# State of New Jersey v. Michael Ramirez

> New Jersey Superior Court Appellate Division · December 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10770587

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** December 24, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10770587

## How later opinions describe it (automated extraction)

- holding that the trial court's brief allusion to failure to admit guilt did not require remand
- affirming sentence where court considered that defendant showed no remorse or anguish over the victim's death
- affirming sentence where court found that defendant denied responsibility for car crash or that he had an alcohol problem

## Opinion text

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-2252-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RAMIREZ,

Defendant-Appellant.

Argued November 20, 2024 – Decided December 24, 2024

Before Judges Mayer, DeAlmeida and Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-03-0137.

Lauren S. Michaels, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Selletti,
Public Defender, attorney; Lauren S. Michaels, of
counsel and on the briefs).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the brief).

PER CURIAM
Defendant Michael Ramirez appeals after a jury convicted him of

aggravated sexual assault and other sex offenses. In the alternative, defendant

challenges the sentence imposed after his convictions.

Defendant and others who worked at a gentleman's club assaulted a co-

worker, S.J. (Sara).1 Defendant and co-defendant Trystal Lozada were tried

together. Other co-defendants had separate trials or pleaded guilty. We affirm

as to defendant's convictions. As to the sentence imposed, we remand for the

judge to provide a more fulsome analysis of the overall fairness of the sentence

under State v. Torres, 246 N.J. 246 (2021), and a reassessment of the Sex Crime

Victim Treatment Fund (SCVTF) penalty.

The facts leading to defendant's convictions are summarized in State v.

Lozada, No. A-3211-20 (App. Div. June 12, 2023). We need not repeat them

here. We recite only those facts pertinent to defendant's issues on appeal based

on the motion record and trial testimony.

1
We use a pseudonym when referring to the victim. R. 1:38-3(c)(12).

A-2252-20
2
Events of November 4 and 5, 2012

Brian and Luis Guzman 2 owned the gentlemen's club where Sara was

assaulted. Defendant managed the club along with Fernando Vaquero. Sara and

Lozada were dancers at the club. On the night of the sexual assaults, Brian was

celebrating his birthday. He offered the dancers shots and showered them with

dollar bills while they performed after the club closed for the night. At trial,

Sara testified Luis had a video camera and videotaped the party. The video

showed Sara consuming several shots of tequila. After drinking the tequila

shots, Sara testified Vaquero offered her a "mixed drink or something."

After Sara drank the beverage, she felt numb and dizzy. As a result, she

sat down to "compose [her]self before [she] had to get home." After dressing in

her street clothes, Sara again sat down because she felt the room "spinning."

Sara planned to call a taxi to return home, as her young sons were in the care of

a sitter. However, Sara was so disoriented she could not use her cell phone to

call a taxi. She then "blacked out."

The next thing Sara recalled was being sexually assaulted by Brian in one

of the bedrooms in an apartment above the club. She remembered Lozada and

2
Because they share the same last name, we refer to the brothers by their first
names. No disrespect is intended.
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3
another man, who she later learned was Miguel De La Cruz, "peeking in" the

bedroom as she was being assaulted.

Sara pushed Brian away. She retrieved her clothes, dressed, entered the

apartment's living area, and yelled at De La Cruz. Upon hearing Sara yell,

defendant appeared from a different bedroom and put his arm around Sara to

calm her.

Defendant then took Sara to another bedroom, where he placed Sara on

the bed, removed her pants, took off his own clothes, and sexually assaulted her.

Sara, still feeling "dizzy" and "numb," blacked out again.

When she awoke the next morning, Sara still felt dizzy and "drugged."

She tried to find her clothes but passed out again. Unable to find her clothes,

Sara dressed in shorts and a sweater she found in the apartment. She got a ride

home from the children's sitter around 8:00 a.m.

Later that day, Sara and the sitter returned to the apartment to retrieve

Sara's belongings. Lozada, Ashley Maldonado, Luis, Brian, Vaquero, and

defendant were still in the apartment. Vaquero found Sara's items and returned

them. Sara then asked defendant about money she was owed from the previous

night. Defendant explained she had to wait until her next shift to receive the

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4
money. After she left the apartment, Sara went to the Passaic Police Department

to report the sexual assaults.

Sara testified she did not consent to any sexual activities with defendant

or anyone else at the club on November 5, 2012. She could not remember

anything between the time she sat down at the bar after feeling dizzy and

awaking briefly in the apartment bedroom as Brian assaulted her.

Maldonado's trial testimony

Because Sara was unable to recall details from the evening, other

individuals at the gentlemen's club on November 4 and November 5, 2012,

provided specific information about the events that night. Maldonado testified

Luis entered the dancers' dressing room with a video camera, while the dancers

were changing into their street clothes, and started recording. The jury saw

video footage from the dressing room and heard Maldonado's testimony

discussing the events in that footage, including that Sara seemed "out of it" and

was "wobbling a little."

After leaving the dressing room, Maldonado testified Sara returned to the

bar, but was unable to hold herself up and "seemed . . . incoherent." Maldonado

described the numerous sex acts performed on Sara by various defendants while

Sara lay prone on the bar and was "out of it."

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Several defendants then took Sara to the "champagne room," 3 and sexually

assaulted her again. According to Maldonado, Sara's eyes were closed and she

"was just laying there" during the champagne room assaults. Maldonado heard

Sara say "ouch" a "few times."

Several individuals, including defendant, then went upstairs to the

apartment4 and brought Sara with them. Sara was standing at that point but still

"out of it" and had to be helped up the stairs. Defendant and Brian then sexually

assaulted Sara in different bedrooms in the apartment. There was no video

footage of the sexual assaults in the apartment. However, Maldonado peeked

into one of the bedrooms and saw Brian "having sex with [Sara]" but Sara

"wasn't moving." Maldonado then went to another bedroom 5 to get some sleep.

Maldonado testified she woke briefly and saw defendant "having sex with

[Sara]."

3
The "champagne room" was a private lounge in the gentlemen's club.
4
To access the upstairs apartment, a person had to exit the club, walk through
an alley way, and enter a separate stairwell leading to the apartment. The door
to the upstairs apartment had a separate key from the exit and entrance doors to
the club.
5
Maldonado testified that the bedroom belonged to Vaquero.
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6
Maldonado told the jury she pled guilty to aiding and abetting aggravated

sexual assault and received a five-year prison sentence rather than a potential

twenty-year prison sentence had she gone to trial and been convicted. Pursuant

to the negotiated plea, Maldonado agreed to testify for the State at co-

defendants' trials.

The police search of the apartment above the club

In the early evening on November 5, 2012, Sara went to the Passaic Police

Department and reported being sexually assaulted the prior evening. Sara then

went to a hospital to give blood and urine samples. Sara told the hospital staff

she was emotionally distressed and "disturb[ed]" because she had "no

recollection" of what happened.

Sara returned to the police station the next day and gave a statement to

Detective Sergeant Roy Bordamonte. During the interview, Sara identified

defendant, Brian, and another man "with a cyst behind his head," later identified

as De La Cruz, as the men who sexually assaulted her. Sara also said Luis and

two dancers she knew as "Hollywood" and "Cookie" 6 were present. She further

told the detective that Vaquero "kept giving her drinks" and, after she drank one

6
Maldonado used the stage name "Hollywood." Lozada used the stage name
"Cookie."

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of them, she "felt really messed up." According to the officers who testified at

the suppression hearing, Sara reported seeing "cameras in the apartment" but

was not sure if the cameras were recording.

Shortly after the interview or around 2:00 a.m. on November 6, 2012,

Detective Reinaldo Arroyo went to the gentlemen's club with Bordamonte,

Detective Alex Flores, and several uniformed police officers. Upon entering the

club, Arroyo approached Vaquero and Brian. Arroyo identified himself and

explained the police were conducting an investigation. He provided no specific

details about their investigation. The police then notified the club's patrons that

the club was closing and requested each patron show identification before being

allowed to leave.

After the club was closed, Arroyo spoke to Vaquero. Using the names

Sara provided during her interview with the police, Arroyo asked Vaquero if he

knew the whereabouts of Cookie, Hollywood, Luis, and Mike. Vaquero

responded the two dancers, Cookie and Hollywood, were on stage, while Luis

and Mike were "upstairs" in an apartment.

At the suppression hearing, Arroyo testified he asked Vaquero "if

[Vaquero] could take [the officers] to where Luis and Michael [were]" and

Vaquero "said yes." Vaquero escorted the officers upstairs to the apartment.

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Arroyo stated Vaquero opened the door to the apartment with his key. Vaquero

entered the apartment and held the door open for Detectives Arroyo and

Bordamonte.

Arroyo further testified he entered the apartment "to speak to the people

that were there," specifically defendant and Luis. At that time, Arroyo did not

intend to search the apartment. Instead, he explained he wanted to "meet with"

the individuals Sara identified and "ask if they would come to headquarters . . .

to give . . . a statement." On cross-examination, Arroyo testified he "wasn't

hoping to find anything" in the apartment and was "just there to investigate."

Arroyo explained he did not advise Vaquero of his right to refuse the police

entry into the apartment. Nor did Arroyo knock on the door or announce the

officers' presence before following Vaquero inside the apartment. At no time

did Arroyo tell the occupants of the apartment he was investigating an alleged

sexual assault.

According to Arroyo, seconds after the officers entered the apartment,

defendant "exited the first bedroom on the left" and "spontaneous[ly]" stated

that he "had consensual sex with a dancer in [Vaquero's] room." Luis then

walked out of the second bedroom.

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Upon hearing defendant's statement, which he felt "corroborated [Sara's]

story," Arroyo "retrieved a consent to search form" and asked if Vaquero would

consent to a search of the apartment. Arroyo reviewed the form with Vaquero,

which advised Vaquero of his rights to refuse to consent to any search, to revoke

consent at any time, and to require a search warrant.

Vaquero agreed to the search and signed the consent form. The consent

form stated Vaquero gave permission to search the apartment "voluntarily and

without threats or promises of any kind being made to [him]." Arroyo further

testified he took only "two steps" into the apartment before requesting Vaquero's

consent to search the apartment.

After Vaquero signed the consent form, Arroyo asked Flores to enter the

apartment to maintain "officer safety" and "keep an eye on everybody." Arroyo

also asked defendant, Vaquero, and Luis to sit in the living room. Flores then

pointed to a "cluttered" table in the living room with a video camera in plain

sight. Flores asked the three men who owned the camera. Luis responded the

camera belonged to him. Flores then asked Luis if he would consent to the

officers viewing the footage on the camera. Luis declined. According to

Arroyo, the officers focused on the camera because Sara "stated that she

observed cameras in the apartment." After Luis declined to permit the officers

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10
to view the camera footage, Flores told Luis the police would obtain a search

warrant for camera and video footage. While waiting for the search warrant, the

police remained in the apartment to ensure potential evidence on the camera was

not destroyed.

After receiving Vaquero's consent to search the apartment, Arroyo entered

Vaquero's bedroom and "looked" around for "a couple of minutes." Bordamonte

called for crime scene investigators (CSI) to "process the scene." The CSI team

photographed Vaquero's room and took the bed linens from that room. The CSI

officers seized evidence from other rooms in the apartment, including Luis's

camera.

