NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Cesar Clausset-Soto was charged under Essex County Indictment No. 12-01-0207 with first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). Defendant was tried before a jury, which found him guilty of counts two through four. The jury found defendant not guilty of murder and the lesser-included offense of passion-provocation manslaughter. Defendant was sentenced to ten years of incarceration, with a five-year period of parole ineligibility. We affirm.

I.

We briefly summarize the salient facts. During the early morning of May 28, 2011, John Nazario ("Nazario") was shot and killed outside a home in Newark, where defendant lived in an upstairs apartment. The great-grandmother of two minors, D.P. ("Denise") and S.Z. ("Sally"),1 also lived at the house where this shooting occurred. The minors told the police that they were at their great-grandmother's house at the time of the shooting. At the time, defendant was dating Shelilah Lespiere ("Lespiere"), Sally's mother and Denise's aunt. Nazario had previously dated Lespiere for a couple of months and was "like an uncle" to the two girls.

On May 28, 2011, Nazario pulled up to the house in his car. Denise testified that defendant went upstairs to his apartment and retrieved a gun, which she saw him put in his waistband. While still in his car, Nazario and defendant started talking. Sally then called her mother on her cell phone and told her that defendant was "looking at [Nazario] some type of way."

Denise testified that defendant leaned into the car and told Nazario to "keep [my] name out of [your] mouth," and then hit Nazario in the mouth with the gun. Nazario then leaned back in the seat and kicked his leg up, knocking the gun out of defendant's hand, with the gun landing near the basement of the house. The two men started fighting and "punching" for "a couple minutes" until they fell into the basement. Denise then ran into the house and heard three gunshots. She returned outside and saw defendant putting the gun back into his waistband and walking away.

Defendant also testified and stated that Nazario initiated contact with him, asking defendant if he knew who he was, and then hitting defendant in the face. Defendant said that he attempted to defend himself and then realized that Nazario retrieved a gun from beneath the driver's seat. The two men struggled for the gun, resulting in them backing up to the steps leading to the basement of the house, which they fell down. Defendant testified that, after they fell, he saw the gun on the floor and grabbed it, but Nazario had also gotten a grip on the gun with one hand, and had his other hand around defendant's neck. Defendant stated that Nazario would not release his hold on defendant's neck, and so defendant brought "the gun a little closer" and pulled the trigger. He then left the area, threw the gun in a garbage can, and called Lespiere.

Lespiere had been driving to Seaside Heights when she received calls from the two minors, prompting her to turn around. Lespiere testified that when defendant called her, he told her to tell Denise that she should not say it was defendant who was in the fight.

Initially, Denise and Sally told the police that they did not see who shot Nazario, but later stated that defendant shot Nazario after the two men had a fight.

A neighbor, Esther Gonzalez ("Gonzalez"), told the police that prior to the shooting, she saw defendant fighting with Nazario. Gonzalez did not see defendant shoot Nazario, but the tire on her car was hit by gunfire. She identified defendant as the person who was fighting with Nazario.

On appeal, defendant argues:

II.

Defendant argues that the trial judge erred in denying his motion to suppress the identifications of Gonzalez, Denise, and Sally following pre-trail Wade hearings.2 We disagree.

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1504, 185 L. Ed. 2d 558 (2013).

A.

A pretrial identification is admissible at trial unless the identification procedure was impermissibly suggestive, and the objectionable procedure created a "very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (citation and internal quotation marks omitted). As the Court noted, "`[r]eliability is the linchpin in determining the admissibility of identification testimony[.]'" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

The admissibility of an out-of-court identification hinges on a two-step analysis which determines whether (1) "the identification procedure was impermissibly suggestive," and (2) "if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). Finding "impermissive suggestibility" requires that "all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him [or her] so that a substantial likelihood of irreparable misidentification can be said to exist." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L. Ed. 2d 602 (1973); see also Madison, supra, 109 N.J. at 234. Additionally, "[t]he totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Herrera, supra, 187 N.J. at 504.

If the procedure is found to be impermissibly suggestive, the following circumstances are to be considered to determine the reliability of the identification: (1) the "`opportunity of the witness to view the criminal at the time of the crime'"; (2) "`the witness's degree of attention'"; (3) "`the accuracy of his prior description of the criminal'"; (4) "`the level of certainty demonstrated at the time of the confrontation'"; and (5) "`the time between the crime and the confrontation.'" Madison, supra, 109 N.J. at 239-40 (quoting Manson, supra, 431 U.S. at 114, 975 S. Ct. at 2253, 53 L. Ed. 2d at 154). These factors are to be weighed against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

In State v. Henderson, 208 N.J. 208 (2011), our Supreme Court adopted a "revised framework" for considering pretrial challenges to admissibility of identifications. Id. at 288-96. The Court expressly stated that its ruling would apply only prospectively, taking effect thirty days from the approval date of the new model jury charges. Id. at 300-02. The new model jury charge was approved in July 2012 and became effective in September 2012. Additionally, in State v. Micelli, 215 N.J. 284 (2013), the Court applied the Madison standard "because the out-of-court identifications were completed prior to our August 24, 2011 decision in State v. Henderson...." Micelli, supra, 215 N.J. at 287.

