STATE OF NEW JERSEY v. JUAN ROSARIO

NOT FOR PUBLICATION WITHOUT THE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.

JUAN ROSARIO, a/k/a

JOSE GOMEZ,

Defendant-Appellant.

_____________________________________

September 13, 2016

Argued January 4, 2016 - Decided

Before Judges Lihotz, Nugent and Higbee.

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

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs).

John J. Scaliti, Legal Assistant, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief; Mr. Scaliti, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury convicted defendant Juan Rosario, a Latin Kings gang leader, of conspiracy to commit murder, attempted murder, and aggravated assault for his role in conspiring to murder Monica Penalba. Penalba was a witness to and participant in the gang's murder of Ralph Pinto and attempted murder of Paul Ricciardi, two men who had robbed one of the gang's other leaders, Jose A. Vega. Defendant seeks a new trial on the following grounds

POINT I

THE TRIAL COURT SHOULD HAVE ENTERED JUDGMENTS OF ACQUITTAL ON THE COUNTS CHARGING DEFENDANT WITH CONSPIRACY TO COMMIT MURDER, ATTEMPTED MURDER, AND AGGRAVATED ASSAULT BECAUSE THERE WAS NO PROOF THAT DEFENDANT AGREED THAT MONICA PENALBA SHOULD BE KILLED; THAT HE SOLICITED ANYONE TO COMMIT THE CRIME; OR THAT HE DID ANYTHING TO ASSIST IN THE PLANNING OR THE COMMISSION OF THE CRIME. (Not Raised Below).

POINT II

THE PROSECUTOR'S DECISION TO SEVER THE PINTO AND PENALBA COUNTS BUT TO PRESENT THE SAME EVIDENCE AT THE TWO TRIALS VIOLATED THE MANDATORY JOINDER PROVISION OF RULE 3:15-1(B) AND PREJUDICED THE DEFENDANT BY ALLOWING THE STATE TO "CHERRY PICK" THE EVIDENCE THAT IT WOULD USE AT THIS TRIAL.

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT UNNECESSARY AND EXCESSIVE EVIDENCE UNDER RULE 404(b), WHICH SERVED NO PURPOSE OTHER THAN TO OBFUSCATE THE REAL ISSUES IN THE CASE.

POINT IV

DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO PRESENT JUAN VERAS AS A WITNESS FOR THE DEFENSE. (Not Raised Below).

In his pro se supplemental brief, defendant raises two additional arguments

POINT I

THE TRIAL RECORD REVEALS AN INSUFFICIENCY OF EVIDENCE, FOR THE CONVICTION TO CONTINUE TO STAND. THE STATE'S PROSECUTION FAILED TO PROVE ITS CASE [BEYOND REASONABLE] DOUBT BY [OMITTING] TO ENTER[] AS EVIDENCE DEFENDANT'S "VOICED [DETERMINATIONS]" TO GIVE NEXUS AS ACCOMPLICE, NOR LIABILITY TO CO-[CONSPIRATOR]. [ABSENT] OF THE EVIDENCE NO WITNESS COULD HAVE TESTIFIED THAT THE DEFENDANT HAD ORDERED OR AGREED TO THE ASSAULT ON MONICA PENALBA, WITHOUT A POINT OF ORIGIN TO CONFIRM IT. DEFENDANT IS "ACTUALLY INNOCENT", AND REQUIRES JUDGMENT TO BE "MODIFIED" FOR A FINAL ENTRY OF JUDGMENT OF ACQUITTAL. BECAUSE HE WAS DEPRIVED PURSUANT TO N.J.S.A. 10:6-2e., FROM HIS RIGHTS OF DUE PROCESS AND EQUAL PROTECTION FROM THE LAWS GUARANTEED BY U.S. CONST. AMEND. XIV CAUSING A VIOLATION OF HIS RIGHT OF "LIBERTY" GUARANTEED BY N.J. CONST. ART. 1, PARS. 1; U.S. CONST. AMENDS. V & XIV 1, REQUIRES THE CONVICTIONS TO BE VACATED. (Not Raised Below).

A. The State Failed to prove beyond reasonable doubt That Mr. Rosario made "voiced determination" as to What do to with Monica Penalba, requires entry of Final Judgment of Acquittal.

