STATE OF NEW JERSEY VS. PAUL A. FLORA (15-10-1952, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4267-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL A. FLORA,
Defendant-Appellant.
______________________________
Submitted June 7, 2018 – Decided September 7, 2018
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 15-
10-1952.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender II, of counsel and on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella,
Chief Appellate Attorney, of counsel; William
Kyle Meighan, Senior Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Paul A. Flora appeals from a judgment of conviction
entered after a jury found he committed one count of second-degree
eluding, N.J.S.A. 2C:29-2(b). On appeal, he argues that the trial
court erred by failing to instruct the jury about its use of a
witness's in-court identification of defendant, even though he did
not request the instruction. For the reasons that follow, we
affirm.
Defendant's conviction arose from a police officer
identifying him as the driver of a vehicle that took off at a high
rate of speed after the officer stopped the driver and directed
him to step out of the vehicle. The events leading to the vehicle's
stop took place on an evening in August 2015 when Toms River police
officer Sean Smith was assigned to control traffic at a road
construction project within the community. The construction area
was illuminated by existing street lights and additional lighting
provided by the construction company.
When the officer arrived at the site, he parked his marked
vehicle with its lights flashing in the road's closed left lane
near the construction. He was in full uniform and wore a neon
safety vest, similar to the vests being worn by the construction
workers at the site.
At approximately 10:00 p.m., Smith was performing his duties
when he heard screeching tires and observed a blue truck,
identified as a Chevy Trailblazer stopped in the closed left lane
within a few inches behind his parked police vehicle. Smith
2 A-4267-16T3
approached the vehicle but before he arrived, the truck began to
reverse. Smith verbally directed the driver to stop and the driver
complied.
When Smith arrived at the vehicle, he approached the driver's
side window, placed his hands on the truck, and spoke to the
driver. Smith described the driver as an approximately fifty-
year-old white male. In response to Smith's inquiry, the driver
told him that he was coming from Seaside. During the conversation,
Smith detected the odor of alcohol. He directed the driver to
step out of the truck. Instead of complying, the driver put the
vehicle into gear and took off at a high rate of speed. As the
vehicle began to leave, Smith jumped back to avoid being injured
and observed the truck cutting into traffic without signaling.
For safety reasons, Smith decided not to pursue the truck and
instead notified dispatch and called in the vehicle's plate number
in an attempt to identify the driver. Dispatch personnel informed
Smith that the vehicle was registered to defendant. When he later
returned to headquarters, Smith used the information he obtained
from dispatch to locate photographs of the registered owner from
electronic records. The photographs he obtained were of defendant,
who Smith testified was the man driving the truck, though he
admitted he could only recall the driver being a white male with
short gray hair.
3 A-4267-16T3
After defendant's arrest, a grand jury indicted him, charging
defendant with the single count of second-degree eluding. At his
trial, the State called as witnesses Smith and a construction
worker who observed Smith's interaction with the truck's driver.
Defendant called a defense investigator who testified about his
telephone conversation with the testifying construction worker.
During Smith's testimony, he identified defendant as the driver
of the truck. In addition, the court admitted into evidence
defendant's vehicle registration. Defendant did not object to the
in-court identification or the admission of the registration. On
cross-examination, defense counsel questioned Smith regarding his
initial stop of defendant and whether he ever identified himself
as a police officer to defendant. Smith responded that although
he never explicitly told defendant that he was a police officer,
that it was "implied" because he was standing by his police vehicle
and was in uniform.
After the State rested, defendant moved unsuccessfully for
an acquittal, contending only that the State failed to prove
defendant had knowledge he was eluding. After the defense rested,
and during the ensuing charge conference, defendant did not request
a jury charge relating to Smith's identification of him.1 During
1
See Model Jury Charges (Criminal), "Identifications: In-Court
and Out-of-Court Identification" (rev. July 19, 2012).
4 A-4267-16T3
summations, defense counsel did not raise an identification
argument. Rather, he again argued that the State failed to prove
defendant had knowledge he was eluding the officer.
When the court charged the jury, it did not include the
identification charge and defendant never objected to its
omission. However, the court charged the jury that the State had
to prove beyond a reasonable doubt that defendant was the driver
of the truck. It also charged the jury with the remaining elements
of eluding and noted that according to the statute, there was a
rebuttable presumption that the registered owner was the driver
of the vehicle, which the jury could choose to accept or reject.
After considering the evidence, the jury returned its verdict
convicting defendant of the one charge. The trial court later
sentenced defendant to a five-year term of imprisonment. This
appeal followed.
On appeal, defendant specifically argues:
POINT I
DEFENDANT WAS DENIED HIS RIGHTS TO
DUE PROCESS AND A FAIR TRIAL BY THE
TRIAL COURT'S FAILURE TO PROVIDE ANY
IDENTIFICATION INSTRUCTION TO THE
JURY. U.S. CONST. AMENDS. V, VI AND
XIV; [N.J. CONS. ART. I, ¶ ¶ 1, 9,
10]. (Not Raised Below).