In this case, the three witnesses' identifications occurred in May and June 2011. Therefore, the trial judge's decision that the Madison standard applied was proper.

B.

Here, Gonzalez's identification of defendant stemmed from a photo display that defendant argues was highly suggestive. Defendant bases this argument on the fact that he was wearing a red sweatshirt in the photograph, while the fillers in the array were wearing more neutral colors, and that he is darker-skinned and has a narrower face than the fillers. He further cites a detective's statement to Gonzalez that the suspect would be included in the photo array as being impermissibly suggestive. Defendant also questions the reliability of Gonzalez's identification, arguing that her husband influenced her when he told her that he recognized the man running away from the scene.

The trial judge found that defendant failed to prove that the procedure was impermissibly suggestive, but still addressed the second prong and determined that the identification was reliable. The judge found that the procedure deviated from the Attorney General Guidelines because the detective stated that the suspect would be included in the photo array, but concluded that the statement alone did not constitute a ground for suppression.

While the procedure was, in part, suggestive, with the detective's statement to Gonzalez confirming that defendant was included in the array, the identification was nevertheless reliable. We conclude there is sufficient credible evidence in the record to support the judge's finding that the identification was reliable. Gonzalez was defendant's neighbor and therefore familiar with him, and her physical description and photographic identification of defendant were not inconsistent.

C.

Defendant also challenges the judge's denial of defendant's motion to suppress the identifications made by Denise and Sally. Defendant contends that the procedure was impermissibly suggestive because the detective first suggested defendant's name before either of the girls provided an identification, and because the detective interviewed the girls together.

The trial judge noted at the Wade hearing that the joint interview was "clearly not proper police practice," but also found that the detective's testimony was "credible, that [defendant] was not mentioned before the account was given," and that the "suggestibility to any reference to [defendant] is an issue that can be properly explored during cross-examination before the jury." However, following the trial and sentencing, the judge stated on the record that the trial testimony revealed that the detective did say defendant's name first.

Even if the detective named defendant first, the identification was nevertheless admissible because it was reliable. There is sufficient credible evidence in the record to support the court's finding that the girls' identification of defendant was reliable. Their testimony shows they had the opportunity to observe the suspect at the time of the crime, that they were paying attention to the suspect, that they did not express uncertainty if defendant was involved in the fight, and that there was a short time between their identifications and the incident. See Madison, supra, 109 N.J. at 239-40. Additionally, the girls were familiar with defendant, as he was dating Lespiere, and they called Lespiere to tell her that defendant and Nazario were, first, about to be in a fight, and then, to tell her what occurred following the fight.

Therefore, the judge did not abuse his discretion in denying defendant's motion to suppress the three witnesses' identifications.

III.

Defendant also contends for the first time on appeal that the court failed to provide the jury with proper jury instructions. We disagree.

"[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (citation and internal quotation marks omitted). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)).

An "error in a jury instruction that is `crucial to the jury's deliberations on the guilt of a criminal defendant' is a `poor candidate[] for rehabilitation' under the plain error theory." Id. at 341 (alteration in original) (emphasis added) (quoting Jordan, supra, 147 N.J. at 422).

Nevertheless, any such error is to be considered "in light of the totality of the entire charge, not in isolation." Id. at 341 (citation and internal quotation marks omitted). Moreover, "any alleged error also must be evaluated in light of the overall strength of the State's case." Ibid. (citation and internal quotation marks omitted).

A.

Defendant first challenges that the jury charge for aggravated assault improperly omitted the legal definition of causation. He argues that the judge should have instructed the jury on "but for" and proximate causation. We disagree.

Here, the trial judge's instructions regarding aggravated assault informed the jury that in order for a defendant to be found guilty of aggravated assault, one of the elements that the State must prove beyond a reasonable doubt is "[t]hat the defendant caused bodily injury by use of a deadly weapon[.]" The judge explained to the jury that "`[c]asuation' has a special meaning to you under the law. I have previously defined causation to you and you shall apply it here."

