April 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE A. VEGA, A/K/A KING JUNE, JOSE A. RAMIREZ-VEGA AND JOSE A. RAMIREZ, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN A. ROSARIO, A/K/A JOSE GOMEZ, JUAN ROSARIO AND KING BLACK ROSE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-2152.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012
Before Judges Carchman, Baxter and Nugent.
Tried jointly in a twenty-one day jury trial in September, October and November 2008, defendants Jose Vega and Juan Rosario were convicted of the slaying of Ralph Pinto and the attempted kidnapping of his friend Paul Ricciardi. The State's proofs established that both defendants were members of the gang known as the Latin Kings; and that in retribution for Pinto and Ricciardi robbing and beating defendant Vega after he sold Pinto and Ricciardi baking powder instead of cocaine, defendants ordered lower-ranking members of their gang to lure Pinto and Ricciardi to a location in Lodi, where Pinto was ultimately killed and Ricciardi was beaten.
On January 23, 2009, the judge sentenced defendant Vega as follows: for his conviction on the second-degree charge of reckless manslaughter for the slaying of Pinto, N.J.S.A. 2C:11-4(b)(1), to a ten-year term of imprisonment subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (count one, as a lesser included offense of first-degree murder); for the second-degree attempted kidnapping of Pinto, N.J.S.A. 2C:13-1(b) and 2C:5-1, to a concurrent ten-year NERA term (count four); for the second-degree attempted kidnapping of Ricciardi, N.J.S.A. 2C:13-1(b) and 2C:5-1, to a ten-year NERA term, consecutive to count one (count five); for the disorderly persons offense of simple assault on Ricciardi, N.J.S.A. 2C:12-1(a), to a concurrent six-month term of imprisonment (count seven, as a lesser included offense of second-degree aggravated assault); for second-degree aggravated assault, attempting to cause serious bodily injury to Ricciardi and Pinto, N.J.S.A. 2C:12-1(b)(1), to a ten-year NERA term, consecutive to counts one and five (count thirty-one); for third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), to a concurrent five-year term of imprisonment, subject to a two and one-half year period of parole ineligibility term (count thirty-three); for third-degree distribution of cocaine (CDS), N.J.S.A. 2C:35-5(a), to a concurrent five-year term of imprisonment, with a two and one-half year parole ineligibility term (count thirty-four); for second-degree distribution of cocaine, N.J.S.A. 2C:35-5(b), to a ten-year term of imprisonment, with a five-year parole ineligibility term, consecutive to counts one, five and thirty-one (count thirty-five); for fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a), to a concurrent eighteen-month term of imprisonment (count thirty-six); and for third-degree distribution of marijuana, N.J.S.A. 2C:35-5(a), to a concurrent five-year term of imprisonment (count thirty-seven). The judge merged defendant's convictions for attempted kidnapping, possession of cocaine, possession of marijuana and possession of a weapon for an unlawful purpose. Defendant Vega's aggregate sentence was a forty-year term of imprisonment, subject to a thirty and one-half year parole ineligibility term.
On the same day, the judge sentenced defendant Rosario, who had been convicted of the same crimes and offenses as defendant Vega on counts one, four, five, seven and thirteen. The judge imposed a ten-year NERA term on count one; a ten-year concurrent NERA term on count four; a consecutive ten-year NERA term on count five; and a six-month concurrent term of imprisonment on the charge of simple assault, for an aggregate sentence of twenty years, subject to a seventeen-year parole ineligibility term. The judge merged Rosario's conviction on count thirteen for conspiracy to commit kidnapping with the sentence on count four.
On appeal, defendant Vega raises the following claims:
I. IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S NOTICE OF MOTION FOR SEVERANCE AND TO PERMIT ADMISSION OF THE PENALBA EVIDENCE.
II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTIONS FOR MISTRIAL.
III. THE TRIAL COURT ERRONEOUSLY ALLOWED IMPROPER AND INADMISSIBLE EVIDENCE.
IV. REPEATED REFERENCES THROUGHOUT THE TRIAL TO THE ALMIGHTY LATIN KING AND QUEEN NATION AND THE TESTIMONY OF THE GANG EXPERT DEPRIVED DEFENDANT OF A FAIR TRIAL.
V. THE LIMITATION ON THE CROSS-EXAMINATION OF THE GANG EXPERT INFRINGED UPON DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND HIS RIGHT TO A FAIR TRIAL.
VI. THE EXTREME SECURITY MEASURES EMPLOYED AT DEFENDANT'S TRIAL VIOLATED HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.
VII. THE FAILURE OF THE COURT TO PROVIDE PROPER AND ACCURATE INSTRUCTIONS TO THE JURY DENIED THE DEFENDANT A FAIR TRIAL.
VIII. CERTAIN STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
IX. THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERROR.
X. THE COURT ERRED IN NOT MERGING CERTAIN OFFENSES AT SENTENCING.
XI. THE EXCESSIVE SENTENCE IMPOSED UPON MR. VEGA SHOULD BE MODIFIED AND REDUCED (Not Raised Below).
XII. THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL
(Not Raised Below).
On appeal, defendant Rosario raises the following claims:
I. EXTENSIVE AND GRAPHIC OTHER-CRIMES EVIDENCE, ADMITTED WITHOUT A PROPER LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, NECESSITATING THE REVERSAL OF HIS CONVICTIONS.
II. THE GANG EXPERT EVIDENCE ADMITTED IN THIS CASE WAS AN IMPROPER DIRECT OPINION ON THE ISSUE OF DEFENDANT'S GUILT IN AN AREA THAT WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR.
III. THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM CROSS-EXAMINING DETECTIVE CHRISTIANA ABOUT WHETHER "SNITCHES" ALWAYS TELL THE TRUTH WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
IV. THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE PROCEEDINGS.
V. THE EXTREME SECURITY MEASURES EMPLOYED AT DEFENDANT'S TRIAL VIOLATED HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.
VI. THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
VII. THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We consolidate the two appeals for purposes of disposition, and affirm the conviction and sentence of each defendant.
On February 17, 2005, Pinto and Ricciardi, who were small- time drug dealers in Passaic, accompanied by J.P.,*fn1 went to the home of defendant Vega to purchase marijuana and crack cocaine. Vega had been their supplier for several months. When they arrived at Vega's home, J.P. remained in Ricciardi's truck while Pinto and Ricciardi accompanied Vega upstairs. As Vega was weighing the drugs, Ricciardi and Pinto observed a "bunch of money and drugs" in Vega's safe. While returning to Ricciardi's truck after they purchased the marijuana and cocaine from Vega, Pinto suggested robbing Vega and stealing the contents of his safe. Initially, Ricciardi said no, but reconsidered when Pinto reminded him that a few weeks earlier Vega had sold him baking soda instead of cocaine, and had refused to reimburse him. Ricciardi, feeling "disrespected," reconsidered and agreed to go along with Pinto's suggestion of robbing Vega.
Pinto, Ricciardi and J.P. purchased a piece of steel pipe to use against Vega, and returned to Vega's home after arranging to purchase some additional cocaine. As he had the first time, J.P. remained in the truck, while Ricciardi and Pinto went inside. As Vega bent over the scale to weigh the cocaine, Pinto pulled out the pipe and hit Vega in the head. When Vega demanded to know why, Pinto responded, "you know why."
Ricciardi grabbed Vega's safe and its contents, while Pinto took Vega's gold and diamond necklace as the two left Vega's house. Outside, as Pinto and Ricciardi were about to enter Ricciardi's truck, Vega emerged from the house and fired three shots at the three while they fled.
Almost immediately, Ricciardi began receiving repeated cell phone calls from both defendants. He let most of the calls go to voicemail, but answered a few because he recognized the phone number. In one of the calls, Vega told Ricciardi that he "better bring my sh-t back. Just drop it on the porch and nothing will happen to you." In another call, however, Vega told him "Yo, you better bring my stuff back or you're going to get hurt." During the course of one of the phone calls, Vega referenced "East 24th," which Ricciardi understood as a reference to where Ricciardi lived, East 24th Street. In total, Ricciardi received approximately twenty to thirty threatening phone calls from Vega, and the same number from Rosario.
Shortly after being robbed and beaten by Pinto and Ricciardi, Vega contacted his cousin Joseph Marti, as well as Latin Kings gang members -- Ernesto Vargas, Juan Veras, Edward Scott, Jamel Rose and Oscar Giorgi*fn2 -- and instructed them to come to his home immediately. When they arrived, they saw Vega, bleeding from the back of his head, limping and visibly angry. Vega explained that he had been robbed and assaulted by Pinto and Ricciardi, who took his safe, his chain, money and drugs. The discussion turned to how to find and capture Pinto and Ricciardi.