The police obtained a search warrant from a Passaic municipal court

judge. According to the warrant, Sara claimed there were "cameras in the

apartment" where she was sexually assaulted. Thus, pursuant to the warrant, the

police seized Luis's camera, which they believed contained evidence of Sara's

sexual assaults. According to Arroyo, the police located three other cameras in

the apartment but those cameras appeared inoperable as they lacked SIM cards.

Arroyo and Bordamonte took defendant, Vaquero, Luis, Brian,

Maldonado, and Lozada to police headquarters for interviews. None of these

individuals were under arrest at that time. After the police viewed the video

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footage from Luis's camera, complaint-warrants were filed against the six

individuals and De La Cruz.

Forensic trial testimony

Min Tang, a forensic scientist with the State Police Office of Forensic

Sciences, testified at trial. She analyzed Sara's urine and blood samples taken

at the hospital. Tang found methorphan, a drug commonly used in cough syrup,

in Sara's blood sample, and cocaine, marijuana metabolite, and acetone in Sara's

urine sample. However, Tang testified she could not determine how the drugs

got into Sara's blood or urine. 7

The vaginal, cervical, and anal swabs taken from Sara at the hospital

revealed the presence of sperm. The vaginal and cervical swab specimens

matched defendant's DNA. Tang was unable to exclude defendant as a

contributor based on the anal swab.

Defendant's trial testimony

Defendant confirmed his role as a manager at the gentlemen's club. He

testified he had a "[b]usiness and personal" relationship with Sara. Defendant

7
During her trial testimony, Sara denied ingesting marijuana, cocaine, or cough
medicine on November 4 or 5, 2012. Sara did not know how those substances
were in her blood and urine samples.

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claimed they "had . . . an attraction to each other." He stated the two flirted and,

"on a few occasions," "ha[d] make-out sessions" in the club's champagne room.

Regarding the events of November 5, 2012, defendant testified around

2:45 a.m. he began his usual routine of closing the club. While he was closing

the club, defendant saw Sara "flashing her breasts" for Brian. After closing time,

defendant stated the dancers went into the dressing room to change clothes

before returning home.

According to defendant, he checked the exit doors, including one in the

dressing room, to make sure the club's doors were locked. Defendant said Sara

was the last one in the dressing room and asked about money due to her.

Defendant confirmed he told Sara she would have to wait to get her money.

Defendant then testified Sara "want[ed] to do a show and that she would

do it for $300," paid "up front." Defendant asked Sara what kind of show she

wished to perform. Sara purportedly told defendant "it was going to be a fully

nude show, . . . there could be touching and feeling," but no sex acts. Defendant

responded he would "talk to Luis and see if [he could] get $300." According to

defendant, Luis said "okay." During cross-examination, defendant claimed he

did not tell anyone else at the gentlemen's club about his conversation with Sara.

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Defendant next testified Sara did not appear to be unconscious or unaware

of her surroundings based on the footage from Luis's video camera. According

to defendant, Sara was able to "[c]ommunicate with people" and "looked like

she was having a good time and being . . . wild." Defendant further testified

Sara did not slur her words, but seemed "a little intoxicated."

Defendant confirmed he held Sara's legs open while she was laying on top

of the bar and watched others perform sex acts on her. According to defendant,

Sara was not distressed or "limp" at the time and appeared to be "enjoying it."

Defendant further testified Sara did not express discomfort when others

penetrated her with a beer bottle, explaining "she didn't . . . push it away" and

never tried to close her legs.

Defendant claimed these activities fell within the boundaries Sara

established for her "show." Defendant said he "asked [Sara] if she was good"

while he held her on the bar, and she replied, "yeah." He claimed he told Sara

to "let [him] know if there [was] anything, . . . [she was] not comfortable with,"

and Sara responded, "okay" and "kind of kept going." Defendant admitted he

was "turned on" by watching others perform sex acts with Sara.

According to defendant, De La Cruz carried Sara to the champagne room.

After De La Cruz returned to the bar, defendant saw Lozada help Sara get

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14
dressed. Defendant testified he asked Sara if she was okay, and she confirmed

she was. However, defendant said Sara reported she "didn't like the way [De La

Cruz] was touching her." Defendant testified Sara agreed to "keep going" so

long as De La Cruz did not "get near her or touch her." Defendant agreed to

keep De La Cruz away from Sara.

After that conversation, defendant said he and Sara, at her initiation,

"started messing around" on the couch in the champagne room. Defendant

described sex acts he performed on Sara in the champagne room, which Lozada

and Brian participated in. Defendant testified Sara did not seem uncomfortable

and appeared to enjoy the activities in the champagne room.

Defendant then explained the group "decided to go upstairs." He claimed

Sara was able to walk without assistance. Once in the apartment, defendant

testified he went to his bedroom and "settled in" for "about ten minutes."

Defendant left his bedroom when he "heard [Sara] cursing" in the living

room and yelling at De La Cruz. Defendant testified he got between Sara and

De La Cruz to prevent the situation from escalating. Defendant said he hugged

Sara, who was wearing only a tank top and a blanket. According to defendant,

Sara kissed him and asked for her money. Defendant explained Sara would get

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15
the money the following day. Defendant said Sara then started "making out"

with him.

At that point, defendant asked if Sara wanted to go into a bedroom, and

she said "yeah." Defendant took her into Vaquero's room, where defendant

testified Sara undressed him. Defendant "started having sex" with Sara on the

bed. According to defendant, Sara was conscious, did not resist, and was "into

it." Defendant left the bedroom to get some water at Sara's request. When

defendant returned, he said Sara moved to Brian's bedroom and wrapped herself

in the blankets. Defendant testified he gave Sara a bottle of water, she thanked

him, and he returned to his bedroom to sleep.

When defendant woke in the morning, Sara was gone. Defendant testified

the police arrived at the apartment in the early hours of November 6, 2012.

According to defendant, Detective Bordamonte "pulled [him] into Brian's

bedroom and asked [him] if [he] had sex last night." When defendant responded

in the affirmative, defendant claimed Bordamonte said, "[y]ou're in a lot of

trouble."

Lozada's trial testimony

Lozada provided testimony limited to the sexual assaults of Sara in the

gentlemen's club. Although Lozada saw Sara fall off a bar stool and knock over

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a drink, she did not think Sara was "super drunk." Lozada provided testimony

similar to that of defendant regarding the events at the bar and in the champagne

room. Lozada testified Sara enjoyed, or was not adverse to, the sexual activities

in the bar or champagne room other than those involving De La Cruz. Lozada

further testified Sara "was doing a show," even though no one at the club told

her that information.

Sara's rebuttal trial testimony

After defendant testified, the State recalled Sara to the stand. Sara denied

being alone with defendant in the club's dressing room. She also denied offering

to put on a "show" for $300.

Procedural history

Defendant was tried on eleven counts, renumbered as follows: three

counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5) and

(2)(a)(7) (counts 11, 13, and 14, formerly counts 95, 103, and 104); three counts

of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (counts 12, 15,

and 16, formerly counts 97, 106, and 107); second-degree conspiracy, N.J.S.A.

2C:5-2 and N.J.S.A. 2C:14-2(a)(7) (count 17, formerly count 102); two counts

of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (counts 18 and 19,

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formerly counts 121 and 122); and two counts of fourth-degree criminal sexual

contact, N.J.S.A. 2C:14-3(b) (counts 20 and 21, formerly counts 124 and 125).

Prior to trial, defendant joined in the arguments raised by co-defendants

Luis and Brian to suppress evidence found in the apartment. The motion judge

conducted an evidentiary hearing and Arroyo testified about the search of the

apartment as previously summarized.

At the suppression motion, defense counsel argued none of the detectives

informed Vaquero that he could refuse to allow the police to enter the apartment.

Thus, defense counsel asserted the subsequent search of the apartment was

illegal. Defense counsel further claimed that, because the police were not in the

apartment legally, the plain view exception to the warrant requirement did not

justify the seizure of Luis's video camera. Because Arroyo did not advise

Vaquero that he could refuse the officers entry into the apartment, defense

counsel further argued Vaquero's consent to the search was not voluntary.

Alternatively, because Sara failed to describe the specific camera she claimed

to have seen in the apartment, defense counsel asserted the officers lacked

probable cause to believe the video camera in the apartment's living room

contained evidence of a crime.

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The judge denied defendants' suppression motion. The judge found when

Vaquero told Arroyo that defendant and Luis were "upstairs," agreed to take the

detectives to the apartment, and then opened the apartment door with his key,

Vaquero "[gave] the detectives the reasonable belief that he had the authority to

let them in." The judge explained that while "[i]n the absence of a search

warrant or other recognized exception [to the warrant requirement] . . . the police

cannot enter a home over the resident's objections," officers "do not have to

advise a resident whose permission they have requested to enter that they have

a right to refuse entry." She noted that if the police "seek to search the home,"

such advisement would be necessary. However, the judge found the officers

were seeking to speak with specific individuals as part of their investigation and

not conducting a search. The judge also found no evidence Vaquero was

"threatened or intimidated," and thus concluded he "willingly escorted the

police" inside the apartment as part of the investigation.

The judge also found the State clearly and convincingly demonstrated

Vaquero "knowingly and voluntarily" consented to the search of the apartment,

and "knew that he had a right to refuse." The judge further determined the police

had a "reasonable articulable suspicion that criminal activity had occurred" in

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the apartment based on Sara's police interview and defendant's unprompted

admission that he had sex with a dancer in Vaquero's bedroom.

Because the judge concluded the officers were lawfully in the apartment

as a result of Vaquero allowing them entry, she held the discovery of Luis's

video camera fell within the plain view exception. Since the video camera was

in plain view of the officers in the apartment, who were there with Vaquero's

consent, the judge found the camera "was justifiably seized." She further

concluded the police "had probable cause to believe that the camera contained

evidence of a crime" based on Sara's statement during her police interview that

she saw cameras in the apartment. The judge also noted the police did not view

the images on the video camera until they obtained a search warrant to do so.

Thus, the judge denied the motion to suppress the physical evidence.

After denial of the suppression motion, defendant proceeded to trial

alongside co-defendant Lozada. The trial spanned twenty-one days.

During the trial, defendant moved for a mistrial based on Sara's statement

to the jury during cross-examination that De La Cruz was in jail because he "had

something to do with how [she] ended up upstairs." According to defendant,

Sara's "outburst" in front of the jury undermined his right to a fair trial by

suggesting a non-testifying defendant had been convicted of offenses arising

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from the same incident. Sara made this statement after being pressed by defense

counsel several times to explain why she yelled at De La Cruz after being

assaulted by Brian. While the State agreed Sara's remark was inappropriate, the

State asked the judge to issue a curative instruction and allow the trial to

continue. The judge required time to respond to the State's request for a curative

instruction and took a lunch recess. Upon returning from the lunch recess, the

judge had additional discussions with counsel on the record.

The judge denied the mistrial motion. She concluded Sara appeared

frustrated by defense counsel repeating "the same questions over and over

again." The judge determined Sara did not "deliberately" attempt to harm

defendant's case and likely did not "understand the implications" of her

statement.

