STATE OF NEW JERSEY VS. REYMOND PAGAN (16-04-1216, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0315-18
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
REYMOND PAGAN,
a/k/a REYMOND C. PAGAN,
and RAYMOND C. PAGAN,
Defendant-Appellant.
_________________________
Submitted February 22, 2021 – Decided May 26, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-04-1216.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief)
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Jason Magid, Special Deputy
Attorney General/Acting Assistant Prosecutor and
Rachel M. Lamb, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from his jury trial convictions for felony murder,
aggravated manslaughter, robbery, and related weapons offenses. He contends
the trial court erred in denying his motion to suppress incriminating text
messages that were extracted from a co-defendant's cell phone. He also
contends the trial court made several errors that individually and collectively
warrant a new trial, and that he received an excessive sentence. After carefully
reviewing the record in light of the applicable legal principles, we affirm.
I.
In April 2016, a Camden County grand jury charged defendant with: first-
degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree knowing/purposeful
murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree robbery, N.J.S.A. 2C:15-
1(a)(1); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and second-degree certain persons not to have a weapon, N.J.S.A.
2C:39-7(b).
In April 2017, Judge John T. Kelley denied defendant's motion to suppress
evidence after an evidentiary hearing. Judge Kelley presided over the jury trial,
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which occurred over the span of six days in April 2018. The jury returned a
guilty verdict on all counts except for first-degree knowing/purposeful murder,
instead finding defendant guilty of the lesser offense of aggravated
manslaughter, N.J.S.A. 2C:11-4(a). Defendant was sentenced on his first-
degree felony murder conviction to a fifty-year prison term subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The convictions for first-
degree aggravated manslaughter, first-degree robbery, and second-degree
possession of a weapon for an unlawful purpose were merged into the first-
degree felony murder conviction for sentencing purposes. The sentencing court
also sentenced defendant to a term of eight years for his second-degree
conviction for unlawful possession of a weapon, to run concurrently with the
fifty-year felony murder sentence. The court further sentenced defendant to a
term of eight years with a five-year period of parole ineligibility for his second-
degree conviction for certain persons not to have a weapon, to be served
consecutively with the fifty-year felony murder sentence. The aggregate
sentence imposed by the court was thus fifty-eight years, with a forty-seven-
and-a-half-year period of parole ineligibility.
We discern the following facts from the record. On September 27, 2015,
at approximately 11:33 p.m., Camden County police responded to a report of a
3 A-0315-18
shooting. The victim, Jose Franco, was found lying on the ground in a pool of
blood. He was transported to Cooper University Hospital where he succumbed
to his gunshot wound the following morning.
At approximately 11:44 p.m.—just minutes after police had responded to
the shooting—Officer Lissandra Sime and Detective Sean Miller were
dispatched to Cooper University Hospital to investigate a report of an individual,
co-defendant Samuel Lopez, 1 who came to the emergency room with a gunshot
wound to his left thigh. Lopez claimed he was the victim of a robbery. He
responded evasively to questions and provided inconsistent accounts when
asked for specific details about what happened. Officer Sime overheard Lopez
state to a family member, "[t]hat mother-fucker [Franco] is shot and I'm just
going to walk out of here with a cast on." 2 Franco, it bears noting, was at that
moment in a nearby bay of the hospital trauma unit being treated for his fatal
gunshot wound. The police seized Lopez's cell phone and clothing. The bullet
1
Lopez was tried separately and is not a party to this appeal. We affirmed
Lopez's conviction in State v. Lopez, No. A-1210-19 (App. Div. Sept. 23, 2020).
2
The account of Officer Sime, who acted as a translator during Lopez's
questioning, was presented only at the suppression hearing for the purpose of
supporting the State's argument that Lopez's cell phone had been legally seized.
At trial, the State presented to the jury Detective Miller's testimony, which
substantially matched Officer Sime's account, sans Lopez's comment to his
family member.
4 A-0315-18
holes and powder burn markings indicated a gun had been discharged from
inside his left pants pocket. Lopez is left-handed.
The following day detectives met with Franco's cousin, who stated that he
last saw Franco at approximately 11 p.m. on the night of shooting. The cousin
provided information about Franco's usual route of travel home. Detectives
followed that route to look for potential witnesses and video surveillance
cameras.
