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State v. Castillo


August 13, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-00050-S.

Per curiam.


Submitted May 12, 2008

Before Judges Stern, A. A. Rodríguez and C. L. Miniman.

Following a jury trial on a State Grand Jury Indictment, defendant Elvin Castillo was convicted of second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2c, N.J.S.A. 2C:2-7 and N.J.S.A. 2C:5-2 (count one); second-degree racketeering, N.J.S.A. 2C:41-2c, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7 (count two); second-degree conspiracy to commit healthcare fraud and theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-4.3c and N.J.S.A. 2C:20-4 (count three); second-degree healthcare fraud and theft by deception, N.J.S.A. 2C:21-4.3c and N.J.S.A. 2C:2-6 (count thirteen); and third-degree theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:2-6 (count fourteen). After mergers, the judge sentenced defendant to a seven-year term of incarceration on count two and a consecutive six-year term on count thirteen.

Defendant was tried jointly with Anhuar Bandy, a co-defendant. Another co-defendant, Alejandro Ventura, was a fugitive at the time of trial. The remaining individual co-defendants, Cesar Caba, Victor Almonte and Raymond Cuevas, each pled guilty to various charges and testified for the State.

Then defendant entered a plea of guilty to three counts of two additional State Grand Jury Indictments, specifically: second-degree theft by deception, N.J.S.A. 2C:20-4; third-degree failure to file a state income tax return, N.J.S.A. 54:52-8; and third-degree failure to pay state income taxes with the intent to evade, N.J.S.A. 54:52-9. In exchange for the guilty plea and the payment of state taxes and penalties, the State agreed to recommend concurrent sentences aggregating six years and to dismiss the remaining charges. The judge imposed the following sentence in accordance with the terms of the agreement: a six-year term on the second-degree conviction and concurrent five-year terms on the two third-degree convictions. These sentences ran concurrent to the sentences on the jury convictions.

We need not set out the facts in detail. Suffice it to say that in November or December 1996, according to Investigator Ciro Sebasco of the Division of Criminal Justice (DCJ), an anonymous letter prompted an investigation into the purposeful staging of automobile accidents by defendant and others. The investigation focused on a number of specific chiropractic clinics, including: the Elizabeth Injury Center (the Clinic); the Amboy Injury Center; the Plainfield Injury Center; and the Mt. Prospect Spinal Center. All of these clinics were owned or controlled by Bandy. The investigation also focused on a clinic owned by defendant, the Elizabeth Spinal Center, also known as the Spinal Health Center of Elizabeth.

Nydia Martinez, who played a significant role in the conspiracy, testified for the State. She was a desk receptionist and later an office manager at the Clinic. Bandy told her that he planned to stage his own automobile accidents in order to generate more income for his clinics. He asked her if she knew any individuals who would be interested in participating as either a passenger or a driver. Martinez had met defendant when he was a patient at the Clinic. She suggested that he work for Bandy staging accidents. He agreed. According to Martinez, the other co-defendants were recruited to stage accidents and to recruit "patients" who would need "treatment" at the clinic. Martinez identified from police reports ninety accidents that she knew were staged.

In 1996 or 1997, when Parkway Insurance Company began to investigate the Clinic, Bandy told Martinez that "they had to stick together," and threatened that if she talked to investigators he would kill her and her daughter.

As part of Martinez's cooperation with investigators, she introduced Noemi Tirado, an undercover detective with the Bergen County Prosecutor's Office, to the Clinic. Tirado began working at the Clinic in August 1997 under the name "Marie Ameresano." Tirado testified extensively about several staged accidents.

At some point, Sebasco became convinced that traditional investigative techniques would not succeed in cracking this scheme. So he decided that undercover infiltration of the group was necessary. He chose George Vasquez, who began his assistance in February or March 1998. In total, Vasquez received approximately $10,000 in fees, lost wages and expenses from state investigators. Vasquez was wired with a transmitter so that law enforcement officials could hear what was going on in the car at the time of the accident. In addition, the State also began to use another undercover agent, DCJ Investigator Shannon Stewart, who posed as Vasquez's girlfriend.

State investigators also began to actively participate in staging accidents as part of their cover. There were numerous staged accidents. The trial record details the time, date and participants in each, as well as the payoff or cut of each recruiter or participant.

Based on this investigation, a search warrant was executed at Bandy's clinics and home, as well as his person. He and all other conspirators were arrested.