Giorgi took Vega to the hospital. The others remained at the house, discussing with defendant Rosario, who had recently arrived, how they could find Pinto and Ricciardi. According to Vargas, he and the others "were supposed to snatch them up, bring them back to [Vega's] house," at which point someone would "[b]eat them up. Kick their but[t]s, break some legs." The assembled gang members "switched around" Rosario's .38 caliber revolver and Vega's automatic .45 firearm, which Vega had used to shoot at Pinto and Ricciardi after the robbery.
Miguel Medina, who had been a probationary member of the Latin Kings for approximately one month at the time, confirmed that Rosario was giving the orders, and described the plan to apprehend Pinto and Ricciardi as follows:
At that moment in particular there was no discussion as to what was going to happen as a result of the robbery. It was mainly trying to track these guys down, see if we could find them. Basically try to get the stuff back and see, you know, if anything [sic] we could get a contact to these guys because, you know, they basically had to pay for what was done.
Medina also heard Rosario on his cell phone telling either Pinto or Ricciardi to "'bring the sh-t back. I want the sh-t back. Bring the necklace back or else I'm going to fu-kin' kill you.'"
Vega, who by then had returned home from the hospital, told the assembled group that if they were able to find Pinto, they should bring the "mother fu-ker" back to him because he wanted to be the one to shoot him in the head. The gang members' efforts to find Pinto and Ricciardi on February 17, 2005 were unsuccessful, but the next day Marti arranged to meet Pinto and Ricciardi in Lodi where Pinto would sell Marti some marijuana. The plan involved Veras and Rose meeting Pinto and Ricciardi and getting into Ricciardi's pickup truck. Once in the truck, Veras would tell Pinto and Ricciardi that he did not have enough money, and would ask Ricciardi to drive him to the Cedar Wrights Gardens Complex, known as "the Village," so he could obtain more cash.
Meanwhile, Vega would drive Vargas and Marti to the scene while Monica Penalba, a friend of Veras's, whom Veras called to help them in their plan to apprehend Pinto and Ricciardi, would drive Scott and Giorgi in her vehicle. Once Ricciardi and Pinto arrived in Ricciardi's truck, Penalba would pull her car behind it to prevent an escape. At that point, Scott and Giorgi would attack Ricciardi, while Vargas and Marti would go after Pinto. Before they left the house, Vargas gave Veras one of the two guns and Vargas took a hammer.
Ricciardi drove, with Pinto in the passenger seat, to the pre-arranged location in Lodi where he pulled his truck into an alley. Veras and Rose were standing by the curb. As soon as Veras and Rose entered Ricciardi's truck, Veras instructed Ricciardi to drive to the Village because he, Veras, did not have enough money. Once the truck and its occupants reached the location where Vargas and Penalba were waiting, Veras touched the "alert" button on his phone, letting Vargas know that he and Rose were in position, at which point Penalba, as agreed, drove her vehicle into position, while Vega's brother Anthony positioned his vehicle behind Ricciardi's truck. Several gang members hit Pinto in the head several times with a hammer. Veras shot him five times in the side and back. Pinto did not survive that attack. Ricciardi, who had been beaten but not shot, was able to survive. Ricciardi provided the police with a statement describing his and Pinto's robbery of Vega as well as its aftermath. Neither Vega nor Rosario was present when Pinto was shot and Ricciardi was beaten.
An hour or so later, Penalba drove Vargas to Passaic, where Vargas and defendant Rosario discussed the role of each of the participants. Penalba explained what she saw and proudly described her role. Rosario instructed Vargas to assist Penalba in cleaning the blood from her car, while several other gang members who were present drove to Vega's home to report the night's events. When defendant Rosario explained that Pinto had been "taken care of," defendant Vega responded "fu-k him." Later that evening, after some discussion about Penalba's involvement in the plan, and the risk that Penalba might disclose to third parties what had occurred, Medina looked at Rosario and gestured "what's up?" Defendant Rosario did not answer, but made a gesture of a hand across the throat, which Medina interpreted to mean that someone was going to get hurt. Although Medina and another gang member, Nowin Tejera, declined to kill Penalba, Russell Aquino volunteered to do so.
As Penalba leaned into the rear seat of her car to clean the blood, Aquino and another gang member stabbed her more than thirty times. Despite being stabbed, Penalba was able to jump out of her car. Seeing this, another participant, Veanzeil Roberts, backed up and drove over Penalba several times. Roberts later told defendant and Veras, "yeah, we took care of her," and explained how he and Aquino had stabbed Penalba several times before driving her own car over her after she jumped out of it. When police officers responded to the scene, Penalba, who survived the brutal attack, reported that Aquino had stabbed her.
Eventually, detectives interviewed and arrested sixteen individuals involved in the Lodi shooting and the attack on Penalba, but were unable to find Rosario or Vega.
On February 19, 2005, at approximately 4:40 a.m., defendant Vega arrived at Lodi police headquarters where he was interviewed by Detective Russell Christiana of the Bergen County Prosecutor's Office. Detective Christiana knew that Vega had been robbed by Ricciardi and Pinto, and that Vega had chosen not to file a complaint. When the detective asked Vega, whose leg was in a brace, how he sustained that injury, Vega claimed to have tripped and fallen down the stairs. Defendant denied any knowledge of the Lodi shooting.
When Detective Christiana told Vega he did not believe him, and informed Vega that he, Christiana, had already spoken to defendant's brother Anthony, defendant sighed, and said, "okay, I'll tell you the truth." He admitted to being robbed by Pinto and Ricciardi, but denied being a drug dealer, denied firing a weapon at Pinto and Ricciardi when they fled, and denied that the shooting death of Pinto was in retaliation for the robbery.
A few days later, on February 24, 2005, defendant Rosario came to the Passaic police department and agreed to speak to detectives. After detectives advised him that he was under arrest for the murder of Pinto and the attempted murder of Penalba, Rosario initially claimed to know nothing about Pinto's death other than what he read in the newspaper. After further questioning, and after being told that other Latin Kings had implicated him in the crimes, Rosario, who admitted to being a lifelong Latin King, stated that everyone who snitched would get "touched" in jail. As for the other people involved in the crimes, Rosario vowed to go to trial where he would be able to observe every "snitch" who testified. Rosario promised that each one would get "a piece of metal in their ass," and he assured the detectives that he had people in every jail willing to do so. The police arrested both defendants.
The State sought to try Vega and Rosario jointly for their roles in the murder of Pinto and the attempted kidnapping and assault of both victims. The State also sought to try Vega for narcotics, weapons and assault charges in connection with the earlier robbery incident. Finally, the State sought to use Rosario's participation in the attempted murder of the non-gang accomplice Penalba, as evidence of Rosario's consciousness of guilt for the murder of Pinto. Although the State charged Rosario, and only Rosario, with the attempted murder of Penalba, the State announced its intention to sever the Penalba counts for a later trial.
Each defendant moved to sever his trial from the other. The judge denied the motion, but limited the use of the evidence relating to the attempted murder of Penalba. The judge reasoned that both defendants should be tried together because the conspiracy, murder, kidnapping and assault charges contained in counts one through fourteen arose from the same conspiracy or series of acts, and each defendant's actions were "inextricably linked" to the aborted kidnapping and robbery that resulted in Pinto's death. The judge also reasoned that although each defendant had provided a statement to police, each statement implicated only the declarant and not the other defendant.
Additionally, the judge held that the drug distribution charges contained in counts thirty through thirty-nine of the indictment, which involved only defendant Vega, should not be severed for a separate trial. The judge reasoned that Vega's sale of narcotics to Pinto and Ricciardi on February 18 enabled them to see Vega's large quantity of cash and narcotics, which led to the later robbery and to the ensuing retaliation by defendants. For that reason, the judge concluded that the robbery of Vega, and Vega shooting at Pinto and Ricciardi on February 17, were inextricably intertwined with the violent events on February 18, and should therefore not be severed.
Finally, the judge concluded that the evidence relating to counts eighteen through twenty-two, which involved the conspiracy to kill Penalba, was relevant to defendant Rosario's involvement in Pinto's murder, as Rosario's concern that Penalba might disclose to law enforcement the details of the attack on Pinto and Ricciardi, served as proof of Rosario's involvement in their kidnappings and in Pinto's murder.
After concluding that separate trials would not promote judicial economy, the judge acknowledged the possible prejudice to Vega from being tried with Rosario. The judge determined that issuing appropriate limiting instructions to the jury -- directing them to consider the Penalba evidence against Rosario, but not against Vega -- would eliminate any possible prejudice to defendant Vega.
In another pretrial ruling, the judge granted the State's motion to present expert testimony from Lieutenant Keith Bevacqui, an assistant bureau chief in the organized crime section of the New Jersey State Police, on the organization of street gangs in general, and the Latin Kings in particular. The judge concluded that jurors could not be expected to be familiar with gang structures and organizations, and that expert testimony on the Latin Kings' organization, and manner in which the gang functioned, would be helpful to the jury in its fact-finding responsibilities. The judge also concluded that the expert testimony to be provided by Bevacqui would not be unfairly prejudicial because evidence of defendants' involvement in the gang, and how the gang functioned, did not directly bear upon defendants' participation in the crimes charged.
