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State v. Alfaro

Superior Court of New Jersey, Appellate Division

November 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
ALEXANDER ALFARO, Defendant-Appellant.


Submitted October 2, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson, Lihotz, and Hoffman.


Tried by a jury, defendant Alexander Alfaro was convicted of murder, felony murder, conspiracy to commit robbery, and armed robbery. The charges stem from an August 4, 2007 gang attack upon four young adults by defendant, his half-brother Rodolfo Godinez, his cousin Gerardo Gomez, Shahid Baskerville, Jose Carranza, and Melvin Jovel. The victims were robbed, beaten, sexually assaulted and/or slashed. After being shot, three victims died; however, the fourth survived and appeared at trial as the State's principal witness, relating the events that occurred on the evening of the attack.

On appeal, defendant argues various evidentiary errors and flawed jury instructions require we vacate his conviction and order a new trial. Alternatively, he maintains the sentence imposed was excessive. More specifically, he states:


We have reviewed the arguments presented in light of the record and applicable law. We find no abuse of discretion or error, and affirm.


These facts are found in the trial record. On the evening of August 4, 2007, Natasha Aeriel, age nineteen, her brother Terrance Aeriel, age eighteen, along with Dashon Harvey, and Iofemi Hightower, both age twenty, spent the evening together. The Aeriels and Harvey attended Delaware State University, and were members of the university's marching band; Hightower planned to join the band upon enrollment there.

The four left Vailsburg Park when it closed and Natasha drove her friends to Mt. Vernon School. She parked in the schoolyard under a streetlight, near the steps. When she exited her car, Natasha noticed two short, fat Hispanic men, wearing white t-shirts and jeans, sitting on the bleachers, drinking Colt 45 and talking. The two were later identified as Godinez and Jovel. Natasha and her friends did not want to disturb anyone and stayed by the steps, playing the car radio, and dancing. Terrance went from the car to the monkey bars, approximately fifty feet away, passing the men on the bleachers as he walked.

At 11:30 p.m. Terrance, who "was standing on top of the monkey bars, " texted Natasha: "It's time to go." Natasha looked toward Terrance and saw four additional men enter the schoolyard and walk toward the bleachers. Three were Hispanic, wearing white t-shirts, and identified as defendant, Gomez, and Carranza; the fourth was African American, wearing a gray tank top, who later was identified as Baskerville. Natasha texted her brother, asking why they had to leave, but he was walking toward the car with a serious look on his face. Terrance walked past the men and Natasha saw Godinez and Jovel have a brief conversation with the other four. Convinced her brother was uncomfortable, Natasha knew it was time to leave. The four friends reached their car, with Terrance walking toward the driver's door.

The six men were standing in a circle talking. They were members of the Mara Salvatrucha gang, commonly known as MS-13. Directed by Godinez, the gang rushed toward the four friends. The assailants told them "to get the fuck on the ground, " then repeatedly ordered them to surrender everything they had, said "don't hold back, " and threatened that "if you don't give up everything, we will kill you right now." The four obeyed. Terrance and Harvey were lying face down on one side of the car while Natasha and Hightower were lying face down on the other. Natasha saw two assailants held handguns. Later evidence revealed Jovel had a .357 Magnum revolver and Gomez had an inoperable .32 caliber revolver. Also, defendant held a machete and Carranza a twelve-inch kitchen knife. The gang emptied the victims' pockets, taking identification, credit cards, valuables, and cell phones. One said, "you all got anything else on you all or I'm gonna kill you right here." So Natasha told them her purse was in the car. They rifled through her purse, searched her car, and ripped the gold chain from her neck.

Baskerville unsuccessfully attempted to remove Hightower's pants, then turned to Natasha, pulling down her basketball shorts. He and Carranza began digitally penetrating her. Natasha repeated "Jesus" over and over, and was told to "shut the fuck up." She did not resist because she was afraid of being killed.

During the sexual assault, Natasha looked under the car and saw Terrance and Harvey stand up and walk toward the nearby steps. She next recalled either a Hispanic or African-American attacker put his knee in her back, pulled her hair, and tried to cut her neck with a machete. Natasha screamed, fought back, and stood up. She did not see Hightower. She then heard two gunshots from the area of the staircase. Natasha moved toward the steps. Jovel emerged from the stairwell, saw Natasha standing, and shot her in the head, hitting her left ear. Natasha fell to the ground and eventually passed out "in a pool of blood."

