STATE OF NEW JERSEY v. CANDIDO MAYAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1710-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CANDIDO MAYAS a/k/a DIDO

MAYAS, CANDIDO S. MAYAS,

Defendant-Appellant.

_______________________________

January 22, 2014

 

Submitted October 17, 2013 - Decided

 

Before Judges Lihotz, Maven and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-02-0163.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a jury trial, defendant Candido Mayas appeals from his convictions for third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5B and N.J.S.A. 2C:58-4 (count three); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7B (count five). Defendant was sentenced to an aggregate term of twenty years in State prison, ten of which he must serve prior to consideration for parole.

On appeal, defendant challenges evidentiary rulings by the trial judge and the length of his sentence, arguing:

POINT I

THE OUT OF COURT IDENTIFICATIONS SHOULD HAVE BEEN SUPPRESSED.

 

POINT II

THE STATEMENT OF OPINION BY THE LEAD INVESTIGATOR WHO HAD BEEN EXPLICITLY INSTRUCTED TO NOT STATE HIS OPINION TO THE JURY THAT DEFENDANT HAD BEEN UNTRUTHFUL IN HIS STATEMENT TO THE POLICE DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

POINT III

THE SENTENCE WAS EXCESSIVE.

 

A. SENTENCING DISPARITY REQUIRES THAT CANDIDO MAYAS BE RESENTENCED.

 

B. DUE TO A FAILURE TO FIND APPLICABLE MITIGATING FACTORS, THE SENTENCE WAS EXCESSIVE.

 

We have considered these arguments in light of the trial record and the applicable law. We affirm.

I.

In the early morning hours of October 6, 2006, defendant, his brother co-defendant Manuel Mayas,1 and co-defendant Michael Perez drove to the Time Out Caf (Time Out) in Vineland, after leaving the Oak Tavern, which closed at 2 a.m. When Time Out closed, the three entered Perez's Jeep Cherokee and drove away. Either Manuel or defendant received a phone call, which prompted the men to return to Time Out. Defendant exited the Jeep. Perez, who had been "looking down," heard one or two gunshots. When he looked up, he saw defendant "aiming into the air" with his gun, held in his right hand. Perez "grabbed [his] gun from the center console," "jumped out of the Jeep" and "ran around to the front" where defendant was standing and "let off one of the shots[.]" Perez described these shots as "warning shots," intended to stop Steve Wesby from approaching the vehicle, stating he fired a shot toward the ground in an attempt to get Wesby "to back away from [his] car." Perez lost sight of defendant and Wesby. He proceeded to the passenger side of his Jeep, stood on the running board, and "let the rest of [his] bullets out over . . . the top of the Jeep, into the crowd," emptying the entire clip of his .40 caliber semiautomatic handgun.

During the shooting, Hiram Perez was shot in the head and rushed to South Jersey Hospital. Wesby and Marquis Bruce were both killed as a result of their gunshot wounds.

The three co-defendants returned to the Jeep and fled the scene. After stopping at the Village Apartments in Vineland, the group parked the Jeep, leaving Perez's weapon inside. They traveled Coney Island, New York, where they were arrested the next morning by United States Marshals.

Detective Raymond Cavagnaro, who at the time was employed by the Major Crimes Unit of the Vineland Police Department, was assigned as the lead investigator to the October 6, 2006 shootings. Detective Cavagnaro, along with Detective Steve O'Neill of the Cumberland County Prosecutor's Office, interviewed Manuel in New York's central booking facility located in Lower Manhattan. They were unable to speak to defendant, however, because the facility had no available interview rooms.

Defendant was extradited to New Jersey and held in the Camden County Jail. Detectives Cavagnaro, O'Neill and Edwin Ramos conducted a videotaped interview on October 25, 2006. Throughout the interview, Detective Cavagnaro told defendant he thought he was lying about his version of the events of October 6, 2006. Detective Cavagnaro acknowledged he told defendant the purpose of the interview was to obtain his account of the evening's events, despite actually attempting to get defendant to admit his participation in the shootings. Detective Cavagnaro also admitted he made some statements to defendant that were not true.