Bevacqui's testimony began with his comment that his opinions were based upon his review of fifty documents, including photographs, club letters, the Latin Kings' Manifesto, as well as his own experience in other Latin King cases. He explained to the jury that the Latin Kings organization was established in Chicago in 1940 and had subsequently spread to more than thirty states including, in 1994, New Jersey. According to Bevacqui, the Latin Kings were organized around an identical hierarchical structure in each state, involving five numbered "crowns."
According to Bevacqui, defendant Vega held the highest gang position in the State of New Jersey, and defendant Rosario was also in the upper echelons of the New Jersey Latin Kings organization. Bevacqui explained that in gangs such as the Latin Kings, "violent acts are worn like a badge of honor," and retaliations serve as an important tool for acts of disrespect committed against gang members. Based upon his experience and training, Bevacqui opined that to insulate themselves from the risks of being charged with criminal activity, the leaders of a gang's chain of command would typically not be present during the commission of a kidnapping or murder. Instead, such tasks were committed by lower-ranking gang members, who were expected to follow orders. Bevacqui also explained that lower-ranking gang members, who take part in the murder and kidnapping of targeted victims, are expected to contact their superiors in the chain of command and advise the superiors of what transpired, so that the higher-ranking gang member would "know the order was fulfilled and carried out."
Bevacqui opined that Rosario's statement -- that Rosario had members of the Latin Kings in various prison facilities around the State who were prepared to retaliate against "snitches" -- was consistent with gang activity in organizations such as the Latin Kings. Ultimately, he opined that all of the activity alleged in the indictment was "clearly gang related" and consistent with New Jersey's Latin Kings.
We begin our analysis by addressing points that are raised by both
defendants. In Rosario's Point I, and Vega's Point III, defendants
argue that the admission of evidence regarding the
attempted murder of Penalba was unfairly prejudicial and that the
limiting instruction the judge issued was inadequate.*fn3
In particular, defendant Vega asserts that because he was not
charged in the attempted murder of Penalba, the admission of such
evidence against co-defendant Rosario denied Vega a fair trial,
especially because, according to Vega, the limiting instruction was
vague and insufficient. Rosario, for his part, argues that combining
the charges dealing with the attempted murder of Penalba, with the
charges involving the murder of Pinto, was unfairly prejudicial; and
that the prejudice was exacerbated by the judge permitting the State
to introduce graphic evidence of the injuries Penalba sustained.
Before granting the State's motion to introduce against defendant Rosario the evidence pertaining to the attempted murder of Penalba, Judge Roma conducted a hearing outside the presence of the jury during which he applied the standards articulated in N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992). Although N.J.R.E. 404(b) prohibits the State from introducing evidence of other crimes to prove the disposition of a defendant to engage in unlawful behavior, the Rule expressly provides that other crimes evidence may be admitted for other purposes "when such matters are relevant to a material issue in dispute." Evidence is "relevant" when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.
When ruling upon the State's motion to admit other crimes evidence pursuant to N.J.R.E. 404(b), the judge must ensure that the other crimes evidence is material to a matter in dispute, is similar in kind and reasonably close in time to the offense charged, is clear and convincing, and possesses probative value that is not outweighed by its potential for prejudice. Cofield, supra, 127 N.J. at 338. We review such decisions for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011).
Post-crime conduct is admissible when offered to show a defendant's mental state when the post-crime conduct demonstrates consciousness of guilt. State v. Williams, 190 N.J. 114, 125 (2007). So viewed, the evidence concerning the attempted murder of Penalba at the behest of defendant Rosario was properly admitted for the limited purpose of showing his state of mind concerning his role in the murder of Pinto and the attempted kidnappings of Pinto and Ricciardi. We agree with Judge Roma's conclusion that from the evidence presented, the jury could have concluded that Rosario was concerned that Penalba was loose-lipped and that she might reveal to others, or to the police, the details of Rosario's involvement in the crimes against Pinto and Ricciardi. We also concur in the judge's conclusion that the evidence involving the attack on Penalba illustrated the lengths to which Rosario was prepared to go to conceal his role in the attempted kidnappings and murder, and that he had gang members at his disposal to orchestrate and accomplish the attempted murder of Penalba. For that reason, the evidence of Rosario's involvement in the attempted murder of Penalba satisfied the consciousness of guilt standard established in Williams.
Moreover, the evidence satisfied the four-prong Cofield test. First, the evidence involving Penalba was close in time and place to the evidence surrounding the crimes against Pinto and Ricciardi two days earlier. The Penalba evidence was also similar in kind to the violent attacks on Pinto and Ricciardi, and presented the same evidence of the use of lower-ranking gang members to carry out violent activities. Moreover, in light of the numerous witnesses who testified about the attempted murder of Penalba, the evidence was clear and convincing. For these reasons, the evidence involving the attempted murder of Penalba clearly satisfied the first three prongs of the Cofield test.
Rosario does not argue otherwise. Instead, he asserts that because the fourth Cofield prong was not satisfied, and because the judge wrongly permitted the State to introduce lurid and graphic details of the attack on Penalba, the probative value of the other crimes evidence involving her was vastly outweighed by its capacity for prejudice. In particular, defendant Rosario asserts that the judge should not have permitted the State to introduce details of the crime against Penalba, such as the graphic testimony of Medina and Aquino, Penalba's medical records, information about her bloody car and the number of times she was stabbed. Rosario asserts that the State could have established Rosario's motive to cover up Pinto's murder, by confining its proofs to testimony establishing that "[Rosario] had indicated to several gang members that Penalba should be killed."
As the State correctly argues, there was no one witness or single piece of evidence to establish Rosario's mindset or intent concerning the attack on Penalba. Instead, the various details that were introduced through the testimony of Medina, Aquino, Roberts and Tejera, provided various details which, in combination, comprehensively established Rosario's knowledge and approval of the attempt to kill Penalba, both before and after the plot was carried out. Even the graphic details of the attack on Penalba were elicited in conjunction with testimony describing Rosario's reaction when learning of how the gang engaged in various efforts to murder Penalba and eliminate her as a witness.
For these reasons, the eliciting of additional detail concerning the attempted murder of Penalba, detail which exceeded the bare minimum Rosario would have preferred, was extremely probative of Rosario's consciousness of guilt and his ability to control the activities of lower-ranking gang members, all of which had a strong bearing on whether Rosaraio was guilty of the murder of Pinto and the attempted kidnapping of Ricciardi. The probative value of the evidence was not outweighed by its capacity for prejudice, thereby satisfying the fourth Cofield prong.
We now address Rosario's challenge to the sufficiency of the limiting instruction the judge provided. To eradicate unfair prejudice to defendant Rosario, the judge on seven separate occasions instructed the jury that the evidence of Rosario's involvement in the attempted murder of Penalba could not be considered as evidence of Rosario's predisposition to commit crimes such as the murder of Pinto and the kidnapping of Ricciardi, but should instead be considered only as possible proof of Rosario's consciousness of guilt. In his final instruction, the judge explained that the jury's consideration of such evidence was limited to "consciousness of guilt with regard to Juan Rosario." The judge stated:
The State has introduced evidence that the defendant, Juan Rosario, ordered the murder of Monica Penalba.
Normally such evidence is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed uncharged crimes, wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses.
However, our rules do permit evidence of uncharged crimes, wrongs or acts when the evidence is used for some other purpose.
The evidence, if you choose to believe it, has been introduced only for a specific, narrow purpose. In this case it is offered for the consciousness of guilt with regard to Juan Rosario and cannot be considered for Jose Vega.
Whether this evidence does in fact support the specific purpose for which the State offers it is for you to decide.
You may decide that the evidence does not support the State's purpose and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does support the purpose for which the State offers and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed uncharged crimes, wrongs or acts, he must be guilty of the present crime. I have admitted the evidence only to help you decide the specific question of consciousness of guilt.
You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed uncharged crimes, wrongs or acts.
Additionally, on seven separate occasions during the testimony phase of the trial, the judge reminded the jury that the evidence involving the attempted murder of Penalba was to be used only against Rosario, and then, only as evidence as to his consciousness of guilt.
Rosario does not complain that the limiting instruction was given an insufficient number of times. Instead, he asserts that the judge did not explain what "consciousness of guilt" meant. While we agree with Rosario's contention that the judge did not explain the term, we conclude that the concept is clear and straightforward and was not susceptible of being misunderstood by the jury. The testimony from numerous witnesses made it clear that Rosario wanted Penalba eliminated because she was a direct witness to the murder of Pinto and the kidnapping of Pinto and Ricciardi. Although the record does not explain why the judge did not make this connection more explicit, we recognize that judges will sometimes refrain from doing so in an effort to avoid bolstering the State's case by making such connections explicit.
