STATE OF NEW JERSEY v. RICARDO OZORIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5082-05T45082-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO OZORIO,

Defendant-Appellant.

___________________________________

 

Submitted October 22, 2007 - Decided

Before Judges Lintner, Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Susan B. Gyss, Assistant Prosecutor, on the brief).

PER CURIAM

Found guilty by a jury of conspiracy to commit murder, defendant Ricardo Ozorio appeals his conviction and his resulting twenty-year prison sentence. We affirm.

I.

The multi-party, fifteen-count indictment that led to defendant's conviction arose out of a violent and fatal encounter on a summer night in August 2003. The encounter pitted two rival groups of young men on the streets of West New York, near a gas station. During the course of that encounter, a member of one of the sparring factions, Garmair Brown, was stabbed to death. Two of Brown's companions, Christopher Navarro and Brian Powell, also were physically attacked, but survived.

As the State contended at trial, Brown's killing and the simultaneous attack on his companions were committed in apparent retaliation for the stabbing of Luis Carlos Arias, an associate of defendant, four months earlier. On the day of the present offenses, Arias, who had recovered from his stab wounds, was at a cultural parade in West New York with several colleagues when a group of men began giving him menacing "looks." The men who were staring "hard" at Arias were recognized to be part of the group that had been involved in his prior stabbing. The staring incident provoked the violent clash of the two rival factions, later that evening outside the gas station.

Defendant and seven others were charged with numerous crimes for their participation in the bloody street altercation. In particular, the indictment charged defendant, also known as "Puchichi," with conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); conspiracy to possess a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-4d (count two); conspiracy to possess a weapon without a permit, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-5d (count three); purposeful and knowing murder of Brown (a/k/a "Bow Wow"), contrary to N.J.S.A. 2C:11-3a (count four); aggravated assault against Navarro, contrary to N.J.S.A. 2C:12-1b (counts five, six, and seven); aggravated assault against Powell, contrary to N.J.S.A. 2C:12-1b (counts eight and nine); unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (counts ten (a screwdriver), twelve (a knife), and fourteen (a stick)); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (counts eleven (a screwdriver), thirteen (a knife), and fifteen (a stick)). Also charged in the indictment were Pedro Quezada (a/k/a "Doggy"), Pablo Molina (a/k/a "Tito"), Alexander Cruz Colon, Edwin Guillen, Juan Sanchez Ricardo (a/k/a "Jose"), Moises Rodriguez Castillo and Ramon Almonte (a/k/a "Doyi").

Following his arrest, defendant admitted to the police that he had been present at the parade. At trial, however, he contested the State's proofs placing him at the scene of the stabbing.

Upon the State's motion, defendant's trial was severed from that of his co-defendants. The trial took place over the span of eleven intermittent days in January 2006.

Defendant did not testify, and he did not call any witnesses. The State's evidence at trial, meanwhile, adduced the following facts, which underlie our consideration of the issues raised on appeal.

On August 24, 2003, defendant attended the Dominican Day parade in Hudson County. The parade started on 60th Street and Bergenline Avenue in West New York and continued to 30th Street. Arias, accompanied by Alexander Mendoza and Javier Dujarric, also attended the parade.

At some point Mendoza noticed that a group of men were looking "hard" at Arias. Mendoza recognized the staring men as individuals who were often in the area of 60th Street and Bergenline Avenue. Mendoza recalled that the men had been involved in the previous altercation with Arias, during which Arias had been stabbed.

As further background about the Arias stabbing, the State presented testimony of his assailant, Christopher Dopico. Dopico confirmed that a few months earlier, on April 16, 2003, he and several friends had a "confrontation" with a "group of kids." During that confrontation, Dopico stabbed Arias four times with a knife.

According to Mendoza, on the afternoon of the parade the men simply exchanged "looks," without any immediate physical or verbal confrontation. Shortly thereafter, Mendoza left to march in the parade. Mendoza stated that at that point Arias was standing with several men, including defendant, whom Mendoza identified at trial and whose photo Mendoza picked out of an array. Mendoza then saw defendant, Arias, and Dujarric walk around a Foot Locker store on Bergenline Avenue.

