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DOCKET NO. A-5666-06T4







January 7, 2011


Submitted December 6, 2010 - Decided


Before Judges Lisa, Reisner and Alvarez.


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-0412.


Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).


Paula T. Dow, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).



This case arose from a melee at a Paterson high school that spilled out into the adjoining streets and culminated when a group of students beat Hector Robles to death. In connection with those events, defendant was convicted of: second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2; second-degree reckless manslaughter, N.J.S.A. 2C:2C:11-4a; third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; fourth-degree riot, N.J.S.A. 2C:33-1a(a); and third-degree simple assault, N.J.S.A. 2C:12-1b(1).1

After merging the conspiracy and manslaughter convictions, the trial judge sentenced defendant on December 10, 2004, as follows: ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for reckless manslaughter; a consecutive five-year term for endangering an injured victim; and concurrent sentences of eighteen months for riot and six months for assault. Defendant appeals from the conviction and the sentence imposed.

In his appeal, defendant sets forth the following points for our consideration:




















Finding no merit in points one through six, we affirm the conviction. However, as the State concedes, State v. Natale, 184 N.J. 458 (2005), requires that we remand for re-sentencing pursuant to the principles set forth in that case.






We begin by summarizing the most pertinent trial evidence. According to several witnesses, on June 20, 2001, one of the last days of the school year, a large group of students at John F. Kennedy High School participated in a series of assaults inside the school. According to several witnesses, a group of students gathered near the vending machines on the first floor to play a game of tag. However, before the game started, defendant stated "[f]...k this," and announced that he wanted to "wild out" and beat up "Spanish" kids instead. Following through on his intentions he walked over to a Hispanic student, Alexis Encarnacion, and punched him. Bystanders LaToya Carter2 and Latorra Burroughs were eyewitnesses to this attack. Two participants in the violence, Trayvon McClam and Jawon White, also confirmed defendant's role as the instigator in this incident.

Defendant and another student, Anthony Wheeler, then led a large group up to the second floor of the school, where defendant as well as other students attacked a second Hispanic student. Eyewitness Tiffany Stancel testified that she saw defendant and several others attack this second Hispanic student. McClam testified that defendant punched this "Spanish student" in the face. White confirmed that version. However, at trial the victim, Melvin Morel, only identified a student named "Steve" as having hit him. Other members of the "wilding" mob attacked a Bangladeshi student, although no witness saw defendant hit this student.

According to McClam, defendant and Anthony Wheeler, accompanied by many other students, then ran outside the school because "defendant and Anthony wanted to fight the Spanish kids across the street." Pointing out a student who was talking with two girls across the street, defendant said "let's get him right there." McClam testified that defendant walked up to this victim and punched him in the face, after which Wheeler, McClam and several other students also hit him. Another mob participant, Mark Shivers, corroborated this testimony.

This victim, Samuel Rosario, confirmed at the trial that he was attacked by a group of fifteen to twenty students near the high school. While he was being attacked, he "heard people yelling out stop; calling out . . . guys' names. I heard John, I heard Steve." Rosario's then girlfriend, Trishaun Hamilton, and her sister Trenace both knew defendant. They witnessed the attack and testified that defendant was the first person to hit Rosario. Another member of the "wilding group," Steve Williams, Jr., also testified that he saw defendant hit Rosario.

According to McClam, defendant, Wheeler and Steve Williams encouraged their companions to continue the violence, "[b]ecause they said they wanted . . . to keep doing what they was doing. [They] said they wanted to keep messing people, they want to still beat people up." After defendant, Williams and Wheeler made these statements, several students, but not defendant, attacked a man who was delivering cakes to a small grocery store.3 However, they walked away when the police arrived. Shivers corroborated McClam's version of these events.

According to McClam, the group next encountered a homeless man, Hector Robles, walking near some factories at the corner of Jasper Street and Totowa Avenue.4 McClam testified that "John and Anthony was talking about they wanted to get him. So Anthony ran up towards him and punched him in the face." According to McClam, after Wheeler punched the man, defendant also punched him in the face, and the man fell to the ground. Once he fell, "the whole crowd" of students "ran over there and started kicking him." McClam testified that he and defendant both kicked the man.

Another member of the "wilding" group, Henry Robinson, recalled that defendant was part of the group that had agreed to go out beating people up. However, he did not see defendant hit Robles. He agreed that he, defendant and others walked away from Robles, knowing that he was badly hurt.