The judge recounted her finding that Sara was "asked the same questions

on various occasions" and "became frustrated and responded the way that she

did" without understanding her response would "cause a problem." The judge

concluded Sara's response was not "the fault of the prosecution or the State in

any way" and the State did not "intend to cause a mistrial."

The judge explained she would inform the jurors as part of the final jury

charge "to determine the guilt or innocence of each defendant separately based

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on the evidence presented and nothing else." The judge further stated she would

issue an instruction striking Sara's testimony about De La Cruz being in jail and

advise the jury to "disregard it."

When defense counsel continued to object to the proposed curative

instruction, the judge found that even absent De La Cruz's testimony, the jury

would "be able to judge his guilt or innocence . . . with their own eyes" by

watching the video and hearing the testimony of other witnesses regarding his

actions that night. She stated the jury would "have to make a determination

whether or not [defendant] was . . . an active participant" in the sexual assaults.

Before continuing the trial, the judge instructed Sara not to "say anything

in front of the jury with regard to whether somebody is in jail or not ." When the

jury returned to the courtroom, the judge gave the following instruction:

You've heard testimony from the witness about one of
the parties being in jail. So I am instructing you, ladies
and gentlemen, that the [c]ourt is striking that
testimony. It is not evidence in the case and I am
instructing you that it shall not enter into your
deliberations in any way, shape or form. As I told you
before with regard to stricken testimony when I tell you
that something is stricken it must be disregarded by
you. That means that even though you may have
remembered the testimony you are not in any way to
use it in your discussions or your deliberations.

When the judge asked if the jurors understood, the jurors replied, "[y]es."

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The judge continued:

At the end of the case you are the jury. You determine
the facts of the case. Nobody can usurp that right from
you. You're to make those decisions and you are to
determine the guilt or innocence of each defendant in
this case before you separately. And that you're to
consider each charge separately as to each defendant,
and that you are to make that determination based on
the evidence in the case and nothing else.

The judge asked the jury if they could abide by her instruction, and the jurors

responded in the affirmative. The trial then continued.

At the conclusion of the case, the jury convicted defendant on all counts.

On February 23, 2021, the judge sentenced defendant to an aggregate term of

thirty years with an eighty-five percent parole bar.

On appeal, defendant raises the following arguments:

POINT I

DUE TO THE POLICE'S UNLAWFUL ENTRY INTO
THE HOME, SUPPRESSION WAS REQUIRED.

A. Suppression Motion Facts and Ruling.

B. The State Failed to Prove that Vaquero Knowingly
and Voluntarily Consented to Police Entering the
Apartment, thus the Evidence Must Be Suppressed.

C. Alternatively, the Video Must Be Suppressed
Because Police Lacked Probable Cause that the
Camera Contained Evidence of a Crime.

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POINT II

AFTER COMPLAINING WITNESS [SARA] TOLD
THE JURY THAT NON-TESTIFYING
CODEFENDANT DE LA CRUZ WAS
INCARCERATED FOR WHAT HE DID TO HER,
THE COURT'S REFUSAL TO GRANT A MISTRIAL
DENIED [DEFENDANT] OF HIS RIGHTS TO
CONFRONTATION, DUE PROCESS, AND A FAIR
TRIAL.

POINT III

THE PROSECUTOR COMMITTED MISCONDUCT
IN SUMMATION BY OFFERING UNSUPPORTED
TESTIMONY THAT FILLED A MAJOR HOLE IN
HER CASE, VOUCHING FOR HER WITNESSES,
AND DENIGRATING THE DEFENSE. (Not raised
below).

A. The Prosecutor Improperly Testified as an Expert in
Toxicology.

B. The Prosecutor Told the Jury that Maldonado
Testified Truthfully, and that Her Decision to Plead
Guilty, Rather than Go to Trial Herself, Imbued Her
With Enhanced Trustworthiness. This Vouching,
Particularly When Coupled With Her Denigration of
Defendant, Was Improper.

POINT IV

THE JURY INSTRUCTIONS WERE FATALLY
FLAWED.

A. The Convictions on Counts 13-16 Must be Reversed
Because the Judge Failed to Properly Instruct the
Jury on Mental Incapacitation.

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B. The Convictions On Counts 13, 15, 18, And 20
Must be Reversed Because the Judge Failed to
Properly Instruct the Jury on Accomplice Liability.

POINT V

THE CUMULATIVE EFFECT OF THESE ERRORS
DENIED [DEFENDANT] A FAIR TRIAL.

POINT VI

THE EXCESSIVE 30 YEAR SENTENCE WITH 25½
YEARS WITHOUT PAROLE WAS BASED ON
FLAWED FINDINGS AND A FAILURE TO
CONSIDER THE FAIRNESS OF THE
CONSECUTIVE AGGREGATE TERM. THE
MAXIMUM SCVTF PENALTY WAS ALSO
IMPROPERLY IMPOSED.

I.

We begin with defendant's argument that the motion judge erred in

denying the motion to suppress evidence. Defendant raises two contentions in

support of his argument. First, Vaquero did not validly consent to a search of

the apartment. Second, the video camera was inadmissible under the plain view

doctrine. We reject these arguments.

A.

We first address whether Vaquero's consent to search the apartment was

invalid and, therefore, the evidence seized in the apartment should have been

suppressed. In reviewing the denial of a motion to suppress physical evidence,

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a trial court's factual findings "must be upheld" if supported by sufficient

credible evidence in the record. State v. S.S., 229 N.J. 360, 374 (2017). This is

because "the motion judge, unlike an appellate court, has the 'opportunity to hear

and see the witnesses and to have the "feel" of the case, which a reviewing court

cannot enjoy.'" State v. Gonzales, 227 N.J. 77, 101 (2016) (quoting State v.

Johnson, 42 N.J. 146, 161 (1964)). The trial court's factual findings should not

be disturbed unless they are "so clearly mistaken 'that the interests of justice

demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014)

(quoting State v. Elders, 192 N.J. 224, 244 (2007)). On the other hand, "a

reviewing court owes no deference to the trial court in deciding matters of law."

State v. Mann, 203 N.J. 328, 337 (2010).

There is a "clear preference" for police officers to "secure a judicial

warrant before executing a search." Gonzales, 227 N.J. at 90. A search without

a warrant is "presumptively unreasonable." State v. Cushing, 226 N.J. 187, 199

(2016). Thus, the State "bears the burden of proving the validity of a warrantless

search," ibid., and must demonstrate that it fell into one of the "specifically

established and well-delineated exceptions to the warrant requirement," State v.

Frankel, 179 N.J. 586, 598 (2004) (quoting Mincey v. Arizona, 437 U.S. 385,

390 (1978)).

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"Homes are particularly protected spaces" and "raise heightened privacy

concerns." Cushing, 226 N.J. at 198. This is because the "very core of the

Fourth Amendment . . . protects the right of the people to be safe within the

walls of their homes, free from governmental intrusion." Frankel, 179 N.J. at

611. The State's burden to justify a warrantless search therefore, is "particularly

heavy" when the search involves entry into a home. State v. Legette, 227 N.J.

460, 472 (2017). The State must demonstrate one of the exceptions to the

warrant requirement "by a preponderance of evidence." State v. Brown, 216

N.J. 508, 527 (2014).

Defendant asserts the State failed to prove Vaquero knowingly and

voluntarily consented to police entering the apartment, rendering the subsequent

warrantless search invalid. He argues Arroyo did not inform Vaquero he had

the right to refuse the detective's entry into the apartment. According to

defendant, this omission rendered the search of the apartment illegal, despite

Vaquero signing a consent to search form. Defendant contends Vaquero's

consent was "nothing more than an acquiescence [to] authority in the face of

subtle coercion."

When a person "consents to the search of his premises, he relinquishes the

Fourth Amendment protection which prohibits unreasonable searches and

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seizures." State v. King, 44 N.J. 346, 352 (1965). A search conducted after

receiving consent is a "well-established exception" to the warrant requirement.

State v. Domicz, 188 N.J. 285, 305 (2006).

Under Article I, Paragraph 7 of the New Jersey Constitution, "any consent

given by an individual to a police officer to conduct a warrantless search must

be given knowingly and voluntarily." State v. Carty, 170 N.J. 632, 639 (2002).

The State bears the burden of showing the person providing consent "knew that

he or she 'had a choice in the matter.'" Ibid. (quoting State v. Johnson, 68 N.J.

349, 354 (1975)). To be considered voluntary, "the consent must be

'unequivocal and specific' and 'freely and intelligently given.'" King, 44 N.J. at

352 (quoting Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951)).

Courts have recognized that a person is likely to "feel some degree of

compulsion whenever a police officer makes a request" for consent to a search.

Domicz, 188 N.J. at 307. The question of whether consent "was in fact

'voluntary' or was the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all the circumstances."

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). If it appears that consent

has been granted "only in submission to a claim of lawful authority," or in

response to "threats or force," the resulting search is unreasonable. Id. at 233.

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When determining whether consent to a search was voluntary, "the proper

analytical framework is whether a person has knowingly waived [the] right to

refuse to consent to the search." Domicz, 188 N.J. at 308. As part of that

"knowing" analysis, New Jersey courts "requir[e] the State to prove, as a

precondition to the validity of a consent search, that a person have knowledge

of his right to refuse to give consent." Id. at 307; Johnson, 68 N.J. at 353-54.

While New Jersey courts require an individual be told of the right to refuse

consent to a search, an "occupant's knowledge of the right to refuse [is] not

required every time law enforcement officers seek consent to enter a residence."

State v. Williams, 461 N.J. Super. 80, 99 (App. Div. 2019) (emphasis added).

For example, in State v. Padilla, 321 N.J. Super. 96, 102-03 (App. Div. 1999),

the police went to a motel room to conduct an investigation after receiving a tip

about a man entering the room with a handgun. When a woman came to the

door, an officer identified himself and asked if he and his colleagues could enter

the motel room. Id. at 103. The woman responded in the affirmative, and

voluntarily opened the door for the officers to enter. Ibid.

In that case, we affirmed the trial court's denial of the defendants' motion

to suppress the physical evidence observed in plain view by the officers. Id. at

107-10. We noted the officers "initially went to the motel, not to search but

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rather to investigate" a gun tip. Id. at 107. We found there was "nothing

unreasonable about [the officers'] request for permission to enter the room." Id.

at 107-08. We expressly rejected the defendants' argument that the woman who

answered the door did not validly consent to the officers' entry because the

officers failed to advise her of the right to refuse such consent. Id. at 108. We

explained that because "the officers did not seek consent to search," but "merely

sought permission to enter to continue their investigation," the requirement that

the police state an individual has a right to refuse consent to a search was

"inapposite." Ibid. (emphasis added). We stated that once inside the motel

room, the officers "did not conduct a search" and instead "made visual

observations as they continued their inquiry." Ibid. (emphasis added). Based

on those facts, we concluded the evidence seized was proper under the plain

view exception to the warrant requirement. Ibid.