Ultimately, we conclude that because the concept of "consciousness of guilt" was clear and straightforward, especially in the context of this particular trial, defendant Rosario suffered no prejudice from the judge's failure to explain in detail how the evidence involving the attempted murder of Penalba was linked to the evidence against Rosario contained in the other counts of the indictment. We reject Rosario's claim that the Penalba evidence was improperly admitted and that the limiting instruction the judge provided was inadequate.
We now address Vega's contention that he suffered unfair and undue prejudice from the admission of such graphic and inflammatory evidence concerning his co-defendant's effort to arrange the murder of Penalba. The record demonstrates that the judge frequently reminded the jury that evidence of the Penalba incident could not be used for any purpose against Vega. For example, when Vargas began testifying about Rosario making the hand gesture across his throat, the judge instructed the jury that it "should understand that Mr. Jose Vega is not charged with this incident." The judge issued substantially similar instructions during the testimony of Giorgi; Veras; Aquino; Medina; the detective who examined Penalba's car for evidence, Gil Breit; and prior to the testimony of the officer who found Penalba after she was stabbed, Sergeant Michael Rodriguez.
Moreover, during his final instructions to the jury, the judge reminded the panel that the limiting instructions he provided during the trial were binding upon them, and instructed them that they were prohibited from using the testimony concerning the stabbing of Penalba against defendant Vega.
Additionally, reminding the jurors of their obligation to evaluate the evidence against each defendant separately, the judge instructed the jury as follows:
And you'll probably hear references as I go through this and then I'll give you an explanation but we're really having two separate trials here. There are two defendants. And your job is to take the evidence and to weigh that evidence as it applies to each defendant using that evidence specifically to determine whether defendants are guilty or not guilty. Not collectively but individually. So it's your job even if you hear "defendant" it's "defendants" but keep in mind that they are separate matters and each one is entitled to have the evidence reviewed by you to determine their guilt or innocence.
The jury is presumed to have followed the judge's instructions. State v. Loftin, 146 N.J. 295, 390 (1996).
In light of the judge's repeated admonition to the jury that the evidence pertaining to the attack on Penalba was to be considered only against defendant Rosario -- and not against defendant Vega -- we are satisfied that the unequivocal and forceful instructions the judge provided on this subject negated the possibility that Vega suffered any prejudice from the admission of this N.J.R.E. 404(b) evidence against co-defendant Rosario. We reject the claim advanced by Vega in Point III and by Rosario in Point I that the evidence concerning the attack on Penalba was unfairly prejudicial.
We next address defendant Vega's Points IV and V, and defendant Rosario's Point II, in which they argue that the judge erred by permitting the State to offer Bevacqui's expert testimony about the Latin Kings; by limiting the cross-examination of Bevacqui; and by permitting numerous witnesses to testify in graphic detail throughout the trial about the gang.
If specialized knowledge will assist the jury "to understand the evidence or to determine a fact in issue," a witness who possesses special knowledge, experience or training is permitted to offer expert testimony on that subject. N.J.R.E. 702. The expert is permitted to offer an opinion even if that opinion embraces an ultimate issue to be decided by the jury. N.J.R.E. 704. We review a judge's decision admitting or excluding expert testimony for an abuse of discretion. State v. Torres, 183 N.J. 554, 567 (2005).
Indeed, in Torres, the Court rejected the very argument defendants advance here, holding that because jurors typically do not understand the operation or structure of street gangs, expert testimony is "relevant to show the connection between [the] defendant's actions as the leader of the gang and the actions of the other gang members who actually committed the murder." Id. at 573. Here, the State presented Bevacqui's opinion for precisely the same reason the Court approved in Torres. Contrary to the claims Vega and Rosario advance on appeal, the jury could not give full and fair consideration to the charges pending against defendants unless they were able to understand the extent to which the Latin Kings operated by a special command structure or organization, and the extent to which members were obliged to accept such commands as mandatory. The life experience of the average juror would not provide a basis for understanding such a subject. Consequently, we conclude the judge did not abuse his discretion when he permitted the State to present Bevacqui's expert testimony.
Moreover, the judge instructed the jurors on several occasions that they were the judges of the facts and were not bound by the opinion Bevacqui offered. As an additional precaution, when instructing the jury on the conspiracy charges, the judge told the jury that "[m]ere association, acquaintance or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy." We reject the argument advanced by both defendants that the judge abused his discretion when he permitted the State to offer Bevacqui's testimony.
Defendants present an additional challenge to Bevacqui's testimony, asserting that his opinion impermissibly invaded the province of the jury. Defendants object specifically to his testimony that there was no necessity for defendants to be present at the kidnapping and murder scene if they had already issued specific orders to lower-ranking gang members. While it is true that an expert may not "express a direct opinion that [a] defendant is guilty of the crime charged," an expert may "characterize defendant's conduct based on the facts in evidence in light of his specialized knowledge." State v. Odom, 116 N.J. 65, 77, 79 (1989). When an expert does so, his or opinion is not improper "even [though] it embraces ultimate issues that the jury must decide." Id. at 79.
We recognize Bevacqui opined that Rosario need not have been present at the crime scene because "[h]e gave the order and the order is to be carried out by the [gang member holding the title of] the Third Crown." Rosario argues that the jury might have interpreted that opinion to be Bevacqui's personal view of his guilt, in violation of Odom, id. at 77. However, the prosecutor prefaced her question about the significance of defendant Rosario not being present by asking Bevacqui whether such a fact pattern was consistent with Bevacqui's experience as a gang investigator, to which he answered in the affirmative. Moreover, Bevacqui did not testify that either defendant had ordered the kidnappings or the slaying of Pinto, because the prosecutor introduced her question by clearly stating that she was asking Bevacqui to answer "hypothetically." We are satisfied that the way the prosecutor framed her questions to Bevacqui concerning Rosario, and the answers Bevacqui provided to those questions, stayed well within the boundaries established by Odom.
We reach the same conclusion about Bevacqui's testimony concerning defendant Vega. The prosecutor asked Bevacqui to "assum[e] hypothetically" that Vega was a high-ranking member of the Latin Kings when giving his opinion as to whether Vega needed to be present when Pinto was shot. The prosecutor also referenced Bevacqui's "review of the documents [he had] already testified [about] . . . regarding the hierarchy, the discipline, [and] things of that nature." In light of the context in which Bevacqui provided his expert opinion about defendant Vega, it is clear that Bevacqui was characterizing defendant Vega's conduct "based on the facts in evidence in light of his specialized knowledge," id. at 79, and that this testimony did not invade the province of the jury, or impermissibly express an opinion on defendant Vega's guilt.
Our conclusion on that subject is strengthened by the prosecutor's remarks in summation, when she told the jury that Bevacqui's testimony was not offered to "bolster" the State's case or to "answer the ultimate issues," but instead to provide the jury with "some insight," and to "shed some light on the inner workings of a criminal gang." The prosecutor asserted in her summation that defendants were not charged with the crimes in question because they were "part of a gang" or because they were Latin Kings.
Defendant Vega's remaining challenges to Bevacqui's expert opinion lack sufficient merit to warrant extended discussion.
R. 2:11-3(e)(2). In particular, we are satisfied that Bevacqui's reliance, in part, on the hearsay statements of gang members in forming his opinion did not violate Vega's Sixth Amendment right of confrontation, as Bevacqui testified as an expert. Experts are permitted by N.J.R.E. 703 to rely, in forming an opinion, on material that is not independently admissible. As to Vega's argument that the judge erred in barring him from cross-examining Bevacqui about a statement Tejera provided to police, and which was one of the statements from a non-testifying witness that Bevacqui said he had reviewed, the actual statement Tejera provided to police is not part of the record on appeal. For that reason, we have no way to determine whether the comment defense counsel attributed to Tejera -- that Vega "told them not to go ahead with this incident" -- was even made. Nor can we determine the context in which Tejera's purported remark appears. Defendant Vega has not demonstrated that this isolated restriction on his cross-examination of Bevacqui was error, much less harmful error.
Moreover, not only was the question Vega posed to Bevacqui regarding Tejera's statement merely one small portion of a much longer statement, but Tejera's statement itself was among more than fifty items that Bevacqui had reviewed in forming his opinion. The fact that Bevacqui reviewed Tejera's statement did not establish that he relied upon it in forming his opinion, and Vega has not pointed to anything that would lead us to conclude otherwise. For all of these reasons, we reject defendant Vega's challenge to the judge's conclusion that the cross-examination of Bevacqui concerning Tejera's statement would impermissibly have required the jury to engage in speculation.
We reject all of the arguments defendants advance concerning Bevacqui's testimony.
In Vega's Point VI, and in Rosario's Point V, defendants challenge the security measures the judge established in the courtroom, asserting that such measures created unfair prejudice. In particular, defendants contend that the judge's order requiring Sheriff's officers to search all courtroom spectators, and to employ log-in and identification requirements, denied them an open and public trial, and created undue prejudice.
