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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1906-04T31906-04T3 STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAMIR AZIZ, Defendant-Appellant. _______________________________________

Argued December 12, 2005 - Decided Before Judges C. S. Fisher and Yannotti. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1996-11-03. Paul Condon argued the cause for appellant. Allysa Gambarella, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Prosecutor of Hudson County, attorney; Ms. Gambarella, on the brief). PER CURIAM Following a trial before a jury, defendant was convicted of eluding, contrary to N.J.S.A. 2C:29-2b. The judge granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C: 44-3a. The judge sentenced defendant to fifteen years of incarceration, with a seven and one-half year period of parole ineligibility. Defendant appeals and raises the following contentions: POINT I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON INDENTIFICATION WAS REVERSIBLE ERROR (NOT RAISED BELOW).

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POINT II. THE TRIAL JUDGE'S REFUSAL TO GRANT DEFENDANT'S MOTION TO ACQUIT WAS ERRONEOUS. POINT III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. We begin our consideration of defendant's appeal with a brief summary of the evidence presented at trial. On August 11, 2003, at around 2:30 a.m., Officers Michael O'Neill and Chester Mekka of the Jersey City Police Department were engaged in routine patrol in a marked police vehicle. The officers were at a stop sign at Ege Avenue when two vehicles sped past going north on Martin Luther King Drive. One was a white Honda Accord and the other was a red two-door Plymouth Neon. O'Neill pursued the red Neon, which turned left onto Virginia Avenue. O'Neill activated the overhead lights on his vehicle. The Neon proceeded west on Virginia Avenue to Bergen Avenue, where it turned right. O'Neill followed behind and the vehicle pulled over at the corner of Bergen and Forrest Avenues. O'Neill observed that the vehicle had a temporary registration identification tag #1740825. O'Neill notified the dispatcher, reported the registration number and advised that the vehicle was occupied by two black males. O'Neill exited his vehicle and approached the driver's side of the car. Mekka approached on the passenger side. O'Neill said it was dark but the street lights were on in the area. In addition, a spotlight and two bright "take-down" lights on the police car were illuminated and pointed at the vehicle. O'Neill testified that he did not have a difficult time seeing the occupants of the car. According to O'Neill, the individual in the passenger seat was dressed in dark clothing. The driver was a black male who was wearing a white tee shirt and a dark baseball cap. O'Neill asserted that he was within three or four feet of the automobile when it sped off going northbound on Bergen Avenue. The officers got back into the patrol car, activated the siren and began to pursue the vehicle. The Neon was traveling at a speed in excess of 50 miles per hour. The vehicle made a left turn onto Communipaw Avenue, going west towards Kennedy Boulevard. The vehicle went through the red light at the intersection of Kennedy Boulevard and passed red lights where Communipaw intersects Westside Avenue and Mallory Avenue. O'Neill's sergeant directed him to terminate the pursuit at the intersection of Communipaw and Mallory. The Neon continued over Route 440 and onto truck Routes 1/9 heading in the direction of South Kearny and Newark. The dispatcher advised that he would alert the police in those jurisdictions. The officers returned to headquarters and O'Neill received a call from the Newark police reporting the location of a vehicle that met the description provided to them. O'Neill and Mekka immediately responded to 92 Jabez Street in Newark. Two Newark police officers were waiting there. O'Neill testified that he saw the red Plymouth Neon, which had the same temporary tag that he had observed when he stopped the car in Jersey City.
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O'Neill observed two males in the rear seat of the Newark patrol car. O'Neill said that "One was a black male, dressed all in black, all dark clothing, and the second male with a white tee shirt and a black - dark colored baseball cap." O'Neill again described the two men who he had seen when he stopped the Neon in Jersey City. He said the driver was a black male with a white tee shirt and a dark colored baseball cap. His testimony continued: Q. And based on that, who do you believe was the driver of the car? A. The male with the white tee shirt and the black baseball cap - the dark, excuse me, dark colored baseball cap. Q. And do you see that person in this courtroom today? A. Yes, I do. Q. Can you point to him? A. The defendant right there with the plaid shirt on. O'Neill also said that Devon Butler was the passenger in the vehicle. O'Neill testified that he advised defendant and Butler of their rights under Miranda. The men told O'Neill that they understood their rights. O'Neill asked defendant why he ran from the officers and defendant said it was because he did not have a driver's license. O'Neill also asked defendant the name of the owner of the car and defendant replied that it was his girlfriend's car, who he identified as Omecca Cookes. Defendant asked O'Neill not to impound the car. O'Neill testified that Butler was in possession of a single key. Butler tried to conceal the key in his rectum. O'Neill did not arrest Butler because he was "100 percent sure" that Butler was the passenger in the red Neon. The vehicle was impounded and the parties stipulated that Cookes retrieved the vehicle on August 15. On cross-examination, O'Neill conceded that when he stopped the Neon in Jersey City, he did not see the faces of either the driver or the passenger of the car. O'Neill conceded that in his incident report he did not state that he had his "take-down" lights on, nor did he state that he had a clear view of the temporary tags on the car. The report also stated that, when O'Neill exited his vehicle, the Neon sped off. O'Neill insisted, however, that he was out of the car when the Neon sped off. O'Neill also admitted that in his grand jury testimony, he did not mention the "take-down" lights. He had not testified that he had a clear view of the temporary tags, nor did he state that he had a clear view of the occupants of the vehicle. O'Neill mentioned the lights and the temporary tags when he was interviewed eight months later by an investigator from the Hudson County Prosecutor's Office but he did not state that he was three to four feet away from the vehicle when it was stopped.