Neither defendant nor Bandy testified. Defendant produced the testimony of Edward Tomas, an expert in electronic surveillance for law enforcement purposes, whose videotaped deposition testimony was played for the jury. Tomas questioned the reliability of four specific recordings that had been played for the jury during trial. He opined that each was "technically problematic".

Defendant appeals from all convictions. He contends:


We disagree.

Defendant moved before trial to dismiss the indictment because the investigators' participation in actual accidents constituted outrageous government conduct. Based on a certification describing the investigation submitted by Sebasco the judge denied the motion. The judge found that: (1) the criminal enterprise in which defendant was engaged was on-going; (2) the State had unsuccessfully attempted to investigate the enterprise using other law enforcement techniques; (3) the State investigators minimized any risk of injury by ensuring that the accidents in which they participated were not unduly dangerous, and little damage in fact resulted from them; and (4) the individuals involved in the accidents were aware that they would be participating in staged accidents. Based on the evidence, the judge found that the State had shown by "clear and convincing evidence" that its conduct was not so outrageous as to require dismissal of the indictment.

At the close of the State's case, defendant renewed his motion to dismiss the indictment, arguing that the evidence produced at trial demonstrated that the State's conduct was so outrageous that the indictment should have been dismissed. The judge denied the motion again because the State's use of traditional methods of investigation failed to crack the accident ring. Thus, the State had to resort to "unusual" and "cutting edge" techniques to do so. Moreover, no one was hurt in any of the accidents in which the State participated. In addition, curtailing the operation of the accident ring was vital given the "risks incurred by the public at large" created by the staged accidents.

After trial, defendant moved to "set aside" the jury verdict pursuant to Rule 3:20-1, in part relying on the same argument. The judge denied the motion.

Defendant alleges "due process" entrapment, the existence of which is an issue of law for the court to resolve. State v. Florez, 134 N.J. 570, 584 (1994); State v. Talbot, 71 N.J. 160, 168 (1976); State v. Grubb, 319 N.J. Super. 407, 415 (App. Div.), certif. denied, 161 N.J. 333 (1999). Such entrapment may be found to exist even if the defendant concedes his or her predisposition to commit crime. State v. Johnson, 127 N.J. 458, 467 (1992); Grubb, supra, 319 N.J. Super. at 414. The State has the burden of disproving the defense by clear and convincing evidence. Florez, supra, 134 N.J. at 590; State v. Brooks, 366 N.J. Super. 447, 455 (App. Div. 2004).

Due process entrapment "concentrates exclusively on governmental conduct and the extent of the government's involvement in commission of the crime." Florez, supra, 134 N.J. at 584. The defense recognizes that the methods employed by law enforcement officials "must measure up to commonly accepted standards of decency of conduct to which government must adhere." Talbot, supra, 71 N.J. at 168. Thus, "[t]he essence of due process entrapment inheres in the egregious or blatant wrongfulness of the government conduct." Johnson, supra, 127 N.J. at 470. In short, the due process entrapment defense "arises when conduct of government is patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness." Id. at 473.

In considering this defense, courts must comprehensively and carefully scrutinize the nature of the government's conduct in light of the surrounding circumstances and law enforcement objectives. Id. at 474. Four factors have been deemed relevant to this inquiry:

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose for bringing about the crime. [Ibid.]

These four factors focus on two major recurring concerns: "the justification for the police" in pursuing its investigation; and "the nature and extent of the government's actual involvement in bringing about the crime." Id. at 474-75; Brooks supra, 366 N.J. Super. at 455.

Applying that standard here, we conclude that the judge was correct in denying the three motions seeking dismissal of the indictment on the basis of due process entrapment. At the outset, we note that the State became involved by investigating an on-going conspiracy that was reported to it. The conspiracy involved insurance proceeds that had already been obtained by fraud. Moreover, illegal acts in furtherance of the conspiracy had already been staged or planned. In short, crimes had already been committed when the State infiltrated the conspiracy for investigative purposes. Thus, the State did not participate in generating the scheme.

As to the first factor, whether the State or defendant was primarily responsible for creating and planning the crimes, it is undisputed that the state investigators learned of the scheme after it was well underway. It was defendant and his co- conspirators who decided where and how the accidents would occur, who would participate, how much would be paid, and where the parties would go for treatment. This case is similar to State v. Johnson, supra, in this respect, as the defendant there "offered the basic idea of the crime," and then "embellished" the scheme when police presented him with a specific plan to execute the scheme. Florez, supra, 134 N.J. at 585 (discussing Johnson).

