STATE OF NEW JERSEY v. VEANZEIL ROBERTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VEANZEIL ROBERTS, a/k/a

PUN, KING PUNISHER, and

BOO-BOO,

 

Defendant-Appellant.

 

 

August 6, 2014

 

Submitted May 7, 2014 - Decided

 

Before Judges Fuentes, Simonelli and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-2152.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel; John J. Scaliti, on the brief).

PER CURIAM

Defendant Veanzeil Roberts was tried before a jury and convicted of first degree attempted murder of Monica Penalba, N.J.S.A.2C:5-1 and 2C:11-3(a); first degree conspiracy to murder Penalba, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1) and (2); second degree aggravated assault of Penalba, N.J.S.A. 2C:12-1(b)(1); third degree possession of a weapon (a knife and/or knives) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth degree unlawful possession of a weapon (a knife and/or knives) under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d).

After merging the attempted murder conviction with the convictions for conspiracy to commit murder, aggravated assault, and unlawful weapon possession offenses, the court sentenced defendant to a term of twenty years, with an eighty-five percent period of parole ineligibility, and five years of parole supervision, both pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The State's theory of culpability depended on establishing defendant as a member of the Latin Kings, a notoriously violent street gang.1 The State characterized defendant's role in the gang as an "enforcer." According to the State, defendant and another individual, who was not a member of the gang at the time, savagely attacked and attempted to kill Penalba to prevent her from reporting to law enforcement authorities the kidnapping and murder of one man and the kidnapping and aggravated assault of another man.

The crimes against these men were committed by Latin Kings members in retaliation for robbing a high-ranking Latin Kings member of drugs and money. Ironically, the victim in this case was both predator and prey. Penalba did not merely witness the commission of these crimes. Although she was not a member of the gang, she participated in the execution of these crimes by using her car to block the victims from driving away, and thereafter actively assisting in destroying and concealing evidence.2

Defendant's principal arguments on appeal are based on what he characterizes as the inherently prejudicial cloud of criminality created by the State's theory of culpability. Distilled to its essence, defendant's argument portrays the State's case as heavily relying on guilt by association, and improperly using defendant's membership in the Latin Kings and his alleged role as the gang's enforcer, to cast him in a negative light of criminality. According to defendant, this tactic violates the proscription against using other-crimes evidence in N.J.R.E. 404(b) to show a predisposition to antisocial or criminal activities.

Defendant further argues that the trial court's failure to utilize the test for admissibility of N.J.R.E. 404(b) evidence established by our Supreme Court in State v. Cofield, 127 N.J. 328 (1992), constitutes reversible error. Finally, even if his conviction were to stand, defendant challenges the sentence imposed by the trial court, arguing the court failed to give due consideration to facts establishing the applicability of mitigating factor four. N.J.S.A. 2C:44-1(b)(4).

We disagree with defendant's arguments and affirm. Defendant received a fair trial, and the verdict returned by the jury is well-supported by competent evidence. Defendant's membership and special role in the Latin Kings are inextricably linked to and form the underlying basis for the brutal attacks that nearly cost the victim her life. We recognize that the State's trial strategy, as colorfully described by the prosecutor in her opening statement to the jury, came dangerously close to the line separating zealous advocacy from prejudicial prosecutorial excess. Nevertheless, when considered in the context of the evidence presented at trial, we are satisfied the State presented overwhelming evidence of defendant's guilt in a manner consistent with the prosecutor's ethical obligations.

The State's evidence merely revealed the savagely violent world of this particular gang and defendant's role within it. Despite its claim of promoting a bond of brotherly loyalty among its members, the Latin Kings have been graphically exposed in this case as being nothing more than a viciously violent criminal enterprise, eagerly willing to mercilessly kill anyone who may be viewed as presenting a potential threat to the gang's hierarchy.

Our discussion of the legal issues raised by defendant will be informed by the following facts, which we have derived from the record developed before the trial court.

I

 

This case is about an egregiously brutal attack perpetrated in 2005 against a then nineteen-year-old woman named Monica Penalba. One of her attackers was defendant Veanzeil Roberts, a member of the Latin Kings, whose role was to enforce the gang's code of loyalty through violent intimidation and retaliation against those considered to be a threat to the gang's hierarchy.

The trial began on March 16, 2010, and ended on March 31, 2010. The theme of the State's case against defendant was established early on in the trial through the prosecutor's opening statement to the jury:

Good morning, ladies and gentlemen. There's an old saying among trial lawyers that seems to be extremely applicable in the case that we have here today, and it goes something like this, when you're casting a play in hell, you can't expect to get angels for actors, and the hell that I'm talking about is where drug dealing by Latin Kings takes place in a house where young children are present, where drug dealers rob drug dealers by beating them with a pipe, where the retribution for that robbery or beating is a plot to kidnap the perpetrators of that robbery, and that that attempted kidnapping plot leads to murder, and where a female who's invited to participate in that kidnapping plot as a driver for the Latin Kings must then be eliminated for fear that she may talk to the police, and within hours she becomes a victim of a brutal, brutal stabbing, and she is then struck by her own vehicle by members of the same gang.

 

That is the hell that I am talking about and that is why you are here today.

 

Although the prosecutor's references to defendant's lifestyle as a hellish environment may seem at first blush to be rhetorically excessive, the evidence produced at trial ultimately revealed the description to be aptly accurate. The evidence showed that as an enforcer in the Latin Kings, defendant used violence, brutality, and murder as means of retaliating against those who dared to steal from gang leaders. The evidence also showed that the gang used these same ruthless measures to protect those who enforced the leaders' orders, by killing, or in this case attempting to kill, those who may have witnessed the initial retaliatory acts.

Through the testimony of fellow gang members, the State showed defendant was willing and able to carry out his responsibilities as the gang's enforcer with reckless abandon. Russell Aquino, Penalba's other attacker, although not a member of the gang at the time, aspired to become one. With defendant as his role model, Aquino proved to be equally willing and able to perform extreme acts of barbarism with unremitting zeal.

A

The Theft Against the Gang Leader

Ernesto Vargas was the State's first witness; he was twenty-four years old at the time of trial. In response to the prosecutor's questions, Vargas explained to the jury he had been incarcerated at the Bergen County Jail since 2005, waiting to be sentenced for having committed a number of crimes. He agreed to testify as a witness for the State in this case pursuant to a negotiated plea agreement.3 Under the terms of the agreement, the State agreed to dismiss the remaining counts in the indictment and to recommend that the court sentence Vargas to a term of twenty years subject to the eighty-five percent parole ineligibility restrictions required by NERA.4 As a citizen of Mexico, Vargas also admitted to entering this country clandestinely and thereafter remaining in this country and residing in this state without authorization from Immigration and Customs Enforcement, an agency of the United States Department of Homeland Security. He thus acknowledged he was facing mandatory deportation to Mexico when he completed his State sentence.

Vargas became a member of the Latin Kings in 2002, approximately three years before his incarceration. As a member of the Passaic County Latin Kings chapter or "Tiano Tribe," Vargas's gang name was "King Nes." He described his position in the gang as a "pearl," responsible to provide "security for a warlord. It's like an assistant."