According to defendant, his identification "as the driver of
the Trailblazer was a crucial and contested issue in the case[,]"
5 A-4267-16T3
which required the trial court to deliver an identification charge
to the jury even though defendant did not request the charge. In
support, defendant relies upon the Supreme Court's opinions in
State v Henderson, 208 N.J. 208 (2011),2 and State v. Sanchez-
Medina, 231 N.J. 452 (2018). We find his reliance on those cases
inapposite and his contention to be without merit.
We review a "missing instruction on identification . . . for
plain error." Sanchez-Medina, 231 N.J. at 468 (citations omitted).
The error must be "clearly capable of producing an unjust result
. . . ." R. 2:10-2. Courts "review for plain error the trial
court's obligation to sua sponte deliver a jury instruction when
a defendant does not request it and fails to object at trial to
its omission." State v. Alexander, 233 N.J. 132, 141-42 (2018)
(citations omitted). We consider "[d]efendant's failure to
'interpose a timely objection [to] constitute[] strong evidence
that the error belatedly raised here was actually of no moment.'"
2
In Henderson, a defendant challenged an identification on the
ground police officers had unduly influenced the eyewitness. 208
N.J. at 217. The eyewitness initially expressed doubt about the
identity of the perpetrator, but was able to confidently identify
the defendant after meeting with investigators. Id. at 223-24.
The Court identified numerous factors that can affect the ability
of a witness to remember and identify perpetrators of crimes,
resulting in misidentifications, and ordered an amplified,
comprehensive jury charge. Id. at 298-99. The Model Jury Charges
(Criminal), "Identification: In-Court and Out-of-Court
Identifications" (rev. July 19, 2012) was then drafted and adopted
by the Court.
6 A-4267-16T3
State v. Tierney, 356 N.J. Super. 468, 481 (App. Div. 2003)
(quoting State v. White, 326 N.J. Super. 304, 315 (App. Div.
1999)). Absent a request to charge or objection, "there is a
presumption that the charge . . . was unlikely to prejudice the
defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012)
(citing State v. Macon, 57 N.J. 325, 333-34 (1971)). Any alleged,
plain "error must be evaluated 'in light of the overall strength
of the State's case.'" Sanchez-Medina, 231 N.J. at 468 (quoting
State v. Galicia, 210 N.J. 364, 388 (2012)) (addressing an
identification issue where "[d]efendant's convictions rest largely
on the testimony of four victims, only one of whom could identify
him" as "[t]he witnesses' descriptions of their assailants
varied").
In Sanchez-Medina, the Court made clear that "[w]hen
eyewitness identification is a 'key issue,' the trial court must
instruct the jury how to assess the evidence—even if defendant
does not request the charge." Id. at 466 (quoting State v. Cotto,
182 N.J. 316, 325 (2005)). However, in order for the failure to
deliver the charge to be plain error, identification must be "a
critical issue at trial that defendant disputed." Id. at 469; see
also Cotto, 182 N.J. at 325. An issue is made a "key issue" if
it is "the major, if not the sole, thrust of the defense . . . ."
State v. Green, 86 N.J. 281, 291 (1981).
7 A-4267-16T3
Applying these guiding principles, we conclude defendant's
contention on appeal is without merit because defendant never
raised identification as an issue at trial. At best, it was
alluded to only in defense counsel's opening statement when he
mentioned that there was no surveillance video of defendant at the
crime scene and no statement by him admitting he was the driver.
Those comments alone did not create a "key issue" as to Smith's
in-court identification of defendant.
Also, not only was the issue of identification not "critical"
or "disputed" by defendant at trial, but the eluding statute
contains a "rebuttable presumption" that as the vehicle's owner,
he was the operator when Smith stopped the vehicle and directed
the driver to step out. See N.J.S.A. 2C:29-2(b). There was no
evidence adduced at trial to rebut that presumption, and the trial
court properly charged the jury as to the presumption, including
its right to not "draw the . . . inference" if it did want to rely
upon the presumption.
Where, as here, identification was not an issue at all, the
trial court did not err by failing to sua sponte give an
identification charge. See State v. Gaines, 377 N.J. Super. 612,
625-27 (App. Div. 2005) (finding failure to provide an
identification charge was not plain error where identification was
not a key issue and there was overwhelming identification
8 A-4267-16T3
evidence); cf. State v. Davis, 363 N.J. Super. 556, 561 (App. Div.
2003) (holding an identification instruction was required where a
misidentification defense "although thin, was not specious").
Moreover, the jury was otherwise clearly instructed that the
State must prove beyond a reasonable doubt that defendant committed
the crimes for which he was charged. Under all of the
circumstances presented, we are not convinced that the court's
failure to sua sponte give an identification charge had the clear
capacity to bring about an unjust result.
Affirmed.
9 A-4267-16T3