

station wearing "a different shirt." He recognized him as the person who robbed

him two nights before in part by "the way he walked," referring to his slow pace.

Perdomo instructed the store clerk, Adrianna Senabria, to call 9-1-1 as Perdomo

retreated into the bathroom in the attendant's booth, locking the door behind

him. The suspect attempted to enter the booth, pulling on the locked door.

When the booth door did not open, the suspect walked away towards Elizabeth

Avenue.

      Perdomo resumed pumping gas but kept a watchful eye on the suspect in

the distance. Elizabeth Police Officers Benenati and Haverty were dispatched

to the gas station in response to Senabria's 9-1-1 call. The dispatch radio

communication described the suspect as a "black male." When the officers

arrived, Perdomo ran from the attendant booth to the police car, pointed to a

man "lurking" in the shadows, and exclaimed, "that's him." The officers drew

their service weapons and ordered the person Perdomo pointed to, defendant, to

raise his hands and not move.

      As he approached the suspect, Officer Benenati observed a black handle

with silver rivets protruding from defendant's front right pocket. The officer


                                                                         A-5327-16T3
                                       5
removed the object, which was a kitchen knife. When Benenati took the weapon

to the police car to secure it, Perdomo saw it and told Benenati it was the knife

that had been used in the robbery two days earlier.       The officers arrested

defendant and secured his clothing, including a scarf and a blue winter jacket

with reflective stripes on the front and back.

                                       III.

      Defendant presents the following contentions on appeal:

            POINT I

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            NOT PERMITTING [DEFENDANT] TO ARGUE HIS
            THIRD-PARTY GUILT DEFENSE.

            POINT II

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            NOT PERMITTING [DEFENDANT] TO ARGUE
            THAT THE STATE ENGAGED IN SPOLIATION
            WITH RESPECT TO THE 9-1-1 TAPE AND IN
            FAILING TO INSTRUCT THE JURY WITH A
            CLAWANS CHARGE.

            POINT III

            [DEFENDANT'S] MOTION FOR A MISTRIAL
            SHOULD HAVE BEEN GRANTED BECAUSE THE
            STATE DID NOT PRODUCE THE DISCOVERY
            CONCERNING THE 9-1-1 RECORDING IN A
            TIMELY MANNER AND IT WAS NOT UNTIL
            AFTER THE TRIAL HAD BEGUN THAT IT WAS


                                                                         A-5327-16T3
                                        6
LEARNED THAT THE 9-1-1 CALLER DESCRIBED
THE SUSPECT AS A "BLACK MALE."

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN
RULING THAT THE ALLEGED VICTIM'S
IDENTIFICATION OF DEFENDANT WAS NOT A
SHOWUP IDENTIFICATION AND THUS, THE
TESTIMONY OF THE ALLEGED VICTIM AND
THE POLICE OFFICER CONCERNING THE
IDENTIFICATION AT THE GAS STATION
SHOULD BE EXCLUDED AT TRIAL.

POINT V

DEFENDANT IS ENTITLED TO A NEW TRIAL
BECAUSE THE COURT'S INSTRUCTION ON
IDENTIFICATION WAS FATALLY FLAWED AS IT
WAS NOT TAILORED TO INCLUDE THE MODEL
CHARGE CONCERNING THE CRITICAL FACT
THAT THE EYEWITNESS' IDENTIFICATION WAS
MADE AT A [SHOWUP].

POINT VI

[DEFENDANT] IS ENTITLED TO A NEW TRIAL
BECAUSE THE COURT'S INSTRUCTION ON
IDENTIFICATION WAS MATERIALLY FLAWED
AS IT IMPROPERLY SUGGESTED THAT A
WEAPON WAS NECESSARILY INVOLVED IN
THE ALLEGED OFFENSES.

POINT VII

[DEFENDANT'S] CONVICTION SHOULD BE
VACATED AND THIS COURT SHOULD ORDER A
NEW TRIAL BASED UPON THE CUMULATIVE

                                           A-5327-16T3
                   7
             EFFECT OF THE TRIAL COURT'S ERRORS
             THROUGHOUT [DEFENDANT'S] TRIAL.