In the late afternoon of February 17, 2005, Vargas received a call from his Latin Kings superior, Jose Vega, a/k/a King June, who told him that two small-time drug dealers from Passaic, named Ralph Pinto and Paul Ricciardi, had just robbed him at his home in South Hackensack. The men took $10,000 in cash, jewelry, various documents, and an unknown quantity of illicit drugs. Vargas described Vega as a high-ranking member of the Latin Kings who oversaw all of the gang's chapters in New Jersey.

According to Vega, the robbery was in retaliation for him selling fake drugs to Pinto and Ricciardi on a prior occasion. The robbery turned violent when Pinto and Ricciardi struck Vega on the head with a pipe. Despite his injury, Vega was able to fight back, firing three shots from his nine millimeter handgun at Pinto and Ricciardi as the pair drove off in a pick-up truck.

Vargas and gang member Eric Gaona, a/k/a King Nodam, arrived at Vega's house at approximately 6:30 on the evening of February 17, 2005. At the prosecutor's request, Vargas identified who was present when he arrived by including their gang rank or title. Gang members Juan Rosario, a/k/a Black Rose, and Juan Veras, a/k/a Johnny Suarez, JB, King Juan, were outside Vega's residence looking for spent shell casings that may have landed nearby after Vega fired his nine millimeter pistol at Pinto and Ricciardi. Rosario was the leader of the Passaic chapter of the Latin Kings, holding the gang title of "first crown." Inside Vega's home were Joseph Marti, a/k/a King Jumpoff, fifth crown, Oscar Giorgi, a/k/a King Decade, Vega, his brother Anthony,5 and a woman identified only as "Heidi," the mother of Vega's two "young children."

Vargas testified that Vega was angry and looking for vengeance. Vega was bleeding from the injury to the back of his head, and there was blood on the floor of his apartment. Vega recounted the details of the robbery and began devising a plan to retaliate against Pinto and Ricciardi. He told Vargas to "look around Garfield for . . . all of the crack spots to find out if anybody was trying to get rid of a large amount of drugs." Although those in the room were not clear about what Vega intended to do to Pinto and Ricciardi once he had them in his presence, there was no doubt that the outcome would at least involve some measure of violent retribution.

Vargas, Vega's brother Anthony, and other gang members engaged in a wide-ranged search of the area without results. At approximately four o'clock in the morning on February 18, 2005, Vega called Vargas and told him to get dressed and wait for Juan Veras, a/k/a King Juan, to pick him up. Veras arrived in a minivan with his girlfriend and a non-gang member named Jamel Rose, a/k/a Justice.

The group then went to Vega's house, but only Vargas went inside. According to Vargas, Vega told him that he wanted Vargas and Veras to "handle" the situation. Vega was not pleased, however, that they had brought "the kid" Jamel Rose to his home. Thus, as a precautionary measure, whenever Vargas spoke to Rose about Pinto or Ricciardi from that point on, Vargas pretended that he, not Vega, had been the victim of the robbery.

After the group left Vega's house in the minivan, Rose told Vargas that he knew "the persons that did it." According to Vargas, Rose was willing to call Pinto and Ricciardi to create the impression he wanted to buy drugs from them. However, Rose did not have any minutes left on his phone and needed to buy more minutes before he could call them. Before they could reach a store to buy the phone minutes, Vega called Vargas and told him "nobody was to leave until everything got dealt with."

Rose eventually was able to buy the phone minutes. At that point, the men in the minivan picked up Giorgi at his parents' house. Vargas testified that by this time he no longer wanted to be involved in the fake drug deal, and he was hoping that Giorgi would replace him. Vargas was eventually dropped off at his parents' house so he could go to the dentist.

Defendant, a/k/a King Pun, King Punisher, Pun, Boo-Boo, warlord, third crown, was the member responsible for carrying out any violent acts on behalf of the gang. In Vargas's words, defendant dealt "with anything physical" in the Passaic chapter or with another gang. Vargas testified that earlier in the year, he had requested a "six-month absence" from his role as "pearl" or enforcer, because his daughter was due to be born in February 2005. However, because defendant was in Pennsylvania visiting his girlfriend, Vargas would have to "step up" and temporarily assume defendant's duties. These were not mere requests. As Vargas made clear, there were "consequences" for not obeying orders.

At one point thereafter, Vargas learned that Pinto and Ricciardi had agreed to meet to complete the "fake" drug deal. Vargas told Rosario, who in turn directed Vargas, to go with another gang member to "make sure" the deal went as planned. Vargas chose Edward Scott, a/k/a King Toca. Vargas and Scott then drove to Veras's house, where they met Veras, Vega, Giorgi, Rose, Marti, Anthony, as well as Penalba, the only non-gang member present at the time. Veras had asked Penalba to drive him to the K-Mart in Lodi.

Once in Veras's basement, Veras privately told Vargas that the plan was for he (Veras) and Rose to meet Ricciardi and Pinto in the parking lot of the K-Mart in Lodi to complete the fake drug deal. Anthony and Penalba would also be there in separate cars. Vargas conveyed the order to the others; he told Giorgi and Scott to ride with Penalba and Marti, while he would ride with Anthony. Once in the parking lot, the plan was to kidnap Ricciardi and Pinto and bring them to face Vega's wrath. The plan required Vargas and Marti to attack the passenger, while Scott and Giorgi attacked the driver.

Thereafter, Ricciardi would be placed in the trunk of Penalba's car and Pinto would go in the back seat of Veras's car. Vargas carried out his orders believing that Ricciardi and Pinto would be killed later on Vega's instructions. Giorgi, however, thought they would be merely beaten for their effrontery in robbing a high-ranking member of the gang like Vega.6

Before leaving Veras's house, Vargas changed the location of the fake drug deal to the parking lot of Lodi Bowling Lanes, to avoid crowds. Vargas also told Penalba to park behind Ricciardi and Pinto in order to block any attempts to leave. According to Vargas, in terms of weapons, he had a hammer, Veras had a revolver, Marti had a small ice pick, and Giorgi had a scalpel.

B

The Retaliation

At approximately 7:00 p.m. on February 18, 2005, Ricciardi and Pinto arrived at the pre-arranged location in a pick-up truck. Ricciardi was driving, and Pinto was seated next to him on the passenger side. Veras and Rose were already with them. As planned, Penalba positioned her vehicle blocking any possibility of escape for the pick-up truck. Vargas and Marti ran towards the pick-up immediately after it parked. A struggle ensued; Vargas hit Pinto in the head with his hammer, and Pinto slammed a car door on Veras's head.

The struggle on the driver's side of the pick-up truck was entirely one-sided. Ricciardi, whom Vargas sometimes referred to in his testimony as "the kid," instantly "put his hands up and was like oh, I don't want no problem, like do whatever you want." Despite his immediate capitulation, Marti grabbed Ricciardi and "drop kicked" him. According to Vargas, he, Marti, and Scott continued kicking Ricciardi for approximately thirty seconds. Rose fled the scene. To her eventual regret, Penalba remained in her car as instructed.

When the attack on Ricciardi finally ceased, Vargas and Scott walked him back to Penalba's car. Marti returned to the pick-up truck to help Veras, who was struggling with Pinto for control of the revolver. Unexpectedly, Giorgi "froze" in front of Penalba's car. Vargas asked Penalba to open her trunk to put Ricciardi inside as planned. Believing he was too big to fit inside the trunk, Penalba refused. Left without a choice, Vargas began putting Ricciardi in the back seat of Penalba's car when he heard a gunshot. At this point, Vargas saw that Marti had been shot in the leg. According to Vargas, he later learned that Pinto had shot Marti while the two were struggling to gain control of the weapon. Scott came to Marti's aid, who by this time was limping and yelling "I got shot, I got shot," and walked him towards Penalba's car.