Detective O'Neill was questioned regarding defendant's custodial statements. He recalled defendant asserted he had "smoked weed, angel dust, PCP, and had a number of drinks," prior to the shooting, making him unable to remember the events. Detective O'Neill also testified that he "called [defendant] out on his lies," during the interview and admitted he "used deceit," making statements to defendant in an effort to secure a confession.

A Cumberland County grand jury returned Indictment No. 07-02-0163, charging defendant and co-defendants Perez and Manuel jointly and/or individually with twelve counts. Defendant was charged with murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (counts three and eight); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts four, nine and eleven2); second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (counts five and twelve); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count ten).

Defendant filed several pre-trial motions to change venue, to suppress his custodial statement alleging Miranda3 violations, and to exclude the out-of-court identifications because of impermissibly suggestive procedures, see United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), or the witness's statement was inconsistent and unreliable, see State v. Gross, 121 N.J. 1, 10 (1990). All of the motions were denied following extensive evidentiary hearings.

Prior to trial, co-defendants Manuel and Perez negotiated plea agreements. Manuel pled guilty to third-degree unlawful possession of a weapon, and was sentenced to five-years imprisonment. Perez pled guilty to the amended charge of second-degree manslaughter and third-degree unlawful possession of a weapon, for which he was sentenced to an aggregate term of seven years imprisonment, subject to the requirement he serve 85% of the term prior to parole eligibility.

Judge Benjamin C. Telsey presided over defendant's fifteen-day jury trial, held from March 3 through April 7, 2011. As a result of a comment made during Detective Cavagnaro's direct examination, defendant moved for a mistrial. Judge Telsey struck Detective Cavagnaro's comment, but denied the motion. At the close of evidence, defendant moved for acquittal, which also was denied. The jury returned guilty verdicts on counts three, unlawful possession of a weapon, and five, certain persons not to have weapons. The jury acquitted defendant on all other charges.

At sentencing, Judge Telsey granted the State's motion to impose a discretionary extended term, concluding defendant was a persistent offender. He sentenced defendant to twenty years imprisonment, subject to ten years of parole ineligibility, for possession of a weapon by a convicted person to run concurrent to a term of five years imprisonment, subject to two-and-a-half years of parole ineligibility, for unlawful possession of a weapon. Both sentences were to run consecutively to the prison term defendant was already serving. This appeal followed.

II.

On appeal, defendant challenges the admission of the out-of-court identifications made by three witnesses present during the shooting. He further attacks the denial of his motion for a mistrial following Detective Cavagnaro's interjected opinion testimony. Finally, he challenges the sentence imposed as excessive and disparate. We consider each of these arguments.

A.

Citing our Supreme Court's discussion in State v. Henderson, 208 N.J. 208 (2011), defendant argues the eyewitness testimony resulting in the out-of-court identifications was unreliable, impermissibly suggestive, and inadmissible. Defendant argues the totality of the circumstances "supports the conclusion that the identification procedures used by the police were impermissibly suggestive" and an evaluation of the reliability factors does not outweigh the corrupting influences of the suggestive procedures. Although defendant recognizes Henderson's application is prospective, he relies heavily on police noncompliance with the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedure (the Guidelines).4 Prior to our review of this legal challenge, we first review the facts presented at the Wade hearings surrounding the three challenged eyewitness identifications placing defendant at the Oak Tavern and Time Out on the evening before and morning of the shootings.

The first witness to identify defendant was Nikaya Sudler. During the N.J.R.E. 104 hearing conducted by Judge John M. Waters, Jr., Sudler, Detectives Dominick Patitucci, Brian McManus, Cavagnaro and Ramos testified. Additionally, the State presented two DVDs of Detective Patitucci's interview with Sudler, the photographs used and a photocopy of the photo array used during the identification process, and two DVD statements from Stephanie Parnell, another State's witness, who corroborated Sudler's statement.

Sudler, who acknowledged she had been drinking at both establishments, identified defendant stating she saw him standing by a Jeep Cherokee. She recounted the events from that evening. Defendant was approached by a man she identified as "Fresh," and after a brief exchange, she saw defendant pull out his gun, and point it at Fresh. Sudler stood approximately five or six feet from defendant, under a light, and had "no doubt" it was defendant who drew the weapon. After observing defendant brandish his weapon, Sudler jumped into her car, heard shots fired, and saw Wesby had been shot. She called 9-1-1. At the scene, Sudler provided a statement to police, including her identification of defendant, stating she knew him from the Walnut Manor and at Sandy Gardens Apartments in Vineland.

