STATE OF NEW JERSEY v. CHRISTIAN ORTEGA REY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2057-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRISTIAN ORTEGA REY, a/k/a
CHRISTIAN REY, CHRISTIAN
ORTEGA,

     Defendant-Appellant.
______________________________

              Submitted October 17, 2017 – Decided December 19, 2017

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              11-04-0607.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
    Defendant Christian Ortega Rey appeals from his conviction

for the following offenses: three counts of second-degree and

third-degree conspiracy, 
N.J.S.A 2C:5-2; one count of second-

degree    robbery,   
N.J.S.A.   2C:15-1;   one   count   of   second-degree

burglary, 
N.J.S.A. 2C:18-2; two counts of third-degree burglary,


N.J.S.A. 2C:18-2; two counts of third-degree theft by unlawful

taking, 
N.J.S.A 2C:20-3(a); one count of second-degree theft by

unlawful taking, 
N.J.S.A. 2C:20-3(a); and one count of second-

degree kidnapping, 
N.J.S.A. 2C:13-1(b).            He also appeals the

aggregate sentence imposed, consisting of twenty-two years in

prison, eight and one-half years of which must be served without

parole.

    Defendant presents the following arguments on appeal:

            POINT I: THE JURY'S LEGAL QUESTION DURING
            DELIBERATION, ALLEGEDLY ABOUT "CONSPIRACY,"
            IN FACT INDICATED A POTENTIAL MISUNDERSTANDING
            OF BOTH CONSPIRACY AND ACCOMPLICE LIABILITY –
            PARTICULARLY THE NOTION OF "MERE PRESENCE" –
            SO FUNDAMENTAL THAT THE ANSWER THAT THE JUDGE
            PROVIDED TO THE QUESTION WAS UNDULY DEFICIENT
            AND DID NOT "CLEAR THE CONFUSION" "WITH
            CONCRETE ACCURACY," AS THE CASE LAW DEMANDS.
            (NOT RAISED BELOW)

            POINT II: THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

    After reviewing the record, we find no error – plain or

otherwise — in the judge's instruction to the jury, and we find



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no   abuse   of    discretion   or       other   error   in   the   sentence.

Accordingly, we affirm the conviction and the sentence.

                                     I

     Defendant, together with co-defendants Alveiro Bravo, and

Juan M. Aponte-Ortiz were tried on charges arising from burglaries

at five houses on the following streets – Vallata Place, Tingley

Lane, Inman Avenue, Schanck Drive, and McKinley Avenue.1              Because

they were acquitted of the Schanck Drive and McKinley Avenue

burglaries, we will focus on the other three incidents.

     During the Tingley Lane burglary, one of the residents, P.S.,

arrived home to find the sliding glass door in the kitchen was

broken.   She testified that an intruder suddenly grabbed her from

behind and pushed her toward the kitchen table.                Then another

intruder emerged from a hallway.             The two burglars tightly bound

her hands and feet, blindfolded her, and demanded that she give

them her jewelry.       The victim described one burglar as being

between twenty-one and twenty-five years old, with light brown

skin, and between five feet, three inches and five feet, five

inches tall.      She described the other man as being taller with a




1
    For purposes of this opinion, a more specific geographic
description is unnecessary and is omitted to protect the victims'
privacy. We use the victims' initials for the same reason.

                                         3                            A-2057-15T3
"long face."      However, she was not able to identify any of the

defendants at the trial.

      P.S.'s son arrived home soon after the burglary, and she

called out to him to stay outside and call 911.             Upon arriving,

the police found her still lying on the kitchen floor, tied up,

and blindfolded. A police witness described her as shaking, scared

and crying.       The police found a gray t-shirt lying across the

bottom of the broken glass sliding door.        The t-shirt had a small

red stain "that appeared to be blood." DNA testing later confirmed

that defendant was the source of the blood found on the t-shirt.

      Another victim, B.C., arrived home during the Vallata Place

burglary, but he did not see the intruders.          B.C. heard what he

described as glass or china breaking, and found blood on the

kitchen floor.     He testified that he was terrified, thinking that

the intruders might have killed his family.             When the police

arrived, they found a broken glass sliding door in the kitchen,

and a broken second story window. They found blood in the bathroom

near the broken window, on the stairs near the sliding glass door,

and   on   the   kitchen   floor.   DNA   testing   later   revealed   that

defendant was the source of the blood on the kitchen floor, and

his DNA profile matched that of the blood sample taken from the

stairs.



                                    4                              A-2057-15T3
     The Inman Avenue burglary, which occurred on December 7,

2010, was captured by the home's outside security cameras.          Video

from the cameras showed a silver car pulling into the driveway,

and three individuals then using a ladder to climb to the second

story of the house. The video also captured one of the individuals

moving one of the cameras as he stood on the ladder.

     On December 10, 2010, the police stopped a silver Acura2 and

arrested the occupants.         Bravo, who also owned the car, was

driving, and defendant and Aponte-Ortiz were his passengers. Using

the security video footage, the police were able to identify

Aponte-Ortiz as the burglar who climbed the ladder and moved one

of the surveillance cameras.          Each suspect was carrying a cell

phone   when     arrested.          Information   obtained    through     a

communications data warrant revealed phone calls between Bravo's

phone and defendant's phone on December 7, 2010, and revealed that

the phones were using cell towers located near Inman Avenue.

     Thus,     there    was   DNA   evidence   establishing   defendant's

presence during the Tingley Lane and Vallata Place burglaries, and

video footage showing Aponte-Ortiz participating in the Inman

Avenue burglary.       There was more limited evidence against Bravo.


2
  The prosecutor showed the jury a still photo of the silver car,
taken from the video, and a photo of the Acura.     In denying a
defense motion to dismiss at the close of the State's evidence,
the trial judge noted that the two cars were "identical."