             POINT VIII

             THE TRIAL COURT ABUSED ITS DISCRETION IN
             FAILING TO DOWNGRADE DEFENDANT'S
             SENTENCE TO A SENTENCE FOR A SECOND
             DEGREE [sic] OFFENSE BASED UPON THE
             RECORD AND, THEREFORE, DEFENDANT'S
             SENTENCE SHOULD BE VACATED.

                                       IV.

      We first address defendant's contention that the trial court erred in

preventing defendant from presenting evidence of third-party guilt. The central

issue at trial was whether defendant was the person who committed the robbery.

It bears noting at the outset that the State at trial presented surveillance video

that captured the first robbery. 2

      Defendant sought to introduce an audio recording of the police dispatch

radio transmission on February 5, the second incident, that described the suspect

as a black male. The trial court ruled this evidence was inadmissible, holding

that the description of the suspect was "double hearsay" and unreliable, in p art




2
  The surveillance video of the alleged second robbery two days later did not
clearly show the perpetrator and therefore was not admitted at trial.
                                                                          A-5327-16T3
                                        8
because it could mislead the jury. Based on our review of the record, we

conclude the audio recording and related testimony was properly excluded.

      We begin our analysis of the admissibility of the police dispatch recording

by acknowledging the legal principles that apply. It is axiomatic that courts

must provide criminal defendants "a meaningful opportunity to present a

complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984). This

includes, of course, a defendant's right to introduce evidence of third-party guilt.

See State v. Fortin, 178 N.J. 540, 591 (2004) (discussing third-party guilt and

the applicable requirements and standards). A defendant does not have to prove

his or her innocence when introducing evidence of third-party guilt, nor does the

defendant need to show the evidence supports a probability that another person

committed the crime. Ibid. Rather, evidence of third-party guilt "need only be

capable of raising a reasonable doubt of defendant's guilt." Ibid. (quoting State

v. Koedatich, 112 N.J. 225, 299 (1988)).

      It is not enough, however, for a defendant to introduce "some hostile event

and leave its connection with the case to mere conjecture." State v. Sturdivant,

31 N.J. 165, 179 (1959) (discussing circumstances when a defendant on trial for

murder can "seek to prove that another agency produced the death with which

he is charged"); see also Koedatich, 112 N.J. at 301 (explaining third-party


                                                                            A-5327-16T3
                                         9
evidence is properly excluded when the proffer only proves the hostile event and

leaves the connection to conjecture). Rather, there needs to be a "link between

the evidence and the victim or the crime." Koedatich, 112 N.J. at 301.

      Furthermore, evidence supporting third-party guilt must satisfy the New

Jersey Rules of Evidence. Fortin, 178 N.J. at 591. In reviewing a trial court's

evidentiary rulings, we apply the abuse of discretion standard.          State v.

Kuropchak, 221 N.J. 368, 385 (2015) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12

(2008)).

      Turning to the trial court's decision to exclude the dispatch audio

recording, we begin by putting the "black male" description in context by

recounting the circumstances in which defendant was apprehended.             The

description of the suspect as a black male was not given on the day of the first

robbery incident. Rather, it was generated on February 5, when the suspect

returned to the gas station two days later. This description was communicated

to police in the radio transmission that dispatched a police vehicle to the gas

station/convenience market in response to Senabria's 9-1-1 call.

      Immediately upon their arrival at the gas station, the responding officers

encountered the robbery victim, who had been continuously watching the person

he believed had committed the first robbery. The victim immediately pointed


                                                                         A-5327-16T3
                                      10
out the suspect to the officers, making it unnecessary for them to canvass the

area to determine if anyone matched the general description that been given in

the dispatch transmission. Defendant's apprehension, therefore, was not based

on the description in the radio communication, but rather in direct response to

the information provided to the officers by the victim immediately upon their

arrival. Furthermore, the victim at no time provided the officers with a verbal

description of the suspect, but rather directed their attention to a specific

individual by pointing at him.

      We next turn to the events that transpired in the courtroom. In his opening

statement to the jury, defense counsel referred to a black male, suggesting the

February 3 robbery had been committed by that person, not defendant. During

cross-examination of Officer Benenati, defense counsel asked if the officer

recalled that the police dispatcher described the suspect as a black male.