Later, Sudler made an identification at the police station. She described defendant as wearing a red jacket and that his hair was cornrowed. Detective Patitucci conducted the identification process using a six photo array compiled by Detective Ramos. Prior to showing Sudler the photographs, Detective Patitucci asked, "[I]f I showed you pictures of the Spanish guys . . . could you identify them[?]" He also told her "no more than one of the suspects was going to be in each photo array. The point [he] was trying to get across to her was that [the police] . . . don't put more than one suspect in each photo array." Further, he stated one of the six people presented in the array was at the scene rather than explaining the suspect may or may not be in the photographs, or she was not compelled to make an identification. Sudler identified defendant stating she was 100% certain. She thought two other photographs may have depicted men who might also have been at the scene. The following week, Detectives Ramos and Cavagnaro conducted a second photo identification, showing Sudler the same photo array used by Detective Patitucci. Again, she selected defendant's photograph.

Judge Waters rejected defendant's arguments challenging the reliability of Sudler's identification. Although agreeing that police failed to strictly follow the Guidelines and that the procedure followed was suggestive, Judge Waters nevertheless determined there was no chance of misidentification because Sudler was "relatively well acquainted with defendant." He found she interacted with him a few hours earlier at Oak Tavern, had ample opportunity to observe defendant during the shooting, and she had identified defendant by his nickname "Dido" at the scene, before the police showed her the photo array. He stated:

I find absolutely no I have no doubt in my mind that Ms. Sudler knew [defendant] on the date in question. That she recognized, from her testimony, [him] as being present on the date in question.

 

And specifically, [defendant] was shooting a handgun on that date, at least in the air, and that she later confirmed those facts, as a result of her discussions with the police, before being shown any photographs[.]

 

Another eyewitness was Tanisha Loatman. During the Wade hearing conducted by Judge Telsey, Detective Patitucci testified, and the State introduced the DVD of Loatman's interview and the photograph of defendant from which she identified him as the shooter.

Loatman was also present outside the Time Out when the shooting occurred. She spoke to Detectives Patitucci and Cavagnaro that morning. However, a malfunction with the equipment resulted in only a portion of the interview being recorded. When the detectives realized the glitch, they requested Loatman repeat her prior statements on camera.

Loatman knew defendant through her sister "for a long period of time." She referred to him by his nickname, "Dido," but also stated his given name. The police did not request Loatman physically describe defendant, but showed her one photograph of defendant and another of his brother, one at a time. Detective Patitucci testified she "positively identified both subjects in the photographs, as one being Dido, who is [defendant], and the other being Lucky, who is Manuel Mayas." When asked why he only showed Loatman one photograph of defendant and one of Manuel, he explained

She said she knew who they were. She knew them by their alias names and she knew them by their real names and actually, had told me that she knew [defendant] because he had tried to talk to her at one point.

 

Which I was under the assumption maybe they had spoken on the phone, maybe [defendant] was trying to take [Loatman] out . . . to a dinner or . . . date her . . . . That was the sense that I got from [Loatman], that [defendant] was trying to talk to her in the past.

 

So she knew who [defendant] was and she knew who his brother, who is Manuel, was. So we gave the one photo and had her positively identify those subjects in the photos.

 

Although critical of the process, characterizing it as marked by "sloppiness," Judge Telsey denied defendant's motion to suppress finding Detective Patitucci credible, the interview was not coercive, and Loatman had named defendant as the shooter, knew him well, and referred to him in a familiar way, thus undermining the claim of suggestibility resulting from the use of one photograph.