Here, Arroyo testified at the suppression hearing that he and his fellow

detectives accompanied Vaquero to the apartment above the gentleman's club

after shutting down the club and checking the identification of everyone present

in the club. At that point, Vaquero was clearly aware the police were conducting

some sort of investigation. The officers then asked if Vaquero knew where they

could find defendant and Luis because the officers wanted to speak with them.

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Vaquero volunteered to take the officers upstairs to the apartment to speak with

the two men. Arroyo said he went upstairs to speak with the two men and ask

them to come to the police station to give statements. Arroyo testified he did

not enter the apartment with the intent to search for evidence.

Vaquero, using his own key, opened the apartment door and held it open

for Arroyo and Bordamonte to enter. Neither detective informed Vaquero that

he had the right to refuse them entry. But, under well-settled New Jersey law,

the officers were not required to do so because they entered the apartment to

investigate and not to search. Under the circumstances, we are satisfied the

judge did not err in concluding the police entered the apartment lawfully because

they were conducting an investigation, Vaquero voluntarily authorized their

entry into the apartment to speak with defendant and Luis, and Vaquero signed

a form consenting to the search of the apartment.

Nothing in the record suggests the detectives threatened or intimidated

Vaquero when seeking entry into the apartment. Nor did the detectives'

statements or conduct induce Vaquero to sign the consent form allowing the

search of the apartment. Arroyo and Bordamonte took only a few steps into the

apartment before retrieving a consent to search form and reviewing it with

Vaquero. The consent form clearly stated Vaquero had the right to refuse

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consent to the search. Thus, the officers did not violate Vaquero's constitutional

rights because Vaquero invited officers into the apartment to continue their

investigation by speaking with defendant and Luis. Additionally, the officers

obtained Vaquero's written consent to search the apartment.

B.

We next consider defendant's argument that the video evidence from

Luis's camera found in the apartment should have been suppressed. Defendant

contends the police lacked probable cause to believe the camera contained

evidence of a crime and, therefore, seizure of the camera was unlawful. We

disagree.

"It is well established that under certain circumstances the police may

seize evidence in plain view without a warrant." Coolidge v. New Hampshire,

403 U.S. 443, 465 (1971). "That is so because '[w]hat a person knowingly

exposes to the public, even in his own home or office, is not a subject of Fourth

Amendment protection.'" State v. Johnson, 171 N.J. 192, 209 (2002) (alteration

in original) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).

For example, if the police have a warrant to search an area for specified

objects and "come across some other article of incriminating character," the

plain view exception applies. Coolidge, 403 U.S. at 465. Additionally, "the

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'plain view' doctrine has been applied where a police officer is not searching for

evidence against the accused, but nonetheless . . . comes across an incriminating

object." Id. at 466.

Under such circumstances, the police have a "prior justification for [the]

intrusion," placing the police in a position to discover evidence in plain sight.

Ibid. Plain view alone is not, "in most instances," enough to justify the

warrantless seizure of evidence. Gonzales, 227 N.J. at 104. Instead, an officer

must already lawfully be in the area where the incriminating item is observed.

Id. at 101. The legitimacy of a plain view seizure of evidence found in a home

turns on the legality of the officer's initial entry. Johnson, 171 N.J. at 208.

An object is in plain view "if it can be seized without compromising any

interest in personal privacy." Id. at 206. The plain view doctrine applies only

where it is "immediately apparent that the seized item is evidence of a crime."

Gonzales, 227 N.J. at 101. The doctrine does not allow officers to engage in a

"general exploratory search from one object to another until something

incriminating at last emerges." Coolidge, 403 U.S. at 466. The "immediately

apparent" prong of the plain view exception requires a court to determine

whether probable cause existed to associate an object in plain view with criminal

activity before that object is seized. Johnson, 171 N.J. at 213.

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Probable cause exists if, at the time police act, there is a "well[-]grounded

suspicion" that a crime has been or is being committed. Id. at 214. Probable

cause "merely requires that 'the facts available to the officer would warrant a

[person] of reasonable caution in the belief that certain items may be contraband

. . . or useful as evidence of a crime.'" State v. Bruzzese, 94 N.J. 210, 237 (1983)

(quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). The doctrine does not

require this belief be correct or more likely true than false. Ibid.

Here, Flores saw Luis's video camera in the apartment after the officers

lawfully entered, as we explained in Point I.A. Arroyo further testified Flores

saw the camera shortly after entering the apartment because the camera was in

plain view on the living room table. Further, in her statement, Sara told the

officers she saw "cameras in the apartment." Because the police were not

conducting a search and Flores was lawfully in the area where the video camera

was discovered, no warrant was required under the circumstances.

The next question is whether the police had probable cause to believe the

camera contained evidence of a crime. Although the judge concluded the camera

itself was evidence and contained evidence of a crime, she did not elaborate on

these findings. A video camera, untethered to a potential crime scene, may be

an innocuous item, unlike drug paraphernalia or a firearm.

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Here, Sara told the police she saw "cameras in the apartment."8 Because

Sara reported she had been sexually assaulted in the apartment and the apartment

had "cameras," the police had probable cause to believe the camera on the living

room table contained evidence of the sexual assault. When Flores entered the

apartment and saw a video camera sitting on the living room table, he asked who

owned it. Luis responded the camera belonged to him. Sara identified Luis as

one of the people involved in the sexual assaults. On these facts, the detectives

had reasonable and "well[-]grounded suspicion," Johnson, 171 N.J. at 213, that

Luis's camera "may [have been] . . . useful as evidence of a crime," Bruzzese,

94 N.J. at 237. Having reviewed the record, and recognizing the police did not

view the footage from the video camera until they obtained a search warrant, the

judge did not err by concluding the seizure of the camera satisfied the plain view

exception to the warrant requirement. Thus, the footage from the camera was

properly admitted at trial.

8
At the suppression hearing, Arroyo testified the other cameras in the apartment
were inoperable because they lacked SIM cards. Thus, the police focused on
the only operable camera in the apartment, which was sitting on the living room
table.
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35
II.

We next consider defendant's argument that Sara's statement about De La

Cruz being jailed for sexually assaulting her warranted a mistrial. We disagree.

"The decision to grant or deny a mistrial is entrusted to the sound

discretion of the trial court." State v. Harvey, 151 N.J. 117, 205 (1997). We

defer to a trial judge's decision, since he or she is "in the best position to gauge

the effect of the allegedly prejudicial evidence." Ibid. Thus, the denial of a

mistrial motion should not be disturbed "absent an abuse of discretion that

results in a manifest injustice." Ibid.

A mistrial is "an extraordinary remedy to be exercised only when

necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J.

385, 397 (2011) (quoting Harvey, 151 N.J. at 205). "If there is 'an appropriate

alternative course of action,' a mistrial is not a proper exercise of discretion."

State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Allah, 170 N.J. 269, 281

(2002)). Alternatives to a mistrial include the use of "a curative instruction, a

short adjournment or continuance, or some other remedy." Ibid.

Trials are "often unpredictable," and "even the most precise question . . .

may bring an unexpected response from a witness," causing the jury to hear

inadmissible evidence. Yough, 208 N.J. at 397. Such "[a]lleged errors induced

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36
by counsel 'ordinarily are not a basis for reversal on appeal.'" Id. at 399 (quoting

State v. Corsaro, 107 N.J. 339, 345 (1987)). Even where the State acts

improperly, its actions may not warrant a mistrial unless there is a clear showing

that the defendant suffered actual harm. State v. LaBrutto, 114 N.J. 187, 207

(1989). If it is likely that "the results of the trial would have been the same,"

the mistake is harmless because it did not "deprive [the] defendant of a fair trial."

State v. Camacho, 218 N.J. 533, 554-55 (2014).

In particular, there is a risk when jurors learn that "one co-conspirator has

pleaded guilty to a joint crime" they "might believe . . . that others similarly

charged are also guilty." State v. Stefanelli, 78 N.J. 418, 432 (1979). "[A]

defendant on trial is entitled 'to have his guilt or innocence determined by the

evidence presented against him, not by what has happened with regard to a

criminal prosecution against someone else.'" Id. at 433 (quoting United States

v. Toner, 173 F.2d 140, 142 (3rd Cir. 1949)). Accordingly, evidence of a co-

defendant or witness's guilty plea based on a "joint crime" is inadmissible as

"substantive evidence of [a] defendant's guilt." State v. Adams, 194 N.J. 186,

208 (2008).

If a co-defendant testifies, evidence of a guilty plea may be admitted for

the "limited" purpose of assessing their credibility. State v. Murphy, 376 N.J.

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Super. 114, 122 (App. Div. 2005). However, if the co-defendant is not called to

the stand, there is "no occasion to inform the jury of [the] conviction ," because

there is no need to impeach that person as a witness. State v. Felton, 131 N.J.

Super. 344, 351 (App. Div. 1974).

If inadmissible evidence is inadvertently presented to the jury, the denial

of a mistrial may be upheld on appeal "based on the trial court's directive to the

jury to disregard a prejudicial comment." State v. Winter, 96 N.J. 640, 647

(1984). "The absence of a limiting instruction to the jury restricting the use of

a guilty plea to the issue of credibility is usually an important factor in

determining whether the admission of the plea constitutes harmless error."

Stefanelli, 78 N.J. at 435. When weighing the effectiveness of a curative

instruction, we give deference to the trial court's determination. Winter, 96 N.J.

at 647. The adequacy of the curative instruction "necessarily focuses on the

capacity of the offending evidence to lead to a verdict that could not otherwise

be justly reached." Ibid. It is presumed that a jury will follow a trial court's

limiting instructions. State v. Brunson, 132 N.J. 377, 386 (1993).

Here, we are satisfied the judge did not err in denying defendant's mistrial

motion. We agree Sara's statement to the jury that De La Cruz was "in jail"

because he "had something to do with how [she] ended up upstairs" was

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38
inadmissible. This is true particularly because De La Cruz did not testify at trial.

However, the prosecutor did not elicit this testimony from Sara. Sara made the

statement in response to defense counsel's repetitious questions during cross-

examination. The judge agreed the testimony was improper and expressly

instructed the jury to disregard it. The judge also instructed the jurors to

consider defendant's guilt or innocence "separately" from any other defendant

and to reach a verdict based solely on the admissible evidence presented in this

case.

While defendant argues the judge's curative instruction was "delayed," the

judge took a lunch recess and then another hour to form her reasons for denying

defendant's mistrial motion and craft an appropriate curative instruction for the

jury. We are satisfied the judge's curative instruction remedied any potential

prejudice. Therefore, the judge did not abuse her discretion in denying

defendant's mistrial motion.

III.

We next consider defendant's argument, raised for the first time on appeal,

that the prosecutor erred during her summation. Defendant focuses on two

alleged errors during the State's closing argument: 1) presenting "testimony" as

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to facts outside the record; and 2) impermissibly vouching for Maldonado's

testimony on behalf of the State.

Where, as in this case, a defendant fails to object to a prosecutor's remarks

at the time they were made, any asserted improper comment must be evaluated

for plain error. State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).

A failure to object suggests defense counsel did not believe the prosecutor's

remarks were prejudicial when made and deprives the trial court of the

opportunity to take curative action. State v. Frost, 158 N.J. 76, 83-84 (1999).

"Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented," and they are "expected to make vigorous and forceful closing

arguments to juries." Id. at 82. However, a prosecutor "must refrain from

improper methods that result in a wrongful conviction." State v. Smith, 167 N.J.

158, 177 (2001).

Nevertheless, even a finding that a prosecutor made an improper statement

"does not end a reviewing court's inquiry; in order to merit reversal, the

misconduct must have deprived the defendant of a fair trial." State v. Hawk,

327 N.J. Super. 276, 281 (App. Div. 2000). The prosecutor's conduct must have

been "so egregious," State v. Ramseur, 106 N.J. 123, 322 (1987), that it

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"substantially prejudiced [the] defendant's right to have a jury fairly evaluate the

merits of his defense," State v. Timmendequas, 161 N.J. 515, 575 (1999).

Additionally, a prosecutor's statements that would otherwise be prejudicial "may

be deemed harmless if made in response to defense arguments." State v.

McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011). We "must assess the

prosecutor's comments in the context of the entire trial record," State v. Nelson,

173 N.J. 417, 472 (2002), including whether the trial was lengthy and the

prosecutor's remarks were short or "errant." State v. Engel, 249 N.J. Super. 336,

382 (App. Div. 1991).

A.

We first consider defendant's argument the State relied on facts not part

of the trial record during summation. Defendant contends the prosecutor

"effectively testified . . . about methorph[a]n's effects and the significance of its

presence in [Sara]'s blood," notwithstanding the judge's decision barring the

State's expert forensic scientist from testifying on those topics. He argues the

prosecutor's statements during closing argument "implied a superior knowledge

of toxicology" and could have persuaded the jury into believing the State's

theory that Sara was drugged and could not consent to sexual activity.

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Here, Tang testified she found methorphan in Sara's blood and urine

samples. As a follow up, the prosecutor asked Tang what methorphan "do[es]

in cough syrup." Defense counsel objected, asserting Tang's expert report did

not discuss what the drugs found in Sara's samples "do," only that the drugs were

present. Defense counsel argued Tang's expert qualifications were limited to

her role in performing the blood and urine tests and discovering any drugs

contained in those samples. However, defense counsel asserted Tang was not

qualified to offer testimony about how the drugs might affect a person or,

specifically, Sara. The prosecutor agreed Tang could not respond to questions

pertaining to Sara particularly. However, the prosecutor explained she only

sought to ask Tang, generally, what methorphan "does . . . to the body."

The judge then dismissed the jury briefly. The judge told the prosecutor

to ask Tang the intended line of questioning outside the jury's presence so the

judge could determine whether the questions were permissible based on Tang's

report and expert qualifications. Following this colloquy, because Tang's report

did not contain information on these subjects, the judge concluded Tang could

not testify about anything other than "what was present in [Sara's] system" based

on Tang's testing.

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However, the judge explained the State was not precluded from "making

whatever common sensical, common knowledge arguments can be made to a

jury with regard—everybody's taking cough syrup, for goodness sake, you

know." The judge stated, "the same way the defense [could] argue that

[methorphan] had no effect, the State [could] argue that it did have an effect

coupled with alcohol," which the judge noted "[e]verybody knows . . . is a

depressant." The judge concluded the prosecutor could "make those arguments

separate and apart from the expert testimony," but could not "do it backed by

the weight of the testimony of the doctor" because the State had not provided an

expert report on that subject. The prosecutor abided by the judge's ruling, and

Tang testified as previously discussed.

During his summation, defense counsel remarked that he "[didn't] think

[it was necessary] to have someone come in and give an instruction on how

people administer" cocaine and marijuana because the jurors "all live in the real

world" and know how these drugs are ingested. Co-defense counsel also said it

did not "make any sense" to believe that either of these drugs could be put into

Sara's drink. Defense counsel stated Sara's system had "a chemical that's found

in cough syrup," and this chemical "might make you a little drowsy."

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43
In her closing, the prosecutor stated Sara had another "direct attacker . . .

working powerfully and deliberately to make sure [her] attempts to protect her

body were futile" beyond the physical actions of defendants during the sexual

assaults. Specifically, the prosecutor referred to "the drug that was put in her

drink." When describing Sara's physical state and behavior depicted in the video

footage, the prosecutor said Sara was "feeling the effects of the methorph[a]n in

her body" and "becoming weaker and weaker from the methorph[a]n and the

alcohol." The prosecutor told the jury during closing:

So, ladies and gentlemen, we all know what cough
medicine does to our body, right? You're familiar with
that. It makes us drowsy. It makes us unable to keep
our eyes open. [Sara]'s account of what she remembers
was corroborated. It was corroborated [by] what we see
in the video and what Min Tang told us.

You've heard from our toxicology expert who testified
that cocaine, methorph[a]n and marijuana were found
in [Sara]'s urine. But the only drug found in her blood,
sixteen hours after the sexual assault began . . . was
methorph[a]n.

Ladies and gentlemen, I submit when we take cough
medicine[,] we take it every four to six hours to make
sure it can maintain its effect. How did this
methorph[a]n stay in her body, in her bloodstream for
at least sixteen hours? That's how powerful it was.

Defense counsel did not object to these remarks.

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Prosecutors "must argue based on facts in the record," Timmendequas,

161 N.J. at 595, and not "make inaccurate legal or factual assertions during

trial," Smith, 167 N.J. at 178. Prosecutors are generally limited to commenting

on the evidence and drawing reasonable inferences supported by the evidence.

State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997). Prosecutors must

not imply to the jury that they possess knowledge beyond that contained in the

record, State v. Feaster, 156 N.J. 1, 59 (1998), and "may not invite the jury to

speculate about facts not in evidence." McGuire, 419 N.J. Super. at 146.

However, statements by a prosecutor that would otherwise violate this rule

"may be deemed harmless if made in response to defense arguments." Id. at

145. In McGuire, we concluded some of the prosecutor's statements were fairly

based on the evidence and made in response to the defense counsel's own

arguments and, while other statements constituted "improper speculation," those

other statements did not substantially prejudice the defendant's right to a fair

trial. Ibid.; see also State v. Perry, 65 N.J. 45, 47-48 (1974) (prosecutor's

response in summation to "heavy handed statements" made by defense counsel

in summation did not constitute prejudicial error); State v. Munoz, 340 N.J.

Super. 204, 215-16 (App. Div. 2001) (prosecutor's comment about marks on

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45
defendant's face deemed permissible response to defense counsel's statement

calling officer's testimony about those marks into question).

Here, we are satisfied the prosecutor's remarks concerning methorphan

and its potential effect on Sara did not constitute reversible error. The

prosecutor adhered to the judge's ruling precluding Tang's testimony as to

certain subjects. During her summation, the prosecutor said only that Tang

testified drugs were present in Sara's blood and urine samples. Moreover,

Lozada's counsel commented during summation that methorphan could cause

drowsiness. The prosecutor simply did the same, consistent with all other

evidence presented to the jury. The toxicology evidence showed Sara had

methorphan in her blood and urine many hours after she drank a beverage which

caused her to feel dizzy and fuzzy. Accordingly, the prosecutor's remarks about

methorphan do not warrant a reversal.

B.

We next consider defendant's argument the prosecutor improperly

vouched for Maldonado's truthfulness and, therefore, "implied a personal belief

in [defendant's] guilt, perhaps through extra-record information." We disagree.

During his closing statement, defendant's counsel compared the demeanor

and credibility of the State's witnesses to defendant's demeanor and credibility.

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In speaking to the police in 2012, defense counsel told the jury, Maldonado said

Sara consented to "give a show" and engage in sexual activity with the group on

November 5, 2012. He followed this statement with the following: "[A]nd then

all of a sudden in 2015 [Maldonado] takes a plea. And then in 2017 and 2019 .

. . all of a sudden, . . . there's—[Sara] was incoherent and these people sexually

assaulted her." In his summation, defense counsel commented: "[I]t all changes

now when [Maldonado's] got her, . . . arrangement with the State, right? Now,

all of a sudden, . . . no show, no consenting. It's a sexual assault, right? All of

a sudden she sees things that she didn't see before." Defense counsel told the

jury the State's case consisted of the video, Sara's testimony, and Maldonado's

testimony, and that Maldonado was "on [the State's] side."

In addressing Sara's capacity to consent, defense counsel told the jury the

State only presented Sara's testimony that she repeatedly blacked out. Because

no other "third party" verified Sara's claims, defense counsel suggested the State

"brought in Ashley Maldonado" and "Ashley [did] the job" by corroborating

Sara's sexual assault claim. He also reminded the jury during summation that

Maldonado "pled guilty" and "changed twenty years for five years to testify

against [the defendants]." Additionally, defense counsel highlighted the

discrepancies between Maldonado's 2012 statement to the police and her trial

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testimony, reiterating that after entering a guilty plea, Maldonado changed her

story "all of a sudden" and "flip flopp[ed] like a fish."

In his own closing, Lozada's counsel remarked Maldonado's testimony

was "tainted" because it "came at a price . . . as a quid pro quo . . . as a result of

a deal that she made to avoid . . . up to twenty years in jail." Co-defense counsel

suggested Maldonado "knew that in order to get that deal she had to testify, that

she had to say something to indicate that the others were guilty along with

herself." He argued Maldonado was "very important to the State" and "that's

why a deal was made—because the State needed something other than the video,

someone to say, I was there and I can tell you it was clear that [Sara] was not

consenting." He also asserted Maldonado's testimony had "nothing to do with

the truth of the matter, but with taking care of herself with the situation and

avoiding certain other consequences."

In her summation, the prosecutor told the jury they "[didn't] have to like

[Maldonado]" but that they should "place substantial weight on the fact that she

. . . accepted responsibility for what she [had] done" by pleading guilty. The

prosecutor repeated,

She has pled guilty. She didn't do right by [Sara]. She's
now acknowledge[d] what she's done. She did not
come here to profess to you that she is innocent. That's
not why she came. She came here to accept

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responsibility for her crime and testified truthfully as to
what occurred on the night in question. And that's what
she did.

Neither defense counsel objected to these statements.

In charging the jury, the judge instructed Maldonado pled guilty to

aggravated sexual assault and "was charged with the crimes that the defendants

are on trial for." The judge explained evidence of Maldonado's guilty plea "may

be used only in determining the credibility or believability of [Maldonado's]

testimony." Additionally, the judge advised the jury could consider whether a

person who "failed to comply with society's rules would be more likely to ignore

the oath requiring truthfulness on the witness stand," and "whether [Maldonado]

ha[d] a special interest in the outcome of the case" or was "influenced by the

hope or expectation of any favorable treatment." However, the judge cautioned

that the jury could "not use Ashley Maldonado's plea of guilty as evidence that

these defendants are guilty of the crimes that they're charged with ."

A prosecutor may argue a witness is credible, but may not "personally

vouch for the witness," State v. Walden, 370 N.J. Super. 549, 560 (App. Div.

2004), or "express a personal belief or opinion as to the truthfulness of his or

her witness's testimony," State v. Staples, 263 N.J. Super. 602, 605 (App. Div.

1993). "Such comments can convey the impression that evidence not presented

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to the jury, but known to the prosecutor, supports the charges against the

defendant." United States v. Young, 470 U.S. 1, 18 (1985).