That evening, Michael Yancey, who lived in front of the school was awakened at 11:20 p.m. by cries of a young woman, begging for mercy, stating "stop, don't do that" and "please, don't do that, don't do that." The pleas were coming from the area of the schoolyard. Yancey initially thought it was his neighbor arguing with his girlfriend. Then the woman's voice grew angry, and two to three minutes later, he heard four gunshots, in rapid succession. He ran to his daughter's bedroom to better view the schoolyard, and saw a group of five or six young men, wearing blue jeans with white t-shirts, pass by his window as they ran away from the schoolyard. He described one as African-American and the others "like Indian, somebody Indian or Puerto Rican." Yancey called 9-1-1.

Newark Police officers were dispatched at 11:40 p.m. to the Mt. Vernon School. They found Terrance, Harvey, and Hightower shot dead and Natasha seriously wounded lying in a pool of blood, conscious, but unresponsive. Autopsies determined Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the face, head, and upper extremities; Terrance died from a gunshot wound to the neck; and Harvey died from a gunshot wound to the head.

The police arrested Baskerville who agreed to cooperate. He informed police defendant was in Virginia.

On August 14, 2007, a juvenile delinquency complaint was filed against defendant, who was sixteen. Two weeks after the slayings, police located and arrested defendant in Woodbridge, Virginia.[1] Defendant was returned to New Jersey, and waived to adult court. By that time, the five co-defendants had also been apprehended.

Essex County Indictment No. 08-09-2688 charged defendant and the five co-defendants with second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 (count one); four counts of armed robbery, N.J.S.A. 2C:15-1 (count two through five); three counts of felony murder, N.J.S.A. 2C:11-3(a)(3) (counts six through eight); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1), (2) (count nine); three counts of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), (2) (counts ten, eleven and twelve); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2) (count thirteen); third-degree unlawful possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count fourteen); second-degree possession of a handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (count fifteen); fourth-degree unlawful possession of a machete under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) (count sixteen); and third- degree possession of a machete with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(d) (count seventeen). Counts eighteen and nineteen charged Baskerville and Carranza with two counts of second-degree aggravated sexual assault.

Prior to trial, defendant moved to suppress his custodial statement and the judge held a Miranda[2] hearing. In a written opinion, he denied the motion. Defendant requested leave to appeal. We denied the request "without prejudice to the outcome of a motion for reconsideration, " noting a recent Supreme Court opinion addressed the rights of juveniles in custody. A different judge considered and denied defendant's motion for reconsideration. Defendant appealed. We granted leave to appeal and affirmed on October 19, 2010. State v. Baskerville and Alfaro, A-4209-09, A-4410-09 (App. Div. Oct. 19, 2010) (slip op. at 2.)

After extensive jury selection, defendant's trial, presided over by Judge Michael L. Ravin, began on March 1, 2011 and continued over various dates until sentencing on May 19, 2011. In addition to Yancey, Natasha and UMDNJ paramedic Derron Brice, the State produced twenty-three witnesses, which included employees of the Newark Police Department, Essex County Prosecutor's Office-Homicide Squad (Homicide Squad), the Medical Examiner's Office, Ocean County Sherriff's Office Forensic Science Laboratory, New Jersey State Police Forensic Science DNA and expert forensic scientists, who testified regarding the evening's events; the police investigation involving assistance from the United States Marshall's Task Force, and law enforcement officials from Woodbridge, Prince William County, Virginia. Further, the State presented evidence gathered from its forensic investigation of fingerprint and DNA evidence and an investigation involving MS-13 gang activity.

A redacted audio recording of defendant's custodial statement was played for the jury and defendant testified on his own behalf. He asserted some of the facts in his custodial statement were untrue and coerced by Detective Kevin Green of the Homicide Squad. Defendant stated he named Carranza as the one with the gun because he was not an MS-13 member and because he was afraid of Godinez and of Jovel, who was Godinez's "right-hand man." Defendant also claimed he told police he wielded the machete, rather than implicating Godinez.

Defendant testified he complied with Godinez's instruction to get the machete, which was kept under the couch in their apartment, and bring it to the Mt. Vernon School playground. Godinez told defendant rival gang members were in the schoolyard. Defendant contended he would be assaulted if he disobeyed Godinez's order, because Godinez was the highest ranking gang member "in control of the section of Newark." He also admitted he did nothing to stop Jovel because Jovel had "more status" in the gang, and Godinez gave Jovel orders.