B. Detective Gary Allmers, returned with insufficient evidence for Penalba's Miranda Waiver.

POINT II

THE CUMULATIVE ERRORS PRESENTED AS POINTS I THROUGH IV IN PLENARY BRIEF "SHOW" HOW HE WAS DEPRIVED PURSUANT TO N.J.S.A. 10:6-2e., DEFENDANT FROM HIS RIGHTS OF DUE PROCESS AND EQUAL PROTECTION FROM THE LAWS GUARANTEED BY U.S. CONST. AMEND. XIV CAUSING A VIOLATION OF HIS RIGHT OF "LIBERTY" GUARANTEED BY N.J. CONST. ART. 1, PARS. 1; U.S. CONST. AMENDS. V AND XIV 1, REQUIRES THE CONVICTIONS TO BE VACATED. (Not raised below).

For the reasons that follow, we affirm.

A Bergen County grand jury charged defendant and others in a December 2005, thirty-nine count indictment with, among other crimes, murdering Ralph Pinto and attempting to murder Paul Ricciardi (Pinto-Ricciardi counts). In counts eighteen through twenty-two of the same indictment, the grand jury charged defendant and others with committing five offenses against Monica Penalba (Penalba counts): first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-2; first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon, a knife or knives, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, a knife or knives, N.J.S.A. 2C:39-5(d).1

Following the indictment, some co-defendants filed severance motions, which were denied. During oral argument on the motions, the State represented it did not intend to try the Penalba counts with the other counts in the indictment. The trial court nonetheless ruled that evidence of the Penalba crimes were admissible at the trial of any co-defendant on the Pinto-Ricciardi counts, and evidence of the Pinto-Ricciardi crimes were admissible at the trial of any co-defendant on the Penalba counts.

Defendant and a co-defendant, Jose A. Vega, were tried jointly in a twenty-one day jury trial in September, October and November 2008 on the Pinto-Ricciardi counts. The jury convicted defendant of killing Pinto and attempting to kidnap Ricciardi. Thereafter, a judge sentenced defendant to a twenty-year aggregate prison term with seventeen years of parole ineligibility. State v. Rosario, No. A-5311-08 (App. Div. April 10, 2012), certif. denied, 212 N.J. 288 (2012). Before being tried on the Penalba counts, defendant moved to dismiss those counts on mandatory joinder grounds. The court denied the motion.

Defendant was tried on the Penalba counts and a jury found him guilty of conspiracy to commit murder, attempted murder, and aggravated assault, but acquitted him of the weapons offenses. The court denied defendant's motion for a new trial. At sentencing, after merging the aggravated assault and conspiracy counts into the attempted murder count, the court sentenced defendant to a twenty-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, to run consecutively to his sentence on the Pinto-Ricciardi counts. The court also ordered defendant to pay applicable penalties and assessments. On November 18, 2011, the court signed an amended judgment of conviction. This appeal followed.

The State developed its proofs at trial principally through the testimony of co-conspirators, co-defendants, and Penalba, along with documentary evidence and testimony from other witnesses. These proofs established that in 2005, Jose Vega had become the head of the Latin Kings in New Jersey and defendant had succeeded him as "First Crown." In addition to several lesser "crowns," the gang consisted of general members or "foot soldiers." The Passaic chapter, of which defendant was the leader, had close to twenty members. Constantly concerned about infiltration by law enforcement, the gang investigated prospective members, who had to complete probationary periods. Gang rules required members to provide mutual support, keep gang business confidential, and not take the law into their own hands. The gang's manifesto prohibited sale of drugs, though Vega and defendant were known dealers. Punishment for rule violations or collaboration with police ranged from beatings to death.

The events culminating in the attack on Penalba began on February 17, 2005, when Pinto and Ricciardi, two small-time drug dealers, and a third person went to Vega's home and purchased marijuana and cocaine. That evening, they returned on the pretense of buying more drugs. Once upstairs with Vega, they hit him over the head with a pipe and took his safe, which contained approximately forty grams of cocaine, $1000 in cash, and Vega's gold chain. Vega managed to retrieve a handgun and fire it three times at the robbers as they fled.

During that night and the next morning, through a series of meetings and communications among Vega, defendant, and other gang members, a plan was developed to have Jamel Rose, who was not a gang member, and a member named Juan Veras, meet Pinto and Ricciardi on the pretense of buying drugs. Once the four individuals arrived at a pre-determined location, other gang members waiting nearby would capture Pinto and Ricciardi, put them in the trunk of a car, and call Vega for instructions. Although not a gang member, Penalba, a gang member's friend, assisted by driving gang members to the pre-determined location and permitting the use of her car during the kidnapping.

