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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0315-18

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

REYMOND PAGAN,

a/k/a REYMOND C. PAGAN,

and RAYMOND C. PAGAN,

Defendant-Appellant.

_________________________

Submitted February 22, 2021 – Decided May 26, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 16-04-1216.

Joseph E. Krakora, Public Defender, attorney for

appellant (Michele A. Adubato, Designated Counsel,

on the brief)

Jill S. Mayer, Acting Camden County Prosecutor,

attorney for respondent (Jason Magid, Special Deputy

Attorney General/Acting Assistant Prosecutor and

Rachel M. Lamb, Special Deputy Attorney

General/Acting Assistant Prosecutor, of counsel and on

the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his jury trial convictions for felony murder,

aggravated manslaughter, robbery, and related weapons offenses. He contends

the trial court erred in denying his motion to suppress incriminating text

messages that were extracted from a co-defendant's cell phone. He also

contends the trial court made several errors that individually and collectively

warrant a new trial, and that he received an excessive sentence. After carefully

reviewing the record in light of the applicable legal principles, we affirm.

I.

In April 2016, a Camden County grand jury charged defendant with: first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree knowing/purposeful

murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree robbery, N.J.S.A. 2C:15-

1(a)(1); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and second-degree certain persons not to have a weapon, N.J.S.A.

2C:39-7(b).

In April 2017, Judge John T. Kelley denied defendant's motion to suppress

evidence after an evidentiary hearing. Judge Kelley presided over the jury trial,

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which occurred over the span of six days in April 2018. The jury returned a

guilty verdict on all counts except for first-degree knowing/purposeful murder,

instead finding defendant guilty of the lesser offense of aggravated

manslaughter, N.J.S.A. 2C:11-4(a). Defendant was sentenced on his first-

degree felony murder conviction to a fifty-year prison term subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The convictions for first-

degree aggravated manslaughter, first-degree robbery, and second-degree

possession of a weapon for an unlawful purpose were merged into the first-

degree felony murder conviction for sentencing purposes. The sentencing court

also sentenced defendant to a term of eight years for his second-degree

conviction for unlawful possession of a weapon, to run concurrently with the

fifty-year felony murder sentence. The court further sentenced defendant to a

term of eight years with a five-year period of parole ineligibility for his second-

degree conviction for certain persons not to have a weapon, to be served

consecutively with the fifty-year felony murder sentence. The aggregate

sentence imposed by the court was thus fifty-eight years, with a forty-seven-

and-a-half-year period of parole ineligibility.

We discern the following facts from the record. On September 27, 2015,

at approximately 11:33 p.m., Camden County police responded to a report of a

3 A-0315-18

shooting. The victim, Jose Franco, was found lying on the ground in a pool of

blood. He was transported to Cooper University Hospital where he succumbed

to his gunshot wound the following morning.

At approximately 11:44 p.m.—just minutes after police had responded to

the shooting—Officer Lissandra Sime and Detective Sean Miller were

dispatched to Cooper University Hospital to investigate a report of an individual,

co-defendant Samuel Lopez, 1 who came to the emergency room with a gunshot

wound to his left thigh. Lopez claimed he was the victim of a robbery. He

responded evasively to questions and provided inconsistent accounts when

asked for specific details about what happened. Officer Sime overheard Lopez

state to a family member, "[t]hat mother-fucker [Franco] is shot and I'm just

going to walk out of here with a cast on." 2 Franco, it bears noting, was at that

moment in a nearby bay of the hospital trauma unit being treated for his fatal

gunshot wound. The police seized Lopez's cell phone and clothing. The bullet

1

Lopez was tried separately and is not a party to this appeal. We affirmed

Lopez's conviction in State v. Lopez, No. A-1210-19 (App. Div. Sept. 23, 2020).

2

The account of Officer Sime, who acted as a translator during Lopez's

questioning, was presented only at the suppression hearing for the purpose of

supporting the State's argument that Lopez's cell phone had been legally seized.

At trial, the State presented to the jury Detective Miller's testimony, which

substantially matched Officer Sime's account, sans Lopez's comment to his

family member.

4 A-0315-18

holes and powder burn markings indicated a gun had been discharged from

inside his left pants pocket. Lopez is left-handed.

The following day detectives met with Franco's cousin, who stated that he

last saw Franco at approximately 11 p.m. on the night of shooting. The cousin

provided information about Franco's usual route of travel home. Detectives

followed that route to look for potential witnesses and video surveillance

cameras.