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On re-direct, O'Neill stated that he had written the tag number down in his police report. He also put the description of the driver and the passenger of the vehicle in his report. In addition, O'Neill recorded his description of the individuals apprehended by the Newark police and defendant's statement that he ran because he did not have a driver's license. O'Neill said that he had a good recollection of the incident and, asked to name the driver of the Neon, he said it was defendant. Officer Antonio Tavares of the Newark Police Department testified that he was on routine patrol with Officer Jose Ferreira on August 11, 2003. Tavares received a radio transmission and, based on the information received, he was looking for a red Neon with a temporary tag because the Jersey City officers were pursuing that vehicle. Tavares said he and Ferreira waited near Ferry and Wilson Avenues because there was a "good chance" the vehicle would come off Routes 1/9 onto Wilson Avenue. Tavares said that, ten minutes after he received the radio transmission, he observed a vehicle that fit the description. The vehicle was parked on Jabez Street and Tavares observed two black men exiting the car. Tavares said the individual who got out on the passenger side was a black male wearing dark clothing. The individual who got out on the driver's side was a black male wearing a white tee shirt. Tavares identified Butler as the individual who got out on the passenger side and defendant as the person who got out on the driver's side. Tavares said that he was certain that the Neon matched the description of the vehicle given in the radio transmission. Tavares also asserted that he did not confiscate the keys at that point. He patted down defendant and Butler and detained them in the police vehicle. Tavares said that defendant had a bunch of keys but Butler tried to conceal one key. Tavares was asked to state the name of the person who he saw exiting the driver side of the vehicle and he responded that it was defendant. According to Tavares, defendant was wearing the white tee shirt. On cross-examination, Tavares conceded that he saw the two individuals get out of the car but he never saw "what they looked like." Tavares said that he did not see defendant hand Butler anything when they were in the back seat of the police car. Tavares additionally conceded that Butler had the key to the ignition. After the State rested, defendant moved for a judgment of acquittal, arguing that the State had not presented sufficient evidence for a jury to conclude that he had been operating the vehicle on August 11. The judge denied the motion. The judge found that, if the jury accepted the testimony of either or both officers, there was more than ample evidence of defendant's guilt. Defendant called Ferreira as a witness. Ferreira testified that, after he and Tavares detained defendant and Butler, he

