STATE OF NEW JERSEY VS. SAMUEL LOPEZ (16-04-1216, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2623-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL LOPEZ,
Defendant-Appellant.
_________________________
Argued February 5, 2019 – Decided June 28, 2019
Before Judges Rothstadt and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-04-1216.
Douglas R. Helman, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the brief).
Adam D. Klein, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Adam D. Klein, of counsel and on
the brief).
PER CURIAM
Defendant Samuel Lopez appeals from a judgment of conviction entered
after a jury found him guilty of one count of first-degree felony murder, N.J.S.A.
2C-11-3(a)(3); one count of first-degree robbery, N.J.S.A. 2C:15-1(a)(1); one
count of second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1); and one count of second-degree unlawful possession of
a weapon, N.J.S.A. 2C:39:5(b)(1). The trial court sentenced defendant to a
forty-five year term of imprisonment subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
The charges arose from a robbery and homicide that took place in Camden
on the night of September 27, 2015. During the trial, the State introduced text
messages under Rule 803(b)(5) between defendant and his co-defendant,
Raymond Pagan. On appeal, defendant argues that his conviction should be
reversed because he was denied a fair trial. Specifically, he argues that the texts
were erroneously admitted and that his sentence is manifestly excessive because
the trial court relied upon defendant's constitutional right to maintain his
innocence as a justification for imposing a sentence higher than the statutory
minimum. We now remand for reconsideration of trial court's decision to admit
the text messages because it did not apply the correct test for their admission by
considering whether there was sufficient independent evidence of a conspiracy
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2
to admit the text messages. However, we affirm defendant's sentence. Thus, on
remand, if the text messages are found to be admissible, defendant's convictions
and sentence will remain in place. If, on the other hand, the text messages are
found inadmissible, then defendant's convictions and sentences must be vacated
and a new trial ordered.
I.
In January 2016, a Camden County grand jury returned Indictment No.
16-04-1216 charging defendant with one count of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); one
count of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); one count of
second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-
4(a); and one count of second-degree unlawful possession of weapons, N.J.S.A.
2C:39-5(b). It was undisputed at defendant's trial on these charges and now on
appeal that there was no direct identification evidence of defendant's
involvement in the robbery and murder. The circumstantial evidence of
defendant's guilt was adduced through testimony and by the admission of video
footage, audio recordings, and the challenged text messages. We now
summarize that evidence to give context to our discussion of the admission of
the text messages.
A-2623-17T2
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The State's first witness, Officer Sean Donato, testified to being
dispatched to the crime scene. He stated that upon arrival, he and the other
officers observed the victim was conscious but "writhing in pain" on the ground
in a pool of blood with a gunshot wound under his left armpit. Donato confirmed
that the police department's computer automated dispatch report indicated that
two black male suspects were involved, but he stated that he did not provide this
information.1
The State then called the victim's mother, G.P. She stated that on the night
of September 27, her friend brought her home around 11:00 p.m. As her friend
was attempting to leave, G.P. noticed the road was blocked and saw her son in
the middle of the street. She said that her son was bleeding, apparently rushed
over to him, and he told her that "they tried to rob [him]," at which point she
called the police. The mother testified further that she saw one black male in a
car and another outside near her son but noted that they were only looking at
him on the ground and left when she arrived.
The State's next witness was M.M., the victim's girlfriend at the time of
his death. She testified that she was not with the victim during the day and was
already asleep by 11:00 p.m. She stated that his mother called twice and the
1
Neither defendant nor his codefendant are black.
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second call woke her up, at which point she saw a text message from the victim
sent at approximately 11:00 p.m. telling her that he loved her. M.M. also
testified that she received a text from the victim telling her that he "had beaten
up two guys" earlier in the day.
The State then called Z.A., one of the victim's and G.P.'s neighbor. She
testified that at around 11:15 p.m. on September 27, she was at home with her
father-in-law, J.C. and her partner's nephew. She was in the kitchen when she
saw two people walking up the street wearing dark hoodies; she could not see
their faces. She watched them go into an alley and did not see them emerge or
anything else that night. Z.A. testified that she spoke to the police two days
later and gave a statement. In her statement, she noted that the individuals went
into the alley together and one was bigger than the other.
J.C., the father-in-law of Z.A., testified that he was upstairs when he heard
a noise below. He opened the window and saw three men, two of whom were
hugging or grabbing the third who was on the street. He noted it was dark and
could not distinguish exactly what was happening. He stated that at some point,
two of the men started running and the third got up and was stumbling. He
testified that the next morning, he saw a "thing of blood" on the street around
where he saw the men from the night before.