Defendant declared, other than giving the machete to his brother, he did not participate in the attack but simply stood by the bleachers. Defendant explained that at one point, Godinez grabbed him and Gomez, and directed them down the steps, where he saw the three victims lined up against a wall, as Jovel held a gun. Defendant heard Jovel fire three times. Prior to that point, he professed he was unaware Jovel, or anyone else, was going to kill the victims.

Defendant was found guilty on all counts except the attempted murder of Natasha (count thirteen). After merger, he was sentenced to concurrent terms of seventeen years, subject to the eighty-five percent period of parole ineligibility imposed the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on counts two, three, four and five; a consecutive term of sixty years subject to NERA on counts ten and eleven; a consecutive life term (seventy-five years) subject to NERA on count twelve; and a concurrent term of four years on count fourteen. Defendant's motion for a new trial was denied. This appeal ensued.


Defendant first argues his custodial statement was improperly elicited and the judge erred in denying his motion to suppress the evidence. He maintains the statement was not given following a knowing, voluntary and intelligent waiver of his Fourth Amendment rights. We need not recite the facts leading to defendant's statement to police while in custody in Virginia. Rather, we incorporate the detailed account of these events contained in our unpublished opinion, reviewing defendant's interlocutory appeal of the denial of his motion to suppress the statement. State v. Baskerville and Alfaro, supra, slip op. at 4-18.

Defendant's challenge to the admissibility of his August 18, 2007 statement was fully reviewed in our opinion, which affirmed Judge Ravin's interlocutory denial of defendant's motion to suppress. We identified defendant's challenges and set forth our determination, stating:

[Defendant] contends his waiver was not given knowingly or voluntarily because the investigators kept him confused and unprepared and prevented his mother from providing him with advice and support. He argues that his will was overborne by the length of his detention prior to the custodial interrogation, the failure of investigators to tell him why he was under arrest or the charges against him until the questioning began, and the investigators' refusal to allow him to consult with his mother outside their presence. He also argues that his mother was treated "very poorly" by the police.
Reviewing the totality of circumstances, Judge Ravin found that the State scrupulously honored the principles of Miranda, that it afforded [defendant] the necessary safeguards, and that the will of neither [defendant] nor his mother was overborne. The judge considered [defendant]'s age of sixteen, the approximate two-hour length of the interview, the presence of his mother, the interpretation, and the statement. Although he viewed the time between [defendant]'s arrest and his statement as an important factor, the judge noted that he was given a chance to eat and drink at the police station, and he was transported to a juvenile facility where he had the opportunity again to eat and sleep until his mother arrived. The judge also considered the fact that mother and son embraced and the absence of any complaints uttered by either one to any officers. Judge Ravin, therefore, concluded that the State proved beyond a reasonable doubt that the statement was made voluntarily.
It is clear that the court implicitly found [Detectives] Green and Cantu credible, but not Gomez. Because the court was able to observe the character and demeanor of these three witnesses, its credibility conclusions are entitled to deference. [State v. ]Locurto, 157 N.J. [463, ] 474 [(1999)]. Moreover, the record amply supports [these] factual findings. There is no evidence to indicate improper treatment or prolonged and improper questioning. See State v. Johnson, 309 N.J.Super. 237, 261 (App. Div.) (finding no evidence of improper treatment or questioning where the defendant was not questioned during the two and one-half hours he was in police custody, his interrogation lasted one and one-half hours, his taped statement did not indicate mistreatment or abuse, he was unmanacled in a conference room, he was offered food and drink, and he was familiar with police investigations from his prior criminal history), certif. denied, 156 N.J. 387 (1998). There were no acts of violence against [defendant], no suggestion of police trickery, no lengthy periods of confinement without food or drink, and no deprivation of sleep.
To the contrary, [defendant] was not questioned during the time he was in police custody prior to his statement. The statement itself lasted slightly over two hours, and a review of the transcript does not reveal any suggestion of mistreatment or abusive police conduct. See ibid. [Defendant] also denied, under oath, that any officer used "pressures, threats or promises" to get him to make a statement. Thus, under the totality of circumstances, there is no indication that [defendant]'s will was overborne or that any psychological pressure affected the voluntariness of his statement. See State v. Galloway, 133 N.J. 631, 656 (1993) ("Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant."); [State v. ]Bey, 112 N.J. [123, ] 135 [(1988)] (finding no evidence of physical or mental coercion where the defendant was interrogated for three hours and five minutes, during which time he was offered food, beverages, cigarettes and the opportunity to rest).
There also is no credible evidence in the record to suggest that [defendant] was confused and unprepared at the time he gave his statement. There is no suggestion that he did not understand his rights or the waiver or that he did not want to speak with the investigators. To the contrary, he asked for the opportunity to tell his version of events when he first arrived at the Prince William PD. [Detective] Green advised him that must await the arrival of his mother. Based on the record developed at the hearing, defendant received the required information under Miranda, indicated that he understood his rights and the waiver, and voluntarily agreed to speak to the police without an attorney. Thus, the judge was permitted to find that the State proved beyond a reasonable doubt that [defendant] made a knowing and voluntary statement.