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put the two men in the back seat of the police vehicle. Ferreira said that Butler tried to conceal a key in his rectum and defecated in his hand when trying to do so. The Jersey City officers then arrived. Butler was "record checked" and let go. On cross-examination, Ferreira said that he saw two individuals exit the car in the area of Wilson and Jabez Street. In his report, Ferreira had identified defendant as the driver of the car. Defendant also called Omecca Cookes. She testified that she and Butler were "childhood friends." She said that at 2:00 a.m. on August 11, she loaned her car to Butler so that he could "get some baby formula and regular milk." Cookes testified that defendant also was a "childhood friend." On cross-examination, Cookes admitted that, although she never had a "relationship" with defendant, he used her address as a mailing address. In his summation, defense counsel asserted that the police officers "failed to do their job because they released Devon Butler, the real driver, even after he was found to have the key in his possession." Counsel pointed out that, when the red Neon was stopped, O'Neill never saw what the occupants of the car looked like. Counsel noted that, although O'Neill had testified that he had the "take down" lights on and had a clear view of the temporary tags and the occupants, those facts were not mentioned by O'Neill in his police report but were mentioned eight months later when O'Neill was interviewed by an investigator for the Prosecutor's Office. Defense counsel also noted that defendant had asserted that he ran from the police because he had no license but the officers gave him a summons for failing to exhibit a driver's license, not for being an unlicensed driver. In addition, counsel pointed out that O'Neill said that defendant told him not to impound the car because it belonged to his girlfriend. Cookes testified that she is the owner of the red Neon and she said that she loaned the car to Butler. Defendant never lived with her. They "were just friends." Defense counsel asserted that the State had not proven beyond a reasonable doubt that defendant was guilty. In response, the assistant prosecutor stated that the crux of the case was "whether or not [defendant] was actually the driver of that automobile." The assistant prosecutor emphasized that O'Neill testified that the area where the car was initially stopped was well lit. O'Neill also said he used his "take-down" lights. The officer stated that he got within three or four feet of the driver's side door and got a "good look" at the individuals in the car. The passenger was wearing dark colored clothing. The driver was a black male wearing a white shirt. The assistant prosecutor stated, "It's as simple as black and white." The assistant prosecutor additionally noted that Tavares saw a driver exit the vehicle and the driver was wearing a white shirt. Tavares apprehended defendant less than five minutes after he received the broadcast from the Jersey City police department. In addition, when defendant was apprehended, he stated in response to a question by
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O'Neill that he ran from the police because he did not have a driver's license. The assistant prosecutor refuted the assertion that Butler was the driver of the car. The assistant prosecutor noted that when defendant was first apprehended, Tavares patted him down and found keys. The men were placed in the rear seat of the police vehicle and Butler had a key. The assistant prosecutor said that the inference was inescapable that defendant had given the key to Butler. "It's as simple as taking it off the key chain and passing it over to the person next to you." Defendant first argues that judge committed reversible error by failing to instruct the jury on the issue of identification. Defense counsel did not seek the instruction nor did he object to the instructions when given. Accordingly, we consider whether the omission of the instruction was erroneous and, if so, whether the error was clearly capable of producing an unjust result. R. 2:10-2. The failure to give a charge on identification when one is requested is reversible error if identification is a fundamental issue in the case. State v. Green, 86 N.J. 281, 291 (1981). In Green, the Court reversed defendant's conviction of rape and related charges because there was no evidence, other than that of the victim, directly connecting defendant to the crimes. In addition, there were discrepancies in the description of defendant and defendant denied committing the crime. These factors made "identification a fundamental and essential trial issue" and the "potential danger of mistaken eyewitness identification" was significant. Ibid. The Court in Green concluded that the general charge respecting credibility of the witnesses was inadequate because it tended to "submerge the crucial issue of identification." Id. at 292. Defendant "had a right to expect that the appropriate guidelines would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness of [the victim's] in-court identification." Ibid. However, in State v. Salaam, 225 N.J. Super. 66, 69-72 (App. Div. 1988), we held that the failure to give the identification charge, when it had not been requested, was not plain error. There, the defendant had been convicted of armed robbery of a convenience store. The cashier testified that defendant entered the store, approached the cash register, selected a bag of chips and handed her a dollar bill. Id. at 67. When she opened the register, the cashier noticed that defendant had a gun. Ibid. We held that, in the circumstances, the judge's failure to give the jury instructions on identification was not reversible error. We noted that the cashier had testified that she observed defendant in a well-lighted store for a period of five minutes and defendant was only 2 feet away at the time. Id. at 69. The cashier's description of