Benenati testified he did not recall that description.

      Following the State's objection to this line of questioning, the jury was

excused. The audio recording of the radio transmission was played for Benenati

outside the presence of the jury. Even after hearing the recording, Benenati did

not recall hearing the description of the suspect, although he did not dispute that

he might have heard it. The trial court explained to Benenati that the jury was


                                                                           A-5327-16T3
                                       11
going to return and that defense counsel was going to ask him once again about

the description of the suspect in the dispatch radio transmission. The judge

instructed Benenati to answer the question based on what he knew before

hearing the audio recording in court.

      The judge also ruled that unless the description in the recording was

"authenticated to a greater degree" the jury would not hear it.           Regarding

defendant's theory of third-party guilt based on the description of the suspect as

a black male, the judge stated:

            I think that asking the question, it is certainly [a] good
            faith question at this point. There's support for it in the
            record. But in terms of getting that piece of information
            before the jury through admissible evidence, you're
            going to have to call either [Senabria] or the 911
            dispatcher.

      The court later convened a hearing pursuant to N.J.R.E. 104. The court

heard testimony outside the presence of the jury from the 9-1-1 operator who

took the February 5 call from Senabria in Spanish. After listening to a recording

of the 9-1-1 call, the operator verified that Senabria had not given any

description of the suspect.3



3
  The audio recording of the 9-1-1 call was uncharacteristically "choppy." As
we discuss in Section V, there is no evidence before us that reasonably suggests


                                                                            A-5327-16T3
                                        12
      The police dispatcher also testified at the N.J.R.E. 104 hearing. She

acknowledged she said the suspect was a black male in her radio transmission,

but she could only "guess" as to where that information came from because that

the description was not in the Computer-Aided Dispatch (CAD) system. 4 She

acknowledged she may have conflated information from another case.

      After hearing these witnesses, the trial court precluded defendant from

pursuing the "black male" third-party-guilt defense theory. 5 The judge in his

oral opinion first noted defense counsel had not given notice of a third-party

guilt defense.   See State v. Cotto, 182 N.J. 316, 334 (2005) (requiring a



that Senabria gave a description of the suspect that was deleted from the audio
recording.
4
 We recognize that information entered into the CAD system can be deleted.
However, no evidence was presented that suggests that happened in this case.
5
   Defendant's appellate brief alludes to yet another third-party-guilt argument,
this time implicating police officers. The brief notes that defendant's trial
counsel "had also intended to argue that the police officers planted the knife on
Cardoza at the time of the arrest." It is not clear from this isolated statement in
the brief whether defendant means to argue before us that the trial court erred
by precluding counsel from pursuing that allegation against the arresting
officers. If so, the record clearly shows the judge did not limit counsel from
pursuing that defense theory. Although the court ruled that counsel could not
argue that a black male committed the robbery, the court also stated, "the
defendant will certainly be free to argue if he wants that the knife was planted."
Apparently, counsel on his own elected not to pursue the theory that the officers
lied about finding the knife in defendant's pocket.


                                                                           A-5327-16T3
                                       13
defendant to notify the State if he or she plans to cast blame on a specific third

party so the state can investigate the claim (citing State v. Loftin, 146 N.J. 295,

345–46 (1996))).    Nor did counsel cross-examine the victim, Perdomo, on

whether the robber might have been a black male rather than a white or Hispanic

male. Further, counsel did not subpoena Senabria.

      The trial court concluded that the identity of the declarant who made the

statement the suspect was black had not been not established. The court thus

held the statement that the robber was a black male was inadmissible "do uble

hearsay." Double hearsay, also known as hearsay-within-hearsay, refers to a

situation where a hearsay statement itself contains an additional "statement

made by another declarant" that constitutes hearsay. N.J.R.E. 805; see also

N.R.E. 801(c) (defining hearsay).        Each level of hearsay-within-hearsay

"requires a separate basis for admission into evidence." Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1 (2010).

      Aside from the hearsay problem, the trial court also concluded the black

male third-party guilt evidence was inadmissible under N.J.R.E. 403, finding the

risk of misleading the jury substantially outweighed any probative value.

