RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3432-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

_____________________________

Submitted September 11, 2017 – Decided

Before Judges O'Connor and Vernoia.

On appeal from the Superior Court of New 

Jersey, Law Division, Hudson County,

Indictment No. 09-12-2137.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Margaret McLane, Assistant 

Deputy Public Defender, of counsel and on the 

briefs).

Esther Suarez, Hudson County Prosecutor,

attorney for respondent (Erin M. Campbell,

Assistant Prosecutor, on the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.

September 28, 2017
2 A-3432-15T4

Defendant M.M.1 appeals from his convictions for attempted 

sexual assault, sexual contact, child abuse and luring. He claims 

the court erred by failing to instruct the jury on identification 

and the assessment of statements attributed to him, and by 

permitting a police officer to testify concerning statements made 

by the victim. Having considered defendant's arguments under the 

applicable law, we affirm.

I.

Defendant was indicted for fourth-degree criminal sexual 

contact, N.J.S.A. 2C:14-3(b) (count one), second-degree attempted 

sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count 

two), fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-

3 (count three), third-degree terroristic threats, N.J.S.A. 2C:12-

3(b), and fourth-degree luring, N.J.S.A. 2C:13-6 (count five).

Defendant chose not to appear at the jury trial on the charges.2

The trial evidence shows that seventeen-year-old S.D. and her 

three-year-old brother went to a local market and saw defendant

standing outside. S.D. knew defendant because over a two-month 

period she frequently patronized a nearby "chicken store"

defendant said he owned. Defendant had given S.D. free food at his 

 

1 We employ initials and pseudonyms to protect the privacy of the 

victim.

2 Defendant's absence from the trial is not an issue on appeal. 
3 A-3432-15T4

store, offered her a part-time job, and gave her his telephone 

number, which she had saved in her cell phone. 

After defendant and S.D. spoke briefly outside of the market,

he offered to drive S.D. and her brother home. S.D. accepted the 

offer and she and her brother entered defendant's car. As defendant 

drove away from the market, he told S.D. that he needed to stop 

at his home. When they arrived at what S.D. understood was 

defendant's home, she and her brother accompanied defendant to the 

front door, where they were let into a basement apartment by 

another man.

S.D. and her brother initially sat in the apartment living 

room with the unidentified man, and defendant went into a bedroom. 

After a short time, defendant called S.D. into the bedroom. She 

entered the bedroom with her brother and they sat on a bed. 

Defendant also sat on the bed and began touching S.D.'s back and 

breasts, and told her he "wanted to make love" to her. The 

unidentified man entered the bedroom room, and defendant spoke to 

him in a language S.D. did not understand. The man then took 

S.D.'s brother into the living room.

Defendant put his legs and body on S.D. causing her to recline 

on the bed with defendant on top of her. He repeated that he wanted 

to make love to her, groped her breasts and put his tongue in her 

ear. S.D. screamed and yelled that she did not "want to do this"
4 A-3432-15T4

and repeatedly said "no." Defendant pushed up S.D.'s shirt, touched 

her breasts and attempted to remove her pants. 

S.D. said she was going to call the police, and defendant 

said he would kill her if she did so. He choked S.D., punched her 

face as she continued to yell and scream, and pushed her against 

a wall. The unidentified man knocked on the bedroom door and said 

people were outside of the apartment. S.D. was then able to flee 

the apartment with her brother. 

S.D. cried and told two women and a man who stood outside the 

apartment that a man tried to rape her. They advised her to call 

the police, but S.D. left and returned home with her brother. 

Upon returning home, S.D. spoke with her grandmother. They 

went to the police station where S.D. gave a statement about what 

occurred. The police subsequently brought S.D. to defendant's 

store, where she identified him and he was arrested. During trial,

S.D. also identified a photograph of defendant. 

The jury found defendant guilty of second-degree attempted 

sexual assault, third-degree luring, fourth-degree criminal sexual 

contact, and fourth-degree child abuse. Following merger,

defendant was sentenced on the second-degree attempted sexual 

assault charge to a five-year custodial term subject to the 

requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, and

Megan's Law, N.J.S.A. 2C:7-1 to -3, and the special sentence of 
5 A-3432-15T4

parole supervision for life, N.J.S.A. 2C:43-6.4. He received a 

concurrent three-year sentence on the third-degree luring charge.3

This appeal followed.

Defendant makes the following arguments:

POINT I

THE COURT'S FAILURE TO PROVIDE ANY 

IDENTIFICATION INSTRUCTION REQUIRES THE 

REVERSAL OF DEFENDANT'S CONVICTIONS. (Not 

Raised Below).