The detectives learned from a Camden County police patrolman that the

owner of a liquor store had reported two individuals loitering across the street

around the time of the shooting. Detectives followed Franco's route, eventually

finding a large pool of blood adjacent to a curb approximately two blocks from

where police had found Franco. The detectives canvassed the area for witnesses.

The detectives also obtained video surveillance footage from a restaurant

located approximately two blocks from where the pool of blood was discovered.

This video showed Franco crossing a nearby street, followed by two men

wearing dark hooded clothing and gloves. From the video, police could see one

suspect wearing sneakers with distinctive black and blue markings and one

suspect with a large beard. Police executed a warrant to search Lopez's

residence, where they recovered a pair of black and blue Nike high top sneakers.

5 A-0315-18

The detectives also obtained a security video recording from Cooper

University Hospital documenting Lopez's arrival and treatment. This video

confirmed that Lopez's build, facial structure, and dark clothing were consistent

with the other video footage detectives had collected. The hospital video

recording showed Lopez arriving in a vehicle that was registered to defendant's

girlfriend. She testified that on the night of the shooting, defendant called and

told her to pick up Lopez from a basketball park in the Cramer Hill section of

Camden. She transported Lopez to Cooper Hospital because "he got something

in the leg." She later found a sweatshirt on the backseat of her vehicle that did

not belong to her or her children, which she gave to police.

Defendant's girlfriend further testified that she saw Lopez a few days later

while she was with defendant. Defendant told Lopez, "the guy death [sic]." At

the time, she did not know who they were talking about. Defendant later told

her that Lopez received his gunshot wound when the two of them were "robbing

in Cramer Hill."

The State presented text messages between defendant and Lopez. On

September 26, 2015, a text from defendant to Lopez read, "We need to make a

mark. I got an idea." Lopez responded, "Where you want to hit?" Defendant

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responded, "Everywhere, just don’t [know] where to start. I want to get a

hustler."

At 8:52 p.m. on the night of the shooting, defendant texted Lopez, "I'll be

there in [fifteen] min. You still down, right?" At 8:59 p.m., defendant texted

Lopez "I'll be there in [five]. You ready?" At 9:03 p.m., Lopez responded

affirmatively. At 9:04 p.m., defendant texted Lopez "I'm here" and "I got to get

the thing. It's nearby."

Lopez testified on defendant’s behalf. He claimed the text messages were

about selling marijuana. Lopez testified that he met with defendant for five to

ten minutes around 9 p.m. on the night of the shooting but did not see him again

that night. He further testified that after he was shot, he called defendant to ask

him to call an ambulance. He confirmed that defendant's girlfriend picked him

up at the basketball park and transported him to the hospital. Lopez admitted

that he was wearing black and blue Nike "LeBron's" that day but denied he had

ever seen the pair of black and blue Nike high top sneakers seized from his

apartment.

The appellate brief submitted by defendant's counsel raises the following

points for our consideration:

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POINT I

THE DEFENDANT'S MOTION TO SUPPRESS THE

WARRANTLESS SEIZURE OF MR. LOPEZ'S CELL

PHONE AT THE HOSPITAL AND ALL OF THE

INFORMATION DERIVED THEREFROM AS

FRUIT OF THE POISONOUS TREE SHOULD HAVE

BEEN GRANTED

POINT II

THE TESTIMONY OF DETECTIVE MILLER

EXPRESSING AN OPINION ABOUT THE

CREDIBILITY OF CO-DEFENDANT, SAMUEL

LOPEZ, WAS IMPERMISSIBLE OPINION

TESTIMONY WHICH REQUIRES REVERSAL OF

DEFENDANT'S CONVICTION (not raised below)

POINT III

THE FAILURE OF THE TRIAL COURT TO GIVE

HAMPTON AND KOCIOLEK JURY

INSTRUCTIONS WAS PLAIN ERROR (not raised

below)

POINT IV

THERE WAS INSUFFICIENT RELIABLE

EVIDENCE TO SUPPORT THE DEFENDANT'S

CONVICTIONS BEYOND A REASONABLE

DOUBT (not raised below)

POINT V

THE AGGREGATE SENTENCE IMPOSED UPON

MR. PAGAN OF 58 YEARS WITH 47.6 YEARS OF

PAROLE INELIGIBILITY WAS EXCESSIVE AND

SHOULD BE REDUCED

POINT VI

THE AGGREGATE ERRORS DENIED

DEFENDANT A FAIR TRIAL (not raised below)