Important to that determination, the judge reviewed the surveillance video of the




                                                                           A-5327-16T3
                                       14
robbery and noted, "the [surveillance] video evidence here shows that the robber

is not black."

         The trial court's evidentiary ruling excluding the black-male description

was not an abuse of discretion. On the contrary, it was clearly correct . The

statement is not only hearsay, but a statement made by an unknown declarant.

Indeed, there may be no declarant at all, as the statement may be the result of

the inadvertent conflation of information from another 9-1-1 call involving an

entirely separate incident. In the final analysis, the black male third-party guilt

theory is grounded in a description of the robber from an unknown source, and

it is flatly contradicted by objective video surveillance evidence of the robbery

that, according to the trial court, definitively shows that the perpetrator was not

black.

         In these circumstances, the trial court correctly found that the black-male

description in the audio recording of the dispatch radio transmission is not

admissible. Fortin, 178 N.J. at 591. There is no "link between the [third-party

guilt] evidence and . . . the crime." Koedatch, 112 N.J. at 301. Further, this

evidence does not have a "rational tendency to engender a reasonable doubt with

respect to an essential feature of the State's case." Id. at 298 (quoting State v.

Sturdivant, 31 N.J. at 179). Accordingly, the trial court properly precluded


                                                                            A-5327-16T3
                                         15
defendant from presenting this evidence and from arguing the black male third -

party guilt hypothesis.

                                        V.

      Defendant next argues that the trial court erred in precluding him from

arguing the spoliation of the recording of the 9-1-1 call placed on February 5.

At the N.J.R.E. 104 hearing discussed in the preceding section of this opinion,

the 9-1-1 operator testified that the recording was more "choppy" than normal.

Defendant sought to argue that the State deleted portions of recording.

      Spoliation is hiding or destroying litigation evidence.         Rosenblit v.

Zimmerman, 166 N.J. 391, 400–01 (2001) (citing Bart S. Wilhoit, Comment,

Spoliation of Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev.

631, 633 (1998)).     “[T]he spoliator's level of intent, whether negligent or

intentional, does not affect the spoliator's liability. Rather, it is a factor to be

considered when determining the appropriate remedy for the spoliation.”

Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super.

218, 226 (App. Div. 2001) (quoting Aetna Life & Cas. Co. v. Imet Mason

Contractors, 309 N.J. Super. 358, 368 (App. Div. 1998)).           Often a party's

spoliation results in an adverse inference charge where the factfinder can




                                                                            A-5327-16T3
                                        16
presume that the evidence concealed or destroyed would have been unfavorable

to the spoliator. Rosenblit, 166 N.J. at 401–02.

      Although 9-1-1 recordings are generally not as "choppy" as the one in this

case, there is no indication that recorded material was erased or otherwise

deleted. As the judge observed in his oral ruling, defendant never requested a

Driver6 hearing to examine the inaudible portions of the recording and to

determine whether the recording was incomplete. As we have already addressed

in our discussion of defendant's third-party guilt argument, a description of the

suspect in the dispatch radio transmission but not in the precipitating 9-1-1 call

can be explained by the dispatcher's conflation of information from another case .

We therefore conclude that the trial court did not abuse its discretion when it

precluded defendant from arguing spoliation to the jury and refused to give an

adverse inference instruction.

                                       VI.

      We turn next to defendant's contention that the trial court erred by refusing

to instruct the jury to draw an adverse inference against the State for not calling



6
  State v. Driver, 38 N.J. 255 (1962). A court at a Driver hearing determines
whether a sound recording is admissible, considering several factors including
whether any changes, additions, or deletions have been made to the recording.
Id. at 287.
                                                                           A-5327-16T3
                                       17
Senabria as a trial witness. We affirm the trial judge's ruling substantially for

the reasons set forth in his oral decision.

      In Clawans, the Court held that the "failure of a party to produce before a

trial tribunal proof which, it appears, would serve to elucidate the facts in issue,

raises a natural inference that the party so failing fears exposure of those facts

would be unfavorable to him." 38 N.J. at 170 (citing 2 Wigmore on Evidence §

285 (3d ed. 1940)). The Court further explained, "[t]he failure to call a witness

available to both parties has been said to preclude the raising of an inference

against either." Id. at 171 (citing O'Neil v. Bilotta, 18 N.J. Super. 82, 86 (App.

