STATE OF NEW JERSEY VS. M.M.(09-12-2137, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-3432-15T4

Victim S.D., 17, and her 3-year-old brother accepted a ride from defendant, whom S.D. knew from frequent contact at his nearby store; they went to a basement apartment where defendant allegedly assaulted S.D.\
S.D. testified she repeatedly said "no," that defendant groped her, attempted to remove her pants, threatened to kill her if she called police, choked and punched her; she fled and later reported the incident to police and identified defendant at his store.\
Defendant was tried in absentia and convicted of attempted sexual assault (2nd degree), luring (3rd degree), criminal sexual contact (4th degree) and child abuse (4th degree); sentences were imposed under NERA and Megan’s Law.\
On appeal defendant argued (1) the trial court failed to give an identification instruction, (2) the court failed to instruct on assessing statements attributed to him (Hampton/Kociolek issues), and (3) the trial court erred by permitting a police officer to recount hearsay statements by the victim.\
Trial counsel did not request the identification or Kociolek/Hampton instructions and did not object to the officer’s testimony at trial; appellate review applied the plain-error standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to give identification instruction	Identification was not contested; victim knew defendant and identified him consistently, so no prejudice from omission	Omission of model identification charge violated due process and requires reversal	No plain error; identification was not a key issue because victim was familiar with defendant and identification was not challenged at trial
Failure to give instruction on assessing defendant-attributed statements (Hampton/Kociolek)	No pretrial Miranda/involuntariness hearing required Hampton charge; jury was fully instructed on credibility	Court should have given Hampton (if Miranda issue) and Kociolek (inherent weakness of oral statements) charges sua sponte	No Hampton error (no admissibility hearing); Kociolek omission not plain error given comprehensive credibility instructions and relative insignificance of the quoted statement
Admission of officer’s testimony recounting victim’s out-of-court statements (hearsay)	State argued testimony was not hearsay because it explained officer’s state of mind/actions	Testimony was inadmissible hearsay and impermissibly bolstered victim; counsel failed to object	Testimony was hearsay and its admission was error, but not plain error — brief, followed by victim’s full testimony and cross-examination, and no trial objection so no reversal

State v. Montalvo, 229 N.J. 300 (standard for plain-error review)
State v. Cotto, 182 N.J. 316 (identification charge required when identification is a key issue)
State v. Green, 86 N.J. 281 (identification as key issue where victim did not know assailant and identification contested)
State v. Hampton, 61 N.J. 250 (instruction after admissibility hearing on Miranda/involuntary confessions)
State v. Kociolek, 23 N.J. 400 (jury instruction on inherent weakness of testimony recounting oral statements)
State v. Camacho, 218 N.J. 533 (definition of plain error affecting substantial rights)
State v. Davis, 363 N.J. Super. 556 (model identification charge guidance)
State v. Frisby, 174 N.J. 583 (police testimony recounting hearsay in course of investigation)
State v. Baldwin, 296 N.J. Super. 391 (Hampton instruction required only after an admissibility hearing)
State v. Feaster, 156 N.J. 1 (Kociolek charge omission reviewed under harmless/plain-error principles)