At a hearing conducted shortly before trial began, the judge, in consultation with the Sheriff's Department, devised a security plan in which five State Department of Corrections*fn4
(DOC) officers would be present, two in the well and three in the audience, none in uniform. The total number of officers in the courtroom was eleven, six of whom were in uniform, and five of whom were in plain clothes. One of the voir dire questions the judge asked each potential juror was whether any of the security measures would affect the juror's ability to be fair and impartial. Although the record on appeal does not include the transcripts from the voir dire process, in the absence of any claim to the contrary, we presume that the judge excused any juror who answered that question in the affirmative.
Moreover, as Judge Roma correctly observed, it is not unusual for uniformed officers to be present in a courtroom where, as here, the charges facing a defendant are serious. While we agree with the general proposition that a courtroom practice is unfairly prejudicial when that practice creates an unacceptable risk that the jury will return a guilty verdict based upon factors other than the evidence presented, see State v. Russell, 384 N.J. Super. 586, 593 (App. Div. 2006), we are satisfied that the security measures the judge devised and implemented did not deny defendants a fair trial, especially because the use of security personnel in the courtroom is not inherently objectionable or prejudicial. State v. Zhu, 165 N.J. 544, 553 (2000).
That conclusion is strengthened by the judge's final instruction to the jurors in which he reminded them of the voir dire question about security in the courtroom, and repeated his earlier admonition that the enhanced security measures "have nothing to do with the guilt or innocence of the defendants or the need for protection of anyone from the defendants." The judge emphasized that in its deliberations, the jury was to consider only the evidence heard in the courtroom, and nothing else. For all of these reasons, we reject defendants' contention that the number of uniformed officers in the courtroom denied them a fair trial by creating an inference of guilt.
We likewise reject defendants' contention that the sign-in sheet and log maintained by the Sheriff's Department outside the courtroom was unfairly prejudicial. We agree with the judge's conclusion that because of the witness sequestration order, the Sheriff's Department correctly asked all persons entering the courtroom to provide their names and identification. In the absence of any evidence that any person was deterred from entering the courtroom, we reject defendants' contention that the sign-in procedure violated their right to an open public trial.*fn5
Finally, defendants point to the fact that two of the plain-clothes DOC officers who were assigned to the courtroom were later positioned in the courthouse parking lot with machine guns in their hands. Defendants assert that jurors who observed the two officers would be able to "make the connection" to the trial. We agree with Judge Roma's conclusion that because there were several criminal trials occurring at the courthouse at the time, and because security was an ongoing issue throughout the building regardless of this particular trial, the presence of the armed DOC officers in the parking lot would not have prejudiced defendants' right to a fair trial in light of the judge's emphatic instructions to the jury on that subject.*fn6
We reject the claims advanced by defendant Vega in Point VI and defendant Rosario in his Point VI.
Having addressed the claims advanced jointly by both defendants, we turn now to the claims advanced solely by defendant Vega. In Point I, Vega asserts that the judge erred by refusing to sever his trial from that of co-defendant Rosario, which resulted in the introduction of evidence concerning the attempted murder of Penalba by defendant Rosario even though defendant Vega was not charged with that crime.
"Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." R. 3:7-7. That Rule further specifies that "[r]elief from prejudicial joinder shall be afforded as provided by R. 3:15-2." Subsection (a) of Rule 3:15-2 provides that a court should grant a severance motion if one defendant has made a statement implicating the other and that portion of the statement cannot be effectively redacted. Subsection (a) is not implicated here; however, subsection (b) is. It specifies that a defendant may move for severance whenever he is prejudiced by "joinder of offenses or of defendants[.]" R. 3:15-2(b).
Our courts have established a "general preference to try co-defendants jointly[.]" State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Joint trials are preferred when "much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990). Common circumstances, temporal proximity and evidence of a common "scheme" all weigh in favor of joinder. State v. Morton, 155 N.J. 383, 451 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Other considerations include the need for judicial efficiency, the accommodation of witnesses and victims, the desire to ensure consistent verdicts, and the need "to facilitate a more accurate assessment of relative culpability." State v. Brown, 170 N.J. 138, 160 (2001).
Nevertheless, the desire for economy cannot deprive a defendant of a fair trial, and the court must balance the potential prejudice from joinder of defendants against the interest in judicial economy. We review the denial of a severance motion for an abuse of discretion. Ibid.
Vega asserts that while evidence of the attempted murder of Penalba may have been probative of Rosario's involvement in Pinto's murder, it was unfairly prejudicial to Vega because it linked him to the crimes merely through association with Rosario as members of the same gang. Vega asserts that such "guilt by association" is particularly dangerous in gang-related prosecutions or in charges of conspiracy, both of which factors were present here.
We disagree. The events of February 17 and 18, 2005 leading to Pinto's murder, and each defendant's involvement in those events, were inextricably intertwined. For example, the State's proofs established that both Vega and Rosario began orchestrating the plan to punish Pinto and Ricciardi immediately after the two robbed Vega. The State's proofs also demonstrated that both Vega and Rosario began organizing gang members for that purpose. Indeed, some of the same witnesses testified to each defendant's activities.
Moreover, the period of time between the robbery of Vega and the murder of Pinto was only one day, and multiple witnesses described the roles that both defendants played during that time frame in directing and carrying out the common scheme to accomplish the return of Vega's property and punish the perpetrators. Nothing in the evidence suggested that defendants' roles were antagonistic, or that the evidence against them was mutually exclusive. Rather, all the witnesses consistently testified that both defendants played key roles in formulating and implementing the plot to retaliate. Under such circumstances, the denial of defendant Vega's severance motion was correct, ibid., and certainly did not represent an abuse of discretion.
Moreover, as we have already noted, the judge repeatedly instructed the jury, both during the course of the testimony, and again during his final instructions, that the evidence concerning the attempted murder of Penalba was to be considered "as to the defendant Juan Rosario only." The judge also instructed the jury in his final charge that although he had sometimes used the term "defendants," the evidence against each was to be determined separately. Because the judge repeatedly issued straightforward and forceful instructions to the jury reminding them that the evidence of the attempted murder of Penalba should play no role in its determination of the charges against Vega, we reject the claim Vega advances in Point I that the judge erred by denying his motion for severance of his trial from that of his co-defendant Rosario.
In Point II, defendant Vega asserts that the judge erred by denying his motion for a mistrial when co-defendant Rosario repeatedly threatened the State's witnesses in open court. The first such outburst occurred while Vargas was testifying on behalf of the State that defendant Rosario was "giving out orders" while Vega was at the hospital. Hearing Vargas's testimony, Rosario said aloud "I'm going to kill you." He added, "I ain't worried about it. . . . You are a dead man walking."
Outside the presence of the jury, Vega moved for a mistrial, asserting that Rosario's outburst would interfere with his, Vega's, right to a fair trial. The judge denied the motion after warning Rosario that any further outbursts would result in his removal from the courtroom for the balance of the trial. Although the judge denied Vega's mistrial motion, he agreed to issue a cautionary instruction to the jury. In his instruction, the judge stated:
Each trial is different. Sometimes there are statements made, outbursts, different things that occur. I need to instruct you that with respect to statements that are made there are two defendants on trial and you are to consider the guilt or innocence of each one separately. Certain things might occur from time to time. I guess what you have to to [sic], you just have to keep it all straight in your mind. You were put under oath to be fair and impartial, to listen to all of the evidence, to consider each of the charges separately as it applies to each of the defendants and to render a fair and just verdict.
There are two defendants and each has a right to be tried and the evidence weighed by you specifically as to each defendant. All right.
One defendant may say something. That in and of itself shouldn't prejudice you against either one of the defendants.
However a statement is made. You've heard it. All I can tell you is that you took an oath to be fair and impartial and you have to be fair and impartial to both of these defendants. Understood? All right. Let's continue.
After Vargas presented additional testimony, the prosecutor urged the judge to voir dire the jurors individually based on Rosario's earlier outburst. The judge agreed to do so, and provided the jury with the following instruction:
Ladies and gentlemen of the jury, this is actually in addition to some comments that I made to you earlier.
Today there was an incident in the courtroom. . . . [The] incident . . . involved defendant Juan Rosario directing certain comments to the witness, Ernesto Vargas. Because of this incident it is necessary to question you individually to determine what impact, if any, the incident had on you.
Such an inquiry is necessary because the defendants are entitled to fair and impartial jurors who will keep an open mind about the case until all the evidence is presented, the attorneys have made their summations and the Court has instructed you on the law.
To be considered a fair and impartial juror a juror must accept certain principles including that a defendant is presumed innocent, that the burden of proof is on the State to prove a defendant's guilt beyond a reasonable doubt, that a verdict must be based upon the evidence at trial, and that a decision must be reached without passion, prejudice or bias.
With regard to the verdict, a defendant's conduct in the courtroom can have no bearing on a juror's evaluation of the evidence, nor could it be considered as evidence of predisposition.
The court then began to address the jurors individually, outside the presence of the other jurors, starting with juror number one:
I'm going to read this to you and then I'll ask for your response. Number one. In my comments to the entire panel, I discussed with you the need to continue to insure that the defendants have fair and impartial jurors serving on this case. Can you continue to be a fair and impartial juror in this case . . . keeping an open mind about the evidence you may hear in this courtroom until the matter is concluded?
