State of New Jersey v. Roberto Ubiera ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3195-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERTO UBIERA,
Defendant-Appellant.
_______________________
Argued March 4, 2024 – Decided July 12, 2024
Before Judges Gilson, Berdote Byrne, and Bishop-
Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 20-01-0263.
Daniel S. Rockoff argued the cause for appellant
(Jennifer Nicole Sellitti, Public Defender, attorney;
Taylor L. Napolitano, Assistant Deputy Public
Defender, of counsel and on the brief).
Braden Couch argued the cause for respondent
(Theodore N. Stephens, II, Essex County Prosecutor,
attorney; Braden Couch, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Following a jury trial, defendant was convicted of first-degree murder,
first-degree robbery, first-degree kidnapping, first-degree felony murder, third-
degree possession of a weapon for an unlawful purpose, and fourth-degree
unlawful possession of a weapon. Pursuant to N.J.S.A. 2C:11-3(b)(4)(g), the
court sentenced defendant to life imprisonment without parole. This appeal
followed.
On direct appeal, defendant raises the following contentions:
POINT I
GIVEN THE LACK OF EVIDENCE OF A
COMPLETED ROBBERY OR A KIDNAPPING OF A
SUBSTANTIAL DISTANCE OR PERIOD OF TIME,
[DEFENDANT] IS ENTITLED TO REVERSAL ON
THOSE COUNTS. [DEFENDANT] IS ALSO
ENTITLED TO REVERSAL OF THE FELONY
MURDER COUNT AND RESENTENCING ON THE
MURDER COUNT GIVEN THIS ERROR.
A. The State's Evidence of a Completed Theft
was Insufficient.
B. The State Presented Insufficient Evidence of
a Kidnapping.
C. Reversal of the Robbery and Kidnapping
Counts Necessitates Reversal of the Felony Murder
Count and Resentencing on the Murder Count.
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POINT II
[DEFENDANT] IS ENTITLED TO A NEW TRIAL
BECAUSE THE COURT ERRONEOUSLY
ADMITTED UNDULY PREJUDICIAL TEXT
MESSAGES BETWEEN HIM AND SOMEONE
OTHER THAN HIS GIRLFRIEND THAT WERE
NOT RELEVANT.
POINT III
THE TRIAL COURT DENIED [DEFENDANT] THE
RIGHT TO A FAIR TRIAL ON THE FELONY
MURDER, ROBBERY, AND KIDNAPPING
COUNTS BY FAILING TO DELIVER AN
INSTRUCTION ON ATTEMPTED COMMISSION
OF A THEFT AND BY FAILING TO CHARGE THE
JURY ON THE SAFE RELEASE ELEMENT OF
FIRST-DEGREE KIDNAPPING, NEGATING THE
TWO POSSIBLE PREDICATE OFFENSES FOR THE
FELONY MURDER CHARGE. [DEFENDANT] IS
ALSO ENTITLED TO RESENTENCING ON THE
MURDER COUNT GIVEN THIS ERROR.
A. The Trial Court Failed to Instruct the Jury on
Attempted Theft.
B. The Trial Court Failed to Instruct the Jury on
the Safe Release Element of Kidnapping.
C. The Court's Charging Errors on First-Degree
Robbery and Kidnapping Necessitate Reversal on the
Felony Murder Count and Resentencing on the Murder
Count.
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POINT IV
[DEFENDANT'S] SENTENCE OF LIFE WITHOUT
PAROLE CANNOT STAND BECAUSE THE "BY
HIS OWN CONDUCT" TRIGGERING FACTOR
WAS NOT CHARGED AS AN ELEMENT IN THE
INDICTMENT; THE COURT FAILED TO PROVIDE
THE JURY WITH ANY INSTRUCTIONS ON THE
TRIGGERING FACTOR; AND THERE IS
INSUFFICIENT EVIDENCE OF THE ROBBERY
AND KIDNAPPING COUNTS FORMING THE
BASIS FOR THE AGGRAVATING FACTOR.
We reject these contentions and affirm.
I.