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defendant also was "of such accurate detail" that the police were able to identify defendant less than ten minutes later. Ibid. Moreover, within a half hour of the incident, defendant was brought back to the store, and the cashier identified defendant "without hesitation." Ibid. We further noted that the cashier's belief that defendant was the perpetrator "remained constant and unqualified upon cross-examination by the defense." Id. at 70. In addition, there was evidence that corroborated the cashier's account of the crime which "greatly reduced the chance that defendant's conviction was the product of mistaken identity." Ibid. We are convinced that the omission of the identification charge in this case was not error, let alone plain error. Here, it was undisputed that the red Neon was the vehicle being chased by the Jersey City police on the evening of August 11, 2003. O'Neill noted the temporary registration number and that was the number on the registration tag on the car found by the Newark police on Jabez Street about ten minutes after the Jersey City officers called off their pursuit. Defendant did not deny that he was in the red Neon at the time the crime was committed. The key issue was whether defendant was driving the vehicle when it was being pursued by the Jersey City police. Here, as in Salaam, O'Neill had ample opportunity to observe defendant's clothing when the vehicle was first stopped. The area was well lit. The officer said he used his "take-down" lights. The officer was in sufficient proximity to the car for a long enough period of time to make his observations. O'Neill's belief that defendant was the driver was unqualified on cross-examination. Moreover, O'Neill's identification of defendant as the driver was substantially corroborated by Tavares' testimony that he observed defendant emerge from the driver's side of the car in Newark. In addition, defendant was asked why he had been running from the police. In response, defendant said that he did so because he did not have a license. Defendant essentially admitted he was the driver. In light of this evidence, we are convinced that the absence of an identification charge in this case was not plain error. Defendant next argues that the judge erred when he denied defendant's motion for a judgment of acquittal under R. 3:18-1. We disagree. When a motion is made pursuant to R. 3:18-1, the judge must determine whether the evidence, and all favorable inferences to be drawn from the evidence, would allow a reasonable jury to find defendant guilty as charged beyond a reasonable doubt. State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div.), certif. denied, 126 N.J. 327 (1991). Defendant argues that O'Neill's identification was not credible. Defendant maintains that O'Neill did not have sufficient time to make a valid identification. He contends that Butler had the ignition key in his possession and Butler was the person who was driving the car when it was being pursued by the Jersey City officers. But these are
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factual issues that go the credibility of the witnesses and the weight to be given to the testimony. In our view, the State presented sufficient evidence upon which reasonable jurors could find defendant guilty beyond a reasonable doubt. We therefore are satisfied that the motion for a judgment of acquittal was properly denied. Finally, defendant asserts that he was denied the effective assistance of counsel. He argues that trial counsel erred by failing to seek an identification charge. He maintains that defense counsel did not make a single request for a "proper charge" to the jury. Defendant contends that jury instruction "presupposed" that defendant was the driver of the car and counsel should have objected to this reference. Defendant further argues that counsel failed to thoroughly cross-examine the State's witnesses to undermine the trustworthiness of the identification. Defendant asserts that defense counsel failed to elicit any evidence that would have justified a cross-racial identification charge. He also contends that counsel erred in failing to move for a new trial. To prevail on his claim of ineffective assistance, defendant must meet the test that was established in Strickland v. Washington, 466 U. S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must show that his counsel was deficient and the deficiencies prejudiced his defense. Id. at 52 (quoting from Strickland, supra, 466 U. S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable." Ibid. Moreover, defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting from Strickland, supra, 466 U. S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are satisfied that defense counsel's performance at trial was not deficient. As we have explained, in the particular facts and circumstances of this case, the absence of an identification charge was not erroneous. Other than the identification charge, defendant has not identified any particular jury instruction that defense counsel should have requested in this case. In addition, contrary to defendant's assertion, the jury instructions did not "presuppose" that defendant was the driver of the Neon. Indeed, the instruction made plain that the State had to prove beyond a reasonable doubt all of the elements of eluding and the first element was that defendant was operating the motor vehicle. The record also provides no basis for defendant's claim that his counsel failed to thoroughly cross-examine the State's witnesses. Defense counsel questioned O'Neill on the inconsistencies between his trial testimony and other statements made by O'Neill concerning the crime in his police report, his grand jury testimony and the prosecutor's investigation. Counsel questioned Tavares about Butler's possession of the ignition key, endeavoring to convince
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the jury that Butler was the driver, not defendant. In our view, through his cross-examination, defense counsel made a reasonable effort to convince the jury that O'Neill and Tavares both were mistaken in their assertions that defendant was the driver of the Neon. We also reject defendant's assertion that his counsel was deficient in failing to lay an evidential foundation for a cross-racial identification charge. Such a charge may be required when an eyewitness identifies a perpetrator from a different ethnic or racial background. State v. Cromedy, 158 N.J. 112, 120 (1999). The charge is warranted only when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independently reliability." Id. at 132. As we have explained, O'Neill's testimony showed that the identification of defendant as the driver of the Neon was reliable. O'Neill's identification also was corroborated by Tavares's testimony and defendant's own admission that he had been running from the police because he did not have a driver's license. The evidence made clear that a crossracial identification charge was not warranted. Therefore, counsel was not deficient in failing to present additional evidence to support an application for the charge. Defendant also contends that counsel erred in failing to move for a new trial. We are convinced that the counsel's failure to seek such relief does not rise to the level of the ineffective assistance of counsel. We are satisfied that, had a motion for a new trial been made, it would have been denied because the evidence was sufficient to support the jury's verdict and the interests of justice did not require that defendant be afforded a new trial. R. 3:20-1.

Affirmed. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). (continued) (continued) 19 A-1906-04T3

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