As for the second factor, whether the State or defendant "primarily controlled and directed the commission of the crime," we note that the State here did not obtain any of the essential materials (cars) or services (participants). Rather, defendant and his co-conspirators performed that function. Although the investigators did more than just "listen" to conversations, as was the case in State v. Abdelnoor, 273 N.J. Super. 321, 331 (App. Div. 1994), they never controlled the scheme. They merely participated in it as directed by Bandy and his subordinates.

As for the third factor, consideration of the objective reasonableness of the methods used by the State, we note that the State did not use "heavy-handed pressure; repetitive and persistent solicitation, or threats or other forms of coercion . . ." which could "overwhelm the resistance of ordinary people." Johnson, supra, 127 N.J. at 478; Grubb, supra, 319 N.J. Super. at 418. No such tactics were used here. Investigators paid Vasquez, their undercover agent, a reasonable fee plus his expenses. They did not pay any other individual to participate in any of the accidents. Rather, all payments were made by Bandy or defendant, or by someone else on their behalf.

As for the fourth factor, whether the State had a legitimate law enforcement purpose in bringing its investigation, we conclude that clearly it did, considering the on-going accidents, which involved many people, including infants and the elderly. Thousands of dollars in insurance proceeds were acquired through the fraud by the participants in the accidents and the clinic owners. Police and emergency workers had to respond to the scenes of numerous accidents, taking them away from other duties. Thus the state investigators did not entrap defendant.

Defendant also contends:


We are not persuaded.

The judge conducted an N.J.R.E. 104 hearing before Martinez testified to determine the admissibility of her testimony regarding numerous alleged staged accidents that were not identified in the indictment but that were relevant to the racketeering charges (counts one and two). At the hearing, Martinez testified that investigators showed her patient files in 2000, from which she identified fifty-five specific instances where the patient was involved in a staged accident. According to Martinez, as to those accidents, she was either present at the planning stage, spoke to or recruited the accident participants, or was present when the participants were paid. The judge ruled that Martinez could testify as to those staged accidents of which she had personal knowledge.

When Martinez testified that she was aware that a man named Duarte brought patients to the clinic that were involved in staged accidents, the judge interrupted. He advised the jury that Martinez's testimony was not allowed because the prosecutor "has to show the basis for her knowledge. You have a conclusion." That testimony was therefore stricken. The court then sustained an objection to a question about whether Martinez believed Duarte was a "runner," noting that "you can't ask for opinion. We are asking about facts."

When the prosecution began questioning Martinez about Ramon Reyes, the judge instructed the prosecutor at sidebar to focus his inquiry. Martinez testified regarding one specific accident in which she was involved in 1996, and then testified that she was aware that Caba was also involved in staging accidents. At that point, the judge interrupted and told the prosecutor that "[b]asis for her knowledge has to come in, Counsel. Just being aware is not enough." Defense counsel objected after Martinez began to testify regarding a specific accident involving Caba because no basis for her knowledge was offered. When Martinez again failed to offer specifics regarding another alleged staged accident, the judge admonished the prosecutor again about establishing Martinez's personal knowledge.

Martinez then testified regarding twenty-eight specific accidents not identified in the indictment that she believed were staged, based on her personal knowledge and review of relevant patient charts and police reports.

A motion seeking a mistrial should be granted only in a situation which would otherwise result in a manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969); State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). We defer to the trial court's discretion because the trial court is in the best position to determine the effect of any allegedly prejudicial testimony. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). Absent an abuse of that discretion, or proof of actual harm to the defendant, the trial court's refusal to declare a mistrial should not be reversed on appeal. State v. LaBrutto, 114 N.J. 187, 207 (1989); Hogan, supra, 297 N.J. Super. at 15.

N.J.R.E. 602 provides that, except in the case of experts, "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of that witness." Notably, "[p]ersonal knowledge within the meaning of this rule may not be derived from hearsay." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 602 (2008) (citing Neno v. Clinton, 167 N.J. 573, 585-86 (2001)). Thus, if a witness lacks personal knowledge about a matter, his or her testimony on the subject should not be admitted. Longobardi v. Chubb Ins. Co., 234 N.J. Super. 2, 34-35 (App. Div. 1989) (construing Evid. R. 19, the predecessor to N.J.R.E. 602), rev'd on other grounds, 121 N.J. 530 (1990).