8 A-0315-18

Defendant raises the following additional points in his pro se

supplemental brief:

POINT I

THE TRIAL COURT'S IMPROPER ADMISSION OF

THE TEXT MESSAGES BETWEEN DEFENDANT

AND HIS CO-DEFENDANT WITHOUT

CONDUCTING A PROPER ANALYSIS OF THE

EVIDENCE DEMANDS REVERSAL OF THE

DEFENDANT'S CONVICTION

POINT II

IT WAS PLAIN ERROR TO CHARGE FIRST

DEGREE MURDER WHERE NO BASIS IN THE

RECORD EXISTED TO GIVE SUCH A CHARGE

THAT GIVEN OF THE CHARGE [sic] RESULTED

IN A COMPROMISE VERDICT CAUSING AN

UNJUST RESULT

II.

We first address defendant's contention that police unlawfully seized

Lopez's cell phone while he was receiving treatment at the hospital for his self-

inflicted gunshot wound, and that the incriminating text messages between

defendant and Lopez extracted from the phone should have been suppressed as

a fruit of the unlawful seizure. 3 Because we affirm the denial of defendant's

3

The Camden County Prosecutor's Office obtained a Communications Data

Warrant (CDW) to extract data from Lopez's cell phone police that had been

9 A-0315-18

motion to suppress substantially for the reasons explained by Judge Kelley in

his thorough and cogent oral opinion, we need not readdress defendant's

arguments at length. We add the following comments.

When reviewing a motion to suppress evidence, we "must uphold the

factual findings underlying the trial court's decision, so long as those findings

are 'supported by sufficient credible evidence in the record.'" State v. Evans,

235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).

"An appellate court 'should give deference to those findings of the trial judge

which are substantially influenced by his opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" Elders, 192 N.J. 244. Relatedly, a trial judge's credibility

determinations should be upheld if such determinations are supported by

sufficient credible evidence. State v. S.S., 229 N.J. 360, 374 (2017).

As we have noted, the prosecutor obtained a CDW before examining data

contained in Lopez's cell phone, thus complying with the rule established by the

United States Supreme Court in Riley v. California, 573 U.S. 373, 386, 403

seized without a warrant at the hospital on the night of the shooting. The

prosecutor also obtained CDWs to search the contents of another cell phone

belonging to Lopez and a phone belonging to defendant. The lawfulness of the

seizures and searches of those other cell phones is not at issue in this appeal.

10 A-0315-18

(2014) ("Our answer to the question of what police must do before searching a

cell phone seized incident to an arrest is accordingly simple—get a warrant.").

The sole issue before us is whether there was a lawful basis to seize the phone

at the hospital when the police seized Lopez's bullet-damaged pants. The State

does not argue that the phone was seized incident to an arrest as in Riley. Rather,

the State argues there were exigent circumstances sufficient to excuse the failure

to obtain a warrant for the phone.

In State v. Johnson, our Supreme Court reaffirmed the bedrock principle

that our constitutional jurisprudence favors warrants, and that warrantless

searches or seizures are "presumptively unreasonable." 193 N.J. 528, 552

(2008) (citing Elders, 192 N.J. at 246). Accordingly, when police act without a

warrant, the State in a motion to suppress "bears the burden of proving by a

preponderance of the evidence not only that the search or seizure was premised

on probable cause, but also that it 'f[ell] within one of the few well-delineated

exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J.

13, 19–20 (2004)) (alteration in original).

"Exigent circumstances" is one of those recognized exceptions. The Court

in Johnson explained that exigent circumstances cannot be precisely defined nor

reduced to a "neat formula." Ibid. (citing State v. Nishina, 175 N.J. 502, 516

11 A-0315-18

(2003)); see also State v. DeLuca, 168 N.J. 626, 632 (2001) ("'[t]he term

"exigent circumstances" is, by design, inexact. It is incapable of precise

definition because, by its nature, the term takes on form and shape depending

on the facts of any given case.'") (quoting State v. Cooke, 163 N.J. 657, 676

(2000)). Consequently, the application of the exigent circumstances exception

demands a "fact-sensitive, objective analysis." Johnson, 193 N.J. at 552 (citing

State v. Bruzzese, 94 N.J. 210, 219 (1983)).