Enraged that Pinto had dared to fight back in an effort to thwart the plan of his attackers, Anthony, Veras, and Vargas ganged up on him, hitting him several times in the head. Veras eventually killed Pinto, shooting him five times in his side and back. After several unsuccessful attempts at placing Pinto's body in the pick-up truck, Vargas, Veras, and Scott fled to Veras's house on foot. By this time, Penalba had already left in her car with Giorgi and Marti. It is thus likely that she may not have witnessed Pinto's murder. Anthony left in his own car. Ricciardi was left behind at the scene, severely beaten, but alive.

Because Marti had been shot in the struggle with Pinto, Giorgi called Vargas to tell him that he and Penalba were taking him to a hospital. Vargas told Giorgi to come to Veras's house instead, however, because he wanted to consult with Vega before allowing anyone to disclose what had occurred to physicians who may then contact law enforcement officials. After Vargas informed Vega of the situation with Marti, Vega directed Vargas to take Marti to a New York hospital "so they don't link it to over here."

When Penalba arrived at Veras's house with Giorgi and Marti, only Giorgi went inside. Vargas berated Giorgi for not participating in the attack, and directed Anthony, who had "show[n] up[,]" to take Giorgi and Scott home. Vargas then joined Penalba and Marti in Penalba's car, and directed her to drive them to a wake for a Latin Queen where he could speak with Rosario without raising suspicion.

They reached the funeral home at approximately eight o'clock that evening. Vargas spoke to Rosario from the front passenger seat of Penalba's vehicle, and told him that "everything had gotten messed up," and Pinto and Marti had been shot. Rosario directed Vargas to take Marti to a high crime area in Passaic. Once there, Marti would be taken to the nearest hospital by simply misrepresenting that "he [had] got[ten] hit by a drive by." Approximately forty minutes later, Police Officer Alex Quirindongo found the injured Marti on Henry Street in Passaic. He was transported to St. Joseph's Hospital.

After leaving Marti on Henry Street, Vargas and Penalba drove to the Dunkin' Donuts in Passaic, where they met Rosario, Medina, Tejera,7 and Gaona. Penalba stayed outside except to use the restroom. She eventually showed Tejera the backseat of her car that was stained with Marti's blood. When asked to describe Penalba's demeanor, Medina said that she seemed "[f]idgety" and "[a]ntsy." Penalba described her own demeanor towards Tejera as "[g]iddy" in that she "tried to . . . give off the impression that [she] . . . was . . . cool."

By this time, Vargas and Rosario gathered in a nearby McDonald's, where Vargas recounted what had transpired in detail. As the head of the Latin Kings in Passaic, Rosario wanted Vargas's opinion about who could be trusted to remain loyal and who presented a potential risk to the gang if questioned by law enforcement. Vargas told Rosario that "Oscar Giorgi had frozen up, he didn't do what he was supposed to." According to Vargas, Rosario was mainly concerned about the individuals who actually participated in the assault of Ricciardi and Pinto. Marti and Giorgi were the only two who were mentioned by name. Vargas and Rosario eventually left the McDonald's when they saw "a gang unit officer there."

Vargas walked over to Dunkin' Donuts to join Penalba, Tejera, and Medina. Penalba told him she wanted to speak to a friend of her former boyfriend. She would signal Vargas to join her back in her car as soon as her friend left the Dunkin' Donuts. Tejera and Medina immediately approached Vargas to express their concern about Penalba.8 According to Vargas, they stated "yo, [sic] she better not talk." Vargas testified that he reassured Tejera and Medina that Penalba could be trusted.

Penalba finally signaled Vargas to return to the car. Vargas testified that as soon as he entered the car he looked at Penalba and told her "yo, [sic] don't worry, I got you, you're good," and the pair drove off. As the two drove away, Vargas "two way'd"9 defendant to ask for his location. Based on defendant's response, Vargas asked Penalba to drive him back to the Dunkin' Donuts. Penalba left to meet her former boyfriend at a bar in Paterson.

C

The First Assault Against Monica Penalba

Russell Aquino had picked up defendant from Pennsylvania at approximately 12:30 p.m. that same day, February 18, 2005. While not a member of the Latin Kings at that point in time, Aquino had been trying to become one during the prior two weeks.10 Standing outside the Dunkin' Donuts, Vargas told defendant in Rosario's presence about the events that night, including Pinto's death and the attack on Ricciardi. According to Vargas, it was "basic protocol" for him to report to defendant, since all gang members understood defendant would reassume his role as enforcer. Gaona, Medina, and Tejera were also present at the Dunkin' Donuts, in addition to defendant, Vargas and Rosario.

Rosario told defendant to take Vargas to Paterson so he could visit his child. Eager to please high ranking members of the gang like Rosario and defendant, Aquino drove Vargas, accompanied by defendant and Gaona. They met up with Giorgi on route, who gave Vargas $80 so he could get his hair cut to change his appearance. Vargas testified that he spent the night at his child's mother's house. Later that night, Rosario called Vargas to tell him that "we're going to take care of Monica [Penalba]." Vargas testified that "was like all right" with him.

Defendant, Aquino, Medina, Tejera, and Rosario went to Vega's house.11 All of them, except the non-member Aquino, went into Vega's bedroom to discuss the events of the night. Rosario, Medina, Aquino, Tejera, and defendant left Vega's house and went to the basement of Veras's house. Veras recounted the night's events, including that he shot Pinto. According to Medina, Veras specifically vouched for Penalba's loyalty: "He said he felt that she was okay as well. Pretty much what Ernesto [Vargas] said, that she wasn't -- he didn't think she would tell anybody what occurred."

Rosario was not as sanguine about Penalba's loyalty. Based on a conversation he had with her outside the Dunkin' Donuts, Rosario commented on her "antsy" demeanor and recalled her being "all fidgety" and "talking a lot." He wanted to make a determination about Penalba for himself. Following Rosario's direction, Veras attempted to call Penalba but "for some reason the number didn't go through. It was the wrong number." Ironically, while this was going on, Penalba arrived at Veras's residence. Penalba gave the following explanation for her decision to go to Veras's house at that particular time:

I felt like if I went back to his house they would know where I was, that I wasn't at the police station talking or anything like that. I wanted to, you know, give off the impression that I was okay and that I wasn't nervous and scared.

According to Medina, Penalba, Veras, Rosario, Aquino, and defendant went upstairs to talk while he and Tejera remained in the basement. Aquino denied being a part of the conversation. Penalba testified that the conversation lasted only "a few minutes." Veras told her to go to her car with defendant, Tejera, and Aquino, who were supposed to help her clean up Marti's blood from the back of her car.

By Penalba's own account, when she "jumped" in her car and left heading toward the carwash in Paterson, she was accompanied only by defendant and Tejera. Defendant sat behind her and Tejera was in the passenger seat. Medina and Aquino left in another car. Although he was not sure what was going on, Medina looked to Rosario, who made "a threatening gesture with his thumb in his neck." Medina assumed that someone "was going to be hurt."