Jawon White, another member of the student mob, also testified that defendant incited the attack on Robles. According to White, when defendant saw Robles he stated something along the lines of, "we got ourselves a customer," after which Anthony Wheeler struck Robles. Thereafter, according to White's statement to the police, a crowd that included defendant began "stomping" Robles. Shivers also testified that defendant participated in kicking Robles.

At the trial, the State's last participant-witness was Anthony Wheeler, who confirmed that defendant started the melee by interrupting the game of tag and encouraging his companions to "get the Puerto Ricans." He testified that defendant then immediately punched a "Puerto Rican" student in the hallway. Concerning the attack on Robles, Wheeler admitted that he was the first person to hit the victim. He then saw defendant knock Robles to the ground and join several other students in kicking or "stomping" on Robles. According to Wheeler, and several other witnesses, after the attack the students abandoned Robles and went to defendant's house, where they went swimming.

The State presented testimony from police detectives who took two statements from defendant, one on the day of the incidents and one the following day. According to Detective Nicolas Colon, in his first statement defendant denied initiating any of the attacks outside the school. He admitted hitting Rosario, whom he claimed was fighting with Wheeler. He denied hitting the delivery man, and claimed to be "just watching" during the attack on Robles.

Detective Rafael Fermin testified to defendant's second statement. When the police interviewed him on June 21, 2001, defendant admitted that he had not been completely truthful in his first statement "and he wanted to clarify some of the things he had said." In this statement defendant admitted that he was involved in "a fight . . . inside the school." Defendant admitted to hitting "the Spanish kid in the face" near the vending machines, and admitted that he was "the first to start fighting in school." He stated that after he left the school, he "ran over to help Anthony and Henry who had gotten into a fight." He admitted kicking the "Spanish boy" with whom his friends were fighting. He admitted that after this incident, he agreed with his friends when they proposed that they should "get someone else." However, he still denied hitting either the delivery man or Robles, although he expressed regret for Robles' death.

Several adult witnesses testified to finding the badly-injured Robles after the attack and obtaining medical treatment for him. Robles was transported by ambulance to the hospital, where he died of his injuries. A pathologist testified in detail to the severity of those injuries, including a torn spleen and a left kidney that was "nearly split in half."



In addressing defendant's legal arguments, we first address his motion to suppress evidence of his statements to the police.5 The following testimony was presented at the Miranda6 hearing.





June 20, 2001 Statement

Detective Colon testified that he learned of the "disturbance and subsequent events at John F. Kennedy High School" sometime after 3:00 p.m. on June 20, 2001. He understood that there had been "a couple of assaults" and one victim was "badly injured." Three juveniles had been taken into custody and the police started to "develop different names" of the participants. After defendant's name "surfaced" as "a possible witness or a suspect," Colon and Detective Fermin went to defendant's house in the early evening to "find out if he was involved in the assault of the victim Robles" or any of the other incidents at or near the high school.

Colon testified that defendant's uncle, Richard Williams, met the detectives at the door and agreed to drive defendant to headquarters. In his testimony, Fermin further explained that he was met by defendant's grandmother "who stated that she's his legal guardian." The grandmother asked why the detectives wanted to speak with defendant and Fermin said "his name came up in an investigation and [they] need to speak to him." Fermin knew defendant's uncle "from the street" and asked him if he wanted to bring defendant to the station. According to Fermin, the grandmother was "invited to come to the station" but she chose not to. Defendant was about two weeks shy of his sixteenth birthday at the time.

According to Colon, at the time he arrived at defendant's house on June 20, he did not know whether Robles was still alive. His purpose in questioning defendant was to determine whether he had been involved in several fights that day. If Colon had known that defendant was a suspect in a homicide, he would have transported him to the police station, rather than inviting him to come and allowing his uncle to drive him. Fermin also confirmed that on June 20, defendant was not a homicide suspect.

At the station, Colon gave defendant "his Miranda rights prior to any questioning" by reading him the form "word-for-word." Defendant was "quiet" while the form was read but indicated that he understood everything that was read to him. Defendant wrote the word "yes" on the form after he was asked if he understood "each and every one of those rights." He also signed the bottom of the form. Fermin and defendant's uncle were in the room when Colon read the form to defendant; all three signed as witnesses and the form was notarized. Colon also read the waiver language to defendant and asked if he was willing to talk to them "about the incidents" and defendant said yes before signing the waiver form. Before defendant gave his statement to the police, he spoke with his uncle, who told defendant to tell the police "what had happened and what his involvement was."