The Court in Johnson identified factors to consider when determining

whether law enforcement officials faced exigent circumstances, including "the

urgency of the situation, the time it will take to secure a warrant, the seriousness

of the crime under investigation, and the threat that evidence will be destroyed

or lost or that the physical well-being of people will be endangered unless

immediate action is taken." Id. at 552–53; see also DeLuca, 168 N.J. at 632

("Generally stated, circumstances are exigent when they 'preclude expenditure

of the time necessary to obtain a warrant because of a probability that the suspect

or the object of the search will disappear, or both.'") (quoting State v. Smith,

129 N.J. Super. 430, 435 (App. Div. 1974)).

Applying those tenets, we hold that the warrantless seizure of Lopez's cell

phone was permissible due to exigent circumstances. The police had ample

12 A-0315-18

probable cause to believe Lopez was involved in the shooting of Franco and that

his cell phone might contain relevant evidence about that violent crime. Lopez's

claim that he was the victim of a robbery raised suspicion given his inconsistent

statements regarding his gunshot injury, his demeanor, and the condition of his

jeans, which suggested that Lopez sustained a self-inflicted wound.

Furthermore, the comments Lopez made about Franco that were overheard by

Officer Sime clearly indicated his involvement in Franco's shooting. Although

Franco was still alive when the phone was seized, the grave nature of his injuries

establish that the crime under investigation was extremely serious. See Johnson,

193 N.J. at 552–53 (explicitly listing the seriousness of the crime under

investigation as an exigency factor).

The officers also had a reasonable basis to believe that Lopez would

remove or destroy the cell phone, or at least delete stored data if given the

chance. As Judge Kelley found, "[t]he officer[s] feared that any possible

evidence on Lopez's phone regarding the homicide or the cell phone itself may

be destroyed before they could apply for a search warrant." The judge further

found, "[i]t is unlikely the officers would have been able to telephonically apply

for a warrant at 11 at night on a Sunday." We believe these findings are

supported by sufficient credible evidence.

13 A-0315-18

Defendant argues "there was no legitimate fear of destruction of property"

because "it was a phone, and the phone companies maintain records." That

argument is unconvincing and ignores the urgency of the spontaneous decision

that needed to be made based on objective facts. A smart phone can store

information, such as photographs, that might not be captured in phone service

provider records. Furthermore, police in these circumstances are not precluded

from acting swiftly to preserve digital evidence of a shooting on the grounds

that it is possible that similar evidence might eventually be obtained from a

different source. We believe the police acted appropriately to preserve evidence

based on the information known to them at the moment of the seizure. Riley,

573 U.S. at 388 ("[The defendants] concede that officers could have seized and

secured their cell phones to prevent destruction of evidence while seeking a

warrant. That is a sensible concession. And once law enforcement officers have

secured a cell phone, there is no longer any risk that the [defendant] himself will

be able to delete incriminating data from the phone.") (citations omitted).

In sum, we agree with Judge Kelley that it was objectively reasonable for

the officers to act without delay in seizing the phone with the clothing to prevent

the possible loss or destruction of evidence. We reiterate and emphasize that

police showed appropriate respect for Lopez's constitutional rights by not

14 A-0315-18

viewing information stored in the phone without first obtaining a CDW. The

seizure of the phone, while a constitutionally significant event, is less intrusive

than a search of its contents and in this instance was justified by the swiftly

developing circumstances of the nascent shooting investigation. Cf. id. at 396–

97 ("Indeed, a cell phone search would typically expose to the government far

more than the most exhaustive search of a house: A phone not only contains in

digital form many sensitive records previously found in a home; it also contains

a broad array of private information never found in a home in any form—unless

the phone is.") (emphasis in original).

III.

We next address defendant's contention—raised for the first time on

appeal—that the trial judge erred in allowing a detective to testify before the

jury as to the credibility of the explanation Lopez gave to police regarding his

gunshot injury. Defendant argues that Detective Miller gave impermissible

opinion testimony as to the credibility of a defense witness, depriving defendant

of a fair trial. Specifically, Detective Miller testified:

He [Lopez] was deceptive. Like, if you're a true victim

and someone tells me what happened, if I'm talking to

you to tell me what happened, first of all as I'm talking

to you give me eye contact, don't look away, don't say

huh, I don't know what happened. If someone has a gun

in your face, I understand that you're scared but right

15 A-0315-18

then and there tell me what happened. I'm the good

guy[], I'm not – I'm not here to hurt you, I'm here to

help you. But constantly saying huh and looking away

and acting as if you're passing out, you know, from my

training and experience you're being deceptive,

something is not right.