Div. 1952)).

      In State v. Hill, the Court made clear the adverse inference does not apply

every time a party chooses not to call a witness who has knowledge of relevant

facts. 199 N.J. 545, 561 (2009). To provide meaningful guidance, the Court

created a four-part test for trial courts to use in deciding whether to give a

Clawans charge. Ibid. The factors are:

             (1) that the uncalled witness is peculiarly within the
             control or power of only one party, or that there is a
             special relationship between the party and the witness
             or the party has superior knowledge of the identity of
             the witness or of the testimony the witness might be
             expected to give; (2) that the witness is available to that
             party both practically and physically; (3) that the
             testimony of the uncalled witness will elucidate

                                                                            A-5327-16T3
                                        18
            relevant and critical facts in issue[;] and (4) that such
            testimony appears to be superior to that already used in
            respect to the fact proven.

            [Ibid. (alteration in original) (quoting State v. Hickman,
            204 N.J. Super. 409, 414 (App. Div. 1985)).]

      In State v. Velasquez, we cautioned trial courts "should not start with the

assumption that an absent witness's testimony must be favorable to either one

side or the other and an adverse inference must arise against either." 391 N.J.

Super. 291, 308 (App. Div. 2007). "In many cases," we added, "the only rational

inference is that the witness's testimony would not have been helpful, which is

something quite different than unfavorable or adverse." Ibid. Furthermore,

when a witness's testimony would be "unimportant to the litigant's case,

cumulative[,] or inferior to testimony already presented on the issue, it is more

reasonable to infer that non-production is explained by the fact that the

testimony is unnecessary." Id. at 308–09 (citing Clawans, 38 N.J. at 171).

      In this instance, the trial court carefully applied the Hill factors. With

respect to the first factor, the court found Senabria worked for a private company

and was not under the control of the State. Although counsel had been provided

outdated contact information, the defense could have sought updated contact

information from the store or employed an investigator to find her.



                                                                          A-5327-16T3
                                       19
      The judge found with respect to the second factor that both parties had

equal opportunity to subpoena her. As to the third factor, the judge reasoned

that because the surveillance video showed that the robbery had not been

committed by a black male, the police dispatcher's "one-off" comment

describing the suspect as a black man was not relevant.

      The judge determined that defendant may have established the fourth Hill

factor, noting that Senabria's testimony might have been superior to the

testimony given by the police officers who testified for the State because they

could not remember what the dispatcher had told them about the suspect.

However, the judge concluded that even accepting that the fourth factor was

established, that factor by itself did not outweigh the other three factors that

militated against giving a Clawans charge. The trial judge concluded, "I think

such a charge would be inappropriate especially given the Supreme Court's

instruction that trial courts must use caution because the consequences of error

are severe if a Clawans charge is inappropriately provided."

      After reviewing the record in light of the applicable legal standards, we

conclude the judge's ruling was not an abuse of discretion. The court made

careful findings on the record as required by Hill. 199 N.J. at 561. We agree

that in these circumstances, the State's decision not to call her more logically


                                                                        A-5327-16T3
                                      20
supports the inference that her testimony would be unhelpful, not "unfavorable."

Velasquez, 391 N.J. Super. at 308. We therefore affirm the trial court's denial

of defendant's request for a Clawans charge.

                                       VII.

      Defendant contends the trial court should have declared a mistrial based

on a discovery violation revealed during the State's direct examination of the

police dispatcher. The State produced a one-page CAD report that it had not

previously disclosed to the defense. The prosecutor explained that after the

defense raised the issue concerning the dispatcher's reference to a black male in

the radio transmission, the prosecutor reviewed the file, found the CAD report,

and realized that it had not been turned over in discovery.

      The belatedly disclosed CAD report does not support the black male third-

party guilt theory we have addressed in Section III of this opinion. The CAD

entry, which apparently was made by the 9-1-1 operator, does not include a

description of the suspect. Rather, the CAD entry reports: "the [9-1-1] caller

states the gas station attendant was robbed about a week ago. They see the guy

who did it walking around the area." In support of his application for a mistria l,

defense counsel argued that he would not have referred to the black male in his




                                                                           A-5327-16T3
                                       21
opening statement if he had known of the CAD report's existence. The trial

court rejected that contention and denied the application.