In a "pre-statement interview" that lasted for twenty minutes, Colon questioned defendant to determine what he knew about the events that began at the high school, whether he was involved in any of them, whether he knew anyone else who was involved or whether he was an eyewitness. Starting at 9:29 p.m., Colon took a formal statement from defendant, typing up the questions and answers using a template on the computer. Fermin and defendant's uncle were in the room during the entire time the statement was taken. As part of the formal statement, defendant was again asked if the police had read him his Miranda rights and if he understood them, if he read and signed the section in which he waived his right to speak to an attorney, whether he understood that he could stop answering questions at any time, and whether he wished to continue with his statement; defendant answered yes to all four questions. The statement was finished at 10:43 p.m.

Defendant reviewed the typed statement, initialed each page and signed the statement. Defendant's uncle and both detectives signed the statement. According to Colon and Fermin, defendant never asked them to stop the questioning. Nor did he request a break, a lawyer, or an opportunity to consult with his uncle. After defendant signed the statement, the police allowed him to return home.

June 21, 2001 Statement

In the early evening on June 21, 2001, Fermin sought to re-interview defendant because "he was mentioned by other suspects as being one of the persons who assaulted the victim." Based on that new information, Fermin arrested defendant at his house. At that time, Fermin told defendant that he was being arrested "for the assault that took place in the school, outside the school, and the homicide on Totowa [Avenue] and Jasper [Street]." Fermin did not recall if defendant's grandmother was present but defendant's uncle was at the house and was told he could come to headquarters, which he did immediately.

Defendant was placed in an interview room with his uncle, and Fermin "advised [defendant] of his rights" by reading him the Miranda form. Defendant said that he understood his rights and signed that form and the waiver form that Fermin also read to him. Neither defendant nor his uncle asked any questions about the forms. At no time did defendant indicate that he wanted to stop answering questions, nor did he ask to speak with "a lawyer or another family member or spiritual advisor."

In the presence of defendant's uncle, Fermin advised defendant that his first statement "wasn't truthful" and asked "if he wanted to clarify it." Fermin testified that "[t]hey asked if the victim was dead. I told them yes." Defendant agreed to give a second statement.

Starting at 8:15 p.m. and concluding at 9:25 p.m., Fermin took a second formal statement from defendant using the same template as before and typing the questions and answers as given. Defendant and his uncle then reviewed the statement, initialed each page and signed the bottom.

At some point after the statement was taken and defendant's uncle left to get food for defendant, defendant's biological father arrived. After checking with the uncle, the police gave the father "access" to defendant. Fermin did not recall seeing defendant's grandmother at the station that day.

In an oral opinion rendered on July 30, 2004, the trial judge denied defendant's suppression motion. He concluded that during both interviews on June 20 and 21, 2001, defendant was read his Miranda rights, understood them, and waived them voluntarily. Citing Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987), the judge rejected defendant's argument that his first statement should be suppressed because he was not told that the police were investigating a homicide. Relying on State v. Hollander, 201 N.J. Super. 453, 483-84 (App. Div.), certif. denied, 101 N.J. 335 (1985), the judge also reasoned that while a subject must be told whether he is a target before being brought before the Grand Jury, "a subject is not entitled to be informed prior to custodial interrogation that he's a target of an investigation." The judge further concluded that State v. A.G.D., 178 N.J. 56 (2003), only required police to inform a suspect if an arrest warrant had been issued against him and was inapplicable to defendant's situation.

Rather than determining whether defendant's uncle fulfilled a parental role during the police interviews, the judge considered the applicability of State v. Presha, 163 N.J. 304 (2000), with respect to the questioning of juvenile suspects in the absence of a parent or legal guardian. He also considered the more general standards for police interrogations set forth in State v. Miller, 76 N.J. 392 (1978). He found that the State satisfied the standards set forth in those cases. "Based on the totality of the circumstances" and "the credible testimony," the judge concluded defendant's statements were "made freely and voluntarily. There was no coercion. He gave . . . the two statements, of his own free will."

As the judge correctly recognized, "a parent or legal guardian should be present in the interrogation room, whenever possible." State v. Presha, supra, 163 N.J. at 315. The police should therefore use their "best efforts" to locate a parent or legal guardian before questioning a juvenile. Id. at 316. Once located, however, the parent or legal guardian may decline to be present at the police interrogation. State in the Interest of Q.N., 179 N.J. 165, 173 (2004); Presha, supra, 163 N.J. at 317.

The absence of a parent or legal guardian does not automatically render a statement inadmissible, particularly if the juvenile is over the age of fourteen. Id. at 308. Rather, the court must consider "the totality of the circumstances" surrounding the interrogation to determine whether the statement was voluntary. Ibid.