After the parade, Mendoza met several men on 5th Street, including Arias and Eric Acevedo. Acevedo's sister owned a white Honda Civic with a Michigan license plate, which several of the co-defendants would use later that night. Acevedo told Mendoza that he had lent his sister's car to a friend named "Jose" earlier that day.

Sometime that same afternoon, Navarro and eight other unnamed "friends," who often were in the vicinity of 60th Street, were walking back from the parade on 34th Street and Bergenline Avenue to West New York, when they were surrounded by a group of about ten men. According to Navarro, the men said they were looking for someone. One of the men told Navarro and his companions to "come to 60th [Street] at the Exxon [gas station]" later that evening.

Consequently, Navarro, Brown, and three unnamed women went that night to the Exxon station on 60th Street. At approximately 9:00 p.m. a "burgundy" vehicle, later identified as a red Infiniti with Rhode Island license plates, and the white Honda Civic circled the block. The red Infiniti stopped in front of the station, and Navarro saw its three passengers get out. This was corroborated by Anthony Rodriguez, a friend of Brown's who happened to be walking toward the station at that time. Rodriguez likewise saw several people exit the Infiniti.

Navarro recognized the Infiniti passengers as the same three men who had surrounded him earlier at the parade. According to Navarro, the men told Brown they were looking for someone named "Mungi." Brown responded that "if you need to look for [Mungi] you have to see me first." At that point a fourth man walked to the Exxon station from around the block where the white Honda had stopped. The man gave Brown an "ugly look," and started stabbing Brown. One of the three men who had gotten out of the red Infiniti, who also was not identified at trial, then began hitting Navarro with a stick. Then the fourth man, who had just stabbed Brown, turned and stabbed Navarro. Meanwhile, another unnamed man, who had stepped out of the Infiniti holding what appeared to be a knife with a sock wrapped around the handle, chased Rodriguez.

While this all was occurring, Powell, who described himself in his testimony as one of Brown's "associates," was positioned across the street from the Exxon station. Powell was standing there, along with three unnamed individuals, when the street fight erupted. Powell recounted that he saw a group of men getting out of a white car. He then saw approximately eight men wearing baseball hats and carrying weapons, such as knives and screwdrivers, approach the area where Brown was standing. As Powell crossed the street to intercede, he observed punches being thrown. He saw Brown, who appeared to be in pain, sitting on a ledge by a dumpster. In response, Powell attempted "to get [Brown] out of there," explaining to the jury that "that's what associates [in their group] do."

When Powell attempted to pull Brown away from the fracas, another individual, who Powell later identified as defendant, came toward them and appeared to "punch[]" Brown, and then tried to stab Powell with a "sharp instrument." Powell testified that defendant had made a "jab[bing]" motion toward him, which was "just like a punch being thrown." Powell deflected the blow with a radio. He then threw the radio at defendant, who ran from the scene. Powell eventually pulled Brown to the ground and applied pressure to Brown's stab wounds.

Powell later told police detectives that he could identify the man who tried to stab him, and he selected defendant's photo from an array. However, at trial Powell claimed he had been pressured into identifying defendant, stating that he told the detectives that he was "pretty sure" but not positive that defendant was the man who tried to stab him.

After Brown was stabbed, Navarro went to get help. As he approached the street, another of the unnamed men who had exited the red Infiniti tried to stab Navarro with an ice pick. Navarro managed to elude his attacker. He approached a vehicle driven by Frank Silverio, an employee of emergency management in North Hudson. Albert Lombardo, an emergency medical technician, was a passenger in Silverio's vehicle.