On the evening of February 18, 2015, at approximately 7:30 p.m., Ricciardi, driving a truck in which Pinto was riding as a passenger, picked up Rose and gang member Ernesto Veras, who sat in the rear seat. Rose and Veras said they wanted to buy additional drugs. Ricciardi was reluctant, but Pinto vouched for Rose so Ricciardi agreed to drive them to get money. As they pulled into a location Rose had specified, Pinto became suspicious; he told Ricciardi to back up. Before Ricciardi could back up, Veras put a gun to his head and told him to stop.

Other Latin King gang members and Penalba had been waiting as planned. When Ricciardi's truck started to back up, Penalba pulled her car behind the truck, blocking the truck from continuing. Other gang members rushed toward the truck. Rose exited the cab, running from the scene. Meanwhile, Pinto had opened his door after telling Ricciardi to try to escape, but someone grabbed Ricciardi and was pulling him out. During the ensuing melee, Pinto was beaten and was shot five times by Veras.

Ricciardi was severely beaten. Two gang members attempted to force him into the trunk of Penalba's car, but Penalba insisted Ricciardi would not fit, so they tried to force Ricciardi into the back seat but were unable to do so. Two gang members, one wounded, and Penalba got into Penalba's car and drove off. Shortly thereafter, when a police car passed within a short distance of the scene, the remaining gang members abandoned the plan to kidnap Ricciardi. Ricciardi found Pinto alive and drove Pinto to a hospital where he was pronounced dead.

Later that night, Penalba, Vargas, and Joseph Marti, the gang member who had been wounded during the melee, met defendant at a funeral service in Passaic to inform defendant what had happened. Defendant, who was with Miguel A. Medina and Newin A. Tejera, was very upset at Vargas's news and the prospect that Pinto had been killed; he asked about his gun, which had been left at the scene. Defendant sent the younger gang members home but told others to meet at the Dunkin' Donuts. He also told them to get rid of any gang paraphernalia and he ordered Medina to go inside the Dunkin' Donuts bathroom to do the same.

Defendant asked Vargas if he thought the participants, including Penalba, would confess when approached by police. Vargas believed Penalba would not turn against them, explaining Penalba had been involved in other incidents and was "good." Describing defendant's reaction, Vargas said, "[defendant] just he said all right." Defendant also told Vargas that "if things got too hot" as a result of the homicide they were going to go into hiding.

A few minutes later, while Vargas waited outside for Penalba, Medina and Tejera also asked about Penalba, and Vargas repeated that she would not talk to the authorities. According to Medina, however, when he and Tejera talked with Penalba she was "real antsy, hyper," and making comments about all the blood in her back seat. She spoke "not in like a scared way," but more "in a giddy just talking type of way." Tejera said he thought she was being "too open," but Medina felt it was just nerves.

When Penalba went inside to use the bathroom, Tejera spoke with Vargas and defendant, after which defendant spoke alone with Vargas and Latin Kings Warlord Veanzeil Roberts, who had arrived from Pennsylvania. Russell Aquino also attended. He was not a gang member but had been wanting to join and he had driven Roberts from Pennsylvania. Penalba left. Eventually defendant instructed Roberts to take Vargas home.

According to Medina, he, defendant, Roberts, Aquino and Tejera drove to Vega's house where Aquino, the non-member, was told to wait outside. Inside, the members discussed the evening's events. When Vega was told how Veras had shot Pinto, Vega replied that Pinto "got what he f'ing deserved." Defendant "kept his cool," and spoke to Vega "about financial things and just things in general, what was going to be done."

After about twenty minutes, defendant, Roberts, Aquino and Tejera left for Veras' house. There, in the basement, the conversation eventually returned to Penalba and whether she could be trusted, at which point the participants confirmed their earlier-expressed opinions; defendant, however, did not particularly comment, and his demeanor was unchanged.

Defendant told the others to call Penalba because he wanted to speak to her and "get a feel for everything." Before they could contact her, she arrived at Veras' house. Defendant, Aquino, Roberts and Veras went upstairs to talk to her while Medina and Tejera remained in the basement smoking cigarettes.