The final eyewitness was by Julio Pacheco, who also was at Time Out during the shooting. At the Wade hearing, the State presented testimony from Detective Ronald DeMarchi and Pacheco, introduced the DVD recording of Detective DeMarchi's interview of Pacheco, a copy of the photo array, and the photos shown to Pacheco. Defendant offered a newspaper article regarding the shootings and a defense investigative report. The focus of defendant's challenge was Pacheco's altered mental state because he used illicit narcotics that evening.5 According to Pacheco, he saw Bruce and Wesby had been shot, but did not actually see the shootings. Although Pacheco did not know defendant, he had seen him on two prior occasions. The day following the shootings, he saw defendant's picture in the newspaper. However, he maintained he never read the accompanying article.

Pacheco was interviewed On October 11, 2006, and later claimed he felt forced to talk to police because they were persistent. They showed him six photographs, including defendant's photograph, one at a time and instructed him "the suspect may or may not be in the photographs." Pacheco nonetheless identified defendant. The detectives did not ask Pacheco about his confidence level regarding the identification. Pacheco later asserted he was hung over and had used marijuana the evening before, which he had not disclosed to police.

After observing the video recording of Pacheco's interview, Judge Telsey made these findings, determining Pacheco was neither intoxicated nor subject to duress:

there was no slurring of his speech . . . . [H]e was responsive to whatever questions were asked, although he did go off on a tangent but the impression of this [c]ourt was the tangents were more to be helpful and informative than because he was unable to carry on a direct train of thought, because of some level of intoxication.

 

. . . .

 

There [was] no indication whatsoever in [the interview DVD] that Mr. Pacheco felt as though he was under some sort of duress to provide this information. Frankly, it was just the opposite.

 

Judge Telsey denied the motion to suppress stating he "[did] not find by any stretch that the lack of reliability in [Pacheco's] identification is the result of an impermissibly suggestive identification procedure. It's for all the other reasons that came out subsequent to his giving his statement." He further added these issues could easily be explored on cross-examination were Pacheco to testify at trial.

Defendant maintains the court's analysis in each of these instances was error. Regarding Sudler, he argues the judge "overestimated the degree of prior acquaintance and overlooked the estimator variables, i.e. Ms. Sudler's opportunity and ability to observe at the scene." As to Loatman, defendant cites police failure to adhere to the Guidelines, (including not recording the interview in full, and not using an array of photos) rendered her identification inadmissible. Also, defendant maintains the procedures followed were inherently suggestive because the facts related by the testifying officers leave an approximate thirty-minute gap between arriving at the station and commencement of the videotaped interview. Defendant also challenges Pacheco's identification, arguing police neglected to inquire what identifiers of the shooter Pacheco observed or ask the level of confidence in the identification. Defendant additionally claims the picture used was the one previously published in the newspaper, which Pacheco admitted viewing. We find none of these arguments persuasive.

We afford substantial deference to a trial court's factual findings. State v. Locurto, 157 N.J.463, 472 (1999). "[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). Our review is restricted to whether the trial court's findings that the identification procedures were reliable is supported by sufficient credible evidence present in the record. Ibid.(citing Locurto, supra, 157 N.J.at 470-71).

At the time of defendant's trial, the admissibility of eyewitness identifications was reviewed under the two-step analysis set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), as adopted by State v. Madison, 109 N.J. 223, 232-33 (1988).6 A court must first determine whether the procedure in question was "in fact impermissibly suggestive." Madison, supra, 109 N.J. at 232. "'What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451).

If the court finds the procedures impermissively suggestive, it must decide "whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). Here, the court focuses on whether facts prove the reliability of the identification despite the impermissibly suggestive nature of the procedures employed. Ibid. See also Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 ("Reliability is the linchpin in determining the admissibility of identification testimony . . . ."). The reliability determination is made analyzing the totality of the circumstances, including: (1) the witness's opportunity to view the criminal during the commission of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the witness's level of certainty at the time of the identification; and (5) the time between the crime and the identification. Madison, supra, 109 N.J. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S.Ct.at 2253, 53 L.Ed.2d at 154).

Under the Manson/Madison test, the defendant bears the burden of proving "by a preponderance of the evidence 'that the identification procedure was suggestive so as to result in a substantial likelihood of misidentification.'" State v. Janowski, 375 N.J. Super. 1, 9 (2005) (quoting State v. Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000). "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04 (2006)).

