STATE OF NEW JERSEY v. OMAR GALVEZ
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-2121-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR GALVEZ, a/k/a ORLANDO
ROMERO, OMAR GAULEZ,
Defendant-Appellant.
_______________________________
Argued March 12, 2018 – Decided May 17, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 15-06-0680.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Joshua D. Sanders, of counsel and on the
brief).
Jane C. Schuster, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Jane C.
Schuster, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Omar Galvez appeals from his conviction and sixty-
five-year sentence for first-degree murder,
N.J.S.A. 2C:11-
3(a)(1), following a jury trial. Defendant also appeals the trial
court's order requiring he pay $4,885 in restitution. Based on
our review of the record in light of the applicable law, we affirm
defendant's conviction and custodial sentence, and remand for
reconsideration of the restitution order.
I.
Defendant and co-defendant Jose H. Martinez were indicted for
one count of first-degree murder,
N.J.S.A. 2C:11-3(a)(1). The
indictment also charged Martinez with third-degree possession of
a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d), and fourth-
degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d). The
court severed Martinez's charges, and he had no involvement in
defendant's subsequent trial. Martinez pleaded guilty to
aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1), and was sentenced
to a twenty-year custodial term subject to the requirements of the
No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
Prior to his trial, defendant moved to suppress statements
he made during a September 10, 2014 interrogation by a New Jersey
State Police detective. Following an evidentiary hearing on the
2 A-2121-16T1
motion, the court denied defendant's request to suppress his
statements.1 The matter subsequently proceeded to trial.
The trial evidence showed that on August 24, 2014, a hunter
reported finding a woman's body in a wooded area in Millville.
New Jersey State Police detective John Weber responded and observed
the victim "sustained severe injuries to the head area." The
State Police photographed and processed the scene, and assisted
in the Medical Examiner's Office's removal of the body for an
autopsy.
The State Police questioned a witness who said she attended
a birthday party with the victim on August 23, 2014. The witness
said the victim was intoxicated and interested in smoking crack.
The witness explained the victim had a history of prostitution,
often stole money from Mexican males, and told the witness at the
party she was going to "depart with a Mexican male or two Mexican
males."
Another witness testified he attended the birthday party, and
saw the victim there on the night she was murdered. The witness
saw the victim leave "in a white van with two" Mexican men.
1
Defendant does not argue on appeal the court erred in denying
his suppression motion and determining his statements were
admissible at trial.
3 A-2121-16T1
A third witness testified she attended the birthday party and
knew defendant personally. She said defendant attended the party,
and she saw him leave with an individual named "Alberto" and "a
white lady."2
The autopsy conducted by Medical Examiner Dr. Ian Hood
revealed that the victim suffered significant and multiple
injuries to her head and face. Dr. Hood testified the majority
of the victim's injuries were "not made with a padded object, like
a fist," but rather, "something hard enough to lacerate skin and
break bone." Dr. Hood testified that a hammer likely caused most
of the injuries, and the other injuries could have resulted from
blows from a "shod foot, a boot," or a sneaker. Dr. Hood concluded
the combination of the blows "likely caused [the] final mechanism
of death by inability to breathe through [the] face."
At trial, the State played the video and audio recording of
defendant's September 10, 2014 interrogation,3 during which
defendant admitted attending the birthday party and leaving with
the victim and Martinez in Martinez's van. Defendant said Martinez
drove to a secluded wooded area, and he remained in the vehicle
2
It can reasonably be inferred from the trial evidence that the
individual she identified as "Alberto" was Martinez.
3
The recording was admitted in evidence. The jury was provided
with a transcript of the recording as an aid during the playing
of the recording. The transcript was not admitted in evidence.
4 A-2121-16T1
while Martinez and the victim had a sexual encounter outside the
van.
Defendant explained Martinez said the victim stole from him,
and defendant then exited the van and grabbed the victim by the
shoulders. According to defendant, Martinez went to the van, and
returned and hit the victim in the head with a hammer. Defendant
asserted that he no longer held the victim after the hammer's
first blow, but he kicked the victim one time as she laid on the
ground. Defendant said Martinez repeatedly struck the victim with
the hammer after she fell to the ground. Defendant and Martinez
fled the scene in the van, leaving the injured victim behind.
The jury found defendant guilty of first-degree murder. At
defendant's sentencing proceeding, the court found aggravating
factors one, the nature and circumstances of the offense,
defendant's role in the commission of the offense, and whether it
was committed in an especially heinous, cruel or depraved manner,
N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will commit
another offense,
N.J.S.A. 2C:44-1(a)(3); six, the extent of
defendant's prior record,
N.J.S.A. 2C:44-1(a)(6); and nine, the
need to deter defendant and others from violating the law,
N.J.S.A.