Penalba arrived at the carwash and parked her vehicle behind a car bay near a vacuum cleaner. The area was "[d]ark" and "[c]ompletely abandoned." According to Medina, the plan called for defendant to strangle Penalba with a chain from a pipe in Veras's basement. The plan was quickly abandoned, however, when Penalba exited her vehicle before they were ready. Improvising, defendant, Tejera, Aquino, and Medina went inside a nearby Laundromat to buy detergent. Penalba, still unaware of what was awaiting her, put on her winter coat and began cleaning her car with liquid laundry detergent and a hand rag she had in her trunk.

While in the Laundromat, defendant berated Tejera for not strangling Penalba. According to both Medina and Aquino, because Medina was the only one who brought a weapon, a six-inch switchblade knife, defendant asked Medina to stab Penalba. Medina refused because he had "two younger sisters" and could not fathom "trying to kill [a young woman] for no reason." At this point, noticing that defendant was annoyed at Medina for refusing to carry out his order, Aquino testified that "I kind of volunteered to do it, so I took the knife from Miguel [Medina] and everything." When asked by the prosecutor whether there was any discussion at that point "about why Monica needed to be stabbed," Aquino simply stated: "Because she couldn't be trusted. . . . [w]e [all] kind of agreed on it."12

Defendant, Tejera, Medina, and Aquino walked over to Penalba's vehicle; Medina handed her the box of detergent and returned to Aquino's car, which was parked "in the last [carwash] bay." According to Medina, although he did not want to take part in the actual assault, he remained nearby to "save face and make it seem like [he] was still there." The following account of what transpired next is taken primarily from Aquino's testimony.

As Penalba "[l]ean[ed] inside her car cleaning, . . . [t]he back passenger side [seat,]" Aquino "pushed her inside the car and started stabbing her" on her left side. Tejera, who was outside the vehicle on the back driver's side, pulled her farther inside the car. Aquino continued stabbing her as he repositioned himself "on top of the passenger seat."

PROSECUTOR: And what part of her body is exposed?

 

AQUINO: I think the left side of her body.

 

PROSECUTOR: And where is her head with respect to the driver's seat?

 

AQUINO: Like right in back of the driver's seat.

 

PROSECUTOR: And where are her feet?

 

AQUINO: In the back of the passenger seat.

 

PROSECUTOR: And where are you? You indicated you started to stab her. Where were you at the time you were stabbing her?

 

AQUINO: I was on top of the passenger seat like laying across the seat, kind of.

 

PROSECUTOR: And where is your head with respect to her head?

 

AQUINO: She was like straight down from me.

 

While this horrific scene was unfolding, defendant made several unsuccessful attempts at closing the passenger side door of the car, but "kept catching" Aquino's feet. Defendant finally succeeded at closing the door when both Aquino's and Penalba's body were inside the car. At this point, defendant "turned around[,] and started stabbing her." At the prosecutor's request, Aquino attempted to reenact this ghastly scene.

PROSECUTOR: And [defendant] is sitting in the driver's seat of Monica's car?

 

AQUINO: Yes.

 

PROSECUTOR: Okay. Demonstrate for the jury what [defendant] did after that.

 

AQUINO: He was leaning back like this.

 

PROSECUTOR: Indicating for the record he was turning around with -- what hand was [defendant] using?

 

AQUINO: His right hand.

 

PROSECUTOR: Turning around kind of with his back to you, I guess, kind of turning to the side and stabbing her?

 

AQUINO: Yes.

 

PROSECUTOR: And did you see what type of knife [defendant] had?

 

AQUINO: I didn't get -- it was a big knife, it wasn't -- it was longer than my knife.

 

PROSECUTOR: When you say it was longer, are you talking about the blade part or the entire thing?

 

AQUINO: No, the blade part.

 

PROSECUTOR: Do you have any idea where that knife came from?

 

AQUINO: No.

 

. . . .

 

PROSECUTOR: . . . When [defendant] was stabbing Monica, what happened with you? What were you doing at this point in time?

 

AQUINO: I was trying to get out of the way because [defendant] was kind of swinging wild so I was trying to get out of the way because [defendant] almost hit me a couple of times.

 

PROSECUTOR: Did you say [defendant] was swinging wild?

 

AQUINO: Yes.

 

. . . .

 

PROSECUTOR: And approximately how many times while you were there do you think that [defendant] stabbed her?

 

AQUINO: Anywhere between five and ten.

 

PROSECUTOR: And what about you? How many times do you think that you stabbed her?

 

AQUINO: Around 20.

 

PROSECUTOR: And what part of her body did you stab her on?

 

AQUINO: I know I stabbed her leg, her arms. I wasn't really aiming for anything.

 

PROSECUTOR: And what happened when you stabbed her in the leg?

 

AQUINO: She put her hands down.

 

PROSECUTOR: Where had her hands been before that?

 

AQUINO: Covering her face.

 

PROSECUTOR: Can you demonstrate that for us?

 

AQUINO: Just like this with her head down.

 

PROSECUTOR: Indicating for the record her hands were in front of her face?

 

AQUINO: Yes.

 

PROSECUTOR: And what happened -- when you stabbed her in the leg, and she put her hands down, what did you do at that point?

 

AQUINO: I stabbed her in the head.

 

PROSECUTOR: Where in the head?

 

AQUINO: In her forehead.

 

PROSECUTOR: Can you show us where?

 

AQUINO: Somewhere towards the middle.

 

PROSECUTOR: Indicating for the record somewhere between her eyes. And did you stab her any other time in her face besides that?

 

AQUINO: I don't know.

 

PROSECUTOR: What about in her head. Do you know whether you stabbed her in the head?

 

AQUINO: I don't remember.

 

PROSECUTOR: How long do you think it was that were stabbing her? [sic]

 

AQUINO: I don't know.

 

PROSECUTOR: Now, what are you thinking at this point in time?

 

AQUINO: I was just -- after every one that was happening -- after I seen how she was breathing and stuff like that, I felt bad. I wanted to stop, but I kind of figured it was too late, that I already did what I did. So I got out of the car and went back to my car.

 

PROSECUTOR: Now, prior to you getting out of the car, what is Monica doing at this point in time?

 

AQUINO: Monica is still laying in the back seat, like on the floor where she was.

 

PROSECUTOR: And when you get out of the car, what is [defendant] doing at this point in time?

 

. . . .

 

AQUINO: I know [defendant] was stabbing her when I was in the car.

 

THE COURT: How do you know that?

 

AQUINO: Because I seen [sic] him. I don't know if he was stabbing her when I still got out of the car.

 

Penalba's account of this ferocious attack was both remarkably understated and chillingly descriptive. However, through this paradoxical approach, Penalba was able to capture and reveal to us the surreal, irrational nature of true violence. She began her testimony by noting her head was

by the driver's side facing towards the trunk, with my back to the driver -- the front driver's seat. And the left side of my body was exposed while my right side was, you know, wedged in on the floor.

 

Q. So you're basically on the floor between the front seat and the back seat on your right-hand side?

 

A. Correct.

 

Q. With your head by the -- closer to the driver's side?

 

A. Correct.

 

Q. And you're facing -- the front of your body is facing the trunk?

 

A. Correct.

 

Q. And what's going on at that point in time when you become wedged in the car? What is being done to you?

 

A. I was continuing to be stabbed. I was trying to protect my face and neck, so I had my guard up.

 

. . . .