We derive the following facts from the record. On August 16, 2018, at
approximately 7:00 a.m., Tarlok Singh opened the convenience store located at
33 North Park Street in East Orange. Defendant, a former employee and
coworker of Singh, arrived shortly thereafter on his bike. Defendant wore a bike
helmet, a reflective vest, and brought along a green backpack. Defendant briefly
entered and exited the store, and loitered by his bike. Several patrons, including
Albert Burnett, entered the store just after it opened. While in the store, Burnett
purchased tea and spoke with Singh. Burnett told Singh he would return in
approximately ten minutes. After the other customers left, defendant re-entered
the store and was alone with Singh for approximately one minute. Defendant
then briefly exited the store, re-entered, and was alone with Singh for an
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additional one-and-three-quarters minutes before they were interrupted by Jose
Mendez-Amaya, followed by several other customers. When Mendez-Amaya
entered, no one was behind the counter to assist customers. When Mendez-
Amaya and the other customers attempted to pay, defendant came out from the
back of the store to the cash register. At the register, defendant told two
customers to leave without paying. When Mendez-Amaya approached the
register, defendant also told him to leave the store.
Around the same time, another customer, Peter Jordine, entered the store
to get change and buy some items. Jordine called out for Singh and saw
defendant come from the back of the store towards the register. Jordine asked
defendant where Singh was, and defendant responded he did not know. Jordine
later stated defendant looked "spaced out" and "nervous." When Jordine
attempted to pay, defendant struggled to open the cash register. Defendant
eventually opened the register, but there was no money inside, and defendant
told Jordine to leave without paying. Jordine again asked defendant about
Singh's whereabouts and defendant responded Singh was not there.
Shortly after Mendez-Amaya's and Jordine's exit, Burnett reentered the
store. Like the prior customers, Burnett did not see Singh upon his reentry.
Burnett called out for Singh and started walking to the back of the store towards
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the bathroom. At that moment, defendant came out from the back, ran past
Burnett, and out the front door. Burnett continued towards the bathroom at the
back of the store, where he found Singh dead. Singh had been handcuffed, a
scarf tied around his mouth, his throat slashed twice, with two stab wounds in
his back. Burnett ran out of the store and saw defendant racing away on his
bike. Burnett attempted to draw the attention of passing cars before heading to
a gas station to call the police.
Defendant proceeded towards the City of Orange bus garage and in this
general area changed his clothes before heading home. On or about August 17,
2018, defendant was arrested. Police searched defendant's residence where he
resided with his girlfriend. Officers recovered defendant's bicycle, backpack,
vest, and helmet, each matching the description from the crime scene.
Defendant's backpack contained a jacket, black plastic gloves, and an empty
handcuff case but police did not find any handcuffs. Forensics failed to find
defendant's fingerprints at the crime scene or the victim's blood on defendant's
belongings. No murder weapon was ever found nor was the clothing defendant
wore in the store.
Police did recover deleted messages from defendant's cell phone, showing
he communicated with a person called "Grace" who was not his girlfriend.
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Grace had repeatedly implored defendant to send her money in the days before
the murder. Defendant told Grace to
calm down. Taking it easy . . . because without money
you can not [sic] move and I'm very desperate to make
something to send you the list, but how everything is
going, everybody wants to take advantage of other
people. Not pray for these people every day who got
queens and heart, did not mean you do something stupid
to none of them. . . . Which I think I'm going to have to
break somebody's head so they can give me mine.
Maybe that's going to be the best solution to solve the
problem. Did this shit if [sic] somebody and get locked
up, which I don’t want.
On August 15, 2018, the day before the murder, Grace texted defendant
she intended to sell her cell phone for money. Defendant replied, begged her
not to cell her phone, and told her he would send her money by 1:00 p.m. the
following day. When Grace asked how confident he was in his promise,
defendant texted he was "100 percent plus" certain he would have money for her
on August 16, 2018.
On November 9, 2018, defendant was indicted for first-degree murder,
contrary to N.J.S.A. 2C:11-3(a)(1) (count one); first-degree kidnapping,
contrary to N.J.S.A. 2C:13-1(b)(1) (count two); felony murder, contrary to
N.J.S.A. 2C:11-3(a)(3) (count three); third-degree possession of a weapon with
an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); and fourth-
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degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count
five). On January 31, 2020, an Essex County Grand Jury returned a superseding
indictment, adding a charge for first-degree robbery, contrary to N.J.S.A. 2C:15-
1.1
Prior to trial, the State moved to admit defendant's text messages into
evidence over defendant's objection. The trial court granted the State's motion,
finding the messages satisfied N.J.R.E. 403 and 404. Defendant proceeded to
trial and a jury found him guilty of all charges. At sentencing, the court merged
defendant's robbery conviction into the felony murder conviction, and merged
defendant's felony murder and unlawful purpose convictions into the first -
degree murder conviction.