2C:44-1(a)(9). The court did not find any mitigating factors.
See
N.J.S.A. 2C:44-1(b). The court determined the aggravating
factors substantially outweighed the non-existent mitigating
5 A-2121-16T1
factors, and sentenced defendant to a custodial term of sixty-five
years subject to the requirements of NERA. The court also directed
that defendant pay $4,885 in restitution to the Victim of Crimes
Compensation Office. This appeal followed.
Defendant's counsel presents the following arguments for our
consideration:
POINT I
THE JURY CHARGE RELATIVE TO [DEFENDANT'S]
STATEMENT WAS INSUFFICIENT TO ADVISE THE JURY
OF THE NEED TO CRITICALLY AND EFFECTIVELY
EVALUATE HIS STATEMENT IN LIGHT OF THE REALITY
THAT JURORS HAVE GREAT DIFFICULTY
DISTINGUISHING BETWEEN FALSE CONFESSIONS AND
TRUE CONFESSIONS. U.S. CONST. AMEND. VI; N.J.
CONST. ART. I, PAR. 10.
POINT II
GIVEN THE DISPARITY BETWEEN [DEFENDANT'S]
SENTENCE AND THAT OF HIS MORE CULPABLE CO-
DEFENDANT, REMAND FOR RESENTENCING UNDER STATE
V. ROACH IS NECESSARY.
In his pro se brief, defendant makes the following arguments:
POINT I
GIVEN THE DISPARITY BETWEEN [DEFENDANT'S]
SENTENCE OF
N.J.S.A. 2C:11-3(a)(1) OF MURDER,
FOR A CONVICTION OF 65 YEAR[S] 85% AND THAT
OF HIS CO-DEFENDANT JOSE MARTINEZ TO
MANSLAUGHTER FOR A 20 YEAR TERM [], WHO IS
ACTUALLY MORE CULPABLE THAN INSTANT DEFENDANT.
RESENTENCING IS APPROPRIATE BECAUSE THERE WAS
NO INDICTMENT FOR A CHARGE OF ACCOMPLICE
LIABILITY [] TO PROVIDE NEXUS TO A CONVICTION
OF MURDER [] AGAINST [DEFENDANT]. FURTHER,
CONTRARY TO THE COURT'S DICTUM THAT "THE
6 A-2121-16T1
DEFENDANT IS A REPETITIVE OFFENDER" [] THE
COURT DID NOT HAVE THE EXTENDED TERM
ELIGIBILITY REQUIRED BY R. 3:21-4(e), BECAUSE
THE DEFENDANT DOES NOT FALL UNDER THE THREE-
STRIKES-LAW, NOR UNDER THE PERSISTENT OFFENDER
STATUTE. BECAUSE HE ONLY HAD "ONE INDICTABLE
CONVICTION" [] AT THE TIME OF SENTENCING.
CHANGE OF SENTENCE IS APPROPRIATE TO VACATE
THE CHARGE OF MURDER. BECAUSE THE DEFENDANT'S
CONDUCT OF "ONE KICK" [] ONLY PLACES CRIMINAL
LIABILITY NEXUS TO THE LESSER INCLUDED OFFENSE
OF SIMPLE ASSAULT []. RESENTENCING IS REQUIRED
BY NOVATION TO A CHARGE OF
N.J.S.A. 2C:12-
1(a)(1) IN A NEW ENTRY OF A JUDGMENT OF
CONVICTION TO SATISFY THE CONVICTION AT TIME
SERVED[.]
A. The court did not have the enhanced
punishment available by either persistent
offender nor by the three strikes law.
POINT II
IMPOSITION OF DEFENDANT'S SENTENCE BEYOND THE
STATUTORY MAXIMUM BASED ON JUDICIAL FACT-
FINDING OF AGGRAVATING FACTORS 3, 6, 9 []
WHICH W[]ERE NEVER ADMITTED TO BY DEFENDANT
[] OR SUBMITTED TO A JURY [] AND PROVED BEYOND
A REASONABLE DOUBT VIOLATED BOTH HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS, BECAUSE HE DOES
NOT HAVE A PRIOR CONVICTION OF "SIMILAR
NATURE" THAT ESTABLISHES A POINT OF ORIGIN TO
ASSERT ANY AGGRAVATING FACTORS AS PRIMA FACIE
EVIDEN[CE] IN HIS COURT HISTORY [].