 

THE COURT: . . . Let the record reflect that the witness was lifting her arms and her elbows in a position to protect her [face.]

 

. . . .

 

Q. Now you indicated, Ms. Penalba, at some point you said, "Why are you doing this? I'm not going to say anything." Did anyone say anything to you at that point in time?

 

A. Not that I recall. It was once things started going it was like my world went silent.

 

. . . .

 

Q. Could you tell, or did you at any point see who was doing . . . the stabbing?

 

A. Yes.

 

Q. Who did you see?

 

A. I had took down my guard briefly to see who was on top of me stabbing me, and I saw Russell Aquino on top of me stabbing me.

 

Q. And where was he? Like how was he situated with respect to you?

 

A. He was leaning in the -- Where I was pushed in, like that same door, he was leaning in like on top of me.

 

Q. The back -- ?

 

A. The back passenger seat.

 

Penalba estimated being stabbed between thirty-six and thirty-eight times, mainly on the exposed, left side of her body. She was stabbed in her back, legs, stomach, sides, arms, chest, underneath her arm, her face, and the left side of her head. Although she could only identify Aquino as one of the men who stabbed her, she "immediately" was aware of being attacked by more than one person, because "I was getting stabbed in two different spots . . . simultaneously. The timing was off. There was [sic] too many hands."

Penalba testified that the stabbing finally stopped when she "decided to play dead." When the prosecutor asked her "what made [her] decide to do that[,]" Penalba gave the following response:

They were just -- they were relentless, and I just had to think of something to do and -- so I just decided to hold my breath and just kind of let my body go motionless.

 

Q. What happened when you let your body go motionless?

 

A. They still stabbed me about four or five more times.

 

. . . .

 

Q. What happened after you were stabbed four or five more times?

 

A. They finally stopped and I was peering out of my eyelashes like to see what was going on, and I watched Russell [Aquino] pick up my legs by my ankles, and he just put my legs in the car and he slammed the door shut.

 

. . . .

 

Q. Did you lose consciousness at all during this period of time?

 

A. No.

 

Tejera and Medina were parked by the Laundromat, in another area where they did not have a direct line of sight to Penalba's car. Medina testified that he began to get "anxious" after approximately ten to fifteen minutes had gone by since he had last seen defendant, Aquino, and Penalba. To allay his concerns, Medina stepped out of his car and walked over to where Penalba's car was parked. When he reached the area, he saw Penalba's car doors were wide open. Penalba was in the back seat bent over, and Aquino was behind her. Defendant and Tejera were on the driver's side of the car.

Tejera soon ran back to Aquino's car and asked Medina for "napkins," a cloth, or some other material, to clean the blood in Penalba's car. In the meantime, Aquino placed Penalba's legs in the backseat of her car, shut the door, and returned to his car. Aquino lacerated his right pinky finger because "the knife kept trying to fold on [his] hand." According to Medina, Aquino was "covered in blood."

Medina drove Aquino and Tejera away from the carwash. Defendant followed driving Penalba's car. Penalba, conscious but still "playing dead," was in the backseat of the car where Aquino had placed her. She had limited vision from being stabbed in one eye, and her left arm was paralyzed due to nerve damage. Fortunately, she was laying on her right side, and was thus able to push herself up using her right arm. She saw a man driving her car; he had a "dark complexion and hair tied back." She also was able to see the side of his face and immediately recognized him as defendant.13

D

The Second Assault Against Monica Penalba

Penalba's actions from this point forward can only be understood when viewed as a manifestation of the arguably instinctive, and in this case, indomitable human drive to survive, even in the face of the most harrowing circumstances. Penalba, then nineteen years old, was in the backseat of her own car after being viciously and repeatedly stabbed by two men, who stopped their attack only after they thought she was dead. One of her attackers was now driving her to where she reasonably believed was a remote area, to dispose of both the car and her presumably dead body. With these thoughts in mind, and bleeding from multiple stab wounds, Penalba saw the headlights from an oncoming car and "decided to jump out in front of the other car." This is the explanation she gave the jury for this decision.

Q. And why did you decide to do that?

 

A. For them to help me.

 

Q. What did you think was going to happen?

 

A. I thought that they were going to dump my body into the Passaic River.

 

Q. Why did you think that?

 

A. I knew it was relatively nearby. I thought they were just going to leave my body in the car abandoned. There's a lot of industrial area over there, Bunker Hill, and I just felt like I was never going to be found.

 

Q. So at that point what did you decide to do?

 

A. I decided to jump out of my car.

 

Q. Was your car moving at that time?

 

A. Yes.

 

Q. And do you know or have any idea how fast the car was going at that time?

 

A. I'd say at least 30-35 miles an hour.

 

Q. And what, if any, concern did you have about jumping out of a moving car?

 

A. I had none at that time.

 

Q. Why is that?

 

A. I just wanted to live.

 

Q. So what did you do? Tell us how you did that?

 

A. I reached over with my right arm, and I unlocked the car door, and I just counted to three, and I just let my body fall out, just like dead weight.

 

Remarkably, Penalba not only survived this incident, she managed to stand and walk to the sidewalk, where she then "was struck by a car." She lost consciousness from this point on and has no recollection of who struck her. Medina was the witness who told the jury what happened to Penalba after she jumped out of her car.

Q. What did [defendant] say he did once he left the car wash with Monica in the car?

 

A. He was describing how everything was okay, everything was all good, she was in the back seat, and he -- we were just driving, and then he just said she popped up out the back seat, and opened the door and kind of lunged and threw herself out of the vehicle.

 

Q. And what did he say he did at that point in time?

 

A. He said he hit the emergency brake on the vehicle and just hit reverse and ran over her.

 

Q. And what happened after he did that? What did he say?

 

A. He continued reversing for some distance and put the car in drive and let -- hit her again. After being stabbed the way she was stabbed, then -- then being run over by a car, he assumed that she was probably dead.

 

Defendant, Aquino, Medina, and Tejera drove back to Veras's house. While there, defendant realized his cell phone was missing. He returned to Penalba's car where he feared he had left it. However, by this time, the police had cordoned the area as a crime scene. Defendant was thus unable to search for or retrieve the cell phone. Defendant, Medina, Aquino, and Tejera joined Rosario and Veras at Veras's house. All four gave Veras various pieces of their clothing and gang paraphernalia in an effort to discard possible incriminating evidence.

Medina testified that he saw defendant remove from his boot "an ankle . . . knife." He also overheard defendant telling Rosario about the stabbing, specifically that both he and Aquino stabbed Penalba and he thereafter had to run her over twice with her car. Aquino told Medina the same thing. Rosario also "crowned" Aquino at Veras's house. Medina testified this meant Aquino was formally inducted into the Latin Kings. Later that night, defendant noticed blood on his boots and one article of clothing; they were both burned.

E

Law Enforcement Investigation

At approximately 11:40 p.m. on February 18, 2005, Paterson Police Officer Frank Semmel responded to the scene where Penalba was found. Although she was "bleeding badly," she was still alive. Her car was located in Paterson about a mile away from where she was found; it had a dented roof, a damaged windshield, and a blood-stained hood. While en route to the hospital, Penalba gave the investigating officers Aquino's and Veras's names "[j]ust in case [she] died." At that time, she neither mentioned nor implicated defendant.