The detectives learned from a Camden County police patrolman that the
owner of a liquor store had reported two individuals loitering across the street
around the time of the shooting. Detectives followed Franco's route, eventually
finding a large pool of blood adjacent to a curb approximately two blocks from
where police had found Franco. The detectives canvassed the area for witnesses.
The detectives also obtained video surveillance footage from a restaurant
located approximately two blocks from where the pool of blood was discovered.
This video showed Franco crossing a nearby street, followed by two men
wearing dark hooded clothing and gloves. From the video, police could see one
suspect wearing sneakers with distinctive black and blue markings and one
suspect with a large beard. Police executed a warrant to search Lopez's
residence, where they recovered a pair of black and blue Nike high top sneakers.
5 A-0315-18
The detectives also obtained a security video recording from Cooper
University Hospital documenting Lopez's arrival and treatment. This video
confirmed that Lopez's build, facial structure, and dark clothing were consistent
with the other video footage detectives had collected. The hospital video
recording showed Lopez arriving in a vehicle that was registered to defendant's
girlfriend. She testified that on the night of the shooting, defendant called and
told her to pick up Lopez from a basketball park in the Cramer Hill section of
Camden. She transported Lopez to Cooper Hospital because "he got something
in the leg." She later found a sweatshirt on the backseat of her vehicle that did
not belong to her or her children, which she gave to police.
Defendant's girlfriend further testified that she saw Lopez a few days later
while she was with defendant. Defendant told Lopez, "the guy death [sic]." At
the time, she did not know who they were talking about. Defendant later told
her that Lopez received his gunshot wound when the two of them were "robbing
in Cramer Hill."
The State presented text messages between defendant and Lopez. On
September 26, 2015, a text from defendant to Lopez read, "We need to make a
mark. I got an idea." Lopez responded, "Where you want to hit?" Defendant
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responded, "Everywhere, just don’t [know] where to start. I want to get a
hustler."
At 8:52 p.m. on the night of the shooting, defendant texted Lopez, "I'll be
there in [fifteen] min. You still down, right?" At 8:59 p.m., defendant texted
Lopez "I'll be there in [five]. You ready?" At 9:03 p.m., Lopez responded
affirmatively. At 9:04 p.m., defendant texted Lopez "I'm here" and "I got to get
the thing. It's nearby."
Lopez testified on defendant’s behalf. He claimed the text messages were
about selling marijuana. Lopez testified that he met with defendant for five to
ten minutes around 9 p.m. on the night of the shooting but did not see him again
that night. He further testified that after he was shot, he called defendant to ask
him to call an ambulance. He confirmed that defendant's girlfriend picked him
up at the basketball park and transported him to the hospital. Lopez admitted
that he was wearing black and blue Nike "LeBron's" that day but denied he had
ever seen the pair of black and blue Nike high top sneakers seized from his
apartment.
The appellate brief submitted by defendant's counsel raises the following
points for our consideration:
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POINT I
THE DEFENDANT'S MOTION TO SUPPRESS THE
WARRANTLESS SEIZURE OF MR. LOPEZ'S CELL
PHONE AT THE HOSPITAL AND ALL OF THE
INFORMATION DERIVED THEREFROM AS
FRUIT OF THE POISONOUS TREE SHOULD HAVE
BEEN GRANTED
POINT II
THE TESTIMONY OF DETECTIVE MILLER
EXPRESSING AN OPINION ABOUT THE
CREDIBILITY OF CO-DEFENDANT, SAMUEL
LOPEZ, WAS IMPERMISSIBLE OPINION
TESTIMONY WHICH REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION (not raised below)
POINT III
THE FAILURE OF THE TRIAL COURT TO GIVE
HAMPTON AND KOCIOLEK JURY
INSTRUCTIONS WAS PLAIN ERROR (not raised
below)
POINT IV
THERE WAS INSUFFICIENT RELIABLE
EVIDENCE TO SUPPORT THE DEFENDANT'S
CONVICTIONS BEYOND A REASONABLE
DOUBT (not raised below)
POINT V
THE AGGREGATE SENTENCE IMPOSED UPON
MR. PAGAN OF 58 YEARS WITH 47.6 YEARS OF
PAROLE INELIGIBILITY WAS EXCESSIVE AND
SHOULD BE REDUCED
POINT VI
THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL (not raised below)
8 A-0315-18
Defendant raises the following additional points in his pro se
supplemental brief:
POINT I
THE TRIAL COURT'S IMPROPER ADMISSION OF
THE TEXT MESSAGES BETWEEN DEFENDANT
AND HIS CO-DEFENDANT WITHOUT
CONDUCTING A PROPER ANALYSIS OF THE
EVIDENCE DEMANDS REVERSAL OF THE
DEFENDANT'S CONVICTION
POINT II
IT WAS PLAIN ERROR TO CHARGE FIRST
DEGREE MURDER WHERE NO BASIS IN THE
RECORD EXISTED TO GIVE SUCH A CHARGE
THAT GIVEN OF THE CHARGE [sic] RESULTED
IN A COMPROMISE VERDICT CAUSING AN
UNJUST RESULT
II.