Thus, in order for a juvenile's confession to be admissible into evidence it must satisfy the same standard that applies to adult confessions: that is, it must be made knowingly, intelligently, and voluntarily. We look to the totality of the circumstances in making that determination, giving weight to "'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved,'" as well as the "'suspect's previous encounters with the law.'"


[State in the Interest of A.S., 203 N.J. 131, 146 (2010) (citations omitted).]

When applying that test, the absence of a parent or legal guardian is a "highly significant factor" in determining whether a juvenile suspect's confession is voluntary. Id. at 147; Presha, supra, 163 N.J. at 315.

On this appeal, we are bound by the trial judge's factual findings so long as they are supported by sufficient credible evidence. State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd on other grounds, 190 N.J. 169 (2007); State v. Sheika, 337 N.J. Super. 228, 238 (App. Div.), certif. denied, 169 N.J. 609 (2001). And we owe particular deference to the judge's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999).

Based on our review of the record, we find no error in the judge's decision, which is supported by substantial credible evidence. In this case, before they first questioned defendant, the police spoke to his grandmother, who was his legal guardian. She declined to accompany defendant to the police station and instead authorized another close relative, his uncle, to accompany him. The uncle remained with defendant throughout the first interview, as well as the second interview. However, even completely disregarding the uncle's presence, we find no basis in this record to disturb the judge's conclusion that under the "totality of the circumstances" defendant's statements were voluntary. See Presha, supra.

We also agree with the judge that A.G.D., supra, is not on point here. In A.G.D., the police questioned the defendant without telling him that a warrant had been issued for his arrest. 178 N.J. at 68. In this case, no warrant was issued prior to defendant's first interview, and he was arrested prior to the second interview. Nor in defendant's case did the police use the "question-first, warn-later" interrogation technique disapproved in State v. O'Neill, 193 N.J. 148, 178-80 (2007). Rather, based on testimony the judge found credible, the police acted appropriately. See State v. Hollander, supra, 201 N.J. Super. at 483.

Both interviews were preceded by Miranda warnings and a waiver, they were relatively short, and there was no evidence of threats or coercion. Further, although no parent or legal guardian was present, defendant was accompanied by a close relative who remained with him in the interview room. We find no basis to suppress defendant's statements to the police.


We likewise find no abuse of discretion or other error in the judge's decision to allow the jurors to have defendant's statements to the police in the jury room during deliberations.7 Defendant's reliance on State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), and State v. Burr, 195 N.J. 119, 133-35 (2008), is misplaced. Those cases involved allowing in the jury room the videotaped testimony, or videotaped pre-trial statements, of children concerning sexual assaults by the defendant. Neither case is on point with the facts here. Neither case holds that a defendant's written statement to the police, once admitted in evidence, may not be provided to the jury during deliberations. See R. 1:8-8(a)("The jury may take into the jury room the exhibits received in evidence.")


We turn next to defendant's challenge to the jury charge. Defendant claims that it was error for the judge to omit from the charge on conspiracy an instruction that defendant was not responsible for the crimes of his co-conspirators if those crimes were not a reasonably foreseeable consequence of the conspiracy. See State v. Bridges, 133 N.J. 447, 466-67 (1993). In that context, he contends that since the verdict sheet set forth only one question on conspiracy to commit aggravated assault, referring to Robles, Rosario and other "unnamed victims," the jury might have found defendant guilty of conspiracy only for the attack on students in the school, or only for the attack on Rosario.

Contending that the later attack on Robles was not a foreseeable consequence of the earlier assaults inside the school or even the assault on Rosario, defendant argues that the jury might have erroneously convicted him of reckless manslaughter based on his conspiracy to commit one of the earlier assaults. He contends this error was exacerbated because the jurors were not told that they had to render a unanimous verdict as to which victim or victims defendant conspired to assault, and the prosecutor's summation encouraged them to convict defendant regardless of the extent of his participation in the conspiracy.

We consider defendant's arguments under the plain error rule, because defendant did not object to the charge, the verdict sheet, or the summation at his trial. See R. 1:7-2; R. 2:10-2. We will reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.

Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Torres, 183 N.J. 554, 564 (2005) (quoting State v. Jordan, 147 N.J. 409, 422 (1997) (additional internal citations omitted).]

"The charge must be read as a whole in determining whether there was any error." Ibid.