      Mistrials are an "extraordinary remedy" that trial courts should only grant

to "prevent an obvious failure of justice." State v. Yough, 208 N.J. 385, 397

(2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Generally, granting

a mistrial is "within the sound discretion of the trial judge." State v. DiRienzo,

53 N.J. 360, 383 (1969). Appellate courts "should not reverse a trial court's

denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered

actual harm' or that the court otherwise 'abused its discretion.'" Yough, 208 N.J.

at 397 (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)). When a trial court

decides a mistrial motion, it "must consider the unique circumstances of the

case" and whether an "alternative course of action" less than a mistrial, such as

a curative instruction, is appropriate. State v. Smith, 224 N.J. 36, 47 (2016)

(citations omitted).

      Applying these legal principles to the record before us, we conclude the

trial judge did not abuse his discretion in denying the extraordinary remedy of a

mistrial. The trial judge aptly noted the issues surrounding the black male

reference in the dispatch radio communication were "apparent from the time that

discovery reached [defense counsel's] hands whenever that was." Although it is


                                                                          A-5327-16T3
                                       22
beyond dispute the CAD report should have been provided in routine pretrial

discovery under Rule 3:13-3(b), that document neither added to nor detracted

from the black male third-party guilt defense theory counsel alluded to in his

opening statement. The CAD entry made by the 9-1-1 operator merely reflected

information—and absence of information—contained in the 9-1-1 audio

recording that had been timely disclosed to the defense before trial.

      Furthermore, counsel was aware of the gas station surveillance video well

before his opening statement. The trial court reviewed that video and concluded

it shows the robber was white or Hispanic, not African American. In view of

the objective video evidence of the robber's race, the trial judge was rightly

skeptical that the timely disclosure of the CAD report would have impacted the

defense opening statement. In these circumstances, although we do not condone

the State's failure to turn over the CAD report before trial, we conclude

defendant did not suffer prejudice requiring a new trial.

                                      VIII.

      Defendant contends the trial court erred in denying his request to provide

the model jury charge relating to "showup" identifications.             In State v.

Henderson, the New Jersey Supreme Court explained that, "[s]howups are

essentially single-person lineups: a single suspect is presented to a witness to


                                                                            A-5327-16T3
                                      23
make an identification. Showups often occur at the scene of a crime soon after

its commission." 208 N.J. 208, 259 (2011). Showup identifications, moreover,

are "inherently suggestive" because the victim can only choose from one suspect

who is generally in police custody. State v. Herrera, 187 N.J. 493, 504 (2006).

      We agree with the trial court that there simply was no showup

identification in this case. When the two police officers arrived at the gas station

in response to the 9-1-1 call, the victim ran to them and pointed directly at the

suspect. The victim had recognized the robber before police were called and

kept a watchful eye on the suspect until police arrived. The trial court was

correct in describing this situation as a spontaneous identification, not a showup

identification as that term is explained in Henderson and discussed in the model

jury charge defendant requested. In these circumstances, it would have been

confusing and inappropriate to give the showup identification model jury

instruction.7


7
   Defendant argues before us that the trial court's failure to give the showup
instruction was "exacerbated" because the victim "had difficulty identifying
[defendant] in court." That assertion requires explication. During the direct
examination of Perdomo, the prosecutor pointed to defendant and asked
Perdomo "[d]o you see the man sitting there today?" In view of the prosecutor's
pointing at defendant, the judge prohibited the victim from making an in-court
identification. It therefore is inaccurate to say the victim had "difficultly
identifying the defendant" if by that characterization defendant suggests
Perdomo had difficulty recollecting the robber's appearance.
                                                                            A-5327-16T3
                                        24
                                        IX.