Silverio confirmed that, at approximately 9:30 p.m., Navarro stopped their vehicle and told them that he and Brown had been stabbed, and that the perpetrators were escaping in a red Infiniti. Lombardo got out of his truck to assist Navarro. Meanwhile, Silverio pursued and pulled over the red Infiniti. The Infiniti driver and its two passengers voluntarily got out of the car. Although Silverio thought that defendant "look[ed] like" one of the men in the car, he was apparently mistaken because later, after the men were arrested, the Infiniti occupants were identified as co-defendants Colon, Ricardo, and Guillen.

Minutes after receiving a 9-1-1 call from dispatch, West New York Police Officer Edward Rivera arrived at the scene. Officer Rivera escorted Navarro to the red Infiniti, which had been stopped a few blocks from the scene. Navarro stated to the officer that the three Infiniti occupants, Colon, Ricardo, and Guillen, had been involved in the altercation. The three men were then arrested. Officer Rivera stated that he personally did not see defendant at the scene.

Police Detective Mark Garciga, who had also responded to the scene, then searched the Infiniti. The detective found a screwdriver wrapped in a sock in the front passenger seat, and a sock in the back seat.

Meanwhile, Brown was taken by ambulance to the hospital, where he was pronounced dead. An autopsy revealed that Brown had received five stab wounds by a sharp weapon, but not a screwdriver, to his chest, back, and neck. The cause of death was listed as homicide.

Later that evening, Officer Rivera searched the area near the Exxon station, where he found by a dumpster another screwdriver with a sock tied around the handle. Thereafter, Detective John Cordoma of the Hudson County Prosecutor's Office took swabs from blood stains at the scene, and retrieved other evidence, including a soda can, tissue, and a CD cover.

The police thereafter seized the white Honda in Bayonne. They found in its trunk a black plastic-handled knife with a silver serrated blade. No traces of blood or latent fingerprints were found on the knife. However, Acevedo's and Mendoza's latent fingerprints were found in the vehicle.

Over the next three months, Detective Martin D'Angelo and Detective Cordoma questioned several witnesses about the stabbing incident, including Colon, Arias, Powell and Mendoza. As a result of those interviews, the police arrested defendant and co-defendant Quezada in Brooklyn, New York on November 25, 2003.

Upon their arrival at the 90th Street precinct in Brooklyn, defendant and Quezada were placed in separate rooms. Detective Cordoma questioned Quezada and obtained a taped statement. Meanwhile, Detective D'Angelo and Sergeant William Heaney read defendant his Miranda rights, and at 8:20 a.m., defendant signed a waiver. The officers then questioned defendant, but Detective D'Angelo testified that defendant "was being very evasive" and that he had initially denied having been at the parade on the date in question.

Eventually, the officers placed defendant and Quezada in a room together. According to Detective D'Angelo, at that point defendant agreed to give them a statement, on the condition that Quezada also gave a statement.

The men were again separated, and D'Angelo and Heaney obtained an oral statement from defendant. In that statement, which was admitted into evidence at trial, defendant admitted that sometime in the afternoon on August 24, 2003, he met co-defendants Colon, Quezada, Ricardo, and Guillen by the Williamsburg Bridge in Brooklyn. The men decided to attend the Dominican Day parade in New Jersey, so Ricardo drove them in his red Infiniti to West New York. Upon arrival, defendant and the co-defendants met several other "associates" from New Jersey, who informed them that earlier that day the New Jersey group had been involved in an altercation along the parade route with another group, and that someone had suggested that they "bring it up to 60th Street."

According to defendant's police statement, after the parade, he and the co-defendants met with some of their New Jersey associates to discuss what had taken place during the altercation. They decided that they would go to the Exxon station on 60th Street and approach the men who had been arguing with their New Jersey associates. Defendant stated that co-defendant Ricardo drove Molino, Colon, and Guillen in his red Infiniti, and Castillo drove defendant, Quezada, and another unnamed individual in the white Honda Civic, to 60th Street. While at that location a physical altercation took place. Defendant's statement ended at that point in the chronology, because the officers were interrupted by a phone call and, as a result, they terminated his interview. The interview was never resumed. Defendant and his colleagues were subsequently indicted in Hudson County.