II.
We review appeals attacking the sufficiency of evidence to support a
criminal conviction utilizing the same standard for judgment of acquittal. See
State v. Josephs, 174 N.J. 44, 81 (2002); see also McDaniel v. Brown, 558 U.S.
120, 131 (2010) (equating reversal for insufficient evidence with a judgment of
acquittal). In that instance, we "determine[] whether the 'evidence would enable
1
Defendant was also charged with third-degree theft and terroristic threats.
Those two charges were for unrelated incidents pertaining to events in late 2016
and were ultimately dismissed.
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a reasonable jury to find that the accused is guilty beyond a reasonable doubt of
the crime or crimes charged.'" State v. Lodzinski, 246 N.J. 331, 358 (Patterson,
J., concurring), reconsid. granted on other grounds, 248 N.J. 451, rev'd on other
grounds, 249 N.J. 116 (2021) (quoting State v. Perez, 177 N.J. 540, 549 (2003)).
We afford the State the benefit of all favorable inferences that can be reasonably
drawn from the evidence admitted at trial. Id. at 340 (quoting State v. Reyes,
50 N.J. 454, 459 (1967)). This requires us to consider all of the admitted
evidence, "regardless of whether that evidence was admitted erroneously."
McDaniel, 558 U.S. at 131. Our inquiry is whether "'any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.'" State v. Lodzinski, 249 N.J. 116, 161 (2021) (Patterson, J., dissenting)
(emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
A. The Robbery, Kidnapping, and Felony Murder Convictions.
Defendant contends the jury erred in finding sufficient evidence of a
robbery or a kidnapping. He asserts the State produced insufficient evidence of
a completed theft because "there [was] no direct evidence that [he] did anything
besides enter the store that day." Absent this evidence, he asserts he could have
been convicted only for robbery based upon attempted theft, a charge the jury
was not instructed upon.
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Similarly, defendant argues there was insufficient evidence of a
substantial period of confinement or distance to support his kidnapping
conviction. Based on this alleged lack of evidence of either offense, he
concludes his felony murder conviction must be reversed and he must be
resentenced solely on the first-degree murder conviction. We disagree.
1. Robbery
Pursuant to N.J.S.A. 2C:15-1(a)(1), a person is guilty of robbery if, "in
the course of committing a theft," he or she "[i]nflicts bodily injury or uses force
upon another . . . ." The statute explains the phrase "in the course of committing
a theft" includes "an attempt to commit a theft or in immediate flight after the
attempt" or completion of the offense. N.J.S.A. 2C:15-1(a).
Defendant claims the record lacks support of a completed theft.
"Circumstantial evidence need not preclude every other hypothesis in order to
establish guilt beyond a reasonable doubt." State v. Kamienski, 254 N.J. Super.
75, 105 (App. Div. 1992); cf. Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("[I]t is
the responsibility of the jury – not the court – to decide what conclusions should
be drawn from evidence admitted at trial."). "'It is not fatal to the State's case'
if . . . [it] 'fail[s] to exclude every other conceivable hypothesis except guilt.'"
Lodzinski, 246 N.J. at 358 (quoting State v. Brown, 80 N.J. 587, 599 (1979)).
A-3195-21
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The existence of circumstantial evidence of a completed theft to support
a robbery conviction distinguishes this case from the caselaw defendant relies
upon in support of reversal. Mendez-Amaya testified defendant was permitting
patrons to take goods from the store without paying. Jordine testified when
defendant opened the cash register, he observed it was empty. The State also
presented testimony Bennett purchased tea before he left the store; at the very
least, a jury could reasonably infer money from that sale should have been in
the register. The evidence adduced at trial distinguishes this matter from State
v. Dehart, 430 N.J. Super. 108, 117 (App. Div. 2013), where there was no
evidence – direct or circumstantial – to indicate anything of value was taken.