From our review of the record, we conclude that the judge properly denied defendant's mistrial motion. Martinez offered at least a modicum of personal knowledge as to each staged accident of which defendant now complains. That testimony was buttressed by the related patient files and police reports, which were all admitted into evidence. The judge also instructed the jury at the end of the State's case that Martinez's testimony was relevant only to the racketeering charges but not to the specific accidents identified in the indictment. Although some of Martinez's testimony did include hearsay, any error was harmless, given the overwhelming other evidence of defendant's guilt.

Defendant also contends:


Defendant argues that the Assistant Prosecutor improperly vouched for his witnesses by stating during summation, when discussing Nydia Martinez's testimony, that "I think when you look at all the testimony it is truthful." Similarly, while discussing one of the staged accidents, the Assistant Prosecutor again stated that his witnesses had not lied, but instead were "telling the truth, this is what happened."

A prosecutor cannot personally vouch for a witness's credibility. State v. R.B., 183 N.J. 308, 337 (2005); State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 187 N.J. 148 (2004). On the other hand, "[g]enerally, remarks by a prosecutor, made in response to remarks by opposing counsel, are harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993).

Here, the Assistant Prosecutor was merely responding to an unending barrage of comments by Bandy's and defendant's attorneys during summation in questioning the veracity of almost all of the State's witnesses. Specifically, the jury was told that: (1) the State's witnesses were "witnesses who lie, who are admitted liars;" (2) Martinez was an "accomplished liar" and she "lie[d] right to the [jury's] face;" and (3) Vasquez's testimony was "just a lie." Moreover, defendant did not object at the time the remarks were made. Thus, it can be inferred that he also did not find them to be overly prejudicial.

Finally, defendant asserts that the Assistant Prosecutor "impermissibly commented upon the defendant's failure to testify at trial through the numerous questions he posed to the jury." Defendant does not point to any specific questions in this respect, nor did defense counsel object at trial on this basis.

It is well settled that the primary duty of a prosecutor is to see that justice is done, and it is as much his or her "duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use all legitimate means to bring about a just one." State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). Prosecuting attorneys, within reasonable limits, are afforded considerable leeway in making summations, Frost, supra, 158 N.J. at 82; State v. Williams, 113 N.J. 393, 447 (1988), and not every deviation from the legal proscriptions governing prosecutorial misconduct warrants reversal. Id. at 452. In fact, as "long as he [or she] stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his [or her] summation." State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). Moreover, "prosecutors . . . are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82.

The factors that an appellate court should consider in reviewing a claim of prosecutorial misconduct are whether defense counsel timely and properly objected to the remark, whether the remark was withdrawn promptly, and whether the court gave the jury curative instructions. State v. Ramseur, 106 N.J. 123, 322-23 (1987). A summation must be viewed as a whole and in the context of the entire trial in determining if misconduct occurred. State v. Feaster, 156 N.J. 1, 64 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Carter, 91 N.J. 86, 107 (1982).

Notably, defendant here did not object to the Assistant Prosecutor's remarks below. Generally, if no objection is made, the prosecutor's remarks will not be deemed prejudicial, Ramseur, supra, 106 N.J. at 323, because the failure to do so indicates that defense counsel did not believe the comments were prejudicial. Frost, supra, 158 N.J. at 83-84.

Judged against that standard, we conclude that the Assistant Prosecutor's comments on summation were either a response to the defense attorneys challenging the credibility of the State's witnesses or a proper argument based on the evidence presented. Therefore, there is no basis for reversal. The challenged comments are not clearly and unmistakably improper. Williams, supra, 113 N.J. at 452. The comments have not been shown to have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his or her case. Ibid. The conduct was not so egregious that it deprived the defendant of a fair trial. State v. Papasavvas, 163 N.J. 565, 616, modified on other grounds, 164 N.J. 553 (2000).

Defendant also challenges his sentence, contending:


We agree in part.

If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996); State v. Jabbour, 118 N.J. 1, 6 (1990). If a court follows the sentencing guidelines, the sentence it imposed should be modified only if it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 365 (1984).