At the conclusion of the State's case at the ensuing trial, defendant moved for judgment of acquittal. The judge granted that motion in part, dismissing counts two, three, five, six, seven, ten, eleven, fourteen and fifteen. After summations and the charge, the jury returned a verdict convicting defendant of conspiracy to commit Brown's murder (count one). However, the jury acquitted him of the remaining counts (four, eight, nine, twelve and thirteen), which had charged him substantively with murder, the aggravated assault on Powell, and with possession of a knife. Defendant was sentenced to a twenty-year term, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant argues that (1) the court erred in admitting evidence of the prior stabbing of Arias; (2) the court failed to provide the jury with an instruction as to the proper use of other-crimes evidence; (3) the court inaccurately summarized the testimony of one of the witnesses in the identification charge; (4) the court should have granted him judgment of acquittal; and (5) his sentence is excessive. None of these arguments warrants reversal.

II.

The first, and related second, issue raised on appeal by defendant concerns the trial court's admission over his trial counsel's objection, of proofs concerning the stabbing of Arias in April 2003, including Dopico's testimony. First, defendant argues that the Arias stabbing was irrelevant to the charges against him, was highly prejudicial, and was inadmissible, either as "other crimes" proof under N.J.R.E. 404(b) or under the concept of res gestae. Second, defendant argues that even if the Arias stabbing qualified as other crimes evidence under Rule 404(b), the trial court committed reversible error by failing to give the jury an appropriate limiting instruction.

With respect to N.J.R.E. 404(b), we note that the trial judge did not rely upon that Rule in allowing the jury to learn about Arias's stabbing. The judge's non-reliance on Rule 404(b) was appropriate. Rule 404(b) is a particularized exception to the principle that prior crimes, wrongs or acts may not be used "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b) (emphasis added); see also N.J.R.E. 404(a) (generally disallowing, subject to narrow exceptions, evidence of a person's trait of character "for the purpose of proving that the person acted in conformity therewith on a particular occasion"). Under Rule 404(b), evidence that a person committed a crime in the past may not be used as proof of his or her character. Instead, such other crimes evidence may only be used against that person for other purposes distinct from character, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." N.J.R.E. 404(b). Typically such uses arise in criminal cases with respect to prior crimes committed by the accused, subject to a multi-part test set forth in State v. Cofield, 127 N.J. 328, 334 (1992).

Rule 404(b) does not apply here because the prior crime in question, the April 2003 stabbing of Arias, was not committed by defendant, but by Dopico. The evidence does not involve a prior act of the same person. The Cofield factors therefore do not pertain to the situation. Consequently, the judge did not err in failing to issue a limiting instruction under Rule 404(b), because Dopico's testimony about his stabbing of Arias was not admitted under that Rule. We also note that defendant's trial counsel did not request any such limiting instruction. There was no error, plain or otherwise, with respect to Rule 404(b). That exception simply did not apply.

Even so, the evidence of Arias's prior stabbing was highly relevant to the prosecution's case, and clearly admissible under N.J.R.E. 402 as relevant evidence. Under Rule 401, relevant evidence is proof having "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. See also State v. Wilson, 135 N.J. 4, 13 (1994). As a prelude to the "hard" looks directed at Arias at the August parade, and the violent confrontation of the two rival groups that ensued later that evening, the stabbing of Arias was logically probative, and "of consequence" to defendant's guilt.

Arias was an associate of defendant and his other colleagues. His stabbing in April 2003 arose out of a confrontation with members of a rival group of young men in West New York. When some of those men saw Arias four months later at the parade, they stared at him, in what may be reasonably understood as a hostile fashion.

The stabbing and the staring incidents thus provide a context for understanding why defendant and his colleagues would have met up with Arias's adversaries at the gas station later that evening. The stabbing was important background evidence, showing, among other things, defendant's motive, intent, and desire to retaliate against those who had harmed his ally and who were menacing him again at the parade. As such, Arias's stabbing plainly has "a logical connection" to the events of August 24, 2003, and defendant's participation in those events. State v. Bakka, 176 N.J. 533, 545 (2003); State v. Darby, 174 N.J. 509, 519-20 (2002).