Defendant did not object to the testimony at trial. We therefore hold the

trial judge did not commit error—much less plain error—in failing to sua sponte

strike that portion of detective's testimony and issue a curative instruction. In

reaching that conclusion, we emphasize the plain error standard is demanding

and aims to "provide [] a strong incentive for counsel to interpose a timely

objection, enabling the trial court to forestall or correct a potential error." State

v. Bueso, 225 N.J. 193, 203 (2016). Indeed, as our Supreme Court noted in State

v. Frost, "[t]he failure to object suggests that defense counsel did not believe the

remarks were prejudicial at the time they were made." 158 N.J. 76, 84. See also

State v. Nelson, 173 N.J. 417, 471 (2002) (holding that failure to object to

testimony permits an inference that any error in admitting the testimony was not

prejudicial). Our Supreme Court has repeatedly emphasized that "rerunning a

trial when the error could easily have been cured on request would reward the

litigant who suffers an error for tactical advantage either in the trial or on

appeal." State v. Singh, 245 N.J. 1, 13 (2020) (quoting State v. Santamaria, 236

N.J. 390, 404–05 (2019)).

16 A-0315-18

Here, Detective Miller testified to the circumstances leading to the seizure

of Lopez's phone and clothing. He did not comment on defendant Pagan's

credibility. Moreover, the State's evidence was overwhelming that Lopez had

in fact lied to the officer about his own gunshot wound. We add the jury was

properly instructed that it is their responsibility to determine the credibility of

witnesses. In these circumstances, we are satisfied the detective's statement that

Lopez was deceptive on the night of the fatal shooting did not impermissibly

intrude on the jury's province as trier-of-fact and was not clearly capable of

producing an unjust result. See Rule 2:10-2 ("Any error or omission shall be

disregarded by the appellate court unless it is of such nature as to have been

clearly capable of producing an unjust result, but the appellate court may, in the

interests of justice, notice plain error not brought to the attention of the trial or

appellate court.").

IV.

Defendant contends for the first time on appeal the trial court erred in

failing "to instruct the jury on oral statements allegedly made by a defendant as

required by N.J.R.E. 104(c) and State v. Hampton and State v. Kociolek." 4

4

State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).

17 A-0315-18

Those cases address the need for special cautionary instructions to the jury on

how to evaluate a defendant's incriminating out-of-court statements.

Specifically, defendant posits the jury should have been given

Hampton/Kociolek instructions with respect to his girlfriend's testimony that he

told her that he was "robbing in Cramer hill" on the day of the homicide, her

testimony she "told police that defendant and [Lopez] went to rob inside a house

and a guy was shot[;]" and the State's presentation of text messages between

defendant and Lopez. 5

None of the statements attributed to defendant were made in the course of

a custodial interrogation. Accordingly, defendant's reliance on Hampton is

misplaced. Our Supreme Court in that case held "there is no constitutional

obligation to submit to the jury for determination the issue of whether the

Miranda warnings were given to a defendant and the rights described thereby

waived before he confessed." 61 N.J. at 267.

As we explained in State v. Baldwin, Hampton "require[s] the trial court

to instruct the jury to decide whether a defendant's out-of-court statement is

5

Although defendant's appellate brief refers to the text messages between him

and Lopez as examples of Hampton/Kociolek violations, we remain

unconvinced that written communications in the form of recorded text messages

can invoke the concerns raised in Hampton or Kociolek.

18 A-0315-18

credible only in a case where there has been a pretrial hearing involving the

admissibility of the statement on the grounds of an alleged violation of the

defendant's Miranda rights or involuntariness." 296 N.J. Super 391, 397 (App.

Div. 1997). We thus held in Baldwin that when "an alleged oral inculpatory

statement was not made in response to police questioning, and there is no

genuine issue regarding its contents," the court is not required to give special

cautionary instructions, "because the only question the jury must determine is

whether the defendant actually made the alleged inculpatory statement." Id. at

401–02.

We turn our attention to whether the trial judge was obligated to give a

special cautionary instruction pursuant to the rationale undergirding Kociolek.

The oral statement attributed to Kociolek was not made during a custodial

interrogation, and thus the rule established in that case is not limited to

statements made while in police custody. The Kociolek Court, quoting Wigmore

on Evidence, §§ 1056, 2094 (3d ed. 1940), acknowledged:

there is a "general distrust of testimony reporting any

extra-judicial [o]ral statements alleged to have been

made, including a party's admissions"; the "great

possibilities of error in trusting to recollection-

testimony of oral utterances, supposed to have been

heard, have never been ignored; but an antidote is

constantly given by an instruction to the jury against

trusting overmuch the accuracy of such testimony."