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The parties then stipulated to several facts related to the results of the
prosecutor's DNA testing of blood samples, which they agreed came only from
the victim, ballistics results, the injuries to the victim, and to his cause of death
being from a gunshot wound to the chest that was not taken at close range. The
parties also stipulated that the phone number for the party to text messages
secured from defendant's phone, which the State was seeking to admit, belonged
to defendant's co-defendant, Pagan.
Detective Katherine Scully, a member of the prosecutor's High Tech
Crimes Unit testified about her investigation into the LG cell phone that another
detective, Sherman Hopkins, turned over for forensic analysis. She testified that
she was able to retrieve text messages from the phone and generate a
corresponding report that displayed the messages.
Detective Sean Miller, a former member of the police department's
Shooting Response Team testified about his September 27 encounter with
defendant after being dispatched to a hospital in response to its report that it was
treating defendant as a gunshot victim. There was no dispute that defendant was
there having sustained a gunshot wound to the upper part of his left thigh.
Miller testified that he located defendant in the trauma room and when
first speaking with defendant, he was hesitant, fidgety, and scared. An audio
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recording of his interaction with defendant was played for the jury. During the
exchange, defendant first stated he was near the vicinity of where the incident
occurred when he was robbed by two men. He said he was shot because the only
things he had in his possession were cigarettes, twenty dollars, and his LG
phone, but the perpetrators did not take anything. Miller asked if defendant shot
himself but defendant repeatedly stated he did not have a gun. Defendant then
stated that he got shot near a different location while walking around after an
argument with his girlfriend. He told detectives that he did not know where his
phone was or his phone number, although his phone was located in the trauma
room and taken by the police.
After the recording was played, Miller resumed his testimony and stated
that city had law enforcement-monitored cameras at cross-streets that could
determine the location of a shooting. He stated that he sent other officers to
investigate other signs of crime at the places defendant indicated, but no such
evidence was found. Miller testified that he asked defendant if he shot himself
because of the evasive answers that he received. He also confirmed that he
reviewed footage from hospital cameras of defendant walking into the hospital
at 11:39 p.m. He confirmed that he took defendant's cell phone and his jeans as
evidence, but did not seize defendant's blue sneakers. When shown a pair of
A-2623-17T2
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blue sneakers marked for identification, Miller confirmed those were the blue
sneakers he saw with defendant's clothing.
Officer Lissandra Sime testified that she was also dispatched to the
hospital to get a report from defendant while Detective Miller was there. She
stated that defendant told her that he was walking and was approached by two
males in masks and they shot him.
The State then called N.T., Pagan's girlfriend at the time of the September
27 incident. She testified that Pagan called her that night to drive one of his
friends to the hospital. While she had not previously met the friend, she stated
that she took him to the hospital because he had been shot. After reviewing the
statement she previously gave to the police on December 1, 2015, she said that
while inside her car, the friend was on the phone, but she did not know with
whom and she heard him say that "somebody got shot and that he did know, the
guy was dead."
Y.P., defendant's former girlfriend, testified that on September 27, she
was with defendant at his mother's house and then he left to buy food. She stated
that later that night, she received a phone call that he had been shot and met him
at the hospital. She added that she and defendant were not fighting that night.
A-2623-17T2
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Detective Sherman Hopkins, who was assigned to take over the victim's
homicide investigation on September 28, testified that he made contact with the
victim's mother, girlfriend, and best friend. While searching the surrounding
area, he found and followed small droplets of blood, which led to a larger pool
of blood. Hopkins further testified that he canvassed the area for surveillance
cameras and attempted to retrieve video from different places, ultimately
obtaining footage from the immediate area from a liquor store, a restaurant, and
a church.
The video recordings depicted whom the police believed were defendant
and Pagan near the victim's location and fleeing from the scene after the
shooting. The footage from the liquor store depicted two people standing
nearby, both wearing black-hooded sweatshirts and gloves. One of the subjects
wore reflective blue sneakers, while the other had a white emblem on his
sweatshirt. The video showed the two men behind bushes across the street from
the store until they walk away. Still images of the blue sneakers and white
gloves were taken from the video and admitted over defendant's objection.