We first address defendant's contention that police unlawfully seized
Lopez's cell phone while he was receiving treatment at the hospital for his self-
inflicted gunshot wound, and that the incriminating text messages between
defendant and Lopez extracted from the phone should have been suppressed as
a fruit of the unlawful seizure. 3 Because we affirm the denial of defendant's
3
The Camden County Prosecutor's Office obtained a Communications Data
Warrant (CDW) to extract data from Lopez's cell phone police that had been
9 A-0315-18
motion to suppress substantially for the reasons explained by Judge Kelley in
his thorough and cogent oral opinion, we need not readdress defendant's
arguments at length. We add the following comments.
When reviewing a motion to suppress evidence, we "must uphold the
factual findings underlying the trial court's decision, so long as those findings
are 'supported by sufficient credible evidence in the record.'" State v. Evans,
235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
"An appellate court 'should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" Elders, 192 N.J. 244. Relatedly, a trial judge's credibility
determinations should be upheld if such determinations are supported by
sufficient credible evidence. State v. S.S., 229 N.J. 360, 374 (2017).
As we have noted, the prosecutor obtained a CDW before examining data
contained in Lopez's cell phone, thus complying with the rule established by the
United States Supreme Court in Riley v. California, 573 U.S. 373, 386, 403
seized without a warrant at the hospital on the night of the shooting. The
prosecutor also obtained CDWs to search the contents of another cell phone
belonging to Lopez and a phone belonging to defendant. The lawfulness of the
seizures and searches of those other cell phones is not at issue in this appeal.
10 A-0315-18
(2014) ("Our answer to the question of what police must do before searching a
cell phone seized incident to an arrest is accordingly simple—get a warrant.").
The sole issue before us is whether there was a lawful basis to seize the phone
at the hospital when the police seized Lopez's bullet-damaged pants. The State
does not argue that the phone was seized incident to an arrest as in Riley. Rather,
the State argues there were exigent circumstances sufficient to excuse the failure
to obtain a warrant for the phone.
In State v. Johnson, our Supreme Court reaffirmed the bedrock principle
that our constitutional jurisprudence favors warrants, and that warrantless
searches or seizures are "presumptively unreasonable." 193 N.J. 528, 552
(2008) (citing Elders, 192 N.J. at 246). Accordingly, when police act without a
warrant, the State in a motion to suppress "bears the burden of proving by a
preponderance of the evidence not only that the search or seizure was premised
on probable cause, but also that it 'f[ell] within one of the few well-delineated
exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J.
13, 19–20 (2004)) (alteration in original).
"Exigent circumstances" is one of those recognized exceptions. The Court
in Johnson explained that exigent circumstances cannot be precisely defined nor
reduced to a "neat formula." Ibid. (citing State v. Nishina, 175 N.J. 502, 516
11 A-0315-18
(2003)); see also State v. DeLuca, 168 N.J. 626, 632 (2001) ("'[t]he term
"exigent circumstances" is, by design, inexact. It is incapable of precise
definition because, by its nature, the term takes on form and shape depending
on the facts of any given case.'") (quoting State v. Cooke, 163 N.J. 657, 676
(2000)). Consequently, the application of the exigent circumstances exception
demands a "fact-sensitive, objective analysis." Johnson, 193 N.J. at 552 (citing
State v. Bruzzese, 94 N.J. 210, 219 (1983)).