19 A-0315-18

[23 N.J. at 421.]

Our Supreme Court thus recognized that an out-of-court inculpatory statement

purportedly made by a defendant can be "dangerous" evidence, "first, because it

may be misapprehended by the person who hears it; secondly, it may not be

well-remembered; thirdly, it may not be correctly repeated." Id. at 429 (citations

omitted).

Our decision in Baldwin addressed when a cautionary jury instruction

should be given under the Kociolek doctrine and our analysis in that case is

instructive for the present appeal. The State in Baldwin presented evidence in a

murder trial supporting the identification of the defendant as the assailant,

including testimony from three eyewitnesses and three inculpatory out-of-court

statements purportedly made by the defendant. Baldwin, 296 N.J. Super. at 395.

Baldwin argued that a trial court is obligated to provide cautionary instructions

whenever evidence of a defendant's allegedly inculpatory out-of-court statement

is proffered. Ibid. We rejected any such per se rule. We concluded "the need

for the kind of special cautionary instruction suggested in Kociolek may turn on

whether there is any genuine dispute as to the precise contents of an alleged oral

statement." Id. at 400–01.

20 A-0315-18

Here, as in Baldwin, the meaning of defendant's oral statements to his

girlfriend does not turn on any nuances of language. We believe the phrase

"robbing in Cramer Hill" was unambiguous and memorable. Thus, the

circumstances in which defendant's statements to her were uttered do not present

a substantial "risk of inaccuracy and error in communication and recollection of

verbal utterances and misconstruction by the hearer" as contemplated in

Kociolek, 23 N.J. at 421.

Finally, we emphasized in Baldwin that there was no precedential

authority for the proposition that the failure to give an unrequested Kociolek

instruction constitutes plain error. Id. at 400. Defendant cites no case decided

after Baldwin holding that the failure to sua sponte provide a Kociolek

instruction rises to the level of plain error. We therefore conclude that even

assuming for argument's sake that the failure to give the unrequested instruction

was error—a proposition we seriously doubt—any such error was not capable

of producing an unjust result in this case. See R. 2:10-2; see also State v.

Montalvo, 229 N.J. 300, 320 (2017) ("Without an objection at the time a jury

instruction is given, 'there is a presumption that the charge was not error and

was unlikely to prejudice the defendant's case.'") (quoting State v. Singleton,

211 N.J. 157 181–82 (2012)).

21 A-0315-18

V.

Defendant contends for the first time on appeal the State did not provide

sufficient reliable evidence to support his convictions beyond a reasonable

doubt. We note defendant did not move before the Law Division judge for a

new trial, and thus never provided the judge—who was intimately familiar with

the trial proofs—an opportunity to address defendant's weight-of-the evidence

claim. It is well-settled that courts will normally refuse to consider a "weight-

of-the-evidence argument on appeal unless the appellant moved for a new trial

on that ground." State v. Pierro, 438 N.J. Super. 517, 530 (App. Div. 2015). In

order to prevail on such an appeal, the defendant bears the burden of proving

plain error. State v. Weston, 222 N.J. 277, 295 (2015). Even putting aside this

procedural defect, we believe defendant's argument on appeal is meritless, and

warrants only brief discussion in this opinion. See R. 2:11-3(e)(2).

The well-established test for challenging the sufficiency of evidence for

defendant's conviction(s) was articulated in State v. Reyes:

the trial judge must determine whether, viewing the

State's evidence in its entirety, be that evidence direct

or circumstantial, and giving the State the benefit of all

its favorable testimony as well as all of the favorable

inferences which reasonable could be drawn therefrom,

a reasonable jury could find guilt of the charge beyond

a reasonable doubt.

22 A-0315-18

[50 N.J. 454, 458–59 (1967); see also State v. Brown,

80 N.J. 587, 591 (1979).]

The gravamen of defendant's argument is that the State's evidence of his

guilt in the robbery and homicide is circumstantial. But as the holding in Reyes

makes clear, circumstantial evidence may justify a guilty verdict as surely as

direct evidence. Our own review of the record confirms the State adduced ample

testimony and surveillance video evidence to support the guilty verdicts.

VI.