The restaurant's surveillance tape depicted the same two individuals
pacing back and forth and then walking into a parking lot before the victim
appears on the tape. The victim is then seen crossing the street and is followed
A-2623-17T2
9
by the other two men. The two are seen pulling their hoods over their faces so
that they were almost completely covered. The video footage from the church's
camera, taken after the victim was shot, showed the two men running away from
the area.
Hopkins also testified that he spoke to defendant at his home and an audio
recording of that discussion was played for the jury. On the recording defendant
informed Hopkins that a stranger brought him to the hospital and that prior to
being shot, he was "walking some steam off" from an argument that he had with
his girlfriend at his house. He added that he was in the area of the incident at
the time. He said that the two men who robbed him were Hispanic, concealed
their faces, and had a silver revolver. He further explained that he was wearing
a tank top, black jeans, and blue sneakers at the time and did not have anything
for the men to take. 2 Defendant also said he was going to smoke with a friend
and that he ordered food for delivery at some point before leaving his house.
Defendant stated that he did not kill anyone and reiterated that the police were
questioning the wrong person.
In his statement, although defendant initially said that he was wearing
black jeans and blue sneakers when he was shot, he later stated that most of his
2
Later, however, Hopkins stated that defendant said his phone was taken.
A-2623-17T2
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sneakers were yellow after Hopkins told defendant that the surveillance tapes
police had secured showed one of the two perpetrators wearing the same clothes
he was wearing at the hospital.
Hopkins then testified to the contents of the text messages retrieved from
defendant's cell phone. He did so over defendant's continued objection. The
text messages contained indications that the two participants were planning on
securing a gun and committing a robbery.
Detective Joseph Gurcik of the prosecutor's Crime Scene Investigation
Unit testified that during a search of defendant's home on September 30, 2015,
four pairs of shoes were seized, including the pair of blue sneakers that were
admitted into evidence. No blood was found on the shoes.
After the State rested, defendant moved for the charges against him to be
dismissed. He specifically contended that there was no evidence connecting him
to the case, noting that the neighbors did not identify him and did not hear any
gunshots. The State recognized that its case was based on circumstantial
evidence, but argued that there were videos from various areas showing hooded
individuals and that Pagan's girlfriend picked defendant up to go to the hospital.
It added that defendant repeatedly gave conflicting information. The trial court
A-2623-17T2
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denied defendant's motion, finding sufficient evidence for the jury to determine
that he was involved in the robbery and homicide.
Following this denial, defendant informed the court of his decision not to
testify. Defendant called Hopkins as his only witness. Hopkins testified that
none of the videos or screen shots were shown to the State's non-law
enforcement witnesses, but noted that the hospital video may have been shown
to Pagan's girlfriend. He stated that there were no bullets or guns recovered
from defendant's house. He also stated that he spoke to an individual who
bought the victim's cell phone from a drug addict.
After the trial court denied defendant's motion for a mistrial, in which he
contended it was in error for the court to admit the videos and still photographs
that he described as enhanced, the attorneys presented their closing arguments,
the trial court instructed the jury, and it began its deliberations.
During its deliberation, the jury asked to see the text messages between
defendant and Pagan. The prosecutor reread the texts. Initially, the jury was
unable to reach a decision on the robbery charge and it was instructed to continue
its deliberations until a verdict was reached. Eventually, the jury unanimously
found defendant guilty of felony murder, armed robbery, possession of a weapon
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for unlawful purpose, and unlawful possession of a weapon but not of murder
and the lesser-included offense of manslaughter.
The trial court later sentenced defendant. This appeal followed.
On appeal, defendant specifically argues the following two points.
POINT I
[DEFENDANT] WAS DENIED A FAIR TRIAL BY
THE COURT'S ERRONEOUS ADMISSION OF
TEXT MESSAGES ATTRIBUTED TO "RAY."
POINT II
THE SENTENCE IS MANIFESTLY EXCESSIVE AS
THE COURT USED [DEFENDANT'S]
CONSTITUTIONAL RIGHT TO MAINTAIN HIS
INNOCENCE AS A JUSTIFICATION FOR
EXCEEDING THE MINIMUM SENTENCE IN THIS
MATTER.
II.
We turn first to defendant's contentions about the text messages. When
the State offered the text messages retrieved from his phone, defendant objected.