Even if a prosecutor strays from this rule and argues during summation

that a witness was truthful, a reversal may not be warranted if a witness's

credibility was highly contested at trial and the jury heard both sides of the

argument through cross-examination. State v. Marshall, 123 N.J. 1, 156-57

(1991). Additionally, if a prosecutor's statement regarding a witness's

credibility "contain[s] no suggestion" of reliance on evidence outside the record ,

and instead refers to the witness's own testimony or other properly adduced

evidence, the statement does not constitute misconduct. Young, 470 U.S. at 19.

Further, if a prosecutor's remarks "are based on the facts of the case and

reasonable inferences therefrom, what is said in discussing them, 'by way of

comment, denunciation or appeal, will afford no ground for reversal.'" Smith,

167 N.J. at 178 (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).

As previously noted, the State is permitted to respond to arguments made

by the defense. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div. 1996). A

prosecutor may fairly comment upon defense counsel's tactics and respond "in

order to 'right the scale.'" Engel, 249 N.J. Super. at 379. "A prosecutor is not

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forced to idly sit as a defense attorney attacks the credibility of the State's

witnesses." Hawk, 327 N.J. Super. at 284.

Here, we acknowledge the prosecutor told the jury Maldonado "testified

truthfully as to what occurred." However, the prosecutor's comment as to

Maldonado's credibility was brief compared to defense counsels' repeated

statements during summation that Maldonado's guilty plea provided a strong

incentive to lie. Additionally, the prosecutor's statements were based on

evidence adduced in the trial record. The prosecutor told the jury that

Maldonado wanted to "do right by [Sara]," as Maldonado stated during her own

trial testimony. The prosecutor also said Maldonado "accepted responsibility,"

spoke openly of her participation in Sara's assault, and did not "profess" her

"innocen[ce]."

Having reviewed the record, we are satisfied the judge instructed the jury

properly regarding their consideration of Maldonado's guilty plea when

evaluating Maldonado's credibility. The judge told the jurors it was their

responsibility to decide whether Maldonado's trial testimony was truthful or

influenced by hoping to receive favorable treatment for her own role in the

sexual assaults. On this record, the prosecutor's single brief statement that

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Maldonado was "truthful" did not prejudice defendant and, therefore, does not

warrant a reversal of his convictions based on prosecutorial error.

IV.

We next address defendant's argument that the jury instructions governing

mental incapacity and accomplice liability were "fatally flawed." Again, we

disagree.

"It is axiomatic that appropriate jury instructions are essential for a fair

trial." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993). Incorrect

instructions are "poor candidates for rehabilitation under a harmless -error

analysis," State v. Rhett, 127 N.J. 3, 7 (1992), and are "excusable only if they

are harmless beyond a reasonable doubt," State v. Vick, 117 N.J. 288, 292 (1989)

(quoting State v. Crisantos, 102 N.J. 265, 273 (1986)). However, reversal is not

warranted unless an error is sufficient to raise a reasonable doubt as to whether

it "led the jury to a result it otherwise might not have reached." State v. Macon,

57 N.J. 325, 336 (1971).

A.

Defendant contends his convictions for aggravated sexual assault must be

reversed because the judge gave erroneous instructions to the jury regarding

Sara's alleged mental incapacitation. He claims the judge impermissibly shifted

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the burden to defendant to disprove the mental incapacitation element of the

charged crimes.

During the charge conference, the judge and counsel discussed the jury

instruction on mental incapacitation for the aggravated sexual assault charges.

Under N.J.S.A. 2C:14-2(a)(7)(b), an actor is guilty of aggravated sexual assault

if they commit "an act of sexual penetration with another person" when that

person "is one whom the actor knew or should have known was . . . intellectually

or mentally incapacitated."

The judge and counsel discussed the need to inform the jury that analyzing

whether Lozada "knew or should have known" Sara was mentally incapacitated

at the time of penetration required considering both her subjective understanding

of the situation and the objective understanding of a reasonable person. During

the charge conference, Lozada's attorney argued the jury should consider Sara's

alleged mental incapacitation "through the eyes of a reasonable person . . . in

light of all the surrounding circumstances." Defendant's attorney agreed,

asserting the judge should instruct the jury it "must determine whether Trystal

Lozada knew of the mental incapacitation by viewing the evidence through . . .

her eyes" and determine whether a reasonable person would have known of

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Sara's alleged incapacitation "under all of the attendant circumstances,"

including "all [the] noise" of the club and "everything that [was] going on ."

When the charge conference continued the next day, defendant's counsel

raised an issue concerning the jury instruction on the aggravated sexual assault

charges. Counsel highlighted proposed language that "[d]efendant can avoid

liability only if you find that [he] did not know and that a reasonable person

under all the circumstances would not have known" Sara was incapacitated.

Defendant's attorney argued this phrasing "suggest[ed] to the jury that there's

some obligation that a defendant puts forth some evidence," when the burden

was "on the State to convince this jury beyond a reasonable doubt that either

[defendant] or Ms. Lozada knew . . . or . . . reasonably would have known under

the circumstances."

In response, the judge noted "various places in the charge" indicated "the

State has to prove each element beyond a reasonable doubt," which included the

mental incapacitation element. The judge further stated the "avoid liability"

language came from the Supreme Court's decision in State v. Olivio, 123 N.J.

550 (1991), and found the instruction as worded "particularly clear" and did not

"shift[] the burden in any way, shape or form onto the defense."

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In charging the jury, the judge stated "[t]he burden of proving each

element of a charge beyond a reasonable doubt rests upon the [S]tate" and that

the "burden never shifts to the defendant." In discussing the aggravated sexual

assault charges, the judge provided the following instruction regarding Sara's

alleged mental incapacitation:

The fourth element the State must prove beyond a
reasonable doubt is that the defendant knew or should
have known that [Sara] was physically helpless,
mentally incapacitated rendering her temporarily
incapable of understanding the nature of her conduct
including, but not limited to, being incapable of
providing consent.

Although I've already instructed you on the definition
of knowingly, again, you must analyze the requirement
differently here. Here [the] knowledge requirement
contains both a subjective element, whether the
defendant knew, and an objective element, whether the
defendant should have known.

Under a subjective standard you view the events from
the defendant's point of view. Stated differently, you
must determine whether Michael Ramirez knew of the
mental incapacitation by viewing the events through his
eyes.

Under an objective standard the evidence is viewed
from a reasonable person's point of view. You must
determine whether a reasonable person under all of the
surrounding circumstances would have known of the
mental incapacitation. Defendant can avoid liability
only if you find that he did not know and that a

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reasonable person under all of the surrounding
circumstances would not have known.

If you find the State has proven beyond a reasonable
doubt each of these four elements, then, you must find
the defendant guilty of the crime of aggravated sexual
assault. On the other hand, if you find the State has
failed to prove any of these elements beyond a
reasonable doubt you must find the defendant not guilty
of aggravated sexual assault.

In preparing jury instructions, a judge may use the model jury charges,

which are often "helpful." State v. Concepcion, 111 N.J. 373, 379 (1988).

However, a judge should mold the instruction "in a manner that explains the law

to the jury in the context of the material facts of the case." Ibid. If an instruction

differs from the model jury charge but communicates the relevant law "clearly,"

it should be considered proper. State v. R.B., 183 N.J. 308, 325 (2005).

The model jury charge on aggravated sexual assault with mental

incapacitation reads, in pertinent part, as follows:

The fourth element that the State must prove beyond a
reasonable doubt is that defendant knew or should have
known that the [victim] was . . . mentally incapacitated
. . . which rendered the victim temporarily or
permanently incapable of understanding the nature of
(his/her) conduct, including, but not limited to, being
incapable of providing consent.

If you find that the State has proven beyond a
reasonable doubt each of these four elements, then you

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56
must find the defendant guilty of the crime of
aggravated sexual assault.

[Model Jury Charge (Criminal), "Aggravated Sexual
Assault (Mentally Incapacitated)" (rev. Feb. 6, 2012).]

Here, the judge's instruction on the mental incapacitation element of

aggravated sexual assault was more extensive than the model jury charge. The

judge specifically explained how the jury should consider whether defendant

"knew or should have known" Sara was incapacitated. The judge provided a

detailed discussion of the subjective and objective aspects of mental

incapacitation, instructing the jury to consider whether defendant "knew" by

viewing the events "through his eyes" and whether he "should have known" by

evaluating a reasonable person's understanding of the events "under all the

surrounding circumstances."

Defendant focuses on the "avoid liability" sentence in the jury

instructions, arguing the phrase constituted improper burden shifting. The judge

paraphrased the mental incapacitation element of aggravated sexual assault from

the following statement in Olivio, 123 N.J. at 568: "The knowledge requirement

contains both a subjective element—whether defendant knew—and an objective

element—whether defendant should have known. Defendant can avoid liability

only if neither the subjective nor the objective element is proved."

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57
The burden of establishing each element of an offense rests with the State.

State v. Thomas, 132 N.J. 247, 253 (1993). The judge's wording of the

instruction on this element suggested to the jury that defendant needed to prove

he did not know Sara was incapacitated and that a reasonable person also would

not have known in order to "avoid liability." The judge should have explained

to the jury the State needed to prove defendant either knew or should have

known of Sara's incapacitation to establish guilt.

However, we are satisfied the judge's instruction did not have the capacity

to "[lead] the jury to a result it otherwise might not have reached." Macon, 57

N.J. at 336. Several times, the judge instructed the jury that the State must prove

each element of each charge beyond a reasonable doubt, including the

aggravated sexual assault charges. In fact, immediately after the "avoid

liability" language in the jury charge, the judge reminded the jurors that the State

bore the burden of proof. Under these circumstances, and considering the jury

charge as a whole, we are satisfied the jurors were unlikely to have thought

defendant had to disprove any element of sexual assault to avoid conviction. On

this record, any error in the jury charge was harmless and does not warrant

reversal of defendant's convictions.

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B.

We next review defendant's arguments regarding the jury instruction on

accomplice liability. Defendant asserts the judge failed to instruct the jury that

he could only be found guilty as an accomplice if he intended to participate in

the specific crime charged and shared the same mental state as the principal.

Thus, he argues the convictions on counts thirteen, fifteen, eighteen, and twenty

must be reversed.

The charge conference included discussion regarding the proposed jury

instruction on accomplice liability for the charges against Lozada, which would

also be used for the charges against defendant. During the conference,

defendant's counsel argued the judge needed to include a statement that Lozada

"can be held to be an accomplice with equal responsibility only if you find as a

fact that she possessed the criminal state of mind that is required to be proved

against the person who actually committed the criminal acts." The judge agreed

and stated she would "change every accomplice liability charge" for both

defendants to reflect inclusion of counsel's suggested statement.

Defendant's counsel further argued at the charge conference that the

accomplice liability instructions should include a statement telling the jurors

that "to convict [Lozada] as an accomplice of the specific crime charged," the

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jury would need to "find that [she] had the purpose to participate in that

particular crime" and acted "with [the] purpose of promoting or facilitating the

commission of the substantive crime . . . with which she is charged." Because

such language was included in the model jury charge, the judge agreed not to

alter that language.