Here, central to defendant's arguments in each instance is police failure to adhere to the Guidelines when securing the challenged identifications. The Guidelines were promulgated to direct police and the court in order to improve the eyewitness identification process. Nothing in the Guidelines, however, suggest noncompliance with the provisions marks an identification as inadmissible. Although we found no prior authority for this premise, we are persuaded by the Court's later comments on the issue set forth in Henderson, supra, 208 N.J. at 292-93, which sets forth the legal principle applicable at the time of defendant's motions. In Henderson, the Court rejected the defendant recommendation that "any violation of the Attorney General Guidelines should require per se exclusion of the resulting eyewitness identification[,]" in favor of a "more flexible framework" that analyzes and weighs a number of variables to determine whether suggestibility caused misidentification to occur. Ibid.

Judges Waters and Telsey fully appreciated the recommendations set forth in the Guidelines and were familiar with the applicable authority regarding the inadmissibility of impermissibly suggestive identifications. The analysis made in each instance following an evidential hearing, was well-grounded on the facts presented and included detailed credibility findings regarding each testifying witness. As such, we reject defendant's contrary suggestions, as unsupported.

Both Sudler and Loatman knew defendant and recognized him at the scene. Neither was incoherent, impaired, or equivocal when questioned the morning of the hearing, or during the subsequent identification process. Contrary to defendant's contentions, Sudler was sufficiently familiar with defendant to identify him, having encountered him on numerous occasions beginning in 2002 and Loatman knew defendant and his brother well.

Regarding Pacheco, we note he too was confident in his identification, as illustrated by his comment that the photograph used in the photo array showed defendant with a different hairstyle. In this instance, Judge Telsey made thorough factual findings considering defendant's arguments attacking Pacheco's reliability. He fully supported his findings that the procedures utilized were not impermissibly suggestive. See Farrow, supra, 61 N.J. at 451. ("The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge.")

We also discern no error in the legal analysis supporting the judges' conclusions that the police procedures, although at times impermissibly suggestive, did not result in misidentification. The use of a single photograph in an interview "ordinarily goes only to weight, and not admissibility, of an identification." Id. at 453 (citing State v. Matlack, 49 N.J. 491, 498 (1967), cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967)). Further, the flawed electronic recordation does not mandate its inadmissibility absent other facts supporting the procedure employed was purposefully or impermissibly suggestive. See Janowski, supra, 375 N.J. Super. at 9-10.

Considering the totality of the circumstances, we conclude the eyewitness identifications of defendant at the scene were sufficiently reliable as to warrant their admission at trial. In sum, each identification withstands scrutiny as to reliability, notwithstanding their suggestibility. Herrera, supra, 187 N.J. at 503-04.

B.

The second issue presented by defendant is the denial of his motion for mistrial, after Detective Cavagnaro interjected his opinion regarding defendant's truthfulness during the custodial interview. As noted, the police challenged the veracity of defendant's recitation of his involvement in the events preceding the shootings.

During direct examination and without any objection from defendant, Detective Cavagnaro was asked to read the transcript of defendant's custodial interview. Prior to this testimony, Judge Telsey reinforced the State's burden of proof and declared defendant had no burden. He then instructed the jury:

[D]uring the course of the statement, you're going to hear the officers state their opinions about the case. Their opinions are not to be considered by you in any way during the course of our deliberations.

 

The opinions that you hear the officers state during the course of the interview should only be considered by you in evaluating the interview techniques that were used by the officers.

 

The jury was also told it must decide whether the statement was actually made by defendant and whether it is credible. Finally, Judge Telsey informed the jury they alone decide the weight placed on the statement. Similar instructions were reiterated at the close of evidence.

After defendant's statement was read, Detective Cavagnaro was asked to describe defendant's demeanor throughout the interview. He responded: "He was agitated at points and laughing at others. He answered our questions to an extent when we asked him. He seemed to be deceptive at some points." Defense counsel immediately objected and at side bar demanded a mistrial. Judge Telsey struck Cavagnaro's comment but denied the motion, determining:

Frankly, his statement was not surprising at all to this jury. He said about 33 times during the course of that statement [just read to the jury] that he thought that [defendant] was lying.

 

I've already instructed them beforehand that they're not to consider his opinion. I'll strike that answer and just continue my instruction.