The presumptive terms contained at N.J.S.A. 2C:44-1f have been eliminated from the sentencing process. State v. Natale, 184 N.J. 458, 466 (2005). Here, the State concedes that the five-year sentence imposed for the third-degree convictions for failure to file a tax return and failure to pay taxes must be remanded because it "exceeded the former presumptive term of four years."

Defendant argues that lesser terms of incarceration should have been imposed on counts two and thirteen because the court erred in identifying two of the aggravating factors it applied. We disagree. The judge found the following aggravating factors listed in N.J.S.A. 2C:44-1a: (3), risk defendant will commit another offense; (5), "substantial likelihood that the defendant is involved in organized criminal activity;" and (9), need to deter defendant and others from violating the law. The judge found one mitigating factor, defendant's youth. N.J.S.A. 2C:44-1b(7).

Defendant also argues that the judge should not have applied aggravating factor (5), the likelihood that defendant was involved in organized criminal activity. The judge found this factor because the defendant was "part and parcel of this criminal enterprise". However, as defendant points out, he was convicted of second-degree racketeering, which provides that it is "unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." N.J.S.A. 2C:41-2c. This was an abuse of discretion because it is inappropriate to use as an aggravating factor the elements of the crimes of which a defendant is convicted. State v. Kromphold, 162 N.J. 345, 353-55 (2000); State v. Pineda, 119 N.J. 621, 627-28 (1990).

Consideration of an inappropriate aggravating factor in sentencing a defendant is grounds for vacation of the sentence. Kromphold, supra, 162 N.J. at 355. We therefore vacate the sentences imposed on counts two and thirteen.

Defendant also argues that the judge should have applied additional mitigating factors. Specifically, he contends that the judge should have applied mitigating factor (7), defendant's lack of a prior criminal history. The judge did not address this factor in any detail, but did acknowledge the lack of any prior criminal history.

Defendant also argues that the judge should have applied mitigating factor (11), that imprisonment would constitute hardship to defendant or his dependants. Although defendant has two young children, one is being cared for by defendant's mother, and the other by the child's mother. There is no indication in the record that defendant has ever been a primary caregiver for his children or that they relied on him for financial support. This factor was therefore properly not applied.

Defendant also argues that the judge should have found mitigating factor (13), defendant's conduct was substantially influenced by Bandy. Although it is clear that Bandy controlled the overall operation, there is no indication that defendant was influenced by Bandy. Defendant owned and operated one of the chiropractic clinics involved, was involved in the planning and execution of staged accidents and the recruitment and payment of accident participants, and directed others below him in the enterprise. This factor too was therefore properly not applied.

Finally, defendant argues that the judge erred in imposing consecutive sentences for the convictions on counts two and thirteen, racketeering and healthcare fraud/theft by deception. The judge imposed such sentences after finding that the "racketeering [conviction] is a separate and distinct crime established by many other acts other than the crimes specified in count thirteen."

In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), our Supreme Court identified the relevant criteria for determining when consecutive as opposed to concurrent sentences should be imposed. The Court noted that the source for the model of sentencing upon which our code was most closely based posits that it would be senseless to give a criminal free crimes. Id. at 639.

Instead, a sentencing court should consider the factual content of 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;

(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; and

(e) the convictions for which the sentences are to be imposed are numerous. [Id. at 643-44].*fn1

The five factors should be applied qualitatively rather than quantitatively. Thus, a consecutive sentence can be imposed even if a majority of the Yarbough factors support concurrent sentences. Carey, supra, 168 N.J. at 427-28. The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 471, 485 (1993); State v. Miller, 108 N.J. 112, 121 (1987).

We perceive no error in the imposition of consecutive terms. This was a long-term course of fraudulent activity, not "a single period of aberrant behavior." This was an effort to stage numerous accidents for pecuniary benefit. Moreover, the crimes involved multiple victims, including innocent passengers who were involved in the staged accidents and policyholders of various insurance companies, whose rates could very well rise due to the enterprise's filing of false healthcare claims. Finally, defendant was convicted of numerous crimes. Although the objectives of the crimes charged in counts two and thirteen had similar objectives, we conclude that the judge did not abuse his discretion in imposing consecutive sentences.

Summarizing, the sentences imposed on the third-degree convictions for failure to file a tax return and failure to pay taxes are vacated pursuant to Natale. The sentences imposed on counts two and thirteen are also vacated due to the improper finding of aggravating factor (5). The matter is remanded for re-sentencing. In all other respects, the judgment of conviction is affirmed. We do not retain jurisdiction.

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