When instructing the jury on the aggravated sexual assault and aggravated

criminal sexual contact charges against defendant, the judge stated a person is

legally accountable for the conduct of another "when he is an accomplice of such

other person." The judge explained, "a person is an accomplice of another

person in the commission of an offense if with the purpose of promoting or

facilitating the commission of the offense he aids or agrees or attempts to aid

such other person in planning or committing it." To find defendant guilty on

count thirteen, the judge said the jury needed to find: (1) that one or more of the

other people involved in the November 5, 2012 incident committed aggravated

sexual assault against Sara while she was mentally incapacitated; (2) that

defendant "did aid or agree or attempt to aid" that person or persons "in planning

or committing the crime"; (3) that defendant's "purpose was to promote or

facilitate the commission of the offense"; and (4) that defendant "possessed the

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criminal state of mind required to be proven against the person who actually

committed the act."

The judge further instructed the jury that "[t]o constitute guilt there must

exist a community of purpose and actual participation in the crime committed ."

As the judge explained, to find defendant guilty, the jury had to find that he

"act[ed] with the purpose of promoting or facilitating the commission of the

substantive crime with which he's charged" and had that specific crime as his

"conscious object."

During deliberations, the jury asked the judge to define "criminal state of

mind." The judge replied the phrase was found in the instructions on accomplice

liability. The judge suggested to counsel she would tell the jury that to find

Lozada or defendant guilty as an accomplice, it would need to find that the State

"prove[d] beyond a reasonable doubt that the defendant shared the same state of

mind to participate in a particular crime, whether it be purpose or knowledg e."

The "purpose or knowledge" language referred to the requisite states of mind

for the counts at issue. Both defense counsels suggested the judge again instruct

that the State needed to "prove that it was the defendant's conscious object that

the specific conduct charged be committed."

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In response to the jury's question, the judge, with the agreement of

counsel, provided the following supplemental instruction:

You requested that the [c]ourt define criminal state of
mind. The [c]ourt reviewed the final charge along with
counsel and determined that the term—that those terms
arise in the context of the accomplice liability portion
of the charges.

So the [c]ourt's going to address that definition,
criminal state of mind, in that context. So by definition
an accomplice is a person who acts with the purpose of
promotion or facilitating the commission of the
substantive or underlying crime for which he or she is
charged as an accomplice. So to find the defendant
guilty of a crime as an accomplice one of the elements
the State must prove beyond a reasonable doubt is that
a defendant shared in the intent which is the underlying
crime's basic element.

Meaning, did the principal actor act knowingly or
purposely depending on the crime charged? Two, did
the defendant at least indirectly participate in the
commission of the criminal act? And three, did the
defendant also act knowingly or purposely depending
on the underlying crime. So the criminal state of mind
is either knowingly or purposely depending on the
underlying crime.

"When a prosecution is based on a theory that a defendant acted as an

accomplice, the court is obligated to provide the jury with accurate and

understandable jury instructions" on that issue. State v. Bielkiewicz, 267 N.J.

Super. 520, 527 (App. Div. 1993). In order to convict a defendant as an

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accomplice, the jury must be instructed to find the defendant "shared in the

intent which is the crime's basic element, and at least indirectly participated in

the commission of the criminal act." State v. Fair, 45 N.J. 77, 95 (1965). This

is because "[a]n accomplice is only guilty of the same crime committed by the

principal if he [or she] shares the same criminal state of mind as the principal."

State v. Whitaker, 200 N.J. 444, 458 (2009). If the defendant lacked that

"specific intent" that the charged crime be committed, or did not actually "aid

or abet" the principal to commit it, the State has not satisfied its burden to show

the defendant was an accomplice to that crime. Id. at 461-62.

Again, having reviewed the record, we conclude the judge properly

explained the principles of accomplice liability as part of the jury instructions.

The judge's accomplice liability charge followed the model jury charge on the

subject. The model jury charge states that to find a defendant guilty as an

accomplice, the jury must find there was "a community of purpose and actual

participation in the crime committed," the "defendant failed to make proper

effort to prevent the commission of the offense," the "defendant's conscious

object that the specific conduct charged be committed," and the defendant acted

"with the purpose of promoting or facilitating the commission of the substantive

crime." Model Jury Charge (Criminal), "Liability for Another's Conduct—

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Accomplice" (rev. June 7, 2021). The judge's instruction included the elements

of accomplice liability stated in the model jury charge.

While the judge's answer to the jury's question about "criminal state of

mind" did not reiterate the "conscious object" phrase requested by defense

counsel, the judge's response included the other operative language of the court's

initial jury instruction and the model jury charge in a shorter form. The judge

explicitly told the jury they needed to find that defendant shared in the same

criminal state of mind as any principal to be guilty as an accomplice. On this

record, the judge's jury instruction was not erroneous.

V.

In the event none of his asserted errors individually warrant reversal of

his convictions, defendant asserts the cumulative effect of asserted errors denied

him a fair trial. We disagree.

Under the cumulative error doctrine, where a trial court's errors "are of

such magnitude as to prejudice the defendant's rights or, in their aggregate have

rendered the trial unfair," a new trial by jury must be granted. State v. Orecchio,

16 N.J. 125, 129 (1954). Although each established error may not warrant

reversal individually, a court may find that the errors together deprived the

defendant of due process. Id. at 134. However, even where a defendant alleges

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multiple errors, "the theory of cumulative error will still not apply where no

error was prejudicial and the trial was fair." State v. Weaver, 219 N.J. 131, 155

(2014). Where an appellate court finds no errors at trial, it may reject a

defendant's invocation of the cumulative error doctrine. State v. Rambo, 401

N.J. Super. 506, 527 (App. Div. 2008).

Here, there was no cascade of trial errors. The only possible error was the

judge's instruction on mental incapacitation. Despite the judge's misstatement

in charging mental incapacitation, the judge instructed the jury several times

during the entirety of the charge that the State must prove each element of each

charge beyond a reasonable doubt. Under the circumstances, the instruction was

not sufficiently prejudicial to render defendant's trial unfair. Thus, we are

satisfied the cumulative error doctrine is inapplicable in this case.

VI.

Defendant next argues the judge's sentence is flawed. He claims the judge

erred in applying aggravating factors one, two, three, four, and nine.

Additionally, he contends the judge should have placed greater weight on

mitigating factors seven and eleven. He further asserts the judge should not

have imposed consecutive sentences for counts eleven and thirteen, claiming the

judge failed to consider the overall fairness of the sentence under Torres.

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Defendant also challenges the $6,000 penalty imposed under N.J.S.A. 2C:14-

10.

"Appellate review of sentencing decisions is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,

297 (2010). A trial court enjoys "considerable discretion in sentencing." State

v. Blann, 429 N.J. Super. 220, 226 (App. Div. 2013), rev'd on other grounds,

217 N.J. 517 (2014). An appellate court first must review whether the

sentencing court followed the applicable sentencing guidelines. State v. Natale,

184 N.J. 458, 489 (2005).

Here, defendant was sentenced to fifteen years on count eleven, fifteen

years on count thirteen, and twelve years on count fourteen. These counts

addressed the first-degree aggravated sexual assault charges. The remaining

eight counts on which defendant was convicted merged with the foregoing

charges. Under N.J.S.A. 2C:43-6(a)(1), a sentence for a first-degree crime must

be between ten and twenty years. Defendant's sentence in the mid-range of these

values met this requirement.

Additionally, a reviewing court must ensure that any aggravating or

mitigating factors found by the sentencing judge under N.J.S.A. 2C:44-1 are

based upon sufficient credible evidence in the record. State v. Miller, 205 N.J.

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109, 127 (2011). If the factors found by the sentencing judge are so grounded,

the sentence must be affirmed, even if the reviewing court would have reached

another result. State v. O'Donnell, 117 N.J. 210, 215 (1989).

On this record, we are satisfied the judge's findings supported applying

the cited aggravating factors and diminishing the weight applied to the

mitigating factors. The judge found that any one of the several times defendant

and others penetrated Sara at the gentleman's club would have been sufficient to

satisfy the statutory elements of aggravated sexual assault. The judge cited the

numerous and varied sexual acts performed on Sara, and concluded "each

additional act of penetration beyond the first justifie[d] a finding of aggravating

factor one without the presence of double counting" for counts eleven and

thirteen.

The judge also found aggravating factor two applied to counts eleven and

thirteen, stating defendant caused "lasting psychological harm to" Sara by

sexually assaulting her "multiple times and in multiple ways" while "being

assisted by others" and "assisting others or facilitating others in sexually

assaulting" her "in full view of the rest."

We discern no error in the judge's application of aggravating factors one

and two based on the record. Sara suffered multiple assaults. Any one of those

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assaults would have satisfied the elements required for aggravated sexual

assault. Given the degree to which Sara suffered multiple violations of her body,

which were viewed by others, we disagree with defendant's contention that his

conduct was no worse than any of the other acts of aggravated sexual assault.

We also reject defendant's contention that Sara did not suffer significant

harm because she could not recall details of the incident. Sara repeatedly

expressed distress at the loss of control and lack of memory when testifying.

Additionally, even if Sara could not personally recall the events of November 5,

2012, she learned the horrific and upsetting details of that night from the video

footage and trial testimony. We are satisfied the judge's application of

aggravating factors one and two reflected the overall harm suffered by Sara and

the egregious manner and circumstances in which the harm was inflicted.

We also reject defendant's argument that the judge erred in applying

aggravating factor three, "the risk that the defendant will commit another

offense," N.J.S.A. 2C:44-1(a)(3), based on his lack of an expression of remorse

or guilt. In applying aggravating factor three to all three aggravated sexual

assault counts, the judge stated, "offenders who commit serious and violent sex

crimes have demonstrated high recidivism" generally. The judge further found

defendant's continued assertions that Sara consented to the sex acts and did not

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appear intoxicated indicated he was "incapable of discerning when someone is

incapacitated." Thus, the judge determined defendant was "at a high risk to

reoffend . . . because it's clear from his statements that he lacks insight in this

crime."

Contrary to defendant's arguments regarding aggravating factor three, a

lack of remorse or denial of responsibility may be considered by a sentencing

judge in determining a defendant is likely to commit another offense. State v.

Carey, 168 N.J. 413, 427 (2001) (affirming sentence where court found that

defendant denied responsibility for car crash or that he had an alcohol problem);

O'Donnell, 117 N.J. at 216 (affirming sentence where court considered

defendant's lack of remorse and "boastful" attitude regarding the assault); State

v. DeRoxtro, 327 N.J. Super. 212, 226 (App. Div. 2000) (affirming sentence

where court considered that defendant showed no remorse or anguish over the

victim's death). While a defendant's refusal to acknowledge guilt after being

convicted is "not a germane factor in the sentencing decision," we have found a

judge's consideration of such a refusal does not in itself necessarily warrant

resentencing. State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985)

(holding that the trial court's brief allusion to failure to admit guilt did not

require remand).

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Based on the foregoing analysis, we are satisfied the judge did not err in

applying aggravating factor three. The judge's application of this factor was not

based solely on defendant's failure to admit guilt or express remorse. Rather,

the judge cited defendant's continued assertion that Sara consented to the sexual

acts and was not intoxicated that evening. The judge explained that the video

footage showing Sara falling multiple times, trying to cover her unclothed body,

and appearing dazed belied defendant's assertions.