"A rational jury could conclude beyond a reasonable doubt" a completed theft,
occurred based on the evidence of an empty cash register after a purchase had
been made. Cf. State v. Fierro, 438 N.J. Super. 517, 531 (App. Div. 2015).
2. The Kidnapping Conviction
An individual commits kidnapping when he or she "unlawfully removes
another . . . a substantial distance from the vicinity where he is found" or
"unlawfully confines another for a substantial period" to "facilitate [the]
commission of any crime thereafter . . . ." N.J.S.A. 2C:13-1(b)(1). A conviction
pursuant to the "substantial distance" theory requires the kidnapping impose an
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additional risk upon the victim "over and above the risk imposed by a separate
crime, and the isolation experienced by the victim because of the defendant's
actions." State v. Jackson, 211 N.J. 394, 416 (2012). A conviction based upon
"substantial confinement" demands the evidence show the confinement was
more than incidental to the underlying crime, with reference to the confinement's
duration and an enhanced risk of harm resulting therefrom. Ibid. (quoting State
v. La France, 117 N.J. 583, 594 (1990)).
Although these requirements are intended to curb overzealous
prosecutors, see ibid. (quoting La France, 117 N.J. at 591), they are not so
onerous as to make kidnapping a "'free crime'" to facilitate other violent
offenses. Id. at 418 (quoting State v. Brent, 137 N.J. 107, 125 (1994)). Neither
theory relies upon a specific quantum of time or distance. State v. Purnell, 394
N.J. Super. 28, 54 (App. Div. 2007); State v. Matarama, 306 N.J. Super. 6, 22
(App. Div. 1997).
Here, the record supports a conviction pursuant to the "substantial
confinement" prong of kidnapping. Defendant confined Singh in the
convenience store bathroom, where he was handcuffed and gagged for a period
of time while patrons came into and left the store, until such a time as defendant
was able to kill him. This period of isolation prevented any of the several store
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patrons that morning from coming to his aid and allowed defendant to escape
from the store after killing him. In this regard, Jackson is instructive. Defendant
did not simply enter the convenience store, "brandish his weapon, demand and
collect money from [the register], and depart the scene, leaving [Singh] in a
position to promptly seek help." Jackson, 211 N.J. at 418. Rather, Singh was
placed in a vulnerable position, which enabled defendant to kill him more easily
before fleeing the scene. A rational factfinder could have found sufficient
evidence to support a conviction for kidnapping.
3. The Felony Murder Conviction and Resentencing
Because we find the record sufficient to sustain defendant's convictions
for both robbery and kidnapping, his arguments regarding felony murder and
resentencing are mooted.
B. The Admission of Defendant's Text Messages to Establish Motive.
Our review of the trial court's evidentiary rulings is limited to an abuse of
discretion. State v. Medina, 242 N.J. 397, 412 (2020). We inquire whether the
trial court committed a "clear error in judgment." Ibid. (quoting State v. Scott,
229 N.J. 469, 479 (2017)). We decline to substitute our own judgment for that
of the trial court unless the ruling "was so wide of the mark that a manifest denial
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of justice resulted." Ibid. (quoting State v. Brown, 170 N.J. 138, 147 (2001))
(internal quotation marks omitted).
When a defendant fails to object to an alleged trial error, we review the
action challenged on appeal for plain error. State v. Gonzalez, 249 N.J. 612,
633 (2022) (quoting State v. Singh, 245 N.J. 1, 13 (2021)). Plain error exists if
the action was "clearly capable of producing an unjust result," but "will be
disregarded unless a reasonable doubt has been raised whether the jury came to
a result that it otherwise might not have reached." Ibid. (quoting Singh, 245 N.J.
at 13) (internal quotation marks omitted).
Defendant claims the text messages were impermissibly admitted as
evidence of prior bad acts pursuant to N.J.R.E. 404(b)(1) because they were
introduced to show he was committing "adultery" with another woman while
living with his girlfriend. N.J.R.E. 404(b)(1) states "evidence of other crimes,
wrongs, or acts is not admissible to prove a person's disposition in order to show
that on a particular occasion the person acted in conformity with such
disposition."