[State v. Baskerville and Alfaro, supra, slip op. at 41-44.]

The argument defendant presents on appeal is identical to that previously presented and will not again be considered. Our prior decision "disposed of this argument on its merits and is the law of the case." See State v. Myers, 239 N.J.Super. 158, 164 (App. Div. 1990). The interlocutory nature of the prior determination does not make it "tentative and subject to more leisurely review at a later date." State v. Stewart, 196 N.J.Super. 138, 144 (App. Div. 1984). The decision "is interlocutory in the sense that it does not terminate the case[, but] nevertheless finally decides the meritorious issue." Myers, supra, 239 N.J.Super. At 164.

Defendant next challenges evidence admitted despite Judge Ravin's pre-trial restriction on certain testimony. Because the judge permitted admission of this irrelevant and prejudicial evidence, which should have been excluded, defendant seeks reversal.

Prior to trial, Judge Ravin barred any testimony regarding the sexual assault because defendant was not charged with the offense. The judge stated:

[T]he prejudice to the defendant is that the infernally evil nature of this alleged sexual assault could very well induce the jury to convict defendant . . . of the crimes for which he is charged; if for no other reason that he is the associate of perpetrators of these vile acts of sexual assault.

Notwithstanding this ruling, defendant argues testimony related to the sexual assault was presented, including:

(1) Ms. Aeriel was physically touched by the male group; (2) that she told the men 'to get off me, don't do that' and; (3) that pubic hair samples were taken from all of the suspects"[; and (4)] Detective James['s testimony] that Ms. Aeriel was admitted to the hospital under a different name for her safety.

"[W]hether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). Therefore, "when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was clearly capable of producing an unjust result." Id. at 397-98 (internal quotation marks and citations omitted). Following our review, we reject as unfounded defendant's assertion the admission of these statements caused "error which resulted in the denial of defendant's right to a fair trial."

We first note, defendant failed to object to these limited comments when made in the course of a trial, which spanned eighteen days. Consequently reversal would be warranted only if we find plain error, R. 2:10-2, which is an error of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Burns, 192 N.J. 312, 341 (2007). Moreover, "[w]hen no request for a limiting or curative instruction is made, defendant must show that the failure to give such an instruction sua sponte constitutes an error 'clearly capable of producing an unjust result.'" State v. Mays, 321 N.J.Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999) (quoting State v. Loftin, 287 N.J.Super. 76, 97 (App. Div.), certif. denied, 144 N.J. 175 (1996)).

Judge Ravin carefully considered the prejudicial effect of evidence of the alleged sexual assault by other defendants and curtailed witness testimony on that issue. The minor utterances defendant cites are inconsequential and cannot be said to have caused prejudice or influenced the jury to a result it would otherwise not have reached. See State v. Federico, 198 N.J.Super. 120, 131 (App. Div. 1984) (finding "[a]dmission of the complained of evidence was harmless error in view of the other proofs before the jury"), aff'd, 103 N.J. 169 (1986). Had defendant objected, the judge would have had the opportunity to address the errant remark and instruct the jury as necessary. The decision not to object suggests the remark had limited effect. "A defendant is entitled to a fair trial not a perfect one, for there are no perfect trials." Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215 (1973).