Following each juror's affirmative answer, the judge asked five additional questions, outside the presence of the other jurors: would the juror be able to follow the court's instructions to refrain from considering Rosario's conduct in arriving at a verdict; would the juror continue to afford each defendant the presumption of innocence; did the juror have any biases or prejudices against either defendant as a result of what had occurred; as a result of what took place, did the juror have any other concerns that the court had not mentioned concerning continued service on the jury; and was there anything else that the juror sought to bring to the judge's attention about being fair and impartial. In response to those questions, each juror assured the judge that he or she would be able to remain fair and impartial.
A few days later, while Officer Breit was testifying concerning his examination of Penalba's car, the judge issued the same limiting instruction as he had issued previously, directing the jury to consider the Penalba evidence only against defendant Rosario. Upon hearing that instruction, Rosario made the following vituperative statements in open court:
In other words target me. That's it.
That's what he's trying to say, target me.
That's why he got [sic] me sitting here because I am a potential target. This is a racist county and that's what I want you to know. They ain't telling you all the truth.
I'm going to tell you all the truth when I get on the stand. Bunch of racist motherfuckers. That's why they got me sitting right here so you can target me as the number one victim. He ain't guilty.
Defendant Rosario continued his outburst, vowing to "get" any witness who testified against him, calling everyone connected with the trial a "[b]unch of racist as-holes," and stating "Mother fu-kin' right I'm a Latin King. I don't deny sh-t." At that point the judge directed court staff to escort the jury out of the courtroom. When the jury returned, the judge reminded the jurors of their obligation to remain fair and impartial, and dismissed the jury until the next court date.
The judge denied Vega's renewed motion for a mistrial, reasoning that he would again question the jurors individually and would provide the same instruction he had issued a few days earlier. In response to that voir dire, the judge excused juror number one, who told the judge that Rosario's declaration of guilt would interfere with his ability to remain impartial.
After excusing that single juror,*fn7 the judge denied Vega's second mistrial motion. Significantly, because the judge wisely took the precaution of questioning each juror outside the presence of the others, no other juror's impartiality was compromised by this juror's responses. The judge also took steps to ensure that after juror number one was excused, he had no further contact with the remaining jurors.
Whether the presence of inadmissible evidence can be cured by a cautionary instruction or instead requires "the more severe response of a mistrial . . . is [a question] that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). "Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable as of right." Id. at 647 (citation omitted). For that reason, only where necessary to avoid a manifest injustice should a judge grant a mistrial motion. State v. DiRienzo, 53 N.J. 360, 383 (1969).
Vega asserts that the State's case was premised on persuading the jury that defendants, as high-ranking officers of the Latin Kings gang, ruled by fear of retaliation if lower-ranking members violated the gang's code. According to Vega, Rosario's threats to kill witnesses, and his verbal attack on the judge and prosecutor as being racist, had the capacity to unfairly persuade the jury that the Latin Kings gang functioned in the very manner Bevacqui described. Vega argues that Rosario's outbursts were so prejudicial that no cautionary instruction could possibly have cured the harm.
We disagree. Inadmissible evidence inevitably finds its way into some criminal trials. Nonetheless, not every such instance requires reversal. State v. Vallejo, 198 N.J. 122, 132 (2009). In instances where, as here, the objectionable material results from a co-defendant's misconduct, the defendant "seeking severance or mistrial must 'demonstrate the existence of some special prejudice' that the court could not remedy through other means." United States v. DeCologero, 530 F.3d 36, 54 (1st Cir.) (quoting United States v. Pierro, 32 F.3d 611, 616 (1st Cir. 1994), cert. denied, 513 U.S. 1119, 115 S. Ct. 919, 130 L. Ed. 2d 799 (1995)), cert. denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376, (2008). Otherwise, "co-defendants could provoke mistrials at will." Ibid. (citation and internal quotation marks omitted).
In this case, Rosario's outbursts, though vituperative, did not expressly mention Vega, attribute to him any criminal activity, or portray him in a light that was not already suggested by the evidence itself. By contrast, one of Rosario's outbursts actually served to bolster Vega's innocence, when Rosario asserted that "they" were "targeting" Rosario, insinuating that Rosario was guilty and that Vega was not. Indeed, in her summation, the prosecutor observed that when Rosario said "I'm guilty, he's innocent," Rosario had been pointing to Vega.
Regardless of the tenor of Rosario's comments, in each instance, the court acted quickly and decisively by sequestering the jury and issuing timely, clear and forceful instructions that Rosario's remarks were not to be considered as prejudicing either defendant, and reminding the jury that both defendants were entitled to "fair and impartial jurors who will keep an open mind about the case." See Vallejo, supra, 198 N.J. at 134 (observing that an instruction in such circumstances "must be firm, clear, and accomplished without delay"). But, the judge did more than issue curative instructions. On two occasions, he questioned the jurors individually about any prejudicial effect from Rosario's comments. The judge's denial of defendant Vega's mistrial motions was well within his discretion. We commend the judge for his painstaking effort to discover, and eliminate, any prejudice that resulted from Rosario's conduct.
In Vega's Point VII, he asserts that the judge erred by refusing to charge self-defense in connection with the State's claim that Vega shot at Pinto and Ricciardi as they fled his house on February 17, 2005. Vega further contends that the judge issued a faulty jury charge on the conspiracy counts.
Vega urged the judge to charge self-defense, arguing that Pinto and Ricciardi robbed him and beat him in his own house, and that he had fired at them in self-defense and to defend his children, who were present. The State objected, as Vega had not provided the State any prior notice of his intent to rely on self-defense, see R. 3:12-1, and the facts did not justify such an instruction in any event.
The judge agreed with the State, finding that providing the State with notice of such a defense only after the testimony was completed was prejudicial to the State and that the proofs did not justify the charge. Later, in denying Vega's post-trial motion on this same claim, the court reasoned that "it's difficult to argue self-defense when you're running out of the house with a pistol shooting and the testimony is such that the other parties are trying to get into a car or to get away."
Self-defense, or the use of force to protect the actor, or other persons, requires, among other things, a reasonable belief on the part of the actor that such force is immediately necessary for protection of himself or others. N.J.S.A. 2C:3-4, -5. A defendant is required to provide notice to the State of his intention to rely on self-defense before the status conference. N.J.S.A. 2C:3-1; R. 3:12-1.
Viewed in light of the requirements of the self-defense statute, Vega's arguments fail. The undisputed evidence established that Vega fired at Ricciardi and Pinto as they fled his house. Under such circumstances, the defense of self-defense is unavailable, as Vega's use of force was not "immediately necessary" to protect himself. See N.J.S.A. 2C:3-4. We have been presented with no meritorious basis upon which to disturb the judge's refusal to instruct the jury on self-defense.
As we have noted, in Point VII, defendant Vega also asserts that the judge's instruction on co-conspirator liability was faulty, and constituted reversible error. While we have no quarrel with Vega's assertion that proper jury instructions are essential to a fair trial, State v. Ramseur, 106 N.J. 123, 280 (1987), we note that in his challenge to the judge's conspiracy instruction, Vega does not point to any particular language he says was objectionable. Instead, he asserts that the judge was obliged to utilize the model jury charges on conspiracy and accomplice liability without making any modifications.
In particular, he asserts that the language proposed by the State, which generally tracked the Court's decision in State v. Bridges, 133 N.J. 447, 466-67 (1993), was incorrect. We do not agree.
In modifying the jury instructions on conspiracy and accomplice liability, the judge correctly informed the jury, in keeping with Bridges, that a conspirator's liability could extend to consequences of events if those events were foreseeable, regardless of whether the conspirator had the specific intent for such consequences when the conspiracy was formed. Ibid. At trial, the prosecutor argued, and the judge agreed, that the complexity of the case required the molding of the jury charge to the legal theories the Court approved in Bridges, especially because there were fourteen counts involving both accomplice and co-conspirator liability. The judge observed that the language added from Bridges "not only helps the jury understand it, but it helps the defendants as well so the jury is clear on what they can and cannot use those two theories [for]."
The judge's final instructions to the jury began with his observation that the State alleged that each defendant was responsible for the other defendant's conduct under two theories: accomplice liability and co-conspirator liability. The judge instructed the jury on accomplice liability, about which Vega does not object. Next, the judge charged co-conspirator liability with respect to the murder, attempted kidnapping, robbery and aggravated assault counts. The judge explained that the State alleged defendants were "legally accountable" for the crimes committed by Veras, Vargas, Marti, Scott, Giorgi, Rose, Anthony Vega and Penalba because those events "were reasonably foreseeable as a necessary or natural consequence of this conspiracy," and that the crimes of murder and aggravated assault in counts one and seven "were not too remote or far removed from the objectives of the original conspiracy to commit armed robbery and kidnapping." Advising the jury that he would instruct them on the substantive crimes momentarily, the judge issued the following instruction on co-conspirator liability:
Our law provides that a person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable or both. A person is legally accountable for the conduct of another person when he is engaged in a conspiracy with such other person and the conduct is within the scope of the conspiracy or a reasonably foreseeable or reasonably anticipated consequence of the conspiracy and not too far removed or too remote from the objectives of the original conspiracy to hold defendant justly liable for the conduct of the other persons.