We are also confident that the probative value of Arias's stabbing was not "substantially outweighed" by the risks of undue prejudice or by other countervailing factors. N.J.R.E. 403. To be sure, Dopico's admitted stabbing of Arias was a violent criminal act, likely to draw the jury's attention and disapprobation. Without discounting the impact of such evidence, the fact remains that Arias's stabbing was powerfully relevant to what ensued on the streets of West New York four months later. The prosecutor did not embellish the proofs with photographs of Arias's bloody wounds or with gory testimonial details about his stabbing.

The judge was not insensitive in this case to countervailing factors of prejudice under Rule 403, as shown by his separate prophylactic ruling that prohibited counsel and the trial witnesses from referring to "gang" affiliations in front of the jury. We are convinced that the admission of the prior stabbing of Arias was indeed appropriate, and that the probative value of that evidence was not "so significantly outweighed" under Rule 403 by inflammatory potential "to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the case. State v. Thompson, 59 N.J. 396, 421 (1971).

Having reached that conclusion, we need not decide whether the Arias stabbing is independently admissible under the res gestae doctrine. In contrast to "other crimes" evidence admitted under Rule 404(b), res gestae evidence relates directly to the crime for which the defendant is being tried, not a separate crime. State v. Martini, 131 N.J. 176, 242 (1993), overruled in part and on other grounds by, State v. Fortin, 178 N.J. 540 (2004); State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001). However, res gestae proof typically concerns earlier conduct by the defendant himself or herself, not the conduct of other persons. See, e.g., State v. Torres, 313 N.J. Super. 129, 161 (App. Div.) (testimony that the defendant sold jewelry in exchange for cash and cocaine and attempted to bribe a corrections officer was necessary to establish the full nature of the crime of robbery of a jewelry store), certif. denied, 156 N.J. 425 (1998); State v. Cherry, 289 N.J. Super. 503, 521-22 (App. Div. 1995) (evidence that the defendant proposed robbing a bar later that night was admissible at trial on charge of murdering a police officer outside of the bar at about the time that the robbery was to take place); State v. M.L., 253 N.J. Super. 13, 24 (App. Div. 1991) (evidence of the defendant's arrest for shoplifting admissible at trial for endangering the welfare of her child), certif. denied, 127 N.J. 560 (1992).

As we have already noted, Arias was not stabbed by defendant, but rather by a member of a rival faction. Since that stabbing is relevant on independent grounds, we need not consider whether res gestae concepts are applicable to the proof of the conduct of another person. If it were necessary for us to do so, we would be inclined to answer that question in the affirmative, because the Arias stabbing "serves to paint a complete picture of the relevant criminal transaction." Martini, supra, 131 N.J. at 242.

In sum, we sustain the trial judge's admission of proofs of the Arias stabbing. We discern no clear error of judgment, see State v. DiFrisco, 137 N.J. 434, 496-97 (1994), by the trial judge in determining that the evidence was probative and that the reasons for admitting it were not substantially outweighed by defendant's claims of undue harm. Moreover, no limiting instruction was requested or necessary.

III.

Defendant next argues that the trial judge committed plain error in imprecisely summarizing Powell's testimony in the course of the jury charge on identification. Specifically, defendant argues the judge erroneously told the jury that Powell had identified defendant as having committed "murder and assault," even though Powell only allegedly identified defendant as having been involved in an assault. We perceive no reversible error in the judge's factual reference.

In the identification segment of the charge, the judge instructed the jury substantially in accordance with Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2007). Consistent with the model charge, the judge specifically referred to the trial proofs that implicated identification issues. In the course of doing so, the judge stated that "[t]he State has presented testimony that on a prior occasion, before this trial, Brian Powell identified the defendant as the person who committed murder and assault." Notably, defendant's trial attorney did not object to this instruction.