Defendant next argues his due process rights were infringed because the judge limited his proposed questions to the arresting police officers regarding the nature of the videotaped interviews of co-defendants Gomez, Baskerville and Carranza. Defendant claims prejudice resulted by the exclusion of this evidence, which he believes showed he "was treated differently from his co-defendants." The significant "difference" in treatment identified by defendant results solely because his custodial statement was tape recorded rather than videotaped, as were statements of co-defendants. Defendant's argument suggesting this evidence was "crucial" to providing the jury with "a complete challenge" to the State's reliance on defendant's statement is simply unpersuasive.

"It is well-established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown." State v. Murray, 240 N.J.Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334, 585 (1990) (internal citations omitted). The right to cross-examine witnesses guaranteed by the Sixth Amendment of the United States Constitution and Art. I, Par. 10 of the New Jersey Constitution is not unlimited. State v. Harvey, 151 N.J. 117, 188, (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). "[A] cross-examiner does not have a license to roam at will under the guise of impeaching credibility." State v. Engel, 249 N.J.Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Because of an equipment malfunction, defendant's statements were not video recorded. During trial, Detective Green explained his effort to secure a video recording and the failure of the video equipment when he attempted its use to record defendant's statement. Defendant was not denied his right to challenge the credibility of Detective Green's explanation. Indeed, extensive cross-examination was permitted of both Detectives Green and James to fully explore this issue. Further, repeated attempts to discredit Detective James were made, by highlighting his failure to inquire about other available video alternatives. Finally, the defendant's summation challenged the limited efforts police took to secure video equipment once the malfunction was discovered and mentioned complete video recordings of statements by Godinez and Baskerville were made. Defendant was also permitted to emphasize the lack of a video recording precluded the jury's ability to observe defendant's demeanor and body language.

We discern no abuse by the trial judge in declining to allow defendant to delve into the details of the videotaping of other defendants' statements. Judge Ravin properly exercised his authority to control the scope of cross-examination. N.J.R.E. 611(b).

In claiming his trial was unfair, defendant also argues the State made several objections during his summation, after which the judge uttered comments "critical and demeaning of defense counsel." We list the four cited instances, providing the summation comments and the court's instructions.

1. In discussing the burden of proof and how it differs from civil cases, defense counsel stated proof beyond a reasonable doubt was "powerful proof." He then elaborated:

[DEFENSE COUNSEL]: Proof beyond a reasonable doubt isn't fifty-one percent. It's not seventy-five percent, not ninety percent. It's proof so powerful –"
[ASSISTANT PROSECUTOR]: I have to object – [side bar occurs].
Ladies and gentlemen, at the end of the case you're going to hear me give all of the legal instructions and definitions, including the one on reasonable doubt. And the definition of reasonable doubt . . . does not include any language of quantification of doubt and is not a concept that is addressed in terms of mathematical precision or certainty or quantification. That is [the] law.

2. Discussing defendant's tattoo of dice showing numbers one and three, defense counsel challenged the inference the tattoo was acquired as a result of the August 4 slayings, and refuted that the tattoo was newly acquired, stating:

[DEFENSE COUNSEL]: [T]here's a difference between a tattoo you haven't seen before and a new tattoo. You know a new tattoo is clearly new –
[DEFENSE COUNSEL]: It's still; healing –
THE COURT: Stop speaking please, [counsel]. Side bar.
THE COURT: Ladies and gentlemen of the jury, please disregard [the defense's] last comment as to the newness of the tattoo. There's no testimony, there's no evidence in this case as to precisely when [defendant] got that, and you may not speculate as to that.

3. Recounting Detective Green's testimony of the time he spent with defendant before Gomez arrived in Virginia, defense counsel stated:

[DEFENSE COUNSEL]: They put 'em in a break room, alone, and they closed the door for two to three hours, and Detective Green wants you to believe that during those two to three hours, if that's how long it was, he never spoke to [defendant] about the case . . . . Do you believe that for a second? I don't, and I don't believe it was just two to three hours either. Right? Why don't I believe that?
[Following side bar]
THE COURT: Ladies and gentlemen of the jury, the personal opinion of an attorney as to the believability of any particular witness is irrelevant, it's immaterial and should not be conveyed to the jury . . . an attorney cannot comment, or tell you their personal belief about anybody's believability or about the credibility of evidence.

4. Defense counsel argued defendant was not guilty of felony murder but noted he brought the machete to the playground, stating:

[DEFENSE COUNSEL]: If you find that it's appropriate to convict him of that, then do so. And that's not something I have ever asked of a jury in as long as I've been practicing.
THE COURT: "It's not material . . . . The jury is to disregard that strand of [the defense's] argument."