Defendant's reliance on N.J.R.E. 404(b)(1) is belied by the record. The
texts were not introduced as evidence of defendant's character; they were
proffered to establish his motive for the crimes charged. His attempt to
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equivocate "infidelity" to his girlfriend as a prior bad act does not merit further
discussion. R. 2:11-3(e)(2). Defendant does not provide any legal support to
demonstrate infidelity is a crime or constitutes a prior bad act within the ambit
of N.J.R.E. 404(b). And such evidence is admissible to prove "motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident when such matters are relevant to a material issue in
dispute." N.J.R.E. 404(b)(2).
Unable to establish the applicability of N.J.R.E. 404(b), defendant must
overcome the burden imposed by N.J.R.E. 403. This requires a "strong showing
of prejudice to exclude motive evidence." State v. Calleia, 206 N.J. 274, 294
(2011). It is insufficient that the evidence has the capacity to inflame the jury's
sensibilities. Ibid. Defendant claims the text messages were prejudicial in that
they attempted to reveal his financial circumstances to the jury, relying on State
v. Mathis, 47 N.J. 455 (1966). Mathis prevents prosecutors from using
generalized class assumptions as evidence of criminality or propensity.
Lodzinski, 249 N.J. at 155-56; see also State v. Francisco, 471 N.J. Super. 386,
422 (App. Div. 2022). As the State asserts, the text messages were offered to
demonstrate a motive for the robbery, provide insight as to how defendant
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planned to obtain money, and provide a deadline as to when Grace could expect
the money from defendant.
We discern no abuse of discretion; any prejudice regarding defendant's
communications with Grace is far outweighed by the text messages' probative
value and did not "divert jurors 'from a reasonable and fair evaluation of the
basic issue of guilt or innocence.'" State v. McDuffie, 450 N.J. Super. 554, 574
(App. Div. 2017) (quoting State v. Moore, 122 N.J. 420, 467 (1991)).
C. The Jury Charges.
Because defendant failed to object to the jury instructions we again review
for plain error. With respect to the kidnapping charge, defendant asserts the
court erred by not instructing the jury on the safe release element of the offense.
To determine whether a victim was released in a safe place, the jury must
evaluate all the evidence admitted at trial. Model Jury Charges (Criminal),
"Kidnapping (N.J.S.A. 2C:13-1(b)(1) to (3))" (rev. Oct. 6, 2014). This includes
consideration into:
(1) [the] age of the victim and any other physical or
mental condition of the victim;
(2) the location, the conditions of the area, and the time
of the release;
(3) the circumstances surrounding the release; and
(4) any other circumstances that occurred or existed
surrounding the release.
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[Ibid.]
The burden is on the State to "prove beyond a reasonable doubt either that the
victim was harmed or not released in a safe place prior to apprehension." State
v. Cuff, 239 N.J. 231, 338 (2019) (quoting State v. Federico, 103 N.J. 169, 174
(1986)). The State was not required to prove both, ibid., and the jury found,
beyond a reasonable doubt, that Singh was harmed. Moreover, the record shows
there is no rational basis for the jury to conclude "the State failed to meet its
burden to prove that defendant did not 'release' [Singh] 'unharmed and in a safe
place' prior to his apprehension." Id. at 342. Singh was found handcuffed and
gagged, with his throat slit and his back stabbed twice in a pool of his own blood.
Defendant did not present any evidence at trial warranting an instruction on safe
release.
D. The Sentence.
Finally, we address defendant's argument that he was improperly
sentenced to life without parole because the State failed to allege defendant
committed murder by his own conduct, and because the court failed to instruct
the jury on that specific triggering element.
Defendant was charged with being the sole cause of Singh's murder on
August 16, 2018. The "own conduct" requirement of N.J.S.A. 2C:11-3(b)(4) is
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intended to distinguish between principal and accomplice for purposes of life
without parole. See State v. Cruz, 171 N.J. 419, 426-27 (2002) (quoting State
v. Gerald, 113 N.J. 40, 96 (1988)). "Only those murderers whose conviction
rests on their status as principals – those who have committed the homicidal act
by their own conduct" may face a life sentence without parole. Id. at 427
(quoting Gerald, 113 N.J. at 100). Defendant does not dispute he was the
principal of Singh's murder. The indictment did not charge him with murder
based on any recognized theory of accomplice liability. See N.J.S.A. 2C:2-6.
This jury charge is inapplicable to the facts of this case because defendant does
not claim he was aided by an accomplice.
Affirmed.
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