Because his trial counsel did not challenge the jury instruction, his claim is considered under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

Generally, a trial court must instruct the jury on identification when identification is a "'key issue,'" even if a defendant does not request the charge. State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green, 86 N.J. 281, 291 (1981)). Defendant concedes in his brief that the judge appropriately defined the law, and that the identification instruction was "essentially" in accordance with the model jury charge. Nonetheless, defendant contends that the court's summary of the evidence during the otherwise-proper instruction deprived him of a fair trial.

It is well established that a "'trial judge has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them.'" State v. Reddish, 181 N.J. 553, 612 (2004) (quoting State v. Mayberry, 52 N.J. 413, 439 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1959)). "The need to comment on the evidence arises when an instruction modeled solely on the language of an applicable statute or rule of law will not adequately guide the jury's deliberations." Ibid. Trial courts have broad discretion when commenting on the evidence during jury instruction. State v. Brims, 168 N.J. 297, 307 (2001); State v. Robinson, 165 N.J. 32, 45 (2000).

Here, contrary to defendant's representation, the court appropriately summarized the evidence, in that Powell had indeed identified defendant as the man who had assaulted both him and Brown. Powell testified that when he attempted to pull Brown away from the fight, a man, whom Powell identified as defendant, came toward them and appeared to "punch[]" Brown, and then tried to stab Powell with a "sharp instrument." Powell said that defendant had made a "jab[bing]" motion toward him, which he described as "just like a punch being thrown." A fair inference can be made that the punching motion directed toward Brown by defendant was, in essence, an attempted stab. It also was undisputed that Brown had received five stab wounds, and that the cause of his death was homicide. Thus, there was at least some evidence in the record that Powell had identified defendant as having been involved in both the stabbing of Brown, and in the assault on Powell.

Moreover, even if the judge was imprecise in stating to the jury that Powell had identified defendant as having committed "murder and assault," such imprecision in his summary of the proofs was harmless. "[T]he failure to object suggests that [defense] counsel perceived the alleged error to be of no moment, and deprived the trial judge an opportunity to consider the objection and, if appropriate, remedy the instructions." State v. Swint, 328 N.J. Super. 236, 257 (App. Div.), certif. denied, 165 N.J. 492 (2000). Additionally, "minor inaccuracies" in a trial judge's review of testimony in the jury charge may be cured by instructing jurors that their own recollection of testimony governs. State v. Ramseur, 106 N.J. 123, 280-81 (1987). See also State v. Richardson, 208 N.J. Super. 399, 407 (App. Div.) (minor inaccuracies in court's summary of evidence did not have the capacity to mislead the jury), certif. denied, 105 N.J. 552 (1986). Here, the judge carefully instructed the jury that they were the sole judges of the facts, and that "[r]egardless of what counsel said or I may have said recalling the evidence of this case, it is your recollection of the evidence that should guide you as judges of the fact[s]."

Finally, there is no indication to us that the jury was misled by the judge's brief reference to Powell's identification testimony. In fact, the jury apparently rejected Powell's testimony substantially or in its entirety, because the jury ultimately found defendant not guilty of the counts regarding the assault on Powell, and further found defendant not guilty of purposeful and knowing murder of Brown.

Defendant's own post-Miranda statement to the police amply supported a finding that he had been involved in the planned retaliation and was guilty of conspiracy. The other corroborating proofs of his guilt, independent of Powell's testimony, were strong. Thus, even if the judge's factual reference to Powell's description was erroneous, it was not clearly capable of producing an unjust result. R. 2:10-2.

IV.

Defendant further argues that the judge erred in denying his motion for a judgment of acquittal on the charge of conspiracy to murder Brown. We disagree.