 

That one comment he made is not going to surprise anyone. They were told beforehand not to consider that. And they already know his opinion, . . . and already know not to consider his opinion on this particular case.

 

The judge then neutralized the offensive remark by immediately providing this curative instruction to the jury:

With regards to Detective Cavagnaro's opinion about [defendant] being deceptive. As I told you before we read the statement, the detective's opinion is not for your consideration at all.

 

So I'm going to strike that statement about his opinion of being deceptive from the record.

 

As I told you initially, the opinions that you heard during the course of the transcript were not something for you to consider during the course of your deliberations what their opinion is. The purpose of that opinion testimony coming in was solely limited to so you could get a feel for and an understanding of the interview practices and procedures that those officers were using.

 

Defendant argues his recitation of events as revealed in the custodial statement included his assertion he was not in the Time Out parking lot when the shots were fired. He believes this fact was refuted only by Detective Cavagnaro's opinion that defendant was not being truthful. Further, defendant cites what he suggests amounted to Detective Cavagnaro's "flagrant disregard of instructions that he not offer his opinion of defendant's truthfulness." Defendant emphasizes "the officer offering the opinion is apparently a compulsive, serial blurter of his opinion" after being twice instructed not to do, so making "reversal even more imperative." Therefore, defendant maintains the comment, which he believes offers a direct opinion regarding his guilt, warrants a mistrial. We disagree.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Montgomery, 427 N.J. Super. 403, 406 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013) (internal citations omitted). An appellate court extends substantial deference to a trial court's determination whether to grant a mistrial because:

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one 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. L.P., 352 N.J. Super. 369, 379 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 174 N.J. 536 (2002).]

A trial judge's "discretion is exercised improperly, however, if the court has an appropriate alternative course of action[,]" such as a curative instruction. State v. Allah, 170 N.J. 269 281 (2002).

Defendant's claim that Detective Cavagnaro's comment was improper is not challenged. As a rule, credibility determinations rest with the factfinder and witnesses may not be the subject of the testimony of another witness. See State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), (holding "[i]t is within the sole and exclusive province of the jury to determine the credibility of the testimony of a witness"), aff'd, 177 N.J. 229 (2003). See also State v. Frisby, 174 N.J. 583, 595 (2002) (finding reversible error where a State's witness testified another witness was "more credible" than the defendant). Our Supreme Court has observed:

We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, to assure the complete opportunity of the jury alone to determine guilt, to prevent the court or the State from expressing an opinion of defendant's guilt, and to require the jury to determine guilt under proper charges no matter how obvious guilt may be[.]

 

[State v. Hightower, 120 N.J. 378, 427-28 (1990) (citations omitted).]

 

However, we cannot agree the statement was so prejudicial as to deny defendant a fair trial. Judge Telsey took great pains to instruct the jury to disregard opinion comments from the transcript. These instructions were provided before the statement was read, after the inappropriate remark was made, and when issuing his final instructions. See State v. Koedatich, 112 N.J. 225, 323 (1988) (concluding that the defendant's right to a fair trial was honored because "the defense objected, the objections were sustained, and the court issued curative instructions"). Further, the instruction before the statement was read, as well as the curative instruction immediately following the offensive comment, were swift, direct and complete. We have no doubt the jury understood its role and followed the court's guidance. See State v. Short, 131 N.J. 47, 65 (1993) ("In those and many other circumstances we trust juries to follow instructions.).

We also cannot ignore the State's five witnesses, including co-defendant Perez, who placed defendant at the scene firing a gun, refuting defendant's explanation contained in his custodial statement. Indeed, the jury's verdict reflects it painstakingly considered the voluminous evidence resulting in defendant's acquittal of the most serious charges.

We conclude Judge Telsey correctly analyzed the opinion comment, finding it lacked the capacity to lead the jury to an improper conclusion. See Winter, supra, 96 N.J. at 647 ("The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached."). Therefore, the request for mistrial was properly denied.

C.

Defendant asserts the judge exceeded his discretion when he sentenced defendant. Claiming the sentence imposed was excessive, defendant argues after the judge erroneously rejected applicable mitigating factors and rendered a disparate term of imprisonment in light of the seven-year sentence received by co-defendant Perez. We conclude these claims are unfounded.