                                      5                           A-2057-15T3
                                      II

  Defendant's jury instruction issue is raised for the first time

on appeal and, therefore, our standard of review is plain error.

State v. Williams, 
168 N.J. 323, 335 (2001).                    Under the plain

error doctrine, "defendant not only must demonstrate that the

instruction    was    flawed,   but    also       that   in   the   circumstances

presented 'the error possessed a clear capacity for producing an

unjust result.'"      Id. at 336 (quoting State v. Melvin, 
65 N.J. 1,

18 (1974)); R. 2:10-2.       "The possibility of an unjust result must

be 'sufficient to raise a reasonable doubt as to whether the error

led the jury to a result it otherwise might not have reached.'"

Williams, 
168 N.J. at 336 (quoting State v. Macon, 
57 N.J. 325,

336 (1971)).

     The jury instruction issue arose in this context.                    After a

day of deliberations, the jury                 sent the judge       the following

question:

            [C]an a person be found guilty of conspiracy
            if common sense leads the jury to believe
            beyond a reasonable doubt that another party
            participated in the committing of the crime,
            but evidence only leads to the inference,
            rather than definitive proof, that the second
            party was there?

     The judge construed the question as a request for further

instruction    on    the   concept    of       circumstantial   evidence.      The

prosecutor and Bravo's attorney both suggested that the judge re-

                                           6                              A-2057-15T3
instruct the jury with the model charge on circumstantial evidence.

All of the attorneys agreed with the judge's suggestion that he

re-charge the jury on reasonable doubt as well.     In response to

the judge's question, none of the defense attorneys objected or

suggested any additional instruction.

     Accordingly, the judge instructed the jury that:

          The standard of proof in a criminal case is
          not definitive proof, it's proof beyond a
          reasonable doubt, so I think I need to talk
          to you about proof beyond a reasonable doubt
          again.   I also need to talk to you about
          circumstantial evidence and direct evidence.
          You have this law in the charge that I gave
          you, but I will read it to you so that
          hopefully it's more clear.

     The judge then read them the model charges on direct and

circumstantial evidence, and on the State's burden of proof beyond

a reasonable doubt.   He also assured the jury that they could ask

more questions if those instructions did not suffice to answer

their inquiry:

          Now, I've responded to your question with this
          answer and this is our interpretation of what
          you're asking for. If, for some reason, we've
          misinterpreted your question and you were
          looking for something else you have to please
          rephrase the question and send it back to me
          and we'll try to respond accordingly.      All
          right?

     For the first time on appeal, defendant argues that, in

addition to re-instructing the jury on circumstantial evidence,


                                 7                          A-2057-15T3
the judge should have re-charged them on conspiracy and accomplice

liability. In the context of this record, we cannot agree. First,

in light of the evidence, it is most likely that the jury's

question concerned Bravo, because he was the only defendant as to

whom there was no direct evidence of his presence at any of the

crime scenes.      Second, the question, as phrased, and as all the

attorneys and the judge understood it, expressed concern about

whether   the   State   could   prove   its   case    with   circumstantial

evidence. The judge's response was reasonably calculated to answer

the question the jury asked.        Moreover, the judge assured the

jurors that if the instructions he had just given were insufficient

to address their question, they were free to submit another

question.

     Although the judge had thoroughly instructed the jury as to

conspiracy   and   accomplice   liability,    their    question   may   have

signaled a misconception that, to prove conspiracy against a

defendant, the State needed to prove that he was personally present

at the scene of the burglary.      However, even if the jury had that

misunderstanding, it could only have benefitted defendant, by

requiring the State to produce more evidence than was actually

needed to obtain a conviction for conspiracy.          Consequently, even

if the judge should have re-charged the jury on conspiracy, the

error would not have had the clear capacity to produce an unjust

                                    8                               A-2057-15T3
result.         R. 2:10-2.    Lastly, nothing in the question suggests a

misunderstanding of the concept of accomplice liability.                           The

argument warrants no further discussion.                  R. 2:11-3(e)(2).

                                         III

          Finally, we address defendant's contention that, in arriving

at    a    sentence,    the   trial      court     should    have   considered,     as

mitigating         factors,     that   his       "conduct    neither   caused      nor

threatened serious harm," 
N.J.S.A. 2C:44-1(b)(1), and he "did not

contemplate that his conduct would                   cause or threaten serious

harm."          
N.J.S.A. 2C:44-1(b)(2).          Defense counsel did not argue

those factors at the sentencing hearing, and the record does not

support them. Defendant and his co-defendant terrorized the victim

in the Tingley Lane burglary, tightly binding her hands and feet

behind her back, blindfolding her, and demanding that she give

them her jewelry.        See State v. Cassady, 
198 N.J. 165, 183 (2009).

The victim in the Vallata Place burglary was terrified, believing

that the intruders had killed his family.                   In addition, defendant

and   his       co-defendants    stole    jewelry     and    gold   worth   tens    of

thousands of dollars from the victims in the Tingley Lane and

Vallata Place burglaries.

          We find nothing excessive in the aggregate sentence of ten

years, subject to the No Early Release Act, 
N.J.S.A. 2C:43-7.2,

for       the    second-degree    kidnapping        and     second-degree   robbery

                                             9                               A-2057-15T3
convictions   associated   with   the   Tingley   lane   incident.     As

defendant concedes, the trial court appropriately imposed that

term consecutive to the seven-year flat term for second-degree

theft at Vallata Place, and five years flat for the third-degree

burglary on Inman Avenue.     Overall, we find no basis to second-

guess the trial court's imposition of the aggregate term of twenty-

two years with eight and one-half years of parole ineligibility.

See State v. Case, 
220 N.J. 49, 65 (2014).

     Affirmed.




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