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL 

AND DUE PROCESS OF LAW DUE TO THE ERRONEOUS 

ADMISSION OF HEARSAY EVIDENCE. (Not Raised 

Below).

POINT III

DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S 

FAILURE TO CHARGE THE JURY REGARDING THE 

PROPER ASSESSMENT OF STATEMENTS ALLEGEDLY MADE 

BY HIM. (Not Raised Below).

II.

Defendant raises two challenges to the court's final jury 

instructions. He first contends the court erred by failing to 

provide an instruction on identification. Second, he argues the 

 

3 Defendant's sentence is also concurrent to a three-year custodial 

term on a third-degree bail jumping, N.J.S.A. 2C:29-7, charge to 

which he pled guilty under a separate indictment. 
6 A-3432-15T4

court failed to instruct the jury regarding statements he allegedly 

made to S.D. 

Defendant's arguments concerning the jury instructions are 

raised for the first time on appeal. Where a defendant does not 

object to a jury charge but challenges the charge on appeal, we 

review for plain error and determine if the alleged error is 

"clearly capable of producing an unjust result." State v. Montalvo,

229 N.J. 300, 321 (2017) (quoting R. 2:10-2). Defendant must 

demonstrate "[l]egal impropriety in the charge prejudicially 

affecting [his] substantial rights . . . and sufficiently 

grievous to justify notice by the reviewing court and to convince 

the court that of itself the error possessed the clear capacity 

to bring about an unjust result." State v. Camacho, 218 N.J. 533,

554 (2014) (citation omitted). 

"[T]rial counsel's failure to request an instruction 

[generally] gives rise to a presumption that [counsel] did not 

view its absence as prejudicial to his client's case." State v. 

McGraw, 129 N.J. 68, 80 (1992) (alteration in original). We 

evaluate a claim of prejudice "'in light of the totality of the 

circumstances — including all the instructions to the jury, [and] 

the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 

(2008) (alteration in original) (citation omitted). An "error in 

a jury instruction that is 'crucial to the jury's deliberations 
7 A-3432-15T4

on the guilt of a criminal defendant' is a '"poor candidate[] for 

rehabilitation" under the plain error theory.' Nevertheless, any 

alleged error also must be evaluated in light 'of the overall 

strength of the State's case.'" State v. Burns, 192 N.J. 312, 341 

(2007) (citations omitted); accord State v. Walker, 203 N.J. 73,

90 (2010). We apply these standards to defendant's two challenges 

to the court's jury instructions.

A.

The court's final jury instructions did not include a specific 

charge about S.D.'s in-court and out-of-court identifications of 

defendant.

4 Defendant did not request an instruction on the issue 

of identification and did not object to the court's failure to 

include the instruction in the final jury charge. Defendant argues,

however, that the court's failure to provide the instruction 

violated his rights to due process and a fair trial and requires 

reversal of his convictions.

"[A]s a matter of general procedure a model identification 

charge should be given in every case in which identification is a 

legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. 

Div. 2003). "When identification is a 'key issue,' the trial court 

must instruct the jury on identification, even if a defendant does 

 

4 See generally Model Jury Charges (Criminal), "Identification; 

In-Court and Out-Of-Court Identifications" (2012).
8 A-3432-15T4

not make that request." State v. Cotto, 182 N.J. 316, 325 (2005);

accord State v. Green, 86 N.J. 281, 291 (1981). Identification is 

a key issue where "[i]t [is] the major, if not the sole, thrust 

of the defense . . . ." Green, supra, 86 N.J. at 291. 

The circumstances here are vastly different from those in 

Green, where the Court deemed identification a key issue requiring 

a specific identification instruction. Ibid. In Green, the victim 

did not know the defendant, the crime was committed at night in 

the dark, the victim's description of the assailant conflicted 

with defendant's physical characteristics, there were no other 

witnesses to the crimes and the defendant challenged the 

identification at trial. Ibid.

Here, defendant was well-known to S.D. Over a two-month 

period, S.D. frequently saw and spoke with defendant at his store,

and he offered her employment and gave her his telephone number,

which she saved in her phone. S.D. immediately and consistently 

identified defendant as her assailant and there was no challenge 

to her identification at the trial.

5 To the contrary, in his 

 

5 Under the circumstances presented, we are not persuaded that the 

absence of other corroborating evidence and other witnesses 

supporting S.D.'s identification rendered identification a key 

issue at defendant's trial. Although the absence of evidence 

corroborating an identification may be a circumstance rendering 

identification a key issue in a trial, Green, supra, 86 N.J. at 

291; State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984), 
9 A-3432-15T4

summation defense counsel conceded defendant was "wrong to flirt 

with a young girl" and characterized the case as a "he said, she 

said" dispute between S.D. and defendant. 