Defendant claims his sentence was manifestly excessive. Specifically, he

argues the court erred in ordering the sentence imposed on the certain persons

weapons conviction to be served consecutively to the sentences imposed on his

other convictions. He also argues his fifty-eight-year aggregate sentence was

disproportionate to the forty-five-year aggregate sentence imposed on Lopez.

We reject these arguments and conclude that Judge Kelley imposed an

appropriate sentence considering the applicable aggravating and mitigating

23 A-0315-18

factors, 6 and considering the Yarbough 7 guidelines that are used to determine

whether to impose concurrent or consecutive sentences.

The scope of our review of sentencing decisions is narrow. As a general

matter, sentencing decisions are reviewed under a highly deferential standard.

See State v. Roth, 95 N.J. 334, 364–65 (1984) (holding that an appellate court

may not overturn a sentence unless "the application of the guidelines to the facts

of [the] case makes the sentence clearly unreasonable so as to shock the judicial

conscience"). Our review is therefore limited to considering:

(1) whether guidelines for sentencing established by the

Legislature or by the courts were violated; (2) whether

the aggravating and mitigating factors found by the

sentencing court were based on competent credible

evidence in the record; and (3) whether the sentence

was nevertheless "clearly unreasonable so as to shock

the judicial conscience."

[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State

v. McGuire, 419 N.J. Super. 88, 158 (App. Div.

2011)).]

6

Judge Kelley found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The

risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-

1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness

of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44-

1(a)(9) ("The need for deterring the defendant and others from violating the

law"). Judge Kelley did not find any mitigating factors.

7

State v. Yarbough, 100 N.J. 627 (1985).

24 A-0315-18

"[A]ppellate courts are cautioned not to substitute their judgment for those

of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.

Lawless, 214 N.J. 594, 606 (2013)). Similarly, a trial court's exercise of

discretion that is in line with sentencing principles "should be immune from

second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).

We first address whether the sentencing judge erred in directing the

sentence imposed on the certain persons conviction to be served consecutively

to the sentence imposed on the felony-murder and other convictions. In

Yarbough, the Supreme Court noted "there can be no free crimes in a system for

which the punishment shall fit the crime." 100 N.J. at 643. The Court listed

relevant considerations, including whether:

(a) the crimes and their objectives were

predominantly independent of each other;

(b) the crimes involved separate acts of violence

or threats of violence;

(c) the crimes were committed at different times

or separate places, rather than being committed

so closely in time and place as to indicate a single

period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to

be imposed are numerous.

[Id. at 643–44.]

25 A-0315-18

In State v. Cuff, the Court recognized "the Yarbough factors are

qualitative, not quantitative; applying them involves more than merely counting

the factors favoring each alternative outcome." 239 N.J. 321, 348 (2019); see

also State v. Molina, 168 N.J. 436, 442–43 (2001) (affirming consecutive

sentences although "the only factor that support[ed] consecutive sentences [was]

the presence of multiple victims"); State v. Carey, 168 N.J. 413, 427–28 (2001)

(holding that "a sentencing court may impose consecutive sentences even though

a majority of the Yarbough factors support concurrent sentences").

In this instance, Judge Kelley explicitly addressed the rationale

undergirding Yarbough, concluding "I make [the certain persons offense]

consecutive considering the Yarbough factors, and I do find that this is a

separate offense with separate elements." We note that the evidence adduced at

trial clearly shows the firearm was procured and possessed prior to the planned

robbery and resultant homicide. As Judge Kelley noted at the sentencing

hearing, it was defendant who brought the gun to commit the robbery that

resulted in a homicide. Relatedly, the prior felony conviction that made

26 A-0315-18

defendant a certain person was, of course, committed well before the criminal

episode that took Franco's life. 8

The sentence imposed on the felony-murder conviction advances the

sentencing goal of general deterrence. The certain persons offense, in contrast,

advances the sentencing goal of specific deterrence, putting persons convicted

of designated crimes on clear notice that they are henceforth strictly prohibited

from possessing a firearm. We are satisfied, as was the sentencing judge, that

defendant's certain persons firearms conviction warrants separate punishment

from the sentence imposed on the violent crime that was committed with the

firearm. Cf. State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010) (noting

that imposing sentences for certain persons offenses consecutively to other

crimes is permissible, but not mandatory). That conclusion comports with the

major tenet in Yarbough that there can be no "free crimes." 100 N.J. at 643.

