State of New Jersey v. Gonzalo Marrero

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NOT FOR PUBLICATION WITHOUT THE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-2586-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GONZALO MARRERO,

Defendant-Appellant.

________________________

Submitted January 7, 2026 – Decided April 14, 2026

Before Judges Paganelli and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 85-07-0763.

Gonzalo Marrero, self-represented appellant.

Wayne Mello, Acting Hudson County Prosecutor,

attorney for respondent (Josemiguel DeJesus

Rodriguez, Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gonzalo Marrero appeals a March 19, 2025 order denying his

motion for reconsideration of his sentence. We affirm, substantially for the

reasons in Judge Angelo Servidio's cogent written decision.

I.

In 1986, following jury trial, defendant was convicted of two counts of

murder, N.J.S.A. 2C:11-3(a); multiple counts of felony murder, N.J.S.A. 2C:11-

3(a)(3); conspiracy to commit robbery, N.J.S.A. 2C:15-1 and 2C:5-2; robbery,

N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; and aggravated sexual assault,

N.J.S.A. 2C:14-2(a). The charges stemmed from the 1982 murder of a

restauranteur, and the murder and aggravated sexual assault of his girlfriend.

Defendant was tried jointly with co-defendant, Silvio Rosendo Mujica.

At defendant's sentencing, the trial court imposed two consecutive life

terms with twenty-five years of parole ineligibility for each of the murder

counts, and a twenty-year consecutive term for aggravated sexual assault with

ten years of parole ineligibility, amounting to a minimum aggregate parole

ineligibility period of sixty-years. Convictions and sentences for the remaining

charges were merged or imposed concurrently.

In an opinion affirming defendant's convictions on direct appeal, we

summarized the underlying facts.

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On July 5, 1982, Sarin Rosario, the owner of El

Catalino's Steakhouse in Union City, New Jersey, and

his girlfriend [M.M.]1 were found dead in the bedroom

of his apartment which was located above the

steakhouse. Both victims were in clothing worn the day

before. Rosario was lying in bed on his side,

blindfolded, with a gunshot wound to his head. His

hands were tied and a piece of paper with numbers

written on it was in his hand. The numbers appeared to

be the combination to an opened safe in his room. The

contents had been removed.

[M.M.] was found lying beside Rosario. She too

had been shot in the head. Her stockings were pulled

down; . . . her dress pulled up around her neck.

Signs throughout the apartment, including the

hallway and one of the easterly rooms, gave indication

of a struggle. A flower pot had been overturned, there

were bloodstains on the rug and walls, and the

telephone wire was cut. The lock on the kitchen

window security bars had also been cut to allow entry

or exit.

Autopsies revealed that each victim died of a

single bullet wound to the head. In addition, Rosario

had a bruise and abrasions on his right hand, and

[M.M.] had abrasions on her wrists where her hands

were tied. Tests on a vaginal smear taken during

[M.M.]'s autopsy confirmed the presence of

spermatozoa.

In August 1984, more than two years later, one

Jorge Rodriguez came forward with information

1

We use initials to protect the privacy of the sexual assault victim. R. 1:38-3.

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implicating [defendant] and his codefendant Silvio

Mujica.

According to Rodriguez, he was present in the

apartment shared by [defendant] and Mujica when

[defendant], Andres Penapavon[,] and a third

individual known as "El-Negrito" made plans to rob an

unnamed bar. Rodriguez saw them make three masks

out of pantyhose and get some gloves. Rodriguez said

that Mujica sat with him on a bed some 10-12 feet from

the other three and that he (Mujica) did not participate

in the planning. Later, [defendant], Penapavon[,] and

El-Negrito left and when they returned several hours

later, Rodriguez rode home in a taxicab with

Penapavon.

At the trial, a man named Jose Betancourt

testified that [defendant] told him that he and Mujica

were planning to rob Rosario. They planned to force

Rosario's bedroom window open and wait for him to

put money in his safe, which he usually did between

2:00 and 3:00 a.m. each Sunday morning. [Defendant]

also told Betancourt that he was dying to make love

with the blond[e] girl ([M.M.]). They planned to use

masks, but if they were recognized, they would kill

Rosario. Betancourt said that he and [defendant] had

several more conversations during which [defendant]

tried to convince him to participate in the robbery.

[State v. Marrero, No. A-4375-85 (App. Div. Aug. 9,

1988) (slip op. at 2-4) (footnote omitted).]

In April 1991, defendant petitioned for post-conviction relief (PCR). In

July 1991, the trial court denied the petition and we affirmed. State v. Marrero,

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No. A-1004-91 (App. Div. May 4, 1994). The Supreme Court denied

defendant's petition for certification. State v. Marrero, 138 N.J. 263 (1994).