Penalba was admitted to St. Joseph's Hospital14 in Paterson for multiple stab wounds and blunt force trauma. She was first treated by Dr. Hurst, a vascular surgeon who also served as a trauma surgeon at the time. As Penalba herself explained, she underwent multiple surgeries and lost vision in her left eye; she wore a prosthetic device at trial. At the time of trial, she had regained about seventy percent mobility in her left arm, after multiple surgeries to treat her initial complete paralysis. She also suffered two fractured vertebrae and continued to experience pain associated with that injury.

Dr. Hurst opined that Penalba's injuries "were consistent with" multiple stab wounds by one or more knives as well as vacating and being run over by a moving vehicle. When she was first admitted, and before any surgery was performed, Dr. Hurst indicated that Penalba's multiple injuries and stab wounds caused her to lose "anywhere from 10 to 20 percent of her blood volume." She lost an additional "500 [cubic centimeters] of blood" during the initial surgery.

While still in the hospital, Penalba gave formal statements to police detectives on February 19 and 20, 2005. She "was in and out of consciousness" during the February 19th interview, but stated she was repeatedly stabbed by Aquino and her vehicle was driven by "someone else." On February 20th, she recalled that a Hispanic male drove her vehicle before she rolled out of it.15

At about 5:00 a.m. on February 19, 2005, Medina called Vargas and told him Penalba was dead. Veras later told Vargas about the details of the attack, describing how "they[16] had all stabbed her" and that defendant ran her over with her own car and thereafter left his cell phone in the car. Veras also said he was not present when the stabbing took place or when defendant hit Penalba with the car. Later that morning, Vargas's father told him the police wanted to speak with him.

Although he denied any involvement with these events at first, Vargas eventually gave a full confession, describing the details of the crimes, making sure to exculpate himself from any direct involvement. Giorgi, Medina, Penalba, and Aquino also gave incriminating statements, including details of the crimes of which they had knowledge of, were complicit in, or actually participated in committing. Medina avoided making certain specific statements or describing certain aspects of the crime, to insulate certain other members of the Latin Kings from culpability.

At approximately 2:10 p.m. on February 24, 2005, five police officers, including Sergeant John Haviland of the Major Crimes Homicide Division of the Bergen County Prosecutor's Office, apprehended defendant at his residence. Defendant responded to the police officers' repeated knocks on his door by sticking "his arms out . . . in a manner to be handcuffed." Except for Rosario and Tejera, by the time of defendant's arrest, all of the other participants in the Pinto murder and the attack on Penalba had been arrested.

After voluntarily waiving his rights under Miranda,17defendant told Haviland and Detective James Bordino, of the Bergen County Prosecutor's Office Major Crimes Homicide Division, that he had "no information" about either the Lodi shooting or the attack on Penalba. After Haviland and Bordino informed him that a number of specific individuals had already implicated him in these crimes, defendant became "more candid and more specific." Defendant admitted that Aquino picked him up from Pennsylvania on February 18, 2005 at approximately 3:45 p.m., and advised him that Marti had been shot and "one of his [Latin Kings] brothers had been robbed." After this, he and Aquino attended a funeral for a Latin Queen in Passaic. They then met Veras at a Dunkin' Donuts, and he was told Pinto had been shot five times in retribution for having robbed Vega.

Although defendant denied knowing Vega and Rosario, he stated he was the leader of the Latin Kings and ordered Penalba's death because the gang was concerned about her loyalty. With respect to the attack on Penalba, defendant claimed the method to bring about her death changed from strangling to stabbing. He recalled going to a carwash in Paterson with Aquino and Penalba. He claimed Aquino stabbed her at the carwash. After they left the carwash, he drove Aquino's car and Aquino drove Penalba's car. He thereafter picked up Aquino, who was afoot in Paterson.

The detectives immediately challenged the veracity of defendant's account, including his failure to include certain key players who they knew were also present at the carwash. Defendant conceded he had not included Medina and Tejera because they were his friends. He claimed he ordered Aquino to stab Penalba because he wanted to become a member of the gang. He denied having any direct involvement in the attack on Penalba, insisting Aquino was the only one who actively stabbed Penalba. When questioned about his cell phone having been found in Penalba's car, defendant claimed he had switched phones with Aquino because his phone had a fainter display and would likely attract less attention.18

On February 25, 2005, at approximately 1:02 a.m., defendant was re-Mirandized and questioned by Bordino and Sergeant Louis Alvarez. While en route to the interrogation, defendant saw Rosario being interviewed. In this subsequent interview, defendant admitted knowing Vega and Rosario, explaining he reported to them as the gang's enforcer. With respect to the attack on Penalba, defendant claimed Rosario "wanted her dead" and left the method of execution to his discretion. Defendant reiterated that when strangling proved impractical, the four gang members met in the laundromat to discuss stabbing Penalba.

Despite several attempts, police investigators were not able to obtain a statement from defendant directly inculpating himself in the crime committed against Penalba. Defendant continued to implicate only Aquino in the entire attack, including both the stabbing and subsequent hit and run. DNA evidence obtained from Penalba's car did not inculpate defendant.

II

Against this evidence, defendant now appeals raising the following arguments:

POINT I

 

THE TRIAL COURT IMPROPERLY ALLOWED THE STATE TO EMPHASIZE EVIDENCE OF ROBERTS' ASSOCIATION WITH GANG MEMBERS AND FAILED TO INSTRUCT THE JURY ON THE PERMISSIBLE USES OF PRIOR-CRIMES EVIDENCE. (not raised below)

 

A. Standard of Review.

 

B. The Extensive Emphasis On Roberts' Association With the Latin Kings Violated Rule 404(b) And Cofield.

 

C. The Court's Failure To Give A Limiting Instruction Was Prejudicial Error.

 

 

 

 

POINT II

 

THE STATE'S GRAPHIC AND DRAMATIC PRESENTATION OF THE VICTIM'S TESTIMONY WAS UNDULY PREJUDICIAL. (partially raised below)

 

POINT III

 

THE TRIAL COURT ERRONEOUSLY FAILED TO CONSIDER MITIGATING FACTOR 4 AT SENTENCING.

 

A. Mitigating Factor 4.

After a careful review of the evidence presented by the State, we are satisfied defendant's arguments are without merit. We will begin our analysis with the argument raised in Point I.

For the first time on appeal, defendant argues the trial court erred by permitting the so-called gang witnesses Vargas, Medina, Giorgi, and Aquino to testify about his association with the Latin Kings and the gang's culture and activities. Alternatively, defendant argues the court should have at least sanitized these witnesses' testimony. We disagree. The "culture and activities" of the Latin Kings were, at the very least, key motivating factors in the commission of this horrific attack against Penalba. The trial court correctly exercised its discretion to allow the State to present this key evidence to the jury, guided by appropriate limiting instructions from the court.

We start, as we do in all appeals, by articulating our standard of review. Citing State v. Reddish, 181 N.J.553, 609 (2004), defendant urges us to apply a de novo standard of review because the trial court failed to employ the Cofield, supra, test at the time it decided to admit what can be viewed as "other crimes" or "other wrongs" evidence under N.J.R.E. 404(b). 127 N.J. at 338. We disagree. Because defendant failed to object to the gang-related evidence at the time of trial, we must review defendant's claim under the plain error doctrine. This means we must find that the error committed by the trial court was clearly capable of producing an unjust result. R.2:10-2; State v. R.B., 183 N.J.308, 321-22 (2005).