The Court in Johnson identified factors to consider when determining
whether law enforcement officials faced exigent circumstances, including "the
urgency of the situation, the time it will take to secure a warrant, the seriousness
of the crime under investigation, and the threat that evidence will be destroyed
or lost or that the physical well-being of people will be endangered unless
immediate action is taken." Id. at 552–53; see also DeLuca, 168 N.J. at 632("Generally stated, circumstances are exigent when they 'preclude expenditure
of the time necessary to obtain a warrant because of a probability that the suspect
or the object of the search will disappear, or both.'") (quoting State v. Smith,
129 N.J. Super. 430, 435 (App. Div. 1974)).
Applying those tenets, we hold that the warrantless seizure of Lopez's cell
phone was permissible due to exigent circumstances. The police had ample
12 A-0315-18
probable cause to believe Lopez was involved in the shooting of Franco and that
his cell phone might contain relevant evidence about that violent crime. Lopez's
claim that he was the victim of a robbery raised suspicion given his inconsistent
statements regarding his gunshot injury, his demeanor, and the condition of his
jeans, which suggested that Lopez sustained a self-inflicted wound.
Furthermore, the comments Lopez made about Franco that were overheard by
Officer Sime clearly indicated his involvement in Franco's shooting. Although
Franco was still alive when the phone was seized, the grave nature of his injuries
establish that the crime under investigation was extremely serious. See Johnson,
193 N.J. at 552–53 (explicitly listing the seriousness of the crime under
investigation as an exigency factor).
The officers also had a reasonable basis to believe that Lopez would
remove or destroy the cell phone, or at least delete stored data if given the
chance. As Judge Kelley found, "[t]he officer[s] feared that any possible
evidence on Lopez's phone regarding the homicide or the cell phone itself may
be destroyed before they could apply for a search warrant." The judge further
found, "[i]t is unlikely the officers would have been able to telephonically apply
for a warrant at 11 at night on a Sunday." We believe these findings are
supported by sufficient credible evidence.
13 A-0315-18
Defendant argues "there was no legitimate fear of destruction of property"
because "it was a phone, and the phone companies maintain records." That
argument is unconvincing and ignores the urgency of the spontaneous decision
that needed to be made based on objective facts. A smart phone can store
information, such as photographs, that might not be captured in phone service
provider records. Furthermore, police in these circumstances are not precluded
from acting swiftly to preserve digital evidence of a shooting on the grounds
that it is possible that similar evidence might eventually be obtained from a
different source. We believe the police acted appropriately to preserve evidence
based on the information known to them at the moment of the seizure. Riley,
573 U.S. at 388 ("[The defendants] concede that officers could have seized and
secured their cell phones to prevent destruction of evidence while seeking a
warrant. That is a sensible concession. And once law enforcement officers have
secured a cell phone, there is no longer any risk that the [defendant] himself will
be able to delete incriminating data from the phone.") (citations omitted).
In sum, we agree with Judge Kelley that it was objectively reasonable for
the officers to act without delay in seizing the phone with the clothing to prevent
the possible loss or destruction of evidence. We reiterate and emphasize that
police showed appropriate respect for Lopez's constitutional rights by not
14 A-0315-18
viewing information stored in the phone without first obtaining a CDW. The
seizure of the phone, while a constitutionally significant event, is less intrusive
than a search of its contents and in this instance was justified by the swiftly
developing circumstances of the nascent shooting investigation. Cf. id. at 396–
97 ("Indeed, a cell phone search would typically expose to the government far
more than the most exhaustive search of a house: A phone not only contains in
digital form many sensitive records previously found in a home; it also contains
a broad array of private information never found in a home in any form—unless
the phone is.") (emphasis in original).
III.
We next address defendant's contention—raised for the first time on
appeal—that the trial judge erred in allowing a detective to testify before the
jury as to the credibility of the explanation Lopez gave to police regarding his
gunshot injury. Defendant argues that Detective Miller gave impermissible
opinion testimony as to the credibility of a defense witness, depriving defendant
of a fair trial. Specifically, Detective Miller testified:
He [Lopez] was deceptive. Like, if you're a true victim
and someone tells me what happened, if I'm talking to
you to tell me what happened, first of all as I'm talking
to you give me eye contact, don't look away, don't say
huh, I don't know what happened. If someone has a gun
in your face, I understand that you're scared but right
15 A-0315-18
then and there tell me what happened. I'm the good
guy[], I'm not – I'm not here to hurt you, I'm here to
help you. But constantly saying huh and looking away
and acting as if you're passing out, you know, from my
training and experience you're being deceptive,
something is not right.