Defendant seeks a new trial, urging the court's comments showed a partiality toward the State and undermined defendant's summation. We do not agree.

It is axiomatic that a judge's "official expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively; or worse yet, give the impression that the judge has an opinion of defendant's guilt or innocence." State v. Tilghman, 385 N.J.Super. 45, 59 (App. Div. 2006) (citing State v. Guido, 40 N.J. 191, 208 (1963); State v. Christie, 91 N.J.Super. 420, 424 (App. Div. 1966)). Therefore, "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Id. at 60. (internal quotation marks and citations omitted). "Complete neutrality must be maintained, and the judge has a duty to refrain from making any comment that may be telegraphed or interpreted as judicial disparagement, disbelief or disapproval." Ibid. (citations omitted).

Examining the remarks cited by defendant, we do not find Judge Ravin's interjected instructions were unnecessary, deprecatory or prejudicial. Rather, our review reveals the judge was professional, patient, and precise throughout this lengthy, very contentious case. Moreover, the limited instructions issued following sidebar conferences were prompted by and designed to clarify possible confusion created by defense counsel's comments. For example, equating the State's burden with a percentage of certainty is erroneous. See State v. Medina, 147 N.J. 43, 60-61 (1996) (defining the reasonable doubt standard as "more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty" and instructing trial judges "not to deviate from the definition" or run the risk of reversible error) (citations omitted), cert. denied, sub nom. Medina v. New Jersey, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997). Similarly, defense counsel's interjection of his personal opinion or belief regarding credibility was improper, warranting a curative instruction. See Geler v. Akawie, 358 N.J.Super. 437, 470 (App Div.), cert. denied, 177 N.J. 223 (2003).

None of these directions criticized defense counsel or undermined defendant's case. We determine Judge Ravin properly performed his role.

Defendant next cites challenges to the jury charge relating to police procedures. Defendant maintains the judge erred in the charges with regard to the requirement to record custodial statements, R. 3:17(a), and to maintain police investigation notes, see State v. W.B., 205 N.J. 588, 607-08 (2011). Because these assertions were not raised below, our review is guided by the plain error standard of Rule 2:10-2. See State v. Torres, 183 N.J. 554, 564 (2005) (holding a defendant must demonstrate that errors in the instruction prejudiced "substantial rights . . . sufficiently grievous" to convince this court "the error possessed a clear capacity to bring about an unjust result").

In undertaking our review, we are reminded "portions of a charge alleged to be erroneous cannot be dealt with in isolation, but the charge should be examined as a whole to determine its overall effect." State v. Cagno, 211 N.J. 488, 514-515 (2012) (citations omitted), cert. denied, U.S., 133 S.Ct. 877, 184 L.Ed.2d 687 (2013). Further, "[i]f the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). See also State v. Adams, 194 N.J. 186, 206-07 (2008). ("Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2."). Therefore, we consider any alleged error in light of "the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

The defense's trial strategy attempted to discredit the police investigation, including attacking defendant's allegedly coerced custodial statement because it was not videotaped. In this regard, Judge Ravin correctly recited Rule 3:17(a) and added: "The court rule does not require any specific method of electronic recordation, and the use of either video or audio recordation equipment complies with the rule of court." Defendant believes, however, the judge also should have included instructions explaining the purpose of electronic recordation. We disagree.

The model charge makes clear the additional explanation is required only when an electronic recording was not made. See Model Jury Charge (Criminal), "Statements of Defendant when court finds police inexcusably failed to electronically record statement." (2005) ("By way of example, you cannot hear the tone or inflection of the defendant's or interrogator's voices, or hear firsthand the interrogation . . . in its entirety.") Here, an audio recording of defendant's custodial interrogation was made, obviating the necessity for any additional charge.

Defendant also takes exception to the portion of the jury charge addressing the police officer's destruction of their interview notes. The charge issued was as follows:

You have heard testimony that other than who testified as expert witnesses, police officers and detectives destroyed their notes after using them to compile their formal reports. The law does not impose a duty on law enforcement officers to maintain their notes, as long as the notes were made only for the purpose of transferring data and if, having done that, they were destroyed by the officers in good faith in accord with their normal practice. The law does not impose upon reporting officers an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable, evidentiary significance.