He argued that messages from the phone on the days preceding September 27
were not relevant and would "fall[] into [Rule] 404(b) territory" because of their
highly prejudicial nature. Defendant admitted there were relevant text messages
on September 27. In opposition, the State emphasized that the texts from
September 27 were between defendant and Pagan and were relevant because
A-2623-17T2
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[it was] not alleging that [defendant and Pagan]
committed any other robberies. [It was] alleging that
they were conspiring to commit a robbery at some
point, which they ultimately did on September 27th.
And there's these text messages setting up what they
need. . . . [T]hey're talking about getting wheels,
getting things, just talk that seems to indicate that they
were putting the plan in motion to go out on September
27th to commit the robbery. . . . These are tied into
what they're talking about the days leading up to the
murder.
The trial court ruled that the text messages from September 26 and 27
would be admitted but "anything prior to the 26th . . . would not be relevant. It
really would get into [Rule] 404(b). However . . . from the day before through
the 27th would be relevant."
As already noted, the text messages were read to the jury during Hopkins
testimony for the State. He read the following texts into the record:
Pagan (September 26, 2015, 11:08:16 p.m.): Bro,
what's going on.
Defendant (September 26, 2015, 11:08:56 p.m.):
What's poppin'.
Pagan (September 26, 2015, 11:10:33 p.m.): We need
to make a mark. I got an idea.
Defendant (September 26, 2015, 11:11:06 p.m.): Where
you wanna hit.
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Pagan (September 26, 2015, 11:12:32 p.m.):
Everywhere, just don't know where to start, I wanna get
a hustler.
Pagan (September 26, 2015, 11:14:23 p.m.): I got us for
the morning, all day. Can you think of what to do now,
I'm down with whatever you want to do.
Defendant (September 26, 2015, 11:15:45 p.m.): That's
lightweight, my boy, but it's whatever, feel me. But I
got a couple of jobs too, word is bond. I'm just still
getting info and the goons, but you know we got the
thangs [sic] on deck, ND I'm a be back out in the hood
in a little. I'm just watching this movie.
Pagan (September 26, 2015, 11:20:35 p.m.): I got a
goon that's down and you need to tell me in person
about the jobs and LMK when you get home I got
something for us to put together to do the jobs in the
a.m.
Defendant (September 26, 2015, 11:22:04 p.m.): SNM
YKTS, I'm out here, feel me ND, this movie 'bout to
end. In a little, so I'll be around B.
Pagan (September 26, 2015, 11:22:10 p.m.): We should
buy them two things tomorrow after we come home
from work. You said $250 for both of them, right.
Pagan (September 26, 2015, 11:23:11 p.m.): K HMU
when you get out here.
Defendant (September 26, 2015, 11:23:53 p.m.): I gotta
talk to the person 'bout it, ND if he still got the SHXT
or if he got new ND bigger SHXT. Feel me.
Defendant (September 26, 2015, 11:24:24 p.m.): Most
def he got better SHXT though.
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Pagan (September 27, 2015, 12:45:14 p.m.): I wanted
to bag B and get fiends for everything. Now out north
with it or that AV hustler.
Defendant (September 27, 2015, 3:03:43 p.m.): We
gonna check that AV SHXT today, ARD.
Pagan (September 27, 2015, 3:37:24 p.m.): Yeah, I'm a
get in shower. I'll hit you up soon.
Defendant (September 27, 2015, 3:38:01 p.m.): ARD
say less, bra, bra, HMU.
Defendant (September 27, 2015, 7:40:58 p.m.): Yo, you
good.
Pagan (September 27, 2015, 7:47:58 p.m.): I'm about to
go over there. I'm in Blackwood now.
Defendant (September 27, 2015, 7:48:19 p.m.): Ta bien
(phonetic).
Pagan (September 27, 2015, 8:52:55 p.m.): I'll be there
in 15 MIN, you still down, right.
Pagan (September 27, 2015, 8:59:22 p.m.): I'll be there
in five, you ready.
Defendant (September 27, 2015, 9:03:46 p.m.): ARD.
Pagan (September 27, 2015, 9:04:01 p.m.): I'm here.
Pagan (September 27, 2015, 9:04:18 p.m.): I gotta get
the thing. It's nearby.
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On appeal, defendant challenges the text messages' admission and argues
that the trial court failed to engage in the proper analysis for admission of the
text messages because it only considered whether they were relevant. If the
court conducted the proper analysis, defendant believes that the court could not
have concluded that the State met its burden for admission of the text messages.
Relying upon the requirements for admission under Rule 803(b)(5), statements
of a co-conspirator, and our holding in State v. Harris, 298 N.J. Super. 478 (App.