We agree with defendant in one respect. Gang-related evidence must be analyzed under the standards applicable to N.J.R.E. 404(b) evidence. We made this point clear in State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), an appeal this court decided after the trial in this case. Writing for the court in Goodman, our colleague Judge Waugh explained that evidence of gang membership to prove a defendant's motive must be analyzed under N.J.R.E. 404(b) because "it is at the very least strongly suggestive of such [criminal] activity." Id. at 227.

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

As the Court recently noted, "N.J.R.E. 404(b) is a rule of exclusion rather than a rule of inclusion." State v. Carlucci, 217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255 (2010)). The Court in Carlucci also reaffirmed the continued viability of the four-prong test for admissibility of "other crimes" evidence first articulated in Cofield:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Carlucci, supra, 217 N.J. at 141 (quoting

Cofield, supra, 127 N.J. at 338).]

 

The fourth prong of the Cofield test is "more exacting than [N.J.R.E.] 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." State v. Rose, 206 N.J. 141, 161 (2011). Furthermore, not all prongs are considered or weighed equally. As one commentator has noted, "courts require varying degrees of compliance with each prong depending on the facts of the case as well as the nature of the other conduct evidence and its relationship to the current case." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404 (2014).

Here, we emphasize that defense counsel did not object to the gang-related testimony at the time of trial. However, had such an objection been made or concern raised, we are satisfied the trial court would have found this testimony admissible under the Cofield test. First, it is beyond dispute that the testimony concerning defendant's association with the Latin Kings was relevant to establishing a motive for his attack on Penalba. Equally relevant in this respect, if not more so, is defendant's role as enforcer of the gang's Passaic chapter. See State v. Jenkins, 178 N.J. 347, 365 (2004) (quoting State v. Covell, 157 N.J. 554, 565 (1999)) ("It is true that when motive or intent is at issue, we 'generally admit a wider range of evidence.'"); Goodman, supra, 415 N.J. Super. at 228-31 (gang-related evidence admissible to prove defendant's motive in killing member of rival gang where the two had a longstanding friendship).

The testimony describing the structure and culture of the Latin Kings was vital to assist the jury with understanding an environment governed by violence and unquestioned obedience to a hierarchical leadership scheme. Indeed, in his reply brief, defendant concedes that he "did not argue at trial (and does not argue on appeal) that the State should not have been allowed to introduce any gang-related evidence." Defendant nevertheless claims "the State elicited unduly inflammatory evidence and repeatedly emphasized it in an effort to appeal to the jury's sense of fear and outrage." In our view, the approach the State employed here in presenting this evidence was neither needlessly cumulative or unduly inflammatory.

The jury was entitled to believe Penalba's testimony. She described defendant's role in planning and participating in the initial stabbing attack. More importantly, her description of defendant's conduct after she jumped out of her moving car is, without further comment, shockingly barbaric and needs no embellishment.

The gang-related evidence was also relevant to defendant's preparation and ultimate execution of the attack against Penalba, and rebutted any claim by defendant that he was a mere bystander when Aquino repeatedly stabbed the helpless Penalba. Without this testimonial evidence, the jury would be unable to understand why the attack occurred as it did and why some of the witnesses (including defendant) failed to initially report the involvement of higher ranking gang members to authorities. State v. Torres, 183 N.J. 554, 562-63 (2005).

The second prong of the Cofieldtest is not applicable here. See State v. Williams, 190 N.J. 114, 131 (2007) (second Cofield factor "is not one that can be found in the language of [N.J.R.E.] 404(b). Cofield's second prong, therefore, need not receive universal application in [N.J.R.E.] 404(b) disputes.").

With respect to the third Cofield factor, defendant claims the court failed to find that he "was anything more than someone who knew members of the Latin Kings." We discern no legal basis to reverse defendant's conviction on this ground. The record is replete with the testimony of various witnesses who refer to defendant as "King Pun" or the number three "crown" in the Passaic County Latin Kings. Defendant himself admitted to Detective James Bordino, of the Bergen County Prosecutor's Office, Major Crimes Homicide Squad, that he reported to two individuals holding a higher rank in the Passaic County "tribe." According to Detective Bordino, defendant identified himself as "the enforcer and he held the Third Crown." We are satisfied that had defendant raised his status in the gang as an issue, the trial court would have overruled the objection, finding ample evidence to support that he was a leader of this criminal enterprise.

Finally, addressing the fourth Cofield factor, we are satisfied the probative value of the gang-related evidence was not outweighed by its apparent prejudice. This evidence explained defendant's motive for planning and committing the charged crimes and why the events occurred as they did. No less prejudicial evidence existed to prove those facts. See State v. Oliver, 133 N.J. 141, 151 (1993) ("An important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue.").

The trial court repeatedly reminded the jurors of their key role as judges of the facts. The judge emphasized that as judges of the facts, the jury alone determines the credibility of the witnesses. In connection with its charge on conspiracy, the court also pointed out that "[m]ere association, acquaintance or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy." Stated differently, given the quantity and quality of the evidence presented to the jury as a whole, there is no rational basis to presume the jury convicted defendant based on his gang membership alone. See State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012) ("Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise."), certif. denied, 213 N.J. 387 (2013).

Defendant also contends the court erred by failing to issue a limiting instruction. We agree with defendant on this issue to a limited extent. Ordinarily, when evidence of gang membership is presented, a trial court should give the jury specific guidance on how to consider such evidence in the form of a limiting instruction because, as Judge Waugh explained in Goodman, supra, "the average juror would likely conclude that a gang member has engaged in criminal activity. Such evidence has the potential to 'taint' a defendant in much the same way as evidence of actual criminal conduct." 415 N.J. Super. at 228.

The trial court should instruct the jury "'precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" State v. Marrero, 148 N.J. 469, 495 (1997) (quoting Cofield, supra, 127 N.J. at 341); Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (June 4, 2007). Under most circumstances, these instructions must be issued both when the N.J.R.E. 404(b) evidence is admitted during witness testimony, and again during the closing charge to the jury. State v. Barden, 195 N.J. 375, 390 (2008).

Here, there is no question the trial court failed to adhere to these prophylactic measures. The jury was allowed to consider evidence of gang-related testimony without the judicial guidance the Supreme Court discussed in Marrero and we again addressed in Goodman. That being said, we also note that defense counsel also failed to request any form of limiting instruction. In fact, the record shows defense counsel strategically used evidence of gang-related activity to undermine the credibility of the State's witnesses.

Defense counsel particularly highlighted during his opening and closing statements the gang affiliation of most of the State's witnesses. Counsel repeatedly impugned the credibility of these witnesses based on their gang affiliation, and carefully and aggressively cross-examined them concerning their acceptance of plea deals for crimes committed in furtherance of the gang's criminal interests.

Finally, we note the court apprised potential jurors during voir dire that the State planned to call certain witnesses to testify at trial who had a relationship or affiliation to a street criminal gang. The court specifically questioned prospective jurors about their knowledge of the Latin Kings and whether defendant's membership, if proven, would affect their ability to be fair and impartial. Prospective jurors who acknowledged their bias in this area were excused. Finally, both defense counsel and the prosecutor emphasized in their opening and closing statements that the jury should not convict defendant merely because he belonged to a gang.