POINT III
THE SENTENCE IMPOSED BY THE COURT, I.E. 65
YEAR[S] 85% [] VIOLATES THE SPIRIT AND INTENT
OF THE CODE OF CRIMINAL JUSTICE, THUS,
RENDERING DEFENDANT'S SENTENCE ILLEGAL.
7 A-2121-16T1
POINT IV
THE IMPOSITION OF FINES AND RESTITUTION []
W[]ERE IMPOSED ILLEGALLY WITHOUT HOLDING A
HEARING FOR A[B]ILITY TO PAY, REQUIRES
REVOCATION OF THE REMAINING FINES AND
RESTITUTION, AND TO REIMBURSE TO DEFENDANT ALL
AMOUNTS COLLECTED.
II.
Defendant argues the judge erred by failing to charge the
jurors concerning how they must "receive, analyze, and weigh"
defendant's statement to the police as required by the Court in
State v. Hampton,
61 N.J. 250 (1972). The State contends the
court instructed the jury concerning defendant's statement
"exactly as defendant" requested, and the failure to give a Hampton
charge did not amount to reversible error because defendant's
"whole theory of the case was that his statement was reliable and
should be believed by the jury."
Although a Hampton charge must be given regardless of
"[w]hether [it is] requested or not," failure to give the charge
is "not reversible error per se." State v. Jordan,
147 N.J. 409,
425 (1997). A trial court's omission of a Hampton charge "imposes
a significant burden on the State to demonstrate that such an
error is not plain error." Id. at 430; see State v. Anthony,
443 N.J. Super. 553, 570 (App. Div. 2016) (citing Hampton,
61 N.J. at
272, and noting that "[t]he critical role of the jury in evaluating
8 A-2121-16T1
the truthfulness of a defendant's statement has been long-
recognized by our courts"). The error must have been "clearly
capable of producing an unjust result" to warrant reversal. State
v. Miller,
205 N.J. 109, 126 (2011).
A failure to provide a Hampton charge is most commonly
capable of producing an unjust result where "the defendant's
statement is critical to the State's case and . . . the defendant
has challenged the statement's credibility." Jordan,
147 N.J. at
425. The Court in Jordan made it clear, however, that "if the
defendant has acknowledged the truth of his statement, the failure
to give a Hampton charge would not be reversible error." Id. at
426; see also State v. Jones,
287 N.J. Super. 478, 495 (App. Div.
1996) (commenting that "the failure to give a Hampton charge in a
case where a defendant adopts as true the statement given to the
police, may not raise a Hampton issue at all").
In Jones, the defendant argued it was plain error for the
trial court to fail to give a Hampton charge after holding a
Miranda4 hearing and determining the defendant's prior statement
was admissible.
287 N.J. Super. at 493. We noted that when a
defendant asks for a Hampton charge, he "has 'a federal
constitutional right to raise the issue of voluntariness before
4
Miranda v. Arizona,
384 U.S. 436 (1966).
9 A-2121-16T1
the trial judge and upon an adverse ruling to place in issue the
credibility of his statement.'" Ibid. (quoting State v. Bowman,
165 N.J. Super. 531, 537 (App. Div. 1979)). Distinguishing the
case from one where a defendant "adopts as true the statement
given to the police," we determined that the defendant put the
credibility of his statement at issue "by defense counsel's cross
examination and summation," and that "the failure to charge Hampton
. . . [cannot] be justified in terms of harmless error where a
defendant has not adopted as true statements attributable to him
while in police custody." Id. at 495.
In Jordan,
147 N.J. at 425-26, the State had two statements
from the defendant, one of which was taped. The Court determined
the failure to provide a Hampton charge was not plain error in
part because defense counsel urged "the jury to believe defendant's
taped statement" over his first statement to police. Id. at 426.
Thus, the Court determined that "the jury knew that it had to
decide between the credibility of defendant's two statements."
Ibid.
Here, defendant argues the court's failure to provide a
Hampton charge requires reversal because "the only evidence
linking [defendant] to the death of the victim was his statement."
But at trial defense counsel not only consistently "acknowledged
the truth of [defendant's] statement[s]," he expressly relied on
10 A-2121-16T1
defendant's statements to support his theory of the case – that
defendant was not culpable for murder because he kicked the victim
only once and held her for a brief period before Martinez
repeatedly hit her. See Jordan,
147 N.J. at 426. There is no
plain error in a failure to give a Hampton charge where a defendant
acknowledges the truth of his statement. Ibid.