Div. 1997), defendant argues that the State failed to demonstrate that the
messages were made in furtherance of a conspiracy, or during the conspiracy,
and argues that there was insufficient non-hearsay evidence of a conspiracy and
defendant's relationship to it to warrant admission of the text messages.
Accordingly, he asserts that not only did the State "fail[] to offer even a scintilla
of evidence" of a conspiracy and his involvement in one, but also its proffer that
the texts show a conspiracy is neither substantial nor sufficient for admission.
In the alternative, he argues that even if the text messages were admissible as
non-hearsay, the trial court was required to provide a limiting instruction to the
jury that it should not have considered the statements in the texts for their truth.
We begin our review by acknowledging, "the admissibility of evidence at
trial is left to 'the sound discretion of the trial court.'" State v. Green, 236 N.J.
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71, 80-81 (2018) (quoting State v. Willis, 225 N.J. 85, 96 (2016)). We therefore
review "[a] trial court's evidentiary ruling . . . on appeal for abuse of discretion."
Id. at 81. In doing so, we "may not substitute [our] own conclusions regarding
the evidence, even in a 'close' case." State v. Jefferson, 413 N.J. Super. 344,
349 (App. Div. 2010) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
"'[A]bsent a showing . . . [that] there has been a clear error of judgment,' an
evidentiary ruling will stand." State v. Sessoms, 413 N.J. Super. 338, 342 (App.
Div. 2010) (alterations in original) (quoting State v. Brown, 170 N.J. 138, 147
(2001)).
Applying this standard, we conclude that the trial court mistakenly
exercised its discretion by not applying the correct standard to the admission of
the text messages. Pagan's text messages were clearly hearsay statements.
Hearsay "is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." N.J.R.E. 801(c). Non-testimonial statements may be admitted to the
extent they fall into a recognized exception to the hearsay rule. See State v.
Weaver, 219 N.J. 131, 151 (2014).
Relevant to the present case, a statement "is not excluded by the hearsay
rule if it was 'made at the time the party and the declarant were participating in
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a plan to commit a crime . . . and . . . made [it] in furtherance of that plan.'"
State v. Cagno, 211 N.J. 488, 529 (2012) (quoting N.J.R.E. 803(b)(5)). In order
to admit a statement of a co-conspirator into evidence, the State must prove that
"(1) the statement was 'made in furtherance of the conspiracy'; (2) the statement
was 'made during the course of the conspiracy'; and (3) there is 'evidence,
independent of the hearsay, of the existence of the conspiracy and [the]
defendant's relationship to it.'" Id. at 529-30 (alteration in original) (quoting
State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div. 1997)). See also Harris,
298 N.J. Super. at 488.
Before admitting such statements, a "trial court must make a preliminary
determination of whether there is independent proof of the conspiracy." State
v. Savage, 172 N.J. 374, 403 (2002). See also N.J.R.E. 104(a) ("[w]hen the . . .
admissibility of evidence . . . is subject to a condition, and the fulfillment of the
condition is in issue, that issue is to be determined by the judge"). The
independent evidence can take various forms and "must be substantial enough
to engender a strong belief in the existence of the conspiracy and of the
defendant's participation." State v. Phelps, 96 N.J. 500, 511 (1984).
A court must determine whether substantial independent proof exists even
if defendant is not charged with a conspiracy under N.J.S.A. 2C:5-2. See State
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19
v. Clausell, 121 N.J. 298, 336-37 (1990); State v. Farthing, 331 N.J. Super. 58,
82-83 (App. Div. 2000); State v. Baluch, 341 N.J. Super. 141, 183 (App. Div.
2001). Even without a conspiracy charge, "a trial court must find that [the
statements] were made in furtherance of and during the course of the conspiracy
and that 'a fair preponderance of evidence' independent of the hearsay statements
supports the existence of the conspiracy and of defendant's relationship to it. "
Clausell, 121 N.J. at 337 (quoting Phelps, 96 N.J. at 509-10).
In reaching its decision to admit the text messages in this case, the trial
court did not conduct the proper analysis. The court limited its analysis to
whether the texts were relevant and excluded those that it felt might raise
N.J.R.E. 404 (b) concerns about other crime evidence. It made no determination
as to whether there existed substantial independent evidence of defendant's
participation in the charged offenses.