Defendant did not object to the testimony at trial. We therefore hold the
trial judge did not commit error—much less plain error—in failing to sua sponte
strike that portion of detective's testimony and issue a curative instruction. In
reaching that conclusion, we emphasize the plain error standard is demanding
and aims to "provide [] a strong incentive for counsel to interpose a timely
objection, enabling the trial court to forestall or correct a potential error." State
v. Bueso, 225 N.J. 193, 203 (2016). Indeed, as our Supreme Court noted in State
v. Frost, "[t]he failure to object suggests that defense counsel did not believe the
remarks were prejudicial at the time they were made." 158 N.J. 76, 84. See also
State v. Nelson, 173 N.J. 417, 471 (2002) (holding that failure to object to
testimony permits an inference that any error in admitting the testimony was not
prejudicial). Our Supreme Court has repeatedly emphasized that "rerunning a
trial when the error could easily have been cured on request would reward the
litigant who suffers an error for tactical advantage either in the trial or on
appeal." State v. Singh, 245 N.J. 1, 13 (2020) (quoting State v. Santamaria, 236
N.J. 390, 404–05 (2019)).
16 A-0315-18
Here, Detective Miller testified to the circumstances leading to the seizure
of Lopez's phone and clothing. He did not comment on defendant Pagan's
credibility. Moreover, the State's evidence was overwhelming that Lopez had
in fact lied to the officer about his own gunshot wound. We add the jury was
properly instructed that it is their responsibility to determine the credibility of
witnesses. In these circumstances, we are satisfied the detective's statement that
Lopez was deceptive on the night of the fatal shooting did not impermissibly
intrude on the jury's province as trier-of-fact and was not clearly capable of
producing an unjust result. See Rule 2:10-2 ("Any error or omission shall be
disregarded by the appellate court unless it is of such nature as to have been
clearly capable of producing an unjust result, but the appellate court may, in the
interests of justice, notice plain error not brought to the attention of the trial or
appellate court.").
IV.
Defendant contends for the first time on appeal the trial court erred in
failing "to instruct the jury on oral statements allegedly made by a defendant as
required by N.J.R.E. 104(c) and State v. Hampton and State v. Kociolek." 4
4
State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).
17 A-0315-18
Those cases address the need for special cautionary instructions to the jury on
how to evaluate a defendant's incriminating out-of-court statements.
Specifically, defendant posits the jury should have been given
Hampton/Kociolek instructions with respect to his girlfriend's testimony that he
told her that he was "robbing in Cramer hill" on the day of the homicide, her
testimony she "told police that defendant and [Lopez] went to rob inside a house
and a guy was shot[;]" and the State's presentation of text messages between
defendant and Lopez. 5
None of the statements attributed to defendant were made in the course of
a custodial interrogation. Accordingly, defendant's reliance on Hampton is
misplaced. Our Supreme Court in that case held "there is no constitutional
obligation to submit to the jury for determination the issue of whether the
Miranda warnings were given to a defendant and the rights described thereby
waived before he confessed." 61 N.J. at 267.
As we explained in State v. Baldwin, Hampton "require[s] the trial court
to instruct the jury to decide whether a defendant's out-of-court statement is
5
Although defendant's appellate brief refers to the text messages between him
and Lopez as examples of Hampton/Kociolek violations, we remain
unconvinced that written communications in the form of recorded text messages
can invoke the concerns raised in Hampton or Kociolek.
18 A-0315-18
credible only in a case where there has been a pretrial hearing involving the
admissibility of the statement on the grounds of an alleged violation of the
defendant's Miranda rights or involuntariness." 296 N.J. Super 391, 397 (App.
Div. 1997). We thus held in Baldwin that when "an alleged oral inculpatory
statement was not made in response to police questioning, and there is no
genuine issue regarding its contents," the court is not required to give special
cautionary instructions, "because the only question the jury must determine is
whether the defendant actually made the alleged inculpatory statement." Id. at
401–02.
We turn our attention to whether the trial judge was obligated to give a
special cautionary instruction pursuant to the rationale undergirding Kociolek.
