NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This case returns to us on remand from the Supreme Court. A jury convicted defendant Humfrey A. Musa of second-degree robbery, N.J.S.A. 2C:15-1, and a judge sentenced him to a six-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed from the judgment of conviction, arguing two points:

Finding merit in Point I, the Appellate Division reversed defendant's conviction. State v. Musa, No. A-1559-11 (App. Div. September 4, 2013). The Supreme Court reversed the judgment of the Appellate Division, reinstated defendant's conviction, and remanded for the Appellate Division "to address the issue it did not reach: whether the trial court's failure to give an identification charge denied defendant a fair trial." State v. Musa, ___ N.J. ___, ___ (2015) (slip op. at 35). We now address this issue.

Defendant's defense was mistaken identification. There could have been no misunderstanding about the defense because in his opening statement at trial, defense counsel told the jury defendant denied robbing the victim. Counsel framed the central issue as whether the victim correctly identified defendant: "So this real whole case centers upon [the victim's] recollection of the events of that day and whether he has correctly identified, in your opinion, [defendant] as being the person who robbed him." Defendant's claim of misidentification was also evident from defense counsel's cross-examination of the State's witnesses, as well as his summation.

The State presented three witnesses at defendant's trial: the victim and two detectives. The victim testified he was robbed while walking home from work on an East Orange street at approximately 5:25 p.m. on March 25, 2010. He passed "two or three guys in front of the other guy that was in the back." They were wearing white t-shirts and jeans. The guy in the back, who did not appear to be with the others, approached the victim and said, "pops, give me your money." The victim replied, "you kidding[?]" The perpetrator then pushed the victim against a wall, ripped his pants pocket to take his money, and fled the scene. The victim also left the scene, walking in the opposite direction.

A short distance from the scene, the victim saw a police officer in a patrol car, told the officer he had just been robbed of thirty-one dollars, and said the perpetrator was walking "up [a street] . . . going towards the courthouse." The victim had no problem describing the person who robbed him, because it was not dark and the perpetrator had at one point been six inches from the victim's face. The victim described the perpetrator as having a dark complexion, being five feet nine inches to six feet one inch tall, weighing 180 to 220 pounds, and wearing a t-shirt and some jeans; a "little fat guy with a white t-shirt and some jeans on."

The officer radioed this information to other officers and then drove the victim in the direction the perpetrator was walking. A short distance away, other officers had stopped four men. The officer in the patrol car told the victim to remain in the back seat. The victim responded by identifying defendant as the man who robbed him and telling the officer the others "didn't have anything to do with it." The officers on scene arrested defendant and transported him to the precinct. According to the victim, "five to eight minutes at tops" passed between his money being taken and his identifying defendant.

The police officers also transported the victim to the precinct. While there, he was shown eight photographs and identified defendant's photograph as that of the man who robbed him. Defendant's photograph depicted him wearing a yellow shirt. The victim testified he did know when the photograph had been taken, but defendant was wearing a white t-shirt when the police picked him up. The police officers returned thirty-one dollars to the victim; a twenty-dollar bill, a ten-dollar bill, and a one-dollar bill.

East Orange Detective Robert Wright, who in response to a radio dispatch stopped defendant and three others on the street, corroborated the victim's identification of defendant as the perpetrator. Detective Epifanio Mendez, Jr., who searched defendant after arresting him, found a twenty-dollar bill, a ten-dollar bill, and a one-dollar bill in his left pants pocket. The detective found elsewhere on defendant's person a driver's license, personal items, and twenty-four dollars and sixty-one cents. During the charge conference, neither the court nor the parties raised the issue of a charge on identification. The court did not charge the jury on identification.

After deliberating for two and one-half hours, the jury gave the court a note with these questions: "Regarding the picture of [defendant] . . ., was he wearing this shirt in the photo when he was arrested? Was the picture taken as part of an investigation? On March 25[], 2010?" The court instructed the jury that to the best of the court and counsels' collective recollection, there was no testimony about when the photograph was taken; but the jurors' recollections controlled. The jury deliberated for the remainder of the afternoon and reached a guilty verdict the following day.1 As previously noted, defendant was sentenced to a six-year custodial term subject to NERA.

On appeal, defendant contends "[w]here, as here, mistaken identification is the essential issue, the court's complete failure to address the defense in the charge violated [defendant's] constitutional rights to present a defense, to due process, and to a fair trial, and constitutes plain and reversible error." The State replies, "the absence of an identification charge in the instant case did not have the capacity to bring about an unjust result." The State contends "there was no compelling need for an identification instruction because . . . defendant was identified by the victim moments after the robbery occurred," and "the victim's description of his assailant first given to the police . . . matched almost exactly with . . . defendant's height, weight and attire at the time of his arrest."

Because defendant did not object to the court's instructions to the jury, "we review the charge for plain error and reverse only if such an error was `clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting R. 2:10-2). We remain mindful, however, the Supreme Court has "repeatedly emphasized that incorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987).

Generally, "when the facts so warrant, the court is obligated to instruct the jury on all relevant law even absent a specific request." State v. Davis, 363 N.J.Super. 556, 560 (App. Div. 2003) (citing State v. Grunow, 102 N.J. 133, 148 (1986)). "And because a defendant may justifiably assume that fundamental matters will be covered in the charge, the failure to give such an instruction, even when not requested, may constitute reversible error." Id. at 561 (internal quotation marks and citations omitted).

As our Supreme Court explained, "[i]t is well-established . . . that when identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." State v. Cromedy, 158 N.J. 112, 128 (1999); see also State v. Cotto, 182 N.J. 316, 325 (2005) ("When identification is a `key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request."); State v. Walker, 417 N.J.Super. 154, 163 (App. Div. 2010).

A trial court's failure to instruct on identification when it is a key issue may constitute harmless error. Sometimes, the State may "present such overwhelming corroborative evidence," Cotto, supra, 182 N.J. at 326, that the "failure to give an identification instruction does not constitute plain error." Davis, supra, 363 N.J. Super. at 561. "But such cases are the exception." Cotto, supra, 182 N.J. at 326. The case now before us is not an exception.

Here, the identification arose from a one-on-one street encounter. No witnesses corroborated the victim's identification of defendant. Indisputably, the victim identified defendant shortly after the crime was committed, and the thirty one dollars in defendant's left pocket was arguably the money taken from the victim. But defendant had other money on his person as well. More significantly, the jury's question about the discrepancy between the victim's description of defendant's shirt and defendant's shirt depicted in the photograph suggests the jurors did not consider the State's proofs to be overwhelming. Accordingly, we reverse defendant's conviction and remand for a new trial.

Reversed and remanded for a new trial.