Moreover, in both his opening statement and summation,
defense counsel relied on the credibility of defendant's
statements to support the contention that defendant held the victim
briefly before he knew Martinez would strike her, and kicked her
only once as she laid on the ground. Acceptance of defendant's
argument required the jury to also accept the credibility of
defendant's statements. Further, during the charge conference,
defense counsel did not request a Hampton charge or object to the
proposed instructions which failed to include it, and instead
requested the court to instruct the jury, in accordance with his
statement, that he only kicked the victim once. There was no
plain error because defendant, through his counsel, adopted as
true the statements he made to the police as the fulcrum upon
11 A-2121-16T1
which his defense to the murder charge turned. Jones,
287 N.J.
Super. at 495; Jordan,
147 N.J. at 426.5
III.
Defendant argues his custodial sentence should be vacated and
the matter remanded for resentencing because the court committed
a "patent injustice" by imposing a sentence more than "three times
greater" than the sentence imposed on Martinez who, defendant
contends, was "[b]y comparison" more culpable in the murder.
Defendant claims the record does not "justify the disparity in
treatment."
"Appellate review of a sentence is generally guided by the
abuse of discretion standard." State v. Robinson,
217 N.J. 594,
603 (2014); see also State v. Grate,
220 N.J. 317, 337 (2015);
State v. Miller,
449 N.J. Super. 460, 475 (App. Div. 2017). An
appellate court "must not substitute its judgment for that of the
sentencing court," and defers to the trial court's sentencing
determination unless: "(1) the sentencing guidelines were
violated; (2) the aggravating and mitigating factors found by the
sentencing court were not based upon competent and credible
5
Because we find the court's failure to give a Hampton charge
was not plain error, it is unnecessary to address defendant's
contention, raised for the first time on appeal, that the Hampton
charge in Model Jury Charges (Criminal), "Statements of Defendant"
(rev. June 14, 2010), is inadequate.
12 A-2121-16T1
evidence in the record; or (3) 'the application of the guidelines
to the facts of [the] case makes the sentence clearly unreasonable
so as to shock the judicial conscience.'" State v. Fuentes,
217 N.J. 57, 70 (2014) (alteration in original) (quoting State v.
Roth,
95 N.J. 334, 364-65 (1984)).
N.J.S.A. 2C:11-3 provides in part that an individual
convicted of first-degree murder "shall be sentenced . . . to a
specific term of years which shall be between 30 years and life
imprisonment of which the person shall serve 30 years before being
eligible for parole." Following a murder conviction, a trial
court has the "discretion to impose a sentence within the statutory
range of thirty years to life based on its consideration of the
applicable sentencing factors." State v. Abdullah,
184 N.J. 497,
508 (2005).
The court's finding of aggravating factors one, three, six
and nine is supported by the record. The court found no basis in
the record supporting a finding of any mitigating factors. The
court carefully weighed the factors, determined the aggravating
factors substantially outweighed the nonexistent mitigating
factors and, consistent with that determination, sentenced
defendant at the upper end of the statutory sentencing range for
first-degree murder. See ibid. We discern no basis to conclude
the court abused its discretion by violating the sentencing
13 A-2121-16T1
guidelines or erred in its finding and weighing of the aggravating
and mitigating factors. Fuentes,
217 N.J. at 70.
To be sure, the court imposed a lengthy custodial sentence,
but the record shows the court carefully considered the
circumstances of the offense for which defendant was convicted,
correctly found and weighed the aggravating and mitigating
factors, and imposed a sentence within the statutory sentencing
range in accordance with the applicable legal principles that does
not shock our judicial conscience. State v. Bolvito,
217 N.J.
221, 228 (2014). As we explained in State v. M.A.,
402 N.J. Super.
353, 370 (App. Div. 2008), "[t]he test is not whether a reviewing
court would have reached a different conclusion on what an
appropriate sentence should be; it is whether, on the basis of the
evidence, no reasonable sentencing court could have imposed the
sentence under review."
We reject defendant's contention the trial court committed
"a clear error of judgment" warranting modification of his sentence
on appeal because Martinez only received a twenty-year sentence
following his plea to aggravated manslaughter. See State v. Noble,
398 N.J. Super. 574, 598-99 (App. Div. 2008) (quoting Roth,
95 N.J. at 364). Defendant argues Martinez was more culpable in the
victim's murder and there is nothing in the record justifying the
imposition of such disparate sentences. We are not persuaded.
14 A-2121-16T1
Defendant relies on State v. Roach,
146 N.J. 208, 216 (1996)
(Roach I), where the Court considered disparate sentences imposed
by different judges on co-defendants convicted of identical
crimes. Roach was sentenced to two consecutive life terms with
sixty years' parole ineligibility, while his co-defendant was
sentenced to two consecutive life terms with thirty years' parole
ineligibility. Ibid. The Court determined that although "there
was nothing intrinsically wrong with [the defendant's] sentence,"
State v. Roach,
167 N.J. 565, 567 (2001) (Roach II), there was no
"acceptable justification of [the] defendant's sentence in light
of the sentence imposed on his co-defendant," Roach I,
146 N.J.
at 233.