Under these circumstances, we are constrained to remand the matter to the
trial court for reconsideration of its ruling under the proper test. As noted, prior
to the jury having the text messages read to it, there was testimony and other
evidence relating to the robbery and shooting. If the court determines that the
evidence constituted substantial independent non-hearsay evidence of
defendant's participation in a conspiracy to commit the crimes, the defendant's
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conviction should remain undisturbed. If the court determines otherwise, then
it must enter an order vacating the conviction and granting defendant a new trial
at which the text messages will not be admitted.
III.
Turning to defendant's sentence, we reach a different conclusion.
Defendant argues that his sentence is manifestly excessive because he believes
that the trial court relied upon his constitutional right not to testify as a
justification to exceed the minimum sentence. He maintains this was his first
adult conviction and the court unconstitutionally "punished" him for
maintaining his innocence. As such, a remand for resentencing is required. We
disagree.
On November 17, 2017, the parties appeared before the trial court for
sentencing. The State requested a sentence of fifty-two-and-a-half-years subject
to NERA and noted that first-degree felony murder carried, at minimum, a
thirty-year term of imprisonment. It attributed defendant's lack of an adult
record to his age and emphasized his demonstrated lack of respect for the
criminal justice system. With regard to the text messages, the State argued that
they demonstrated defendant was not under Pagan's influence and sought to
commit a crime even more significant than Pagan originally suggested. Because
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it contended that defendant was part of the plan from the beginning, no
mitigating factor should apply. It argued for the application of aggravating
factors three, N.J.S.A. 2C:44-1(a)(3), ("[t]he risk that defendant would commit
another offense"); six, N.J.S.A. 2C:44-1(a)(6), ("[t]he extent of [his] 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), ("[t]he need for deterring [him]
and others from violating the law").
Defendant argued for the minimum sentence of thirty years. He contended
that mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was
the result of circumstances unlikely to recur"), applied given his age and that he
was "substantially influenced by . . . Pagan." Defendant addressed the court and
maintained his innocence, assuring his family that he would be back soon and
"walking home."
The trial court found aggravating factors three, six, and nine. The court
explained that it weighed factors three and nine heavily and found defendant's
juvenile record and the fact that as soon as defendant turned eighteen, he
engaged in a serious crime as justification for its decision. The court declined
to find mitigating factor eight, given defendant's prior record and the seriousness
of the crime as his first adult offense. The court also was "impressed" by the
A-2623-17T2
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texts as they demonstrated that defendant was not imposed upon by Pagan. It
declined to find mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) ("[t]he
conduct of a youthful defendant was substantially influenced by another person
more mature than the defendant"), because the court thought defendant "ha[d]
no maturity. He is the kind of person that frankly has to be kept off the street
because he doesn't seem to recognize what his responsibilities are to society and
to other people."
The trial court merged the robbery charge and the possession for an
unlawful purpose charge into the felony murder charge, and sentenced defendant
to a forty-five year term subject to NERA for the felony murder and a concurrent
seven-year prison term with a three-and-one-half year period of parole
ineligibility for the unlawful possession of a weapon.
We review a court's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). In our review, we must
determine whether:
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
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[Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).]
We have considered defendant's contention in light of the record and
applicable legal principles and conclude it is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons the court expressed at sentencing. We are satisfied that the court did
not violate the sentencing guidelines and the record amply supports its findings
on aggravating and mitigating factors. The sentence is clearly reasonable and
does not shock our judicial conscience. We add only the following brief
comments.
At the time of the offenses, defendant was eighteen-years-old with
substantial previous contact with the criminal justice system, as evidenced by
his juvenile record that included numerous adjudications. When considering
defendant's "maturity," the trial court properly looked at the totality of the
circumstances to correctly conclude that mitigating factor thirteen did not apply.
See State v. Torres, 313 N.J. Super. 129, 162-64 (affirming the trial court's
omission of mitigating factor thirteen where a sixteen-year-old defendant
planned and committed a robbery with his co-defendant and executed a jewelry
store owner).
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Also, contrary to defendant's contentions, the trial court did not refer at
all to defendant's refusal to admit his guilt to the charged offenses as the basis
for his sentence that it imposed. Rather, the trial court properly relied upon the
appropriate sentencing factors and concluded within its discretion that a more
severe sentence than the minimum was warranted. To the extent the trial court
commented upon defendant's demeanor and his statement to the court, its "brief
allusion to defendant's failure to candidly admit his guilt does not require a
reversal." State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985).
Affirmed in a part; remanded in part for further proceedings consistent
with our opinion. We do not retain jurisdiction.
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