As we have noted in our procedural history, defendant moved for judgment of acquittal, pursuant to R. 3:18-1, at the end of the State's case. The judge granted the motion, in part, dismissing counts two, three, five, six, seven, ten, eleven, fourteen and fifteen. In denying the acquittal motion as to count one, conspiracy to commit murder, the judge specifically found that

there is sufficient testimony to show that most of the individuals that went up [to 60th Street] had weapons.

There had been an agreement to go up to that area, and an inference could very easily be drawn that the purpose was to use those weapons on individuals, and by the nature of the weapons, the screwdrivers and the knives, serious bodily injury would normally be anticipated.

And, as such, a jury could find that the defendant, as a member of that group, conspired to create serious bodily injury and which would more than likely have potentially caused death. So . . . I think that there is sufficient evidence in the case that Count One the conspiracy to murder must go to the jury.

After the jury returned its verdict, defendant again moved for a judgment of acquittal, this time pursuant to R. 3:18-2. In denying that renewed application, the judge found that the jury could reasonably have determined that "defendant went to 60th Street to at least inflict serious bodily injury, but more likely to kill someone." He added that the "[t]estimony of the witness[es,] coupled with the victim's injuries[,] drew enough inferences for this jury to reach a verdict of guilty."

A court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Reyes, supra, 50 N.J. at 458-59.]

Under R. 3:18-1, the trial court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). The standard for deciding a R. 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Moffa, 42 N.J. 258, 263 (1964); State v. C.H., 264 N.J. Super. 112, 128 (App. Div.), certif. denied, 134 N.J. 479 (1993).

Here, defendant was convicted of conspiracy to commit murder in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) and (2). N.J.S.A. 2C:5-2a provides in part that

[a] person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other persons 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

(2) 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.

[N.J.S.A. 2C:5-2a.]

"[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). In this case, that specific crime was the murder of Brown. N.J.S.A. 2C:11-3a provides that "criminal homicide constitutes murder when: (1) The actor purposely causes death or serious bodily injury resulting in death; or (2) The actor knowingly causes death or serous bodily injury resulting in death." N.J.S.A. 2C:11-3a. To convict a defendant of purposeful serious bodily injury murder under N.J.S.A. 2C:11-3a(1), the State must prove that it was the defendant's "conscious object . . . to cause serious bodily injury that then resulted in the victim's death" and that the defendant "knew that the injury created a substantial risk of death and that it was highly probable that death would result." State v. Cruz, 163 N.J. 403, 418 (2000). Alternatively, to convict a defendant of knowing serious bodily injury murder under N.J.S.A. 12C:11-3a(2), the State "must prove that the defendant was aware that it was practically certain that his conduct would cause serious bodily injury that then resulted in the victim's death, knew that the injury created a substantial risk of death and that it was highly probable that death would result." Ibid.

Accordingly, the State was required in this case to prove that defendant entered into an agreement with co-defendants with the purpose of promoting or facilitating the purposeful or knowing serious bodily injury of Brown. "Because the conduct and words of co-conspirators [are] generally shrouded in 'silence, furtiveness and secrecy,' the conspiracy may be proven circumstantially." Samuels, supra, 189 N.J. at 246 (quoting State v. Phelps, 96 N.J. 500, 509 (1984)). See also State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.) ("[a]n implicit or tacit agreement may be inferred from the facts and circumstances"), certif. denied, 130 N.J. 18 (1992). "'[T]here are no legal rules as to what inferences may be drawn. The question is one of logic and common sense.'" Samuels, supra, 189 N.J. at 246 (quoting State v. Powell, 84 N.J. 305, 314 (1980), certif. denied, 87 N.J. 331 (1981)).

Affording the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn in its favor, we are satisfied that a reasonable jury could find defendant guilty beyond a reasonable doubt of conspiracy to murder Brown.

Among other things, the jury heard Mendoza testify that defendant was present with Arias either at the time of, or shortly after, the incident where several men from 60th Street stared "hard" at Arias. Defendant admitted in his oral statement to the police that during the parade he and co-defendants met several other "associates" from New Jersey who described an earlier altercation with another group, and indicated that someone had suggested that they "bring it up to 60th Street." Defendant further admitted that, after the parade, he and co-defendants discussed what had taken place during the altercation with the New Jersey associates.