      We next address defendant's contention, raised for the first time on appeal,

that in the course of giving the identification portion of the final instructions to

the jury, the trial judge referred inappropriately to "the weapon" rather than "a

weapon." The phraseology used by the trial court, defendant asserts, suggested

to the jurors that the judge had concluded that a knife had been displayed during

the encounter in the gas station. Such a judicial finding of a material element

would invade the province of the jurors, because they alone must decide whether

the perpetrator used or possessed a knife, which in turn determines whether the

robbery is a first- or second-degree crime. N.J.S.A. 2C:15-1(b).

       Defendant's contention focuses on a small portion—three words confined

in one paragraph—of the final instructions the court read to the jury. In the

course of explaining the factors a jury should consider in assessing the reliability

of a witness's identification of a perpetrator, the court addressed the effect that

the presence of a weapon can have on a witness's ability to perceive and recall

the facial features of the perpetrator. The model jury charge refers to this effect

as weapon focus. The trial judge told the jury:

            You should consider whether the witness saw            the
            weapon during the incident and the duration of         the
            crime. The presence of the weapon can distract         the
            witness and take witness' attention away from          the

                                                                            A-5327-16T3
                                        25
              perpetrator's face. As a result, the presence of the
              visible weapon may reduce the reliability of a
              subsequent identification if the crime is of short
              duration. In considering this factor, you should take
              into account the duration of the crime because the
              longer the event, the more time the witness may have
              to adapt to the presence of the8 weapon and focus on
              other details.

              [(emphasis added) (showing deviations from the model
              jury charge).]

        The language employed by the trial court follows nearly verbatim the

model jury charge, except the model charge generally refers to "a" weapon rather

than "the" weapon. Model Jury Charges (Criminal), "Identification: Out-of-

Court Identification Only" (rev. July 19, 2012). Defendant did not challenge

this instruction before the jury retired as required by Rule 1:7-2.9 However, we


8
   We note in the interest of completeness that on this last occasion within the
paragraph, the model charge refers to "the" weapon. We offer no explanation
for this apparent inconsistency in the text of the model charge and draw attention
to it only to underscore our conclusion that use of the word "the" rather than "a"
does not constitute plain error.
9
    That rule provides in pertinent part:

              [N]o party may urge as error any portion of the charge
              to the jury or omissions therefrom unless objections are
              made thereto before the jury retires . . . . A party shall
              only be prejudiced by the absence of an objection if
              there was an opportunity to object to a ruling, order or
              charge.


                                                                           A-5327-16T3
                                            26
can still review defendant's claim under the plain error standard. See State v.

Bunch, 180 N.J. 534, 541 (2004) (considering a defendant's claim under the

plain error standard when the defendant did not challenge the jury instruction

below). In doing so, we do not look at alleged misstatements in isolation. State

v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341, 342

(1967)). Rather, we read the jury charge as a whole, looking at its overall effect.

Ibid. (citing Council, 49 N.J. at 342). In this instance, the jury instructions span

almost fifty pages of the trial transcript.

      We agree with defendant that the trial court should not have strayed from

the language in the model jury charge, and we are thus constrained to hold that

the court erred in substituting the word "the" for "a" on three occasions in close

succession. However, we conclude that this error was not capable of producing

an unjust result, Rule 2:10-2, and thus affords no basis to overturn the jury

verdict.

      Notably, other parts of the jury instruction that explain the material

elements of the robbery and weapons offenses made clear to the jury that the

State bears the burden of proving beyond a reasonable doubt that defendant




             [Ibid.]
                                                                            A-5327-16T3
                                        27
possessed the weapon. With respect to the armed robbery charge, for example,

the jury was instructed "the State must prove beyond a reasonable doubt that the

defendant was armed with, used, or threatened an immediate use of a deadly

weapon." The trial court further explained to the jury that "armed with a deadly

weapon means defendant possessed and had immediate access to a deadly

weapon," and that, "[i]n order for a person to be armed with a deadly weapon,

the State must first prove beyond a reasonable doubt that he was in possession

of it." The judge also provided proper instructions on the definition of the term

"possess." Aside from the instruction pertaining to the first-degree robbery

charge, the court also properly instructed the jury on the counts charging

unlawful possession of a weapon and possession of a weapon for an unlawful

purpose.

      We are mindful that as a general matter, erroneous jury charges are "poor

candidates for rehabilitation under the harmless error philosophy." State v.