Thus, you must decide whether the defendants . . . engaged in a conspiracy with Juan Veras and others to commit the crimes of kidnapping and armed robbery.
You must also consider whether the murder of Ralph Pinto and aggravated assault against Paul Ricciardi were an objectively foreseeable and reasonably anticipated result of the original conspiracy, or whether the commission of these offenses is beyond the scope of the conspiracy.
"A reasonably foreseeable consequence" means one which, under all of the circumstances presented, a reasonable person would foresee. The law does not require that this defendant actually recognized or subjectively believed that the murder of Ralph Pinto and aggravated assault of Paul Ricciardi was a foreseeable consequence of the conspiracy to commit armed robbery and kidnapping.
The test is an objective one, that is whether, under the circumstances, a reasonable person would foresee murder and aggravated assault as a real, potential consequence of a conspiracy to commit kidnapping and armed robbery.
A defendant can be liable for a substantive crime, that is a crime such as murder and aggravated assault, even though the substantive crime was not within the actual contemplation of the conspirators within the scope of the conspiracy as originally planned, provided that the substantive crime was reasonably and closely connected to the conspiracy and a necessary or natural consequence thereof. A person is guilty of conspiracy with another person if with the purpose of promoting or facilitating the commission of a crime he: agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or, two, agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
After charging the jury on the elements of conspiracy in relation to the armed robbery and kidnapping counts, the judge explained that the jury should find defendants either guilty or not guilty of aggravated assault and murder depending on whether those crimes were a foreseeable consequence of the conspiracy to rob and kidnap.
We note that the State argued to the jury that the February 18 assaults on Pinto and Ricciardi, and Pinto's subsequent death, were foreseeable consequences of the conspiracy to rob and kidnap them. Those allegations were not made against Vega and Rosario as accomplices, however, because an accomplice is liable when he or she shares the objectives of the principal and foresees and intends the results the principal accomplishes. State v. Rumblin, 166 N.J. 550, 555 (2001). The judge was obliged to explain to the jury the difference between accomplice and co-conspirator liability, especially when the alleged co-conspirators--here, Vega and Rosario--were not at the scene. See State v. Samuels, 189 N.J. 236, 254-55 (2007) (reversing convictions for conspiracy and armed robbery in part because the jury instruction "obliterated the distinction between the crime of conspiracy and accomplice liability").
When the jury's understanding of the applicable law would be enhanced by molding the model charges to the actual facts of the case, the judge should do so. State v. Concepcion, 111 N.J. 373, 379-80 (1988) (observing that "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case"). The judge's instruction to the jury on co-conspirator liability carefully and properly explained the principles the Court articulated in Bridges, supra, 133 N.J. at 466-67, and provided the jury with a comprehensive and accurate statement of the governing law. We reject defendant Vega's assertions to the contrary.
In Point VIII, Vega asserts that the prosecutor's summation was unfairly prejudicial. In particular, he alleges that the prosecutor mischaracterized the evidence. A prosecutor is entitled to make a forceful closing argument, and is entitled to some latitude in summation, so long as the summation is based upon the facts, and the inferences a jury could reasonably draw from those facts. State v. Nelson, 173 N.J. 417, 460 (2002).
During her summation, the prosecutor commented that the plan to murder Penalba and eliminate her as a witness was discussed at Vega's home. The State acknowledges that this comment was an error. For several reasons, we conclude Vega was not unfairly prejudiced by that misstatement: 1) the judge instructed the jury that it was not bound by the attorneys' statement of the facts, and that the jury's recollection of the evidence was controlling; 2) the prosecutor's single mistaken reference was fleeting and not repeated; and 3) the judge continually instructed the jury that none of the Penalba evidence was to be used against defendant Vega, repeating that instruction in his final charge to the jury.
Because an improper "fleeting and isolated" remark in summation is not grounds for reversal, see State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988), the prosecutor's inaccurate statement that the plan to murder Penalba was discussed at Vega's home is not grounds for reversal, especially where, as here, the judge provided comprehensive jury instructions that negated any possible prejudice from this stray remark.
In Point IX, Vega asserts that the judge erred in denying his motion for a new trial. He contends the following errors required the judge to grant his motion: 1) the verdicts for reckless manslaughter and drug distribution were against the weight of the evidence; 2) the judge erred in admitting the Penalba evidence; 3) the judge erred in denying his motions for mistrial following Rosario's outbursts and Giorgi's testimony about being targeted; 4) the judge erred in refusing to charge self-defense; and 5) the judge provided incorrect jury instructions on accomplice and co-conspirator liability.
With the exception of Vega's first contention -- that the guilty verdicts on reckless manslaughter and the narcotics offenses were against the weight of the evidence -- we have already rejected each of the other reasons Vega points to as requiring the judge to grant his motion for a new trial. Vega's contention that the verdicts on those two crimes were against the weight of the evidence is meritless, as are his claims concerning the other four issues. The denial of Vega's motion for a new trial was proper, and we have been presented with no meritorious basis to disturb the judge's denial of that motion.
We now address the remaining claims Vega asserts in Point
A. Admission of the Holster, Magazines and Ammunition
Vega argues that the court erred in admitting into evidence the holster, magazines and ammunition for a .40 Glock found in the bedroom closet in his home. He asserts that he was charged with possessing a .45 caliber handgun not a .40 Glock, and that the jury was not told how it could use the evidence in question.
Prior to the testimony of the detective who found the material in defendant's closet, defense counsel anticipated the evidence and objected on the basis that the weapons the State had asserted defendants possessed or used against the victims were a revolver and a .45, but not a .40 Glock. The State maintains that the testimony established that Vega fired on Pinto and Ricciardi the night of the robbery with a semi-automatic weapon and that some gang members had been ordered to look outside Vega's house for any shells; accordingly, evidence of the .40 Glock paraphernalia was relevant.
Vega maintains that the evidence was not admissible under N.J.R.E. 404(b). While that is true, that was not the basis on which the evidence was admitted. Instead, the holster, ammunition and magazines were admitted as material recovered pursuant to a search warrant and relevant to the matters charged. In counts twenty-two and twenty-three, Vega was charged with shooting at Ricciardi and Pinto as they fled his home. Those counts did not refer to a .45 caliber weapon, but to "a handgun." The counts specifying the type of handgun were counts eight and nine, dealing with the shooting of Pinto, and they referred to a .38 handgun.
Because there was substantial evidence that Vega had used a semi-automatic weapon in firing upon the two following the robbery, and a Glock .40 is a semi-automatic firearm, the Glock paraphernalia police recovered on the premises was relevant to the charges. See N.J.R.E. 401, 402. Such evidence did not require special notice or a limiting instruction, and, indeed, Vega never suggested any such instruction at trial.
B. CDS Chain of Custody
In Point III, Vega also argues that the State failed to establish the chain of custody of the drugs Ricciardi and Pinto supposedly stole from Vega and upon which the State's CDS charges against him were based. The State concedes there was some discrepancy between the description of the CDS as inventoried by the Garfield police,*fn8 and the CDS inventoried by Christiana after he assumed custody of it.
The purpose of establishing a chain of possession is to "avoid any inference that there has been substitution or tampering," and the question is decided by the judge in his or her discretion. State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). In this case, the prosecutor acknowledged to the judge that there was a discrepancy in the way the items were described between the time they left Garfield and the time Christiana inventoried them in Lodi, and that fact arguably placed at issue the question of tampering.
Nonetheless, Vega's chain of custody claim is unpersuasive. One of the stipulations entered by all parties was that the items brought to Garfield police by Pinto's mother on February 19, 2005, were tested and determined to be 100.97 grams of marijuana (or approximately 3.6 ounces) and 30.88 grams of cocaine (or approximately 1.1 ounce). Because other evidence linked the CDS that Pinto's mother brought to Garfield, to the CDS Pinto and Ricciardi stole from Vega, the stipulation had the effect of establishing that the drugs which Vega was charged with possessing were the same as those turned in to police, making further proof of the chain of custody unnecessary. In addition, J.P. identified the pillowcase Pinto's mother used to transport the CDS to the Garfield police as the same one that he, Pinto and Ricciardi had used. He also described how the drugs at trial were in the same form, packaging and vials as when they removed them from the safe. We reject Vega'a chain of custody claim.
C. Co-Conspirator Hearsay
In Point III, Vega also asserts that hearsay testimony by witnesses who referred to out-of-court statements made either against him by declarants not produced for trial, or made not in the course of the conspiracy with which he was charged, denied him a fair trial.