At sentencing, Judge Telsey considered the State's request to impose an extended term pursuant to N.J.S.A. 2C:44-3(a). Judge Telsey found defendant met the minimum statutory criteria to be sentenced to an extended term as a persistent offender. He stated defendant was then "31 years of age and was previously convicted on at least two separate occasions of two crimes committed at different times. Defendant's last release from confinement [was] within ten years, as he is currently confined, as of the date of the present offense." The judge then performed an extensive analysis and made detailed factual findings to support his conclusion:

[T]he [c]ourt should determine based upon an analysis of the defendant's record[,] whether it is appropriate to sentence him to an extended term. The defendant's prior record certainly establishes that he's been unable to remain out of criminal trouble for any period of time. In addition to his indictable convictions [discussed] above, he has three violations of probation and three disorderly persons convictions.

 

Particularly, [defendant's] history is as follows: He's been consistently involved with the criminal justice system since he incurred his first arrest at the age of 13. He has a significant juvenile history consisting of 30 arrests, 13 adjudications, a violation of probation adjudication, a parole violation. He spent time in juvenile detention and was incarcerated in Jamesburg.

 

As an adult he's incurred three disorderly persons convictions, four indictable convictions, three violations of probation convictions.

 

. . . .

 

As detailed in the below analysis of defendant's contacts with the criminal justice system, at no time during his adult life has he gone any period of time without committing and/or being convicted of new offenses.

 

As indicated, his first contact as an adult was on July 1st, '98 which was his first indictable offense for unlawful possession of a handgun. And, he was sentenced to probation on July 2nd, 1999. He violated that probation on May 10th, 2001, and his probation was terminated.

 

On September 10th, 1998, just two months after being charged with his first indictable offense, he was charged with possession of CDS. He was convicted on February 5th, 1999, was sentenced to probation 364 days. He violated that probation, and that probation was terminated on May 10th, 2001.

 

On June 24th, 2000, he committed an obstruction and disorderly persons offense and was sentenced on March 8th, 2001. On October 31st, 2000, just four months later, he committed a failure to make a proper disposition of CDS, disorderly persons offense and was sentenced to probation on Mach 19th, 2001 which he was convicted of violating and received six months in the county jail.

 

On March 7th, 2001, . . . approximately four months later, he committed an aggravated assault and was sentenced on March 8th, 2002 to four years' state prison. He was re-sentenced to five years' probation on May 24th, 2002. And, after being re-sentenced to that five years' probation, just two months later, he violated his probation, was sent back to state prison on July 16th, 2002. It's important to note that he maxed out that violation on June 5th of 2005.

On June 14th, 2001, just three months after his previous aggravated assault charge, he committed a simple assault and was sentenced on March 8th, 2002. On October 5th, 2005, just give months after maxing out on his previous sentence . . . referenced, he was convicted on three counts of unlawful possession of a handgun and three rounds of certain persons not to possess a handgun. And, he was sentenced for those offenses on August 3rd, 2007 to 20/serve ten.

 

On December 26th, 2005, just two months after being charged with those previously referenced weapons offenses, he was charged with a number of serious weapons offenses again as well as attempted murder. This offense is still pending trial. And, the [c]ourt places really no weight on this offense just but for the fact he was arrested on it as the [c]ourt recognizes he's still innocent of that case until there's disposition.

 

Finally, on October 6, 2006, just one year after committing . . . the various weapons offenses for which he's serving a sentence on, he committed the present offense[,] which results in the exact same convictions as the one's he's serving the extended-term sentence on.

 

Clearly, no levels of state level incarceration, county jail, or probation have been able to deter [defendant] from violating the law. In fact, the present offense was committed while defendant was on bail.

 

Judge Telsey identified the range of any sentence ran from the bottom of the second-degree range, five years, to the top of the first-degree range, twenty years. He found applicable aggravating factors three the risk the defendant will commit another offense, six the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, and nine the need for deterring defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6), and (9).