The Court found that "[a] sentence of one defendant not
otherwise excessive is not erroneous merely because a co-
defendant's sentence is lighter." Id. at 232 (quoting State v.
Hicks,
54 N.J. 390, 391 (1969)). However, "there is an obvious
sense of unfairness in having disparate punishments for equally
culpable perpetrators." Ibid. (citations omitted). The Court
held that where there are disparities in co-defendants' sentences,
"[t]he trial court must determine whether the co-defendant is
identical or substantially similar to the defendant regarding all
relevant sentencing criteria," and "then inquire into the basis
of the sentences imposed on the other defendant," considering "the
15 A-2121-16T1
length, terms, and conditions of the sentence imposed on the co-
defendant." Id. at 233.
Here, defendant's reliance on Roach I is misplaced. He and
Martinez were not convicted of identical offenses with the same
degrees of culpability. Martinez was convicted of first-degree
aggravated manslaughter by "recklessly caus[ing] [the victim's]
death under circumstances manifesting extreme indifference to
human life."
N.J.S.A. 2C:11-4(a)(1). The sentencing range for
first-degree aggravated manslaughter under
N.J.S.A. 2C:11-4(a)(1)
is between ten and thirty years.
N.J.S.A. 2C:11-4(c). Martinez
received the maximum sentence permitted under his plea agreement:
a twenty-year custodial sentence.
Unlike Martinez, defendant was found guilty of first-degree
murder by "purposely caus[ing] death or serious bodily injury
resulting in death."
N.J.S.A. 2C:11-3. The crime for which
Martinez was convicted carries a maximum sentence of thirty years,
N.J.S.A. 2C:11-4(c), while a thirty-year custodial term is at the
bottom of the sentencing range for the murder for which defendant
was convicted, and the maximum sentence is life imprisonment. See
N.J.S.A. 2C:11-3(b). Thus, contrary to defendant's conclusory
assertion that Martinez was less culpable and received an
inequitably less severe sentence, the record shows otherwise.
Defendant was convicted of a more serious offense which
16 A-2121-16T1
concomitantly exposed him to a more severe sentence. The trial
court therefore did not err by failing to compare the two
defendants or consider Martinez's sentence in its imposition of
the sixty-five-year custodial term defendant received for the
victim's murder. The two defendants are not "equally culpable."
Roach I,
146 N.J. at 233.
We are, however, persuaded the court erred by ordering that
defendant pay $4,885 in restitution. To properly determine the
amount of restitution, a sentencing court must "take into account
all financial resources of the defendant, including the
defendant's likely future earnings, and . . . set the amount . .
. that is consistent with the defendant's ability to pay."
N.J.S.A. 2C:44-2(c)(2); see also State v. Orji,
277 N.J. Super.
582, 589-90 (App. Div. 1994) (finding a restitution hearing was
not necessary where there was no dispute as to the amount, trial
counsel suggested the defendant had the ability to pay, and the
presentence report included employment and financial information
supporting a finding the defendant had the ability to pay); State
v. McLaughlin,
310 N.J. Super. 242, 264-65 (App. Div. 1998)
(remanding for a restitution hearing to determine the defendant's
ability to pay where the court made no findings as to defendant's
ability to pay and the presentence investigation report did not
contain any information showing defendant's ability to pay). Where
17 A-2121-16T1
necessary, the court must conduct a hearing to determine "the
amount the defendant can pay and the time within which he can
reasonably do so." State v. Topping,
248 N.J. Super. 86, 90 (App.
Div. 1991) (quoting State v. Paladino,
203 N.J. Super. 537, 547
(1985)).
The presentence investigation report showed defendant had no
assets, and did not include any information concerning his income
or employment history. The record is otherwise bereft of any
information related to defendant's ability to pay, and the court
made no findings concerning defendant's ability to pay. We are
therefore constrained to vacate the restitution order and remand
for reconsideration of defendant's obligation, if any, to make
restitution. See McLaughlin,
310 N.J. Super. at 264-65.
We have carefully considered defendant's remaining arguments,
and they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
We affirm defendant's conviction and custodial sentence,
vacate the judgment of conviction's order that defendant make
restitution, and remand for reconsideration of the State's request
for restitution. We do not retain jurisdiction.
18 A-2121-16T1
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