We are satisfied the court gave both defense counsel and the prosecutor a timely opportunity to request that the court provide an appropriate limiting instruction when the topic of gang-related evidence arose during trial. The court's precautionary approach during voir dire added another layer of protection and affirmatively sought to scan for and detect any indication of bias caused by this information.

Against this record, we conclude the trial court erred in failing to sua sponte give limiting instructions as required under Marrero, supra, 148 N.J. at 495 and Goodman, supra, 415 N.J. Super. at 227. However, we also conclude that when the record shows, as it does here, that defense counsel took full advantage of the witnesses' gang-related status to impugn their credibility, the trial court's error is not "clearly capable of producing an unjust result," Rule2:10-2, nor "le[ads] the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J.308, 330 (2005) (internal citations and quotation marks omitted). We reach this conclusion after considering the entire record. SeeState v. Marshall, 123 N.J.1, 200 (1991).

That being said, we do not want to implicitly minimize the importance of providing timely and accurate limiting instructions in this context. The trial judge is responsible for monitoring the trial carefully and when the issue of gang-related evidence plainly and materially arises, affirmatively give sua sponte limiting instructions. We caution the trial court that the doctrine of plain error is not a filter that washes away all sins. We merely hold that under these facts, the error was not "clearly capable of producing an unjust result." R.2:10-2.

Defendant's second argument point attacking the manner in which the State presented the victim's testimony at trial lacks sufficient evidence to warrant discussion in a written opinion. R.2:11-3(e)(2). We only make the following brief comments.

During trial, the victim demonstrated how she was "leaning in toward the blood" before being attacked, the position she was in while being stabbed, and how she exited the vehicle. She also pointed to the portions of her body that had suffered permanent scarring, including her face, back, stomach, legs, hands, wrists, and arms. Because defendant did not object during her testimony, we again apply the plain error doctrine. R. 1:7-2; R. 1:7-5; R. 2:10-2.

"There is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J.466 (1997). Relevant demonstrative evidence may be excluded only if "the risk of . . . undue prejudice, confusion of issues, or misleading the jury" substantially outweighs its probative value. N.J.R.E. 403; accordState v. Feaster, 156 N.J.1, 83 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Here, the demonstrative evidence was relevant to the victim's identification of defendant. She demonstrated how her various positions inside and outside the vehicle affected her ability to identify defendant. This evidence was not unduly prejudicial. See State v. Wilson, 135 N.J. 4, 21 (1994).

Defendant's last argument concerns the trial court's failure to give due consideration to mitigating factor four during sentencing. Again, this argument lacks sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2). We affirm defendant's sentence substantially for the reasons expressed by the trial court.

Affirmed.

1 See New Jersey Department of Law & Public Safety Division of State Police, Intelligence Section, Gangs in New Jersey: Municipal Law Enforcement Response to the 2 010 NJSP Survey 97, 99 (2010), http://www.njsp.org/info/pdf/gangs_in_nj_2010.pdf.

2 Penalba was indicted in connection with the kidnapping of these two men. She pled guilty through a negotiated plea agreement to two counts of second degree attempted kidnapping. N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1(c)(1). In consideration for her cooperation, subsequent victimization, and willingness to testify against defendant in this case, the State agreed to dismiss the remaining charges Penalba was facing and recommend she serve a term of seven years, subject to the eighty-five percent parole ineligibility restrictions under NERA.

3 Confronted by the prosecutor with the plea agreement, Vargas acknowledged he pled guilty on February 21, 2008, to first degree conspiracy to commit kidnapping, first degree robbery, two counts of second degree attempted kidnapping, second degree aggravated assault, second degree possession of a handgun for an unlawful purpose, second degree conspiracy to commit robbery, and third degree possession of a hammer for an unlawful purpose.

4 On cross-examination, Vargas elaborated that the charges the State agreed to dismiss as consideration for his testimony included five first degree offenses, exposing him to possible terms of imprisonment of not less than ten nor more than twenty years as to each offense; six second degree offenses, with a range of five to ten years imprisonment as to each offense, N.J.S.A. 2C:43-6a(2); two third degree offenses, with a range of three to five years imprisonment as to each offense, N.J.S.A. 2C:43-6a(3); and one fourth degree offense, with a range of imprisonment not to exceed eighteen months, N.J.S.A. 2C:43-6a(4). Thus, Vargas averted through this plea agreement a possible combined maximum penal exposure of 170 years.

5 We will refer to Anthony by his first name to avoid any confusion with his brother Jose Vega. No disrespect is intended.

6 Vargas's prediction proved to be half right. Although originally indicted for murder, Vega and Rosario were convicted of reckless manslaughter for causing the death of Ralph Pinto. State v. Vega, Docket Nos. A-4673-08T4, A-5311-08T4 (App. Div. Apr. 10, 2012) (slip op. at 2). Ricciardi survived his ordeal. Vega and Rosario were convicted of second degree aggravated assault. Id. at 3.

7 Gang member "Tejera" is identified in the transcript of Miguel Medina's trial testimony as "Nowen Tahara." We will refer to him here as "Tejera" in the interest of clarity, as that is how both defendant and the State have referred to him in their briefs.

8 In response to the prosecutor's direct question, Vargas testified that Tejera and Medina were not present "at the time that Ralph Pinto was shot and killed in Lodi." Thus, it is not clear why Tejera and Medina were concerned about Penalba's loyalty in this respect.

9 We infer from this comment that Vargas communicated with defendant using a feature on his cellular phone that permitted the users to establish a private two-way conversation. This was a popular method of communication in 2005.

10 Aquino testified that he had written a letter to Juan Veras, the head of the Latin Kings in Passaic, "about two or three weeks before the incident." In this letter, Aquino wrote that "[o]ne reason I would love to join your Nation of Kings is to see how close all of you are . . . ." He emphasized that "if anyone needs help with anything, is in trouble or needs something, no brother wouldn't help another brother." Aquino noted that "[o]f the brothers I have met[,] I truly like especially Netstone, Pun [defendant's nickname], Miguel and Benji." (Emphasis added).

11 The record is not clear about the time and circumstances of Gaona's departure.

12 Given his non-member status in the gang at the time, it seems logical Aquino would want to take the initiative on a matter as important as killing a potential police informant. In fact, as part of his redirect testimony, Aquino claimed defendant told him that killing Penalba "was like an initiation type thing."

13 When asked why she was able "to recognize Mr. Roberts at that time as you were sitting behind him, Penalba noted that he was the only African American man "involved in the incident" that night.

14 St. Joseph's Hospital is "a level one trauma center." According to Dr. Stephen Gerard Hurst, this means that the hospital employs and has on staff "an attending physician and trauma team 24 hours a day . . . for life threatening injuries."

15 The report, authored by the detective who took the February 20th statement, is not a part of the appellate record.

16 According to Vargas, "they" referred to defendant, Aquino, Medina, and Tejera.

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

18 Records of defendant's cell phone contained contact and address information for various members of the Latin Kings, including Giorgi, Vega, Medina, Tejera, Rosario, Vargas, and Veras. Defendant's last outgoing call was on February 18, 2005, at 11:35 p.m.