At that point, according to defendant, a decision was made to go to the Exxon station on 60th Street and approach the individuals who had been arguing with their New Jersey associates. More specifically, defendant stated that Ricardo drove Molino, Colon, and Guillen in his red Infiniti, and that Castillo drove defendant, Quezada, and another unnamed individual in the white Honda to 60th Street, where a physical altercation took place. It is undisputed that the white Honda was used by the perpetrators.

Thus, there was ample evidence that showed that defendant was present at the parade, was aware of the prior altercation with Arias, and that he entered into an agreement with the co-defendants to go to 60th Street for the purpose of approaching the rival group. The proofs of an agreement therefore went far beyond defendant's "mere presence" at the scene. See Samuels, supra, 189 N.J. at 249.

There was also evidence from which the jury could reasonably infer that defendant was armed and that he went to 60th Street for the purpose of causing serious bodily injury. It was also undisputed that several weapons, including three screwdrivers and a knife, were found in the vehicles and in the area around the altercation. Although defendant's latent fingerprints were not found on the weapons, the jury could rationally infer from the proofs that defendant was armed and intended to cause serious bodily injury that then resulted in Brown's death. See State v. Josephs, 174 N.J. 44, 100 (2002) (jury can draw an inference from the defendant's use of a deadly weapon that the defendant had the intent to kill).

Having considered the record as a whole, we are convinced that the jury had an ample basis to conclude beyond a reasonable doubt that defendant conspired to kill or to cause serious bodily injury to be inflicted upon Brown. The trial judge correctly denied the motions for judgment of acquittal.

V.

Lastly, defendant argues that his twenty-year sentence was manifestly excessive. His argument lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only a few comments.

In imposing sentence, the judge appropriately took into account four aggravating factors, including the risk that defendant would commit another offense; the substantial likelihood that defendant was involved in organized criminal activity; the extent of defendant's criminal record; and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(3), (5), (6), and (9). In particular, the judge was mindful of defendant's prior criminal record, his lack of remorse at sentencing, the gravity of the planned killing of Brown, and the need to deter such acts. The record also reflects that defendant was involved in organized crime through a street gang. Although the judge precluded any mention of gang membership before the jury, he was made aware throughout the trial and during sentencing that defendant was a member of such a gang. We also reject defendant's argument that the judge erred in failing to find mitigating factor (7) concerning his allegedly law-abiding life, see N.J.S.A. 2C:44-1(b)(7), given that defendant was convicted of criminal possession of stolen property just seven months before the crimes charged in this case.

On the whole, the judge's sentencing findings "are grounded in competent, reasonably credible evidence," reflect the application of "correct legal principles," and yielded a sentence that does not "shock[]the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.
 

Prior to trial, co-defendant Colon had informed Detective Valdivia that he, defendant, co-defendant Quezada and Arias were members of a street gang, and provided detailed information about the organization. The State intended to call Colon as a witness, but Colon was murdered while incarcerated. At trial, the State proffered that an unnamed witness would testify that the members of that gang, including defendant, knew that the homicide victim, Brown, was friends with members of a rival gang from the "60th Street" neighborhood. The judge, however, precluded the State from making any reference at trial to gangs or to gang membership.

Acevedo was referring to co-defendant Juan Sanchez Ricardo (a/k/a "Jose"), who was later arrested at the scene of the altercation.

The prosecutor represented in his opening that Ramon Martinez, a/k/a "Mungi," had acted as a translator for the argument that had occurred earlier between Arias and Brown, and further claimed that Brown "hung out with" the man (previously identified as Dopico) who stabbed Arias. Martinez refused, however, to testify at trial.

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

Defendant concedes that a remand pursuant to State v. Natale, 184 N.J. 458, 496 (2005), is not warranted in this case.

(continued)

(continued)

32

A-5082-05T4

November 9, 2007