According to Penalba, she had decided to go to Veras' house to show them that she had not gone to police and given a statement and that "I was okay, that they didn't need to worry about me." Veras' mother, however, met her at the door and acted "cold," giving her the "cold shoulder." Penalba told Veras about the blood in her car, and asked for help cleaning it off. Veras was not acting unusual, but defendant's demeanor toward her was unfriendly.

Eventually, Veras told Penalba his friends would go with her and help clean out her car. He called Medina and Tejera upstairs. When Medina came upstairs he saw everybody "pretty much by the back door leaving" and he fell in behind them. Unaware of what was taking place, he looked at defendant and shrugged his shoulders, in a manner suggesting he was inquiring what was going on. In response, defendant made a gesture with his hands, a slashing motion, which gave Medina his answer. Medina understood defendant's gesture to mean something was going to happen to Penalba, and it would not be good.

According to Vargas, who did not participate in the attack on Penalba, defendant called him and told him they "were going to take care of Monica Penalba." Vargas understood that to mean that they were going to kill her. Vargas testified defendant indicated they were going to kill Penalba "[j]ust to make sure there were no loose ends." The next day, believing Penalba had been killed, Vargas told another gang member she had been killed because she was an outsider and defendant did not trust her.

Meanwhile, according to Penalba, just as they were leaving Veras' mother kissed defendant and "looked back at" Penalba. Veras had given Medina a switchblade, while Roberts picked up a length of large-link chain. Medina then rode with Aquino, who followed Roberts, Tejera and Penalba. Penalba drove her car to a car wash.

While Penalba cleaned her car at the car wash, Aquino and Roberts attacked her, stabbing her more than thirty times. Penalba pretended she was dead. The men drove away in the two cars. After Roberts drove for several blocks, Penalba managed to open the car door and roll out onto the road. She staggered to her feet, but before she could get out of the street Roberts drove the car into her and she lost consciousness.

Medina and Roberts eventually returned to Veras's house where they told defendant they had stabbed Penalba and Roberts had struck her with his car. According to Aquino, defendant was happy Aquino "did what [he] did," because defendant later "crowned" Aquino.

Penalba survived the attack, though she suffered severe and permanent injuries. She told police Aquino had attacked her. During the ensuing investigation, defendant voluntarily surrendered to police, waived his Miranda2 rights, and gave a statement in which he denied any complicity in the crimes. When authorities told him other witnesses had implicated him, he became visibly angry and talked about what would happen to the witnesses in prison. He nonetheless maintained his innocence.

Defendant neither testified nor called witnesses. The defense theory was that Aquino had fabricated his account of the stabbing to implicate defendant; that Vargas rather than defendant had motive to kill Penalba, given that Penalba was a witness to Vargas's botched attempt to kidnap Pinto and Ricciardi; and the events concerning Ricciardi and Pinto were distractions, merely collateral to the attack on Penalba. As previously noted, defendant was convicted. He appealed.

On appeal, defendant argues in Point I of his brief and Point I of his supplemental brief that the trial court should have entered judgments of acquittal on the counts of conspiracy to commit murder, attempted murder, and aggravated assault because there was no proof to support those charges. He insists the State failed to prove the elements of those crimes beyond a reasonable doubt. Defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nonetheless add the following brief comments.

Defendant did not raise these arguments at trial. "Thus, sound principles of appellate procedure preclude this court from now considering such argument." State v. Bogus, 223 N.J. Super. 409, 419 (App. Div. 1988) (citing State v. Souss, 65 N.J. 453, 460 (1974); Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973); Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div. 1985), certif. denied, 102 N.J. 303 (1985)). These sound principles notwithstanding, the jury's verdict was supported by the evidence. The evidence established the Latin Kings was a structured organization in which lesser ranking members did not take matters into their own hands, but rather acted on the orders of the gang's leaders. The evidence further established defendant gave many if not most of the orders concerning Pinto and Ricciardi. After gang members killed Pinto and assaulted Ricciardi, defendant raised concerns about Penalba and ordered others to summon her so defendant could meet with her. Before Penalba left the meeting place, defendant made a slashing motion in response to another's gesture inquiring what was going on, and thereafter told Vargas in a telephone conversation they were going to take care of Penalba. Following the attack on Penalba, defendant "crowned" Aquino.