The record shows that identification was neither a contested 

nor key issue at trial. See Cotto, supra, 182 N.J. at 326 (finding 

identification was a key issue where defendant challenged the 

credibility of the State's witnesses and offered an alibi defense);

Davis, supra, 363 N.J. Super. at 562 (finding identification 

instruction is required where the instruction addresses "the sole 

basis for [the] defendant's claim of innocence"). We are therefore 

convinced the trial court did not err by failing to give a specific 

identification charge in the absence of a request for it. Cotto,

supra, 182 N.J. Super. at 325.

Moreover, we consider the court's failure to sua sponte give 

a specific identification instruction under the totality of the 

circumstances including the evidence presented, the arguments of 

counsel and the court's other instructions. Adams, supra, 194 N.J.

at 207. Again, S.D.'s familiarity with defendant and her 

identification of defendant were not disputed issues at trial. 

 

that is not the case here because defendant was known to S.D. and 

S.D.'s identification of defendant was not challenged at trial. 

We recognize an identification instruction is required even where 

a "defense's claim of misidentification, although thin, [is] not 

specious," Davis, supra, 363 N.J. Super. at 561, but here there 

was simply no claim of misidentification made during the trial. 
10 A-3432-15T4

Instead, defendant's trial strategy was to challenge the

thoroughness of the police investigation and the credibility of 

S.D.'s version of the events. Also, although the court did not 

give a specific identification instruction, it explained that the 

jury must find beyond a reasonable doubt that defendant committed 

the offenses in order to find him guilty. Based on all of the 

circumstances presented, we are not convinced that the failure to 

give a specific identification charge was clearly capable of 

producing an unjust result. R. 2:10-2; Camacho, supra, 218 N.J.

at 554. 

B.

We next address defendant's argument that the court erred by 

failing to sua sponte instruct the jury concerning its evaluation 

of S.D.'s testimony about defendant's statements. More 

particularly, defendant claims the court erred by failing to

instruct the jury regarding S.D.'s testimony that defendant said 

he wanted to "make love to" her. Defendant argues the charge was 

required under State v. Hampton, 61 N.J. 250 (1972) and State v. 

Kociolek, 23 N.J. 400 (1957). We find no merit in defendant's 

argument. 

In Hampton, the Court directed that following a court's 

determination a defendant's statement is admissible under Miranda 

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
11 A-3432-15T4

the jurors shall be instructed that "they should decide whether 

in view of all of the circumstances the defendant's confession is 

true," and "[i]f they find that it is not true, then they must 

treat it as inadmissible and disregard it for purposes of 

discharging their function as fact finders on the ultimate issue 

of guilt or innocence." Hampton, supra, 61 N.J. at 272.

Here, the court did not err by failing to give the Hampton

instruction because it is required only "in a case where there has 

been a pretrial hearing involving the admissibility of the 

statement on the grounds of an alleged violation of the defendant's 

Miranda rights or involuntariness." State v. Baldwin, 296 N.J. 

Super. 391, 397 (App. Div. 1997). The trial court was not requested 

or required to determine the admissibility of defendant's 

statements about his desire to make love to S.D. and, therefore,

the court did not err by failing to give a Hampton charge. Ibid.;

see also N.J.R.E. 104(c) (codifying the Court's holding in 

Hampton); State v. Wilson, 335 N.J. Super. 359, 366-677 (1997) 

(finding there was no requirement to provide a Hampton charge 

because the statements at issue were volunteered to non-police 

witnesses), aff'd, 165 N.J. 657 (2000).

In Kociolek, the Court considered testimony describing 

statements attributed to the defendant. Kociolek, supra, 23 N.J.

at 417-21. The Court observed there was "an inherent weakness" in 
12 A-3432-15T4

such testimony due to "faulty memory, [and] the danger of error 

in understanding and repetition," and explained that the 

"antidote" for the problems inherent in such testimony is "an 

instruction to the jury against trusting overmuch the accuracy of 

such testimony." Id. at 421. The Court has held that Kociolek

"directs that the court must instruct the jury of the inherent 

weakness of oral statements." State v. Morton, 155 N.J. 383, 428 

(1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.

2d 306 (2001).

To be sure, the court did not give a Kociolek charge to the 

jury here. That does not, however, end the inquiry. Although our 

Supreme Court has directed that a Kociolek charge be given whether 

or not specifically requested by a defendant, the failure to give 

this charge is not plain error per se. State v. Jordan, 147 N.J.