The judge had previously provided the jury a definition of causation in the context of the instruction for count one, and whether defendant purposely or knowingly caused the victim's death or serious bodily injury that resulted in death. The judge told the jury that

We conclude the jury was sufficiently charged on causation and there was no plain error. The jury was given an instruction regarding the definition of causation in a previous count, which the judge referenced when giving the instructions regarding aggravated assault.

Additionally, this case did not present a real issue as to causation. Cf. State v. Martin, 119 N.J. 2, 15 (1999) (holding that an adequate causation charge was "particularly compelling" because the defendant and State "offered contrasting theories of causation"). Defendant testified that he shot Nazario, but in self-defense.

B.

Defendant next argues that the trial judge's instruction presented to the jury on the PowerPoint slide on the definition of self-defense was erroneous and inconsistent. While the slide did contain an error, this did not constitute plain error.

When orally providing the instructions regarding self-defense to the jury, the judge stated that a person may use non-deadly force if "[t]he person reasonably believes that the use of force was immediately necessary." However, the PowerPoint slide containing the self-defense instructions read that "[t]he defendant reasonably believes that the use of deadly force was immediately necessary[.]" (emphasis added).

We conclude that this fails to rise to the level of plain error. The judge's oral instructions to the jury were accurate. Additionally, the jury was provided with the correct instructions in a written format. See State v. Vasquez, 265 N.J.Super. 528, 543-47 (App. Div.) (finding that although the verdict sheet did not provide passion/provocation manslaughter as a possible verdict, there was no plain error because the trial judge orally provided the charge to the jury three times), certif. denied, 134 N.J. 480 (1993).

C.

Defendant further asserts that the jury instructions for possession of a weapon for an unlawful purpose were confusing and erroneous. We disagree.

Defendant relies on State v. Harmon, 104 N.J. 189 (1986), in arguing that the jury instructions confused the concepts of using and possessing a weapon. In Harmon, the defendant brought a BB gun to the scene of an argument, in anticipation of needing protection. Id. at 211. There, our Supreme Court held that a defendant may present the defense that he or she possessed a weapon to use it for sport, precaution, or "in a manner intended to cause no harm to another," in order to counter the charge that he or she was guilty of possessing the weapon for an unlawful purpose. Ibid.

In this case, however, defendant testified he acquired the gun during the fight and used it in self-defense, instead of bringing the gun to the scene himself in anticipation of needing protection. Moreover, the trial judge's instructions were identical to the Model Jury Charge, "Possession of a Firearm With a Purpose to Use It Unlawfully Against the Person or Property of Another (N.J.S.A. 2C:39-4a)" (2013). Therefore, we conclude no plain error occurred.

IV.

Finally, we reject defendant's contention that his sentence is excessive and that the trial judge erred in refusing to find the mitigating factor that incarceration would cause excessive hardship.

We are required to affirm a sentence as long as it "properly identifies and balances aggravating and mitigating factors" supported by credible evidence and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). Additionally, under N.J.S.A. 2C:43-6b, a period of parole ineligibility is appropriate "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors[.]" If the sentencing judge determines that parole ineligibility is appropriate, the court "`shall state on the record the reasons for imposing the sentence[.]'" State v. Bessix, 309 N.J.Super. 126, 130 (App. Div. 1998) (quoting State v. Kruse, 105 N.J. 354, 359 (1987)).

Here, the trial judge sentenced defendant to a term of ten years imprisonment with five years parole ineligibility on count four, possession of a weapon for an unlawful purpose, to run concurrently with a term of ten years imprisonment and five years parole ineligibility for count three, unlawful possession of a firearm. Defendant was additionally sentenced to a concurrent term of five years for count two, aggregated assault.

In determining defendant's sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(2) ("seriousness of harm inflicted on the victim"); -1a(3) ("risk that the defendant will commit another offense"); -1a(6) ("prior criminal record"); and -1a(9) (deterrence). Although not listed on the judgment of conviction, the judge also discussed aggravating factor N.J.S.A. 2C:44-1a(1) ("nature and circumstances of the offense"). While this factor may not have been inappropriate, the judge stated he did "not place great weight" on it, and its elimination does not affect the weight of the other aggravating factors in determining defendant's sentence.

The trial judge also properly considered and rejected mitigating factor N.J.S.A. 2C:44-1b(11) ("imprisonment of the defendant would entail excessive hardship to himself or his dependents"). The judge addressed this factor and found that he did "not find [the claimed hardship] to be in any way extraordinary or significant to warrant consideration as a mitigating factor in this case."

We therefore conclude that the trial judge's findings and sentence imposed on defendant is supported by credible evidence and does not shock the judicial conscience.

Affirmed.