We add that in Cuff, the Court noted that a sentencing court's focus

"should be on the fairness of the overall sentence." 239 N.J. at 352 (citing State

v. Miller, 108 N.J. 112, 121 (1987)). We believe the overall sentence imposed

8

The record indicates that defendant was previously convicted of aggravated

sexual assault in 2004, for which he was sentenced to ten years in prison subject

to a mandatory minimum period of 8.5 years without parole under NERA.

27 A-0315-18

in this case, including the consecutive sentence for the certain persons

conviction, is fair and appropriate.

Finally, with respect to defendant's excessive sentence argument, we

reject defendant's contention that the sentence he received is disproportionate to

the aggregate forty-five NERA sentence imposed on co-defendant Lopez, who

was tried separately. Judge Kelley carefully addressed why he imposed a longer

aggregate term than the sentence he imposed on Lopez, explaining:

I would indicate for the record that . . . the sentence is

slightly higher than the sentence I imposed on [Lopez].

There's reasons for that. Primarily the reason is because

this defendant was the older of the two, the more

experienced person of the two, the one who had a prior

record of the two. It appears to me, and as I said, the

reasonable inference that can be drawn is that he is the

one who had a gun, who brought the gun to

unfortunately a tragic meeting with Mr. Franco that

caused his death. While it's certainly obvious that

[Lopez] suffered a wound when the gun was apparently

being placed in his pocket, I don't know and the jury

doesn't know, and no one knows other than [defendant]

and [Lopez] probably, who actually pulled the trigger.

But serious – but there's no doubt that his involvement

in this felony murder caused the death of [Franco]. I

believe the 50-year term is appropriate in this instance

and that is why I'm imposing . . . a slightly higher term

than I imposed upon [Lopez].

28 A-0315-18

We agree with Judge Kelley's reasoning and conclude he did not abuse his

discretion in distinguishing between defendant and Lopez for sentencing

purposes, especially considering defendant's serious criminal history. 9

VII.

Defendant contends the trial court committed cumulative errors

warranting a new trial. In State v. Reddish, our Supreme Court acknowledged

that "although an error or series of errors might not individually amount to plain

error, in combination they can cast sufficient doubt upon the verdict to warrant

reversal." 181 N.J. 553, 615 (2004). In State v. Weaver, the Supreme Court

granted Weaver a new trial after concluding that it was "a classic case of several

errors, none of which may have independently required a reversal and new trial,

but which in combination dictate a new trial." 219 N.J. 131, 162 (2014); see

also State v. Jenewicz, 193 N.J. 440, 473–74 (2008) (recognizing that even when

individual errors do not amount to reversible error, when considered in

combination, their cumulative effect can require reversal).

In this instance, however, we have rejected defendant's contentions with

respect to each asserted error. To the extent we may have assumed for purposes

9

As noted earlier, defendant was previously convicted of first-degree

aggravated sexual assault and received a ten-year NERA sentence.

29 A-0315-18

of argument that an alleged error was committed but did not rise to the level of

plain error, we are satisfied defendant received a fair trial and that none of

defendant's contentions, viewed individually or collectively, cast doubt upon the

verdict as to warrant reversal.

We next address the contentions defendant raises in his pro se

supplemental brief. Defendant for the first time on appeal challenges the

admissibility of the text messages between him and Lopez. 10 Those hearsay

statements were properly admitted as statements by a party-opponent under

N.J.R.E. 803(b)(1) and statements made by a co-conspirator in the course of

planning the robbery under N.J.R.E. 803(b)(5). We note that co-defendant

Lopez in his separate trial objected to the admission of the text message and we

affirmed their admissibility. State v. Lopez, No. A-1210-19 (App. Div. Sept.

23, 2020) (slip op. at 6). Defendant's remaining contention that there was no

10

As we have noted, defendant filed a pre-trial motion to suppress the text

messages on the grounds they were the fruit of the allegedly unlawful

warrantless seizure of Lopez's cell phone. See supra section II. Defendant at

trial did not object to the admissibility of the out-of-court statements under the

Rules of Evidence.

30 A-0315-18

basis to charge him with first-degree murder does not merit discussion in a

written opinion. 11 R. 2:11-3(e)(2).

Affirmed.

11

We presume defendant is referring to the count in the indictment charging

first-degree knowing/purposeful murder, not the count charging first-degree

felony murder. Both offenses are designated as first-degree crimes and carry

the same mandatory minimum sentence.

31 A-0315-18