The oral statement attributed to Kociolek was not made during a custodial
interrogation, and thus the rule established in that case is not limited to
statements made while in police custody. The Kociolek Court, quoting Wigmore
on Evidence, §§ 1056, 2094 (3d ed. 1940), acknowledged:
there is a "general distrust of testimony reporting any
extra-judicial [o]ral statements alleged to have been
made, including a party's admissions"; the "great
possibilities of error in trusting to recollection-
testimony of oral utterances, supposed to have been
heard, have never been ignored; but an antidote is
constantly given by an instruction to the jury against
trusting overmuch the accuracy of such testimony."
19 A-0315-18
[23 N.J. at 421.]
Our Supreme Court thus recognized that an out-of-court inculpatory statement
purportedly made by a defendant can be "dangerous" evidence, "first, because it
may be misapprehended by the person who hears it; secondly, it may not be
well-remembered; thirdly, it may not be correctly repeated." Id. at 429 (citations
omitted).
Our decision in Baldwin addressed when a cautionary jury instruction
should be given under the Kociolek doctrine and our analysis in that case is
instructive for the present appeal. The State in Baldwin presented evidence in a
murder trial supporting the identification of the defendant as the assailant,
including testimony from three eyewitnesses and three inculpatory out-of-court
statements purportedly made by the defendant. Baldwin, 296 N.J. Super. at 395.
Baldwin argued that a trial court is obligated to provide cautionary instructions
whenever evidence of a defendant's allegedly inculpatory out-of-court statement
is proffered. Ibid. We rejected any such per se rule. We concluded "the need
for the kind of special cautionary instruction suggested in Kociolek may turn on
whether there is any genuine dispute as to the precise contents of an alleged oral
statement." Id. at 400–01.
20 A-0315-18
Here, as in Baldwin, the meaning of defendant's oral statements to his
girlfriend does not turn on any nuances of language. We believe the phrase
"robbing in Cramer Hill" was unambiguous and memorable. Thus, the
circumstances in which defendant's statements to her were uttered do not present
a substantial "risk of inaccuracy and error in communication and recollection of
verbal utterances and misconstruction by the hearer" as contemplated in
Kociolek, 23 N.J. at 421.
Finally, we emphasized in Baldwin that there was no precedential
authority for the proposition that the failure to give an unrequested Kociolek
instruction constitutes plain error. Id. at 400. Defendant cites no case decided
after Baldwin holding that the failure to sua sponte provide a Kociolek
instruction rises to the level of plain error. We therefore conclude that even
assuming for argument's sake that the failure to give the unrequested instruction
was error—a proposition we seriously doubt—any such error was not capable
of producing an unjust result in this case. See R. 2:10-2; see also State v.
Montalvo, 229 N.J. 300, 320 (2017) ("Without an objection at the time a jury
instruction is given, 'there is a presumption that the charge was not error and
was unlikely to prejudice the defendant's case.'") (quoting State v. Singleton,
211 N.J. 157 181–82 (2012)).
21 A-0315-18
V.
Defendant contends for the first time on appeal the State did not provide
sufficient reliable evidence to support his convictions beyond a reasonable
doubt. We note defendant did not move before the Law Division judge for a
new trial, and thus never provided the judge—who was intimately familiar with
the trial proofs—an opportunity to address defendant's weight-of-the evidence
claim. It is well-settled that courts will normally refuse to consider a "weight-
of-the-evidence argument on appeal unless the appellant moved for a new trial
on that ground." State v. Pierro, 438 N.J. Super. 517, 530 (App. Div. 2015). In
order to prevail on such an appeal, the defendant bears the burden of proving
plain error. State v. Weston, 222 N.J. 277, 295 (2015). Even putting aside this
procedural defect, we believe defendant's argument on appeal is meritless, and
warrants only brief discussion in this opinion. See R. 2:11-3(e)(2).
The well-established test for challenging the sufficiency of evidence for
defendant's conviction(s) was articulated in State v. Reyes:
the trial judge must determine whether, viewing the
State's evidence in its entirety, be that evidence direct
or circumstantial, and giving the State the benefit of all
its favorable testimony as well as all of the favorable
inferences which reasonable could be drawn therefrom,
a reasonable jury could find guilt of the charge beyond
a reasonable doubt.