Simon, 79 N.J. 191, 206 (1979). Even so, in these circumstances, we do not

hesitate to conclude the jury understood that it was for them to decide whether

the robber possessed and used a knife. In sum, when the instructions the court

gave the jury are read as a whole, it is evident that the trial court's isolated

substitution of the article "the" for the article "a" in a single paragraph of a fifty-


                                                                               A-5327-16T3
                                         28
page charge does not rise to the level of plain error clearly capable of producing

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

                                       X.

      Defendant argues that he was denied the right to a fair trial by the

cumulative effect of the errors he asserts. See State v. Jenewicz, 193 N.J. 440,

473 (2008) ("[E]ven when an individual error or series of errors does not rise t o

reversible error, when considered in combination, their cumulative effect can

cast sufficient doubt on a verdict to require reversal."). As we have noted, we

conclude that only one error was committed at trial, and that error does not

warrant reversal. We therefore turn to defendant's sentencing argument.

      Defendant, who stands convicted of first-degree robbery, contends that

the trial court should have sentenced him to a term appropriate to a second-

degree crime pursuant to N.J.S.A. 2C: 44-1(f)(2). We conclude that the trial

judge acted within his discretion in declining to downgrade defendant's

sentence.

      We apply a deferential standard when reviewing sentencing. State v.

Fuentes, 217 N.J. 57, 70 (2014). We look to whether the sentencing court abused

its discretion. State v. Blackmon, 202 N.J. 283, 297 (2010). Furthermore, our

Supreme Court has made clear that we should not substitute our judgment in


                                                                          A-5327-16T3
                                       29
place of the trial court, even if we might have sentenced differently, as long as

the trial court properly balanced the relevant factors and explained how it

reached the sentence. State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State

v. Jarbath, 114 N.J. 394, 400–01 (1989)).

      The statute defendant relies upon provides:

            In cases of convictions for crimes of the first or second
            degree where the court is clearly convinced that the
            mitigating factors substantially outweigh the
            aggravating factors and where the interest of justice
            demands, the court may sentence the defendant to a
            term appropriate to a crime of one degree lower than
            that of the crime for which he was convicted.

            [N.J.S.A. 2C:44-1(f)(2).]

      In State v. Megargel, the Court provided guidance on when a defendant's

first- or second-degree conviction should be downgraded pursuant to this

statutory framework. 143 N.J. 484, 496 (1996). The Court established a two -

part test: (1) "[t]he court must be 'clearly convinced that the mitigating fac tors

outweigh the aggravating ones'" and (2) "that the interest of justice demand[s] a

downgraded sentence."      Ibid. (quoting N.J.S.A. 2C:44-1(f)(2)).      The Court

further explained that in applying this test, the severity of the crime is the most

important factor. Id. at 500 (citing State v. Hodge, 95 N.J. 369, 379 (1984)).

When evaluating severity, a sentencing court should "consider the nature of and


                                                                           A-5327-16T3
                                        30
the relevant circumstances pertaining to the offense," including if the

surrounding circumstances make the offense similar to a lower degree offense.

Ibid. Although sentencing courts can consider "facts personal to the defendant,"

the focus should be the crime itself. Id. at 501 (citing Jarbath, 114 N.J. at 407).

      In this instance, the trial court carefully considered defendant's request for

a sentencing downgrade.      We take note that defendant does not appear to

challenge the trial court's weighing of the aggravating and mitigating factors.

Rather, defendant broadly argues his sentence is unconscionable and shocks the

judicial conscience, even though he received the lowest term of imprisonment

possible in the first-degree sentencing range 10 of ten to twenty years. N.J.S.A.

2C:43-6(a)(1). Defendant has presented us with no reason upon which we might

conclude that the sentencing judge, who oversaw the trial, abused his discretion

in declining to downgrade defendant's robbery conviction.

      To the extent we have not already addressed them, any other arguments

raised by defendant with respect to his convictions or sentence do not have

sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

      Affirmed.



10
   We note that the sentence defendant received also falls within the sentencing
range for second-degree crimes. N.J.S.A. 2C:43-6(a)(2).
                                                                            A-5327-16T3
                                       31