We reject this hearsay claim for two reasons. First, as we have already noted, the jury was repeatedly told that the evidence about the attempted murder of Penalba could not be used against Vega.
Second, to the extent that any of the out-of-court statements, whether made on February 18, February 19 or even later, dealt with aspects of the Pinto and Ricciardi crimes, such evidence was admissible under N.J.R.E. 803(b)(5) as a statement in furtherance of a conspiracy. "[W]here two or more persons are alleged to have conspired to commit a crime . . . any statement made by one during the course of and in furtherance of the conspiracy is admissible in evidence against any other member of the conspiracy." State v. Phelps, 96 N.J. 500, 508 (1984). Such statements are admissible so long as: 1) the statements were made in furtherance of the conspiracy; 2) the statements were made during the course of the conspiracy; and 3) there is independent evidence of the conspiracy and the defendant's relationship to it. Id. at 509-10.
In this case, there was substantial independent evidence of the conspiracy, including testimony from Ricciardi and J.P. There was also overwhelming evidence from gang members of Vega and Rosario's leadership roles throughout. But other than to complain generally about co-conspirator statements made after Pinto's death, Vega does not specify any particular statements that he says were admitted in evidence but were not made during or in furtherance of the Pinto/Ricciardi conspiracy.
A conspiracy continues until the object is complete or a member has withdrawn. State v. Cherry, 289 N.J. Super. 503, 523 (App. Div. 1995). In this case, the conspiracy was alleged to include acts against Ricciardi as well as Pinto. Ricciardi survived, and even after the attempted kidnapping defendants worked to cover up the crime, avoid detection, and destroy evidence. In fact, even after the attempted murder of Penalba, Vega counseled members to "keep a low profile," and to "ke[ep their] mouth[s] close[d]." Any scheme to avoid apprehension and prosecution continued the conspiracy. Ibid. See State v. Harris, 298 N.J. Super. 478, 487-88 (App. Div.) (holding that a murder conspiracy continued past the killing to a telephone conversation about how the killer needed money in order to flee), certif. denied, 151 N.J. 74 (1997).
In light of Vega's failure to articulate exactly which statements by co-conspirators were unfairly used against him, and the fact that the co-conspirators' joint and ongoing efforts to hide or destroy evidence and avoid arrest continued after Pinto's murder, we reject Vega's assertion that inadmissible hearsay evidence denied him a fair trial.
In Point XII, Vega asserts that the cumulative effect of trial errors denied him a fair trial. As his trial was virtually error-free, we reject his cumulative error claim.
In Points X and XI, Vega asserts that the sentence the judge imposed was excessive. An appellate court plays an extremely limited role when asked to review a sentence against a defendant's claim that it was excessive. State v. Cassady, 198 N.J. 165, 180-81 (2009). So long as the sentencing judge adheres to the sentencing standards contained in the Criminal Code, limits the finding of aggravating factors to those supported by the record, adopts all mitigating factors that are present, and correctly balances the aggravating factors against the mitigating factors, a trial judge has no cause to fear second-guessing by an appellate court. State v. Bieniek, 200 N.J. 601, 607-08 (2010). We will disturb the sentence imposed only where the sentence is so excessive as to shock the judicial conscience. Cassady, supra, 198 N.J. at 181.
Here, the judge found as aggravating factors the nature and circumstances of the offense, the vulnerability of the victims, the risk defendant would commit another crime, defendant's involvement in organized criminal activity, the extent and seriousness of defendant's prior record,*fn9 and the need to deter. N.J.S.A. 2C:44-1(a)(1), (2), (3), (5), (6), and (9). The only mitigating factor the judge found was that imprisonment would pose a hardship to defendant's young children. N.J.S.A. 2C:44-1(b)(11). Other than the vulnerability of the victims, which the State concedes does not apply, the judge's findings on the other aggravating factors are, as the State argues, "unassailable." The judge's conclusion that the aggravating factors substantially outweighed the lone mitigating factor also finds ample support in the record.
Moreover, the imposition of consecutive sentences for the narcotics offenses and the crimes against Pinto and Ricciardi was in full compliance with the principles articulated in State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The narcotics offenses occurred on a different day from the crimes against Pinto and Ricciardi and had completely different objectives. Accordingly, the imposition of consecutive sentences was wholly correct.
Defendant also maintains that the judge should have merged count four with count five, and should have merged "all of the drug counts." Counts four and five involved the attempted kidnappings of Pinto and of Ricciardi. These were separate crimes with separate victims. Merger was not required. As for the drug convictions, the judge merged the possessory offenses with the distribution offenses. No further merger was required, as distribution of cocaine and distribution of marijuana do not merge. We affirm Vega's sentence.
We turn now to the claims advanced by defendant Rosario, commencing with Point III, in which he asserts that the judge erred by refusing to allow him to cross-examine Detective Christiana about the truthfulness of "snitches." Rosario complains that the judge should have allowed him to question Christiana on whether a "snitch" is necessarily telling the truth.
On direct, Christiana described Rosario's statement to police that he wanted the "snitches" to testify so that he could "stare them down" in the courtroom. During Rosario's recross-examination of Christiana, Rosario asked Christiana whether he believed that a snitch "is necessarily a truth teller." The judge sustained the State's objection. We have been presented with no meritorious basis to disturb the judge's ruling on that subject, as a witness's view of another person's credibility is irrelevant. State v. Bunch, 180 N.J. 534, 549 (2004). Moreover, the record demonstrates that the judge provided Rosario considerable latitude in cross-examining Christiana about the "snitches" who had turned on Rosario, and the discrepancies in their accounts. We reject Rosario's claim that the sustaining of this particular objection denied him a fair trial.
In Point IV, Rosario asserts that the judge's refusal to recuse himself constituted reversible error. In particular, he asserts the judge should have recused himself following Rosario's threat -- uttered in the courtroom -- to put a bomb in the prosecutor's car. Rosario maintains the need for recusal was heightened because he, Rosario, was subsequently charged with terroristic threats as a result of that threat, and the judge could potentially be called as a witness. Rosario asserts he has no "reasonable assurance" that the judge's rulings were not the result of bias and prejudice stemming from the threat he made to the prosecutor.
The judge denied Rosario's recusal motion, observing that he "hear[s] things in this courtroom all the time," and that judges are able to "separate themselves from those situations" where attorneys or parties make offensive or improper remarks. The judge also reasoned that because there were nine or ten possible witnesses to the threat Rosario uttered against the prosecutor, there was no reasonable likelihood that he would be called as a witness if the terroristic threats charge were to proceed to trial. But the judge's greatest concern was that granting such a motion would enable a defendant to force a judge to disqualify him or herself by simply making an outrageous statement in the courtroom. Were a recusal motion to be granted on such occasions, this would, according to the judge, "set a very dangerous precedent." We agree.
Although a judge should grant a recusal motion whenever there is good cause to believe that the denial of the motion "might preclude a fair and unbiased hearing and judgment," State v. McCann, 391 N.J. Super. 542, 551 (App. Div. 2007) (citation omitted), a judge is not required to withdraw from the hearing of a case every time the slightest incident occurs, State v. McBride, 213 N.J. Super. 255, 274 (App. Div. 1986) (observing that there "was no necessity for the trial judge to have recused himself, since his prior contact with the victim was so slight as to preclude any legitimate claim of bias"). Our careful review of the record satisfies us that Judge Roma meticulously protected defendant Rosario's right to a fair trial and was exceedingly patient and fair-minded despite Rosario's constant insults and abrasive conduct. We also agree with the judge's determination that granting Rosario's recusal motion under the circumstances presented here would have established "a very dangerous precedent," as it would allow a defendant to make offensive and threatening remarks as a means of securing a judge more to his liking. The judge's denial of Rosario's recusal motion was entirely proper, and certainly did not constitute an abuse of the judge's discretion. We reject Rosario's claims to the contrary.
In Points VI and VII, Rosario challenges his sentence, arguing that the imposition of consecutive sentences on counts one (reckless manslaughter of Pinto), and five (attempted kidnapping of Ricciardi) was improper, as the sentences should have been concurrent. Second, he contends that the judge misapplied the aggravating factors and weighed them improperly. In his analysis of the aggravating factors, the judge found the existence of the same aggravating factors for Rosario that he had found as to Vega.*fn10 However, as to Rosario, unlike Vega, the judge found no mitigating factors. Defendant's arguments respecting his sentence lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We are satisfied that the imposition of consecutive sentences was in full compliance with the principles articulated in Yarbough, supra, 100 N.J. at 643, and that the sentence satisfied all of the principles articulated in Cassady, supra, 198 N.J. at 181, and Bieniek, supra, 200 N.J. at 608. We have no occasion to disturb the sentence the judge imposed, as the sentence was within the applicable sentencing range and the aggravating factors find ample support in the record.
We affirm Rosario's sentence.
We affirm the convictions and sentences of both defendants. Affirmed on both A-4673-08 and A-5311-08.