409, 428 (1997) (noting it would be "a rare case where failure to 

give a Kociolek charge alone is sufficient to constitute reversible 

error"). "Where such a charge has not been given, its absence must 

be viewed within the factual context of the case and the charge 

as a whole to determine whether its omission was capable of 

producing an unjust result." State v. Crumb, 307 N.J. Super. 204,

251 (App. Div. 1997) (finding "no reported case in which a failure 

to include a Kociolek charge has been regarded as plain error"),

certif. denied, 153 N.J. 215 (1998).
13 A-3432-15T4

S.D. was cross-examined concerning her version of the events

and defendant's statements. The court carefully and thoroughly 

instructed the jurors about their evaluation of the credibility 

of witness testimony. Moreover, defendant's statements concerning 

his desire to make love to S.D. were not of great significance 

when considered in the context of her detailed testimony about 

defendant's actions. Accordingly, the court's failure to give a 

Kociolek instruction was not clearly capable of producing an unjust 

result. R. 2:10-2; see also State v. Feaster, 156 N.J. 1, 72-73

(1998) (finding no plain error in failing to give a Kociolek charge

even though the defendant's incriminating oral statements were "at 

the heart of the State's case against defendant"), cert. denied,

532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). 

III.

Defendant also argues he was deprived of his right to a fair 

trial by officer Alexa Pizzaro's testimony describing statements 

made by S.D. Pizzaro testified without objection that S.D. said 

she and her brother were walking home and met a man S.D. knew from 

a "chicken store," that the man was going to give her and her 

brother a ride home, that they stopped at a house, and that while 

at the house the man grabbed her breasts and tried kissing her. 

Defendant argues the testimony constituted inadmissible hearsay 
14 A-3432-15T4

and impermissibly bolstered S.D.'s credibility, and therefore 

deprived him of his right to a fair trial.

The State argues the testimony was not hearsay because it was 

not offered to prove the truth of S.D.'s statements. See N.J.R.E.

801(c) (defining hearsay evidence as a "statement, other than one 

made by the declarant while testifying a trial . . . , offered in 

evidence to prove the truth of the matter asserted"); see also

State v. Long, 173 N.J. 138, 152 (2002) (finding the hearsay rule,

N.J.R.E. 801(c), applies when testimony is offered to prove the 

truth of the statement attributed to the declarant). The State 

contends the testimony was not hearsay because it was introduced 

to show Pizzaro's state of mind and to explain why Pizzaro took 

certain actions. See, e.g., State v. Frisby, 174 N.J. 583, 592

(2002) (explaining there are circumstances permitting a police 

officer to testify, based generally on hearsay evidence,

concerning the course of the officer's investigation). 

We need not address the merits of the State's assertion 

because it is wholly unsupported by the evidentiary record. Pizzaro 

never testified that she took any action based on S.D.'s 

statements. Thus, there is no evidentiary support for the State's 

contention that Pizzaro's recounting of S.D.'s statements did not 

constitute inadmissible hearsay testimony. See N.J.R.E. 801(c) and 

N.J.R.E. 802.
15 A-3432-15T4

We agree Pizzaro's testimony constituted impermissible 

hearsay, N.J.R.E. 802, and that it was error to admit the testimony 

at trial. However, "[b]ecause no objection was advanced with 

respect to that hearsay evidence at trial, it must be judged under 

the plain-error standard: that is, whether its admission 'is of 

such a nature as to have been clearly capable of producing an 

unjust result.'" Frisby, supra, 174 N.J. at 591 (2002) (quoting

R. 2:10-2). 

Based upon our review of the record, we are not persuaded 

Pizzaro's testimony was clearly capable of producing an unjust 

result. First, we can infer defendant did not perceive the 

testimony as prejudicial because there was no objection to it at 

trial. See State v. Nelson, 173 N.J. 417, 471 (2002) (finding that 

failure to object to testimony permits an inference that any error 

in admitting the testimony was not prejudicial); see also State 

v. Singleton, 211 N.J. 157, 182 (2012) (finding that a failure to 

object to a jury instruction permits a presumption the instruction

"was unlikely to prejudice the defendant's case"). Pizzaro's 

testimony was brief and it was followed by S.D.'s detailed 

testimony concerning the circumstances surrounding the commission 

of the crimes. Moreover, S.D.'s version of the events was subject 

to detailed cross-examination during which her credibility was 

vigorously tested. We discern no basis to conclude that Pizzaro's 
16 A-3432-15T4

brief recitation of statements made by S.D. "possessed the clear 

capacity to bring about an unjust result." Camacho, supra, 218 

N.J. at 554.

Defendant's remaining contentions are without sufficient 

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

Affirmed.