22 A-0315-18
[50 N.J. 454, 458–59 (1967); see also State v. Brown,
80 N.J. 587, 591 (1979).]
The gravamen of defendant's argument is that the State's evidence of his
guilt in the robbery and homicide is circumstantial. But as the holding in Reyes
makes clear, circumstantial evidence may justify a guilty verdict as surely as
direct evidence. Our own review of the record confirms the State adduced ample
testimony and surveillance video evidence to support the guilty verdicts.
VI.
Defendant claims his sentence was manifestly excessive. Specifically, he
argues the court erred in ordering the sentence imposed on the certain persons
weapons conviction to be served consecutively to the sentences imposed on his
other convictions. He also argues his fifty-eight-year aggregate sentence was
disproportionate to the forty-five-year aggregate sentence imposed on Lopez.
We reject these arguments and conclude that Judge Kelley imposed an
appropriate sentence considering the applicable aggravating and mitigating
23 A-0315-18
factors, 6 and considering the Yarbough 7 guidelines that are used to determine
whether to impose concurrent or consecutive sentences.
The scope of our review of sentencing decisions is narrow. As a general
matter, sentencing decisions are reviewed under a highly deferential standard.
See State v. Roth, 95 N.J. 334, 364–65 (1984) (holding that an appellate court
may not overturn a sentence unless "the application of the guidelines to the facts
of [the] case makes the sentence clearly unreasonable so as to shock the judicial
conscience"). Our review is therefore limited to considering:
(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
2011)).]
6
Judge Kelley found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The
risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-
1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness
of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44-
1(a)(9) ("The need for deterring the defendant and others from violating the
law"). Judge Kelley did not find any mitigating factors.
7
State v. Yarbough, 100 N.J. 627 (1985).
24 A-0315-18
"[A]ppellate courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.
Lawless, 214 N.J. 594, 606 (2013)). Similarly, a trial court's exercise of
discretion that is in line with sentencing principles "should be immune from
second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).
We first address whether the sentencing judge erred in directing the
sentence imposed on the certain persons conviction to be served consecutively
to the sentence imposed on the felony-murder and other convictions. In
Yarbough, the Supreme Court noted "there can be no free crimes in a system for
which the punishment shall fit the crime." 100 N.J. at 643. The Court listed
relevant considerations, including whether:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed
so closely in time and place as to indicate a single
period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous.
[Id. at 643–44.]
25 A-0315-18
In State v. Cuff, the Court recognized "the Yarbough factors are
qualitative, not quantitative; applying them involves more than merely counting
the factors favoring each alternative outcome." 239 N.J. 321, 348 (2019); see
also State v. Molina, 168 N.J. 436, 442–43 (2001) (affirming consecutive
sentences although "the only factor that support[ed] consecutive sentences [was]
the presence of multiple victims"); State v. Carey, 168 N.J. 413, 427–28 (2001)
(holding that "a sentencing court may impose consecutive sentences even though
a majority of the Yarbough factors support concurrent sentences").
In this instance, Judge Kelley explicitly addressed the rationale
undergirding Yarbough, concluding "I make [the certain persons offense]
consecutive considering the Yarbough factors, and I do find that this is a
separate offense with separate elements." We note that the evidence adduced at
trial clearly shows the firearm was procured and possessed prior to the planned
robbery and resultant homicide. As Judge Kelley noted at the sentencing
hearing, it was defendant who brought the gun to commit the robbery that
resulted in a homicide. Relatedly, the prior felony conviction that made
26 A-0315-18
defendant a certain person was, of course, committed well before the criminal
episode that took Franco's life. 8
The sentence imposed on the felony-murder conviction advances the
sentencing goal of general deterrence. The certain persons offense, in contrast,
advances the sentencing goal of specific deterrence, putting persons convicted
of designated crimes on clear notice that they are henceforth strictly prohibited
from possessing a firearm. We are satisfied, as was the sentencing judge, that
defendant's certain persons firearms conviction warrants separate punishment
from the sentence imposed on the violent crime that was committed with the
firearm. Cf. State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010) (noting
that imposing sentences for certain persons offenses consecutively to other
crimes is permissible, but not mandatory). That conclusion comports with the
major tenet in Yarbough that there can be no "free crimes." 100 N.J. at 643.