Under these circumstances, the judge reasonably determined defendant

was likely to reoffend based not only on his lack of remorse but his patent

inability to determine whether a person was incapacitated or consented to sexual

activity.

We also reject defendant's arguments regarding the judge's application of

aggravating factor four, that "[a] lesser sentence will depreciate the seriousness

of the defendant's offense because it involved a breach of the public trust under

chapters [twenty-seven] and [thirty] of this title, or the defendant took advantage

of a position of trust or confidence to commit the offense." N.J.S.A. 2C:44-

1(a)(4). Defendant contends this aggravating factor is applicable to public

officials or others in positions of fiduciary trust. Because defendant was simply

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a manager at the club where Sara worked, he argued he lacked a position of

power or trust over her to find aggravating four applicable.

Contrary to defendant's argument, aggravating factor four is not limited

to public officials or fiduciaries. The statute applies where a defendant "took

advantage of a position of trust or confidence" in relation to the victim. N.J.S.A.

2C:44-1(a)(4).

In applying aggravating factor four to counts eleven, thirteen, and

fourteen, the judge found Sara "trusted defendant would look out for her, assure

her pay, [and] drive her home, so she got home safely after a late night of work."

Based on Sara's testimony, the judge further found "she did have trust in

[defendant] based upon [their] boss/employee relationship," and defendant took

"advantage of her trust and her bond to commit these acts against her ."

Here, defendant held a managerial position superior to Sara. He scheduled

her work shifts, paid her wages, and, occasionally, drove her home. We are

satisfied there is sufficient evidence in the record to support the judge's finding

that defendant held a position of trust over Sara and took advantage of his

position to assault her.

We also reject defendant's argument that the judge erred by applying

"great weight" to aggravating factor nine, "the need for deterring the defendant

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and others from violating the law." N.J.S.A. 2C:44-1(a)(9). He contends the

judge improperly applied this factor based on his lack of remorse, the serious

nature of the offense, and the fact that there were multiple counts. He claims

sufficient deterrence would result from "the minimum [ten]-year NERA

sentence."

Deterrence "has been repeatedly identified in all facets of the criminal

justice system as one of the most important factors in sentencing," State v.

Megargel, 143 N.J. 484, 501 (1996), and "demands for deterrence are

strengthened in direct proportion to the gravity and harmfulness of the offense,"

State ex rel. C.A.H., 89 N.J. 326, 337 (1982). Aggravating factor nine

incorporates both a sentence's general deterrent effect on the public and its

personal or specific deterrent effect on an individual defendant. Specific

deterrence is deemed more important. State v. Jarbath, 114 N.J. 394, 405 (1989).

A lack of remorse may be cited by a sentencing court to justify imposition of

aggravating factor nine because such an attitude "indicate[s] that a prison

sentence is necessary to deter [a] defendant from similar conduct in the future."

State v. Rivers, 252 N.J. Super. 142, 154 (App. Div. 1991).

In applying aggravating factor nine to the aggravated sexual assault

counts, the judge found a "great" need for deterrence in this case,

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notwithstanding defendant's lack of a prior criminal record, "because of the

serious nature of the offenses and because of . . . what appears to be a lack of

remorse and consistent denial of wrongdoing."

We are satisfied the crimes of which defendant was found guilty were

particularly serious and committed in a particularly heinous manner, creating a

need for specific deterrence as to defendant himself. Additionally, general

deterrence is applicable here to prevent similar assaults against women in similar

circumstances. Thus, we discern no error in the judge's application of

aggravating factor nine.

We disagree with defendant's assertion that the judge should have given

more weight to mitigating factor seven, "the defendant has no history of prior

delinquency or criminal activity," N.J.S.A. 2C:44-1(b)(7), and mitigating factor

eleven, "the imprisonment of the defendant would entail excessive hardship to

the defendant or the defendant's dependents," N.J.S.A. 2C:44-1(b)(11). He cites

letters from colleagues, family, and friends which emphasized defendant's

positive attributes and noted he cared for his severely disabled mother.

While the judge applied these mitigating factors, she accorded little

weight to mitigating factor seven and "significant weight" to mitigating factor

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eleven. However, overall, the judge found the mitigating factors did not

"outweigh the severity of the heinous acts committed by" defendant.

Again, we are satisfied the judge did not err in applying and weighing

these mitigating factors. The judge gave great weight to the hardship imposed

on defendant's family in applying mitigating factor eleven. She also considered

defendant's lack of a prior record and noted this was his first offense. However,

the judge properly found the seriousness of the offenses outweighed the lack of

a prior criminal history.

On this record, the judge properly concluded the aggravating factors

"substantially outweigh[ed]" the mitigating factors. Additionally, the sentences

imposed for each of the three aggravated sexual assault charges were within the

statutory range for first-degree crimes. Based on sufficient evidence in the

record, we discern no abuse of discretion in the judge's application of the

aggravating and mitigating factors.

We also reject defendant's argument that the judge improperly imposed

consecutive sentences for counts eleven and thirteen. Defendant contends his

multiple assaults of Sara constituted "a continuous event, and therefore, a single

period of aberrant behavior." Thus, he contends the sentences should have been

run concurrently.

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Defendant was tried alongside co-defendant Lozada. In a separate appeal

from her convictions and sentence, Lozada argued the judge "erred in imposing

consecutive sentences . . . because the sexual assaults charged under all counts

was part of one ongoing criminal episode, requiring concurrent sentences . . . ."

Lozada, No. A-3211-20, slip op. at 7. There, we agreed the imposition of

consecutive sentences for Lozada was improper, concluding the crimes

committed at the bar and in the champagne room at the gentlemen's club "were

separated only by a brief period of time (approximately thirty minutes) and

distance (about fifteen feet), and to the number of victims (one)" and, thus, "the

circumstances precluded imposition of consecutive prison terms . . . ." Id. at 17.

Here, defendant raises the same argument. However, the facts regarding

defendant's sexual assaults of Sara are different. Defendant assaulted Sara in

the bar, in the champagne room, and, hours later, in the apartment. During

sentencing, the judge explained "the abuse in this case last[ed] for many hours"

and occurred in different and distinct locations. The judge stated Sara "suffered

separate and distinct insults to her dignity" by defendant, and defendant's role

in the events of that evening were not one continuous episode, unlike Lozada's

role in the events that night.

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Here, there was sufficient time between the sexual assaults in the

gentleman's club and the apartment for defendant to have reflected on his actions

and elect not to assault Sara in the apartment. Further, defendant knew Sara was

in distress when he heard her yelling about De La Cruz in the apartment. At that

point, defendant no doubt knew Sara suffered further sexual assaults in the

apartment. Rather than offer Sara comfort and a ride home at that point,

defendant chose to sexually assault her, notwithstanding his claim they engaged

in "consensual sex" while in the apartment.

When the imposition of consecutive terms is challenged, we must ensure

that the principles set forth in Yarbough were correctly applied. The Yarbough

factors provide:

(1) there can be no free crimes in a system for which
the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or
concurrent sentence shall be separately stated in the
sentencing decision;

(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of violence
or threats of violence;

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(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.

(4) there should be no double counting of aggravating
factors; [and]

(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense . . . .

[State v. Yarbough, 100 N.J. 627, 643-44 (1985).]

A sentencing court must consider all of the Yarbough factors, with

emphasis on the subparts under the third factor. State v. Rogers, 124 N.J. 113,

121 (1991). The factors must be applied qualitatively, not quantitatively, and

consecutive sentences may be imposed even when a majority of the subparts

support concurrent sentences. Carey, 168 N.J. at 427.

If a sentencing court fully evaluates the Yarbough factors, its decision will

not usually be disturbed on appeal. Miller, 205 N.J. at 129. However, remand

may be needed if a court does not sufficiently explain why consecutive sentences

are warranted. Ibid. Additionally, "the sentencing court's explanation of its

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evaluation of the fairness of the overall sentence is 'a necessary feature in any

Yarbough analysis.'" Torres, 246 N.J. at 270 (quoting State v. Cuff, 239 N.J.

321, 239 (2019)). Nevertheless, remand is unnecessary if the record " makes it

possible to 'readily deduce' the judge's reasoning." Miller, 205 N.J. at 129

(quoting State v. Bienek, 200 N.J. 601, 609 (2010)).

Having reviewed the sentencing transcript, we are satisfied the sentencing

judge properly considered the Yarbough factors in determining whether to

impose consecutive or concurrent sentences. The judge ordered defendant's

prison term on counts eleven and thirteen to run consecutively because those

counts involved different crimes, occurring at different places, and at different

times, although involving the same victim. Unlike the events for which Lozada

was sentenced, defendant assaulted Sara in a third location, well after she

dressed and left the gentlemen's club. Moreover, because defendant received a

mid-range sentence on counts eleven and thirteen, consecutive terms on those

counts did not result in an aggregate sentence that "shock[ed] the judicial

conscience." O'Donnell, 117 N.J. at 216.

However, we agree the matter warrants a remand for the sentencing judge

to explain why the overall length of the sentence is warranted under Torres. 246

N.J. at 270. On remand, the sentencing judge shall provide an explicit statement

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regarding the fairness of the overall length of defendant's prison sentence

consistent with Torres. We take no position on the sentencing judge's

disposition of this issue on remand.

We turn to defendant's argument that the sentencing judge failed to

provide a statement of reasons supporting the $6,000 SCVTF penalty under

N.J.S.A. 2C:14-10. Under the statute, a person convicted of a sex offense "shall

be assessed a penalty for each such offense not to exceed," in the case of a first-

degree crime, $2,000. N.J.S.A. 2C:14-10(a)(1). The assessment of a penalty

for each offense is "mandatory." State v. Bolvito, 217 N.J. 221, 224 (1994).

However, the SCVTF penalty need not be the maximum statutory amount.

"[A] sentencing court may impose an SCVTF penalty against a defendant in any

amount between a nominal figure and the upper limit prescribed by N.J.S.A.

2C:14-10(a) for the degree of the offense at issue." Ibid. When deciding the

amount of an SCVTF penalty, the court must "consider the nature of the offense,

as well as the defendant's ability to pay the penalty during any custodial sentence

imposed and after his or her release." Ibid. The sentencing court "should

provide a statement of reasons when it sets a defendant's SCVTF penalty within

the statutory parameters." Id. at 235.

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Here, defendant was convicted of three first-degree sex crimes, so $6,000

was the maximum penalty which could be assessed. At sentencing, the judge

stated she "ha[d] to impose a penalty of the Sex Crime Treatment Fund" and

"because [there were] three offenses it's $2,000 on each count for a total of

$6,000," absent a further statement of reasons. On appeal, the State does not

dispute a remand is necessary regarding the sentencing judge's assessment of the

SCVTF penalty. Thus, we remand to the trial court to set forth reasons in

support of the amount of the penalty levied. We take no position on the

sentencing judge's disposition of this issue on remand.

Affirmed in part and remanded in part for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10770587. Public record. Not legal advice.