Defendant's challenge is based on the Supreme Court's holding in W.B., supra, unequivocally mandating a law enforcement officer's obligation to maintain contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports. 205 N.J. at 607. The Court's unmistakable holding directs all police investigative notes shall be preserved. Id. at 607-08. This necessity safeguards against "the possibility of a misrecording" and allows any defendant, "protected by the Confrontation Clause and our rules of discovery, . . . to test whether the contemporaneous recording is accurate or the final report is inaccurate because of some inconsistency with a contemporaneous recordation." Ibid.

Certainly the jury charge used did not conform to the Court's pronouncement in W.B.[3] However, defendant's trial was concluded on April 5, 2011, approximately three weeks before W.B. was issued and years after defendant's custodial interrogation. Although the Court reviewed prior determinations imposing an obligation on police to retain and disclose investigation notes, see id. at 607 (citing State v. Branch, 182 N.J. 338 (2005); State v. Cook, 179 N.J. 533, 542 n.3 (2004)), it deferred "the implementation of this retention and disclosure requirement for thirty days in order to allow prosecutors sufficient time to educate police officers accordingly." Id. at 608. Consequently, the W.B. holding cannot affect the jury charge in this case.

For completeness, we add these comments. In this matter there is no allegation the audio recording of defendant's custodial statement was unclear or misrecorded. Defendant solely identifies the police destruction of their notes as creating the possibility he was treated differently than his co-defendants. Moreover, defendant offers no facts to support such a supposition. Further, he did not challenge the charge during the charge conference or at trial. Singleton, supra, 211 N.J. at 182.

We find the charge as a whole comprehensively instructed the jury to weigh the evidence, determine the credibility of witnesses, and make factual findings. We cannot conclude the instruction that police had no obligation to preserve their notes, which based on later case law proved erroneous, somehow deprived the jury of the tools necessary to determine whether the statements by defendant were in fact made. State v. Jordan, 147 N.J. 409, 422 (1997). Because the error did not have the capacity to bring about an unjust result, we find no basis to order a new trial.

Defendant also argues he was denied a fair trial as a result of an incident involving juror three, which occurred during deliberations. At the close of deliberations on day two, juror three advised an appointment would delay her arrival until 11 a.m. Questioning her at side bar, Judge Ravin learned she was to appear in Newark Municipal Court. He instructed her to return to his courtroom the following morning with her summons and he would notify the municipal court of the need to adjourn its case.

That evening, the State checked the Automated Traffic Ticket System and learned juror three had an open municipal court matter in Milburn and an open Superior Court assault charge from 2008. The prosecutor revealed this information, requesting the judge make further inquiry. The State argued the matter possibly presents juror misconduct because juror three had answered negatively the initial voir dire question: "Have you, or any family member or close friend, ever been accused of committing an offense, other than a minor motor vehicle offense?"

The defense objected, suggesting the issue was not misconduct, but amounted to an untimely preemption issue. Further, defendant moved for a mistrial asserting the Prosecutor's "[a]ffirmative action . . . taken on behalf of the State to get that information and to perform that investigation . . . [wa]s improper." He additionally contended any examination of juror three at this state in the deliberations would be intimidating and "destroy her ability to be fair and impartial."

The judge concluded juror three would be questioned in chambers. With counsel's consent, Judge Ravin carefully sought limited information regarding the Newark Municipal Court matter and the two possible open charges. At the conclusion of the voir dire, juror three was instructed not to discuss the in camera interview with other jurors. The State withdrew its request and juror three continued deliberations.

Suggesting the State exceeded the bounds of fair play, by singling out "a juror who had been one of the leading jurors in deliberations and believed to be 'antithetical' to the State's case, " defendant seeks to vacate his conviction. He contends the State's actions "had a coercive and chilling effect" on juror three and deprived him of a fair trial "free of extraneous influences." We are not persuaded.

Due process does not demand a new trial be ordered when the court investigates situations involving possible juror influence. Smith v. Phillips, 455 U.S. 209, 217, 103 S.Ct. 940, 946, 71 L.Ed.2d 78, 86 (1982). "[T]he trial judge has discretion in the way to investigate allegations of jury misconduct, " State v. Scherzer, 301 N.J.Super. 363, 488 (App. Div.), certif. denied, 151 N.J. 466 (1997), and must take affirmative steps if misconduct, which may affect the deliberation process, is confirmed.