In May 1997, defendant filed a petition for a writ of habeas corpus with

the District Court of New Jersey. In October 2000, the District Court dismissed

the petition. The Third Circuit Court of Appeals vacated the order in March

2004 and remanded the matter to the District Court for further proceedings.

Marrero v. Morton, No. 03-1273, 2004 U.S. App. LEXIS 6757 (3d Cir. Mar. 30,

2004).

In December 2024, self-represented defendant filed a motion to reconsider

the overall fairness of sentence "consistent with State v. Torres, 246 N.J. 246

(2021) and State v. Yarbough, 100 N.J. 627 (1985), [or,] in the alternative, to

[c]orrect or [v]acate an [o]therwise [i]llegal [s]entence" in the Superior Court.

Judge Servidio construed defendant's motion to consist of two arguments:

(1) the consecutive sentences imposed violated the New Jersey Supreme Court's

holdings in Torres and Yarbough; and (2) he should be released due to a

diagnosis of Parkinson's disease.

Regarding the first argument, Judge Servidio rejected defendant's claim

that consecutive life sentences for the two murder counts, along with a

consecutive sentence for aggravated sexual assault, transgressed the Court's

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rulings in Torres and Yarbough. The judge noted "[t]hese precedents outline

guidelines courts should consider when determining whether to impose

consecutive or concurrent sentences and require courts to provide a statement

explaining the overall fairness of sentences imposed." Torres, 246 N.J. at 266-

68.

Relying on State v. Acevedo, the judge rejected defendant's contention

that his motion was cognizable under Rule 3:21-10(b)(5). 205 N.J. 40, 47 (2011)

("contentions regarding consecutive sentences or the absence of reasons for

imposition of . . . consecutive sentences do not relate to the issue of sentence

'legality' and are not cognizable on PCR, or under the present Rule 3:21-

10(b)(5)").

The judge also determined defendant's medical condition did not qualify

him for release under State v. Priester, 99 N.J. 123 (1985); see also R. 3:21-

10(b)(2) ("[a] motion may be filed and an order may be entered at any time . . .

amending a custodial sentence to permit the release of a defendant because of

illness or infirmity of the defendant"). Pursuant to the criteria in Priester, the

judge found defendant presented no evidence indicating he required treatment

unavailable in prison or faced "devastating" health consequences. The judge

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also found the severity of defendant's crimes, his criminal history, and public

safety weighed against release.

Defendant raises a single argument on appeal:

THE MOTION COURT DECISION MUST BE

REVERSED AND THE MATTER MUST BE

REMANDED FOR A NEW HEARING BECAUSE

THE COURT ERRED IN ITS ASSESSMENT OF THE

"OVERALL FAIRNESS" REQUIREMENTS OF

STATE v. TORRES.

II.

We review motions to correct an illegal sentence de novo. State v. Jones,

478 N.J. Super. 532, 541 (App. Div. 2024); see also State v. Drake, 444 N.J.

Super. 265, 271 (App. Div. 2016). A court may correct an illegal sentence "at

any time before it is completed." State v. Murray, 162 N.J. 240, 247 (2000)

(citing State v. Sheppard, 125 N.J. Super. 332, 336 (App. Div. 1973)); see also

R. 3:21-10(b). If a defendant's sentence is illegal, a reviewing court must

remand for resentencing. See State v. Romero, 191 N.J. 59, 80-81 (2007).

Defendant contends the motion court's ruling should be reversed because

the sentencing court failed to adequately explain its application of aggravating

and mitigating factors or articulate the overall fairness of his sentence, as

required under Torres. We concur with Judge Servidio's conclusion, relying on

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Acevedo, that challenges to the legality of a sentence on this basis are not

cognizable under the Rules. In State v. Flores, we were

convinced that questions concerning the

adequacy of the sentencing court's findings and the

sufficiency of the weighing process employed should

be addressed only by way of direct appeal.

....

What has been said thus far applies with equal

force to [the] defendant's argument that the consecutive

sentences imposed ran afoul of the Yarbough

guidelines. In our view, this is not an issue cognizable

in [PCR] proceedings because it does not relate to the

legality of the sentences imposed. We merely observe

that such claims have historically been characterized as

relating to the "excessiveness" of the sentences, rather

than their legality.

[228 N.J. Super. 586, 595-96 (App. Div. 1988).]

Notwithstanding defendant is precluded from relief, for the sake of

completeness, we briefly consider the merits of his argument.

Defendant did not obtain the transcript from the sentencing proceeding

with his appeal. However, defendant attached the judgment of conviction

(JOC). Appended to the JOC are "[t]he reasons for the sentence imposed" by

the sentencing judge, supplementing "all other reasons stated orally on the

record for imposing the sentences herein." The list consists of nine

considerations which are extensive.