From the totality of the State's evidence, the jury could have readily found defendant guilty as charged, beyond a reasonable doubt. Defendant's arguments to the contrary do not consider the reasonable inferences to be drawn from the evidence in its entirety, but rather parse the prosecution's proofs, emphasize the circumstantial nature of the evidence, and conclude from these myopic views the evidence does not support the verdict. We reject the arguments, instead basing our decision on the evidence considered in its entirety and the reasonable inferences derived from the evidence.

Defendant argues in Point II the prosecutor's decision to sever the Pinto-Ricciardi counts from the Penalba counts, a decision the prosecutor made before the first trial, violated Rule 3:15-1(b) and prejudiced defendant by allowing the State to cherry pick the evidence it would use at the trial on the Penalba counts.

The mandatory joinder rule, Rule 3:15-1(b), states

Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to be appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

When analyzing the mandatory joinder rule's application to multiple criminal offenses, "the determinative question is whether defendant's criminal activity constituted criminal offenses based on the same conduct, or arising from the same criminal episode." State v. Catanoso, 269 N.J. Super. 246, 273 (App. Div. 1993) (citing State v. Pillot, 115 N.J. 558, 567 (1989)). If multiple crimes involve specific conspiratorial objectives that are quite different, different evidence is needed to convict a defendant on the two indictments, and the conspiracies alleged in the two indictments are "not just integral parts of a larger, overall scheme but constitute[] separate acts of concupiscence," the indictments need not be joined under the mandatory joinder rule. Ibid. Moreover, "offenses which [are] 'factually distinct in terms of time, place, and victim, if not manner' . . . [are] not subject to mandatory joinder, because they fail[] thereby to qualify as an 'episode.'" State v. Colbert, 245 N.J. Super. 53, 57 (App. Div. 1990) (quoting Pillot, supra, 115 N.J. at 567).

In the case before us, defendant orchestrated two conspiracies with entirely distinct objectives. In the first, defendant conspired to have Pinto and Ricciardi kidnapped and killed. In the second, defendant conspired to have Penalba killed. Different evidence was needed to convict defendant on the two indictments, and the conspiracy to kill Penalba was non-existent when gang members attempted to complete the conspiratorial objective to kidnap and kill Pinto and Ricciardi. Under those circumstances, joinder of the Pinto-Ricciardi and the Penalba counts was not mandatory. Defendant's remaining arguments on this issue are without sufficient evidence to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

We turn to defendant's third point, namely, he was denied a fair trial "because of the admission of unnecessary and excessive other crime evidence which did not relate to the material issues in the case." We find the argument unavailing.

Defendant does not dispute the trial court's ruling the State could present evidence of the Pinto homicide under Rule 404(b) to demonstrate defendant's motive to order Penalba's death. Rather, defendant challenges "a great deal of extraneous evidence" the State introduced while presenting its proofs of defendant's involvement in Pinto's murder. Specifically, defendant cites the prosecution's reference in opening statements to drug dealers who rob other drug dealers; the prosecutor's questioning of witnesses about seeing defendant sell drugs; evidence of the safe and other items stolen from Vega; and questions about a co-defendant's tattoos.

From our review of the record, these references, though in some instances clearly irrelevant, constituted at most harmless error. R. 2:10-2. The details of Pinto and Ricciardi robbing Vega, when considered with the testimony concerning the structural hierarchy of the Latin Kings, were relevant to proving defendant's motive to participate in or orchestrate the conspiracy to kidnap Pinto and Ricciardi. The other examples cited by defendant are insignificant when considered in the context of all of the State's proofs and the lengthy trial. Even if we were to discern an abuse of discretion by the trial court in admitting some of the peripheral evidence concerning the Pinto and Ricciardi crimes which we do not the evidence clearly did not have the capacity to produce an unjust result. R. 2:10-2.

We decline to consider the ineffective-assistance-of counsel claim defendant raises in Point IV of his brief. Claims attacking counsel's assistance "are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992) (citing R. 3:22-4(a)). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid. (citing State v. Dixon, 125 N.J. 223, 262 (1991)). Such is the case here.

Lastly, defendant argues in his supplemental brief the errors referenced in Points I through IV of his initial brief, considered cumulatively, deprived him of a fair trial. Having rejected defendant's other arguments, we conclude his cumulative error argument has no basis.

Affirmed.

1 The grand jury also charged Paul Ricciardi with various offenses stemming from his robbery of Jose A. Vega.

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