We begin with the prosecutor's summation. In one brief section at the very end, the prosecutor stated that because defendant "precipitated this riot" he was therefore responsible "for every act by every person that was part of that conspiracy." Taken out of context, this was an overstatement. However, the statement was preceded by the prosecutor's very detailed explanation of defendant's participation in every step of the riot, from its inception in the high school where defendant and his companions agreed to go "wilding," to defendant's assault on Encarnacion, his encouraging his fellow students to "get the Puerto Ricans" outside the school, his assault on Rosario, his statement that Robles was "another customer," and finally his participation in striking and stomping Robles.

Taken as a whole, the summation asked the jury to find defendant criminally responsible for Robles' death based on defendant's conduct with respect to Robles, including inciting the mob to attack Robles and participating in the beating. The prosecutor was not arguing, contrary to Bridges, that defendant should be convicted of acts by the student mob that were not a reasonably foreseeable consequence of the conspiracy in which he and they were engaged. See Bridges, supra, 133 N.J. at 466-67. We find no likelihood that the summation would have led the jury to convict defendant based on an erroneous legal theory.

We also find no error in the charge. The judge based his instruction on the model charge, and he specifically instructed the jury that they must consider the proofs as to conspiracy "on each and every count separately." Taken in context with the proofs presented, we again find no likelihood that the jury convicted defendant of the reckless manslaughter of Robles based only on defendant's statements or conduct inside the high school or his encouraging the assault on Rosario.

We also do not agree with defendant's contention that the trial judge (a) should have sua sponte included separate questions on the verdict sheet as to whether defendant committed reckless manslaughter by his own conduct, or whether he was vicariously liable for "the crime committed by another gang member," or (b) should have sua sponte instructed the jury that they must agree unanimously on any theory of defendant's guilt on this count. "A defendant . . . may be found guilty of murder even if jurors cannot agree on whether the defendant is a principal, accomplice, or a co-conspirator." State v. Roach, 146 N.J. 208, 223 (1996). See also State v. Frisby, 174 N.J. 583, 596 (2002)("[A] jury does not have to agree unanimously on whether a defendant has acted as a principal or an accomplice.")

More significantly, the State did not claim that defendant acted as a principal in the sense that he struck the fatal blow. The State's theory as presented to the jury was that defendant participated in a conspiracy to commit an aggravated assault on Robles, and that assault by multiple conspirators resulted in Robles' death. Whether defendant only exhorted the mob of students to attack Robles, or whether he also landed a few of the blows that rained down on the victim, he was guilty of reckless manslaughter as a conspirator. For that reason, defendant's point four, concerning guilt as a principal, is also without merit and warrants no additional discussion here. R. 2:11-3(e)(2).


Defendant's points five and six can be addressed briefly. Contrary to defendant's contention, the State did not present the jury with any evidence of defendant's prior bad acts, and therefore no limiting instructions were required. In very brief testimony, Jawon White admitted that there had been "some type of tension between the black students and the Hispanic students" at the high school in past years, including prior fights between the two groups. White did not mention defendant in this testimony. Defense counsel objected and, outside the jury's presence, the trial judge ruled that no testimony would be permitted concerning any alleged prior fights between defendant and Hispanic students.


With respect to defendant's challenge to his sentence, N.J.S.A. 2C:12-1.2d mandates the imposition of a consecutive sentence for endangering an injured victim. However, as required by State v. Natale, supra, 184 N.J. at 495-96, we remand for reconsideration of the ten year sentence imposed for reckless manslaughter, and the five year sentence imposed for endangering a helpless victim.


ffirmed as to the conviction. Remanded as to the sentence.

1 The jury acquitted defendant of: murder; felony murder; aggravated manslaughter; aggravated assault; robbery; and attempted theft from the person.

2 Carter was a very reluctant witness, but in her trial testimony she eventually admitted the accuracy of a statement she gave police a few days after the incident, identifying defendant as having punched the Hispanic student on the first floor.

3 In his testimony, Steve Williams admitted to hitting the cake delivery man.

4 Robles was particularly vulnerable because he was an older man, inebriated, and in poor health. We refer to him as "homeless" intending no disrespect, because that is how witnesses described him. At defendant's sentencing, Robles' family stated that they offered him a home but he chose to live on the streets.

5 Neither party provided us with copies of the written statements defendant signed. However, at his trial, defendant's statements were the subject of testimony by the police officers to whom the statements were made. We summarized that testimony in section I of this opinion.

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

7 Defense counsel objected to the statements being sent into the jury room on the grounds that they were cumulative, because the police witnesses testified about them. However, he did not object that letting the jurors have them would be unfairly prejudicial.

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