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Among the factors found, the judge expressed his "hope[] that defendant's

confinement will not only act as a rather significant deterrent to him but also to

others in society of similar criminal propensities." This aligns with aggravating

factor nine. N.J.S.A. 2C:44-1(a)(9).

Also, the sentencing judge found:

The actions of defendant herein, as testified to by

witnesses in the case and supported by the evidence

adduced before the jury conclusively establish in this

[c]ourt's mind that same were committed in an

especially heinous, cruel and depraved manner – not

only the killing but the rape of [M.M.].

The victims were tied – they were helpless – they were

killed in execution style – the female raped in

disgusting fashion.

Here, the court expressly cited aggravating factor one. N.J.S.A. 2C:44-1(a)(1).

The judge also wrote, "in this case, the savagery of the various crimes committed

exceeds what one would ordinarily expect for crimes of this degree."

Further, the judge wrote:

All of the above aggravating factors clearly convince

this [c]ourt that same substantially outweigh any

mitigating factors (I find no mitigating factors herein

justifying defendant's criminal actions) and have

persuaded this [c]ourt to impose the sentences for the

various convictions as well as the parole ineligibility

periods and the consecutive as well as the concurrent

portions of the sentencing procedure. N.J.S.A. 2C:43-

6(b), (c).

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Having reviewed the record, we are satisfied the sentencing judge

sufficiently weighed the aggravating and mitigating factors. The sentencing

court thoroughly explained the overall fairness of the sentence imposed even

though the holding in Torres was not retroactive because it did not create a new

rule of law. See Torres, 246 N.J. at 268.

Defendant's application for release under Rule 3:21-10(b)(2) rests

primarily on his certification that he was "diagnosed [with Parkinson's disease]

by the prison medical department."

In denying defendant's application, Judge Servidio applied the analytical

framework set forth in Priester:

[A]n essential predicate to the review of a custodial

sentence pursuant to Rule 3:21-10(b)(2) is that a

change of circumstances must have occurred. The

change of circumstances most likely to have occurred

between the sentencing and the hearing is the severe

deterioration of the prisoner's health. However, the

change may also represent a court's securing

information about the defendant's health previously

unknown to the sentencing court. See, e.g., [State v.]

Tumminello, 70 N.J. [187,] 193 [(1976)] (where the

sentencing judge "had before him no medical evidence

whatsoever.").

In addition to the requirement of a change of

circumstances, among other factors we deem relevant

to the determination of a Rule 3:21-10(b)(2) motion are

the nature and severity of the crime, the severity of the

sentence, the criminal record of the defendant, the risk

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to the public if the defendant is released, and the

defendant's role in bringing about his current state of

health.

[99 N.J. at 136-37.]

Concerning this diagnosis, Judge Servidio found,

In th[e] record, the doctor notes that . . . [d]efendant

appears to have Advanced Parkinson disease and

prescribes certain medication. The doctor

"recommend[s] . . . considering referring [defendant] to

a tertiary university hospital with a movement disorder

clinic to be evaluated for deep brain stimulation" if his

condition worsens . . . . However, nowhere in the

record does the doctor indicate that reduction in . . .

[d]efendant's sentence is required in order for him to

receive treatment or to avoid "devastating" health

effects[, as defendant represents].

Further, the judge found,

that the crimes for which . . . [d]efendant [was]

convicted, his criminal history, and the risk to the

public if . . . [d]efendant were released, are severe. . . .

This [c]ourt finds that . . . [d]efendant has failed to

show that his diagnosis requires his release. This

[c]ourt also finds that . . . [d]efendant has not shown

that his release would be in the best interests of society.

"As with sentencing, the scope of appellate review of a trial court's

decision to grant or deny a Rule 3:21-10(b)(2) motion is whether the trial court

abused its discretion." Priester, 99 N.J. at 137. On review of the record, we

discern no abuse of discretion by the trial court.

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As the judge acknowledged, there is no question defendant's Parkinson's

diagnosis constitutes a change in circumstances in that he was not suffering from

Parkinson's disease at the time of sentencing. The judge properly examined the

record, including defendant's treatment needs and availability of treatment

provided within the prison system, and found "there [wa]s no evidence to

suggest that a reduction in the [d]efendant's sentence is required in order for him

to travel to receive treatment at a 'tertiary university' in the event that evaluation

or treatment at such an institution should become advisable." Moreover, the

judge considered the severity of defendant's crimes, the magnitude of the

sentence imposed, and the risk to the public were defendant released, reasonably

determining those factors weighed against release.

We find insufficient merit in defendant's remaining arguments to warrant

further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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