We add that in Cuff, the Court noted that a sentencing court's focus
"should be on the fairness of the overall sentence." 239 N.J. at 352 (citing State
v. Miller, 108 N.J. 112, 121 (1987)). We believe the overall sentence imposed
8
The record indicates that defendant was previously convicted of aggravated
sexual assault in 2004, for which he was sentenced to ten years in prison subject
to a mandatory minimum period of 8.5 years without parole under NERA.
27 A-0315-18
in this case, including the consecutive sentence for the certain persons
conviction, is fair and appropriate.
Finally, with respect to defendant's excessive sentence argument, we
reject defendant's contention that the sentence he received is disproportionate to
the aggregate forty-five NERA sentence imposed on co-defendant Lopez, who
was tried separately. Judge Kelley carefully addressed why he imposed a longer
aggregate term than the sentence he imposed on Lopez, explaining:
I would indicate for the record that . . . the sentence is
slightly higher than the sentence I imposed on [Lopez].
There's reasons for that. Primarily the reason is because
this defendant was the older of the two, the more
experienced person of the two, the one who had a prior
record of the two. It appears to me, and as I said, the
reasonable inference that can be drawn is that he is the
one who had a gun, who brought the gun to
unfortunately a tragic meeting with Mr. Franco that
caused his death. While it's certainly obvious that
[Lopez] suffered a wound when the gun was apparently
being placed in his pocket, I don't know and the jury
doesn't know, and no one knows other than [defendant]
and [Lopez] probably, who actually pulled the trigger.
But serious – but there's no doubt that his involvement
in this felony murder caused the death of [Franco]. I
believe the 50-year term is appropriate in this instance
and that is why I'm imposing . . . a slightly higher term
than I imposed upon [Lopez].
28 A-0315-18
We agree with Judge Kelley's reasoning and conclude he did not abuse his
discretion in distinguishing between defendant and Lopez for sentencing
purposes, especially considering defendant's serious criminal history. 9
VII.
Defendant contends the trial court committed cumulative errors
warranting a new trial. In State v. Reddish, our Supreme Court acknowledged
that "although an error or series of errors might not individually amount to plain
error, in combination they can cast sufficient doubt upon the verdict to warrant
reversal." 181 N.J. 553, 615 (2004). In State v. Weaver, the Supreme Court
granted Weaver a new trial after concluding that it was "a classic case of several
errors, none of which may have independently required a reversal and new trial,
but which in combination dictate a new trial." 219 N.J. 131, 162 (2014); see
also State v. Jenewicz, 193 N.J. 440, 473–74 (2008) (recognizing that even when
individual errors do not amount to reversible error, when considered in
combination, their cumulative effect can require reversal).
In this instance, however, we have rejected defendant's contentions with
respect to each asserted error. To the extent we may have assumed for purposes
9
As noted earlier, defendant was previously convicted of first-degree
aggravated sexual assault and received a ten-year NERA sentence.
29 A-0315-18
of argument that an alleged error was committed but did not rise to the level of
plain error, we are satisfied defendant received a fair trial and that none of
defendant's contentions, viewed individually or collectively, cast doubt upon the
verdict as to warrant reversal.
We next address the contentions defendant raises in his pro se
supplemental brief. Defendant for the first time on appeal challenges the
admissibility of the text messages between him and Lopez. 10 Those hearsay
statements were properly admitted as statements by a party-opponent under
N.J.R.E. 803(b)(1) and statements made by a co-conspirator in the course of
planning the robbery under N.J.R.E. 803(b)(5). We note that co-defendant
Lopez in his separate trial objected to the admission of the text message and we
affirmed their admissibility. State v. Lopez, No. A-1210-19 (App. Div. Sept.
23, 2020) (slip op. at 6). Defendant's remaining contention that there was no
10
As we have noted, defendant filed a pre-trial motion to suppress the text
messages on the grounds they were the fruit of the allegedly unlawful
warrantless seizure of Lopez's cell phone. See supra section II. Defendant at
trial did not object to the admissibility of the out-of-court statements under the
Rules of Evidence.
30 A-0315-18
basis to charge him with first-degree murder does not merit discussion in a
written opinion. 11 R. 2:11-3(e)(2).
Affirmed.
11
We presume defendant is referring to the count in the indictment charging
first-degree knowing/purposeful murder, not the count charging first-degree
felony murder. Both offenses are designated as first-degree crimes and carry
the same mandatory minimum sentence.
31 A-0315-18