Judge Telsey rejected defendant's request for application of mitigating factors one defendant's conduct neither caused not threatened harm, and two defendant did not contemplate his conduct would cause or threaten harm, N.J.S.A. 2C:44-1(b)(1) and (2). He found a convicted felon's possession and firing a loaded handgun in the midst of a crowd of people was "a recipe for disaster" and was inconsistent with the claimed mitigating factors. Accordingly, he concluded the aggravating factors substantially outweighed the non-existent mitigating factors. Providing additional analysis regarding the nature of the offense and the applicability to a period of parole ineligibility, Judge Telsey imposed the maximum sentence of twenty years with a ten-year period of parole ineligibility.

When a conscientious trial judge adheres to the sentencing guidelines, in conformity with the principle set forth in the Criminal Code to focus on the crime not the offender, we will not interfere with the sentence imposed absent a determination that it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). "The test 'is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Roach, 146 N.J. 208, 236 (1996) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)).

Here, the court provided a full and proper analysis of the statutory factors to determine whether defendant qualified as a persistent offender, considered defendant's criminal history and the current offense, and the aggravating and mitigating factors. Further, Judge Telsey demonstrated he considered the full range applicable when imposing the sentence and fully supported the imposition of a sentence at the top of the available range. We find no basis to interfere.

Alternatively, defendant suggests his sentence was disproportionate when compared to the sentence imposed for Perez's similar conduct. It is agreed that "uniformity as one of the major sentencing goals in the administration of criminal justice." Id. at 231. However, a sentence of one defendant not otherwise excessive is not erroneous simply because a co-defendant receives a lighter sentence. State v. Hicks, 54 N.J. 390, 391 (1969).

The disparity argument was fully considered and properly rejected by Judge Telsey. His review focused on the significant weight placed on Perez's cooperation with the State, leading to the convictions of the offenders. N.J.S.A. 2C:44-1(b)(12). Defendant too was offered a plea agreement, which he rejected. The judge is correct that Perez's circumstances were not "identical" to those of defendant.

Defendant has the burden of proving co-defendant is "identical or substantially similar to the defendant regarding all relevant sentencing criteria." Roach, supra, 146 N.J. at 233. Defendant argues in light of Perez's actions and sentence versus his actions and sentence, the disparity is "unconscionable" and a remand is necessary to determine whether the disparity is justifiable. Yet, the mere assertion co-defendant received a different sentence is insufficient.

Here, the record does not include Perez's criminal history making it unclear whether it was similar to defendant's.7 The lengthy, continuous, and violent criminal conduct by defendant was given considerable weight in determining the appropriate sentence. Further, defendant's extensive history demonstrates he has completely rejected any and all opportunities to lead a law-abiding life in favor of recidivist criminal conduct. This fact is illustrated by defendant's commission of the current offenses while on bail for a different offense. We reject as unsupported defendant's assertion of disparity.

I

n conclusion, for the reasons stated in our opinion, we affirm defendant's conviction. Further, we determine no basis to alter the sentence imposed.

Affirmed.

1 To avoid confusion because of the shared surname with defendant, we refer to Manuel Mayas by his first name.

2 On February 1, 2011, the State dismissed counts ten and eleven.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 See http://www.state.nj.us/lps/dcj/agguide/photoid.pdf (dated April 18, 2001).

5 Pacheco admitted he had been drinking heavily and was "smoking wet," which refers to "[m]arijuana cigarettes . . . dipped or laced with other substances, typically formaldehyde, phencyclidine, or both . . . ." Tex Heart Inst. J. 2013; 40(1):64-7. "Smoking wet": respiratory failure related to smoking tainted marijuana cigarettes. Gilbert CR, Baram M, Cavarocchi NC.

6 The admissibility of out-of-court identifications is now guided by Henderson, supra, 208 N.J. at 286, which discredited three of the Manson/Madison reliability factors (the opportunity to view the crime, the witness's degree of attention, and the witness's level of certainty at the time of the identification) because they are self-reporting elements that can be skewed by suggestive police procedures. However, Henderson's holding has prospective application and is inapplicable to this case. Id. at 300-02 (instructing that the new framework is to apply to future cases "thirty days from the date this Court approves new model jury charges on eyewitness identification").

7 On cross-examination, Perez admitted he was convicted of a third-degree drug charge, second-degree eluding, and fourth-degree resisting arrest.