We conclude Judge Ravin sensitively and sensibly fulfilled his obligation in this regard. He also found the State had not acted improperly and we find no basis to disturb this determination.

Defendant also challenges his cross-examination, suggesting it questioned his initial silence upon arrest in violation of his Fifth Amendment right against self-incrimination. See State v. Muhammad, 182 N.J. 551, 565-60 (2005) (holding a defendant is protected from questions that are direct references to what he did not say to police). We reject this claim as lacking merit. R. 2:11-3(e)(2).

Defendant testified he did not know Jovel intended to shoot the victims, was "in shock" following the shootings, and feared for his life if he interfered. In cross-examination, the prosecutor merely asked whether defendant called 9-1-1 or the police. We cannot conclude this inquiry implicated defendant's right to remain silent, and find it merely explored whether he acted after he witnessed what he characterized as shocking, unexpected events.

Our last review considers defendant's sentence, which he asserts is excessive. We must first determine whether the correct sentencing guidelines have been followed. State v. Roth, 95 N.J. 334, 365 (1984). The fundamental sentencing guideline of the Code is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367. We next determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.

When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "'not sit to substitute [our] judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5, 6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken, " State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience, " Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).

The Court has succinctly expressed these principles in State v. Cassady, 198 N.J. 165 (2009), stating: "our task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'" Id. at 183-84. Applying this standard, we identify no basis to disturb the sentence.

Here, Judge Ravin first recognized defendant was "twenty years old, born in Newark . . . single . . . ha[d] a history of little employment [and] completed the eighth grade." After summarizing defendant's limited involvement with the Family Part's juvenile justice system, he again noted defendant's youth stating he was "waived up from the Family Division and charged with these defenses as an adult."

The court found three applicable mitigating factors, including: defendant had no history of prior delinquency of criminal activity, N.J.S.A. 2C:44-1(b)(7); defendant's willingness to cooperate with law enforcement authorities, despite his position he was coerced to make a statement to police, N.J.S.A. 2C:44-1(b)(12); and the substantial influence of another more mature person, his brother Godinez, in commission of the offenses, N.J.S.A. 2C:44-1(b)(13).

Turning to aggravating factors, Judge Ravin thoroughly identified the factual support for applying these factors: defendant's role in the offenses, that is, the "barbaric" execution-style murder of three innocent people, who did nothing to provoke the criminal conduct, along with the nature and circumstances of the offense, which he found held "absolute crushing weight, " N.J.S.A. 2C:44-1(a)(1); the gravity and seriousness of harm inflicted on the victim, emphasizing Hightower's inability to resist as she was "hacked in the brain or in the skull, in the head with a machete" and then shot in the head, N.J.S.A. 2C:44-1(a)(2); the risk defendant would commit another offense, which he found substantial because of defendant's gang membership, N.J.S.A. 2C:44-1(a)(3); the substantial likelihood of defendant's involvement in organized criminal activity, again supported by defendant's acknowledged role in the MS-13 organized gang hierarchy, N.J.S.A. 2C:44-1(a)(5); and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9), which although obvious the factor was also supported by the absence of defendant's remarks during allocution and his failure to accept responsibility for his conduct. Judge Ravin correctly found that the aggravating factors outweighed the mitigating factors.

He proceeded to examine whether the convictions warranted consecutive sentences, reviewing the five factors identified in State v. Yarbough, 100 N.J. 627 (1985). The court understood "[n]o murder should go unpunished" and a "sentencing court may impose consecutive sentences for multiple murders, even when the majority of Yarbough factors support a concurrent sentence" State v. Carey, 168 N.J. 413, 427-28 (2001). Because the jury found defendant guilty of three counts of murder, he imposed consecutive sentences of sixty years, subject to the eighty-five percent period of parole ineligibility set forth in NERA, for the slaying of Terrance Aeriel and Dashon Harvey; a consecutive term of life imprisonment, subject to NERA, for the murder of Iofemi Hightower, three concurrent seventeen-year terms, subject to NERA, for the three conspiracy counts, and a concurrent four-year term on the weapon offense.

Following our review, we conclude Judge Ravin's analysis of aggravating and mitigating factors is supported by "competent, reasonably credible evidence." Roth, supra, 95 N.J. at 363. He scrupulously followed the guidelines and we will not interfere.


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