STATE OF NEW JERSEY v. OSCAR A. HERNANDEZ
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3020-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSCAR A. HERNANDEZ,
Defendant-Appellant.
_________________________
Submitted September 25, 2019 – Decided October 28, 2019
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 16-07-
1814.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel Vincent Gautieri, Assistant Deputy
Public Defender, of counsel and on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole Lynn Campellone, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant was convicted of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and
fourth-degree possession of a weapon under circumstances not manifestly
appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d) (count
three). He was sentenced to an aggregate five-year term of imprisonment,
subject to an eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The convictions stemmed from
a fight on the boardwalk in Atlantic City, during which defendant stabbed the
victim repeatedly. The fight was captured on surveillance footage, and the video
was played for the jury during the trial.
Defendant now appeals from his convictions and sentence, raising the
following arguments for our consideration:
POINT I
THE PROSECUTOR COMMITTED MISCONDUCT
IN SUMMATION WHEN HE STATED THAT
VIDEOTAPES ARE NOT CAPABLE OF LYING
AND WHEN HE INFORMED JURORS THAT THEY
COULD USE COMMON SENSE TO UNDERSTAND
THE TERMS "PURPOSELY" AND "KNOWINGLY."
A-3020-17T2
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POINT II
THE KNIFE-POSSESSION CONVICTION IN
COUNT THREE SHOULD HAVE MERGED INTO
THAT ON COUNT TWO, AND THE CONVICTION
FOR POSSESSION OF THE KNIFE FOR AN
UNLAWFUL PURPOSE IN COUNT TWO SHOULD
HAVE MERGED INTO THE ASSAULT
CONVICTION ON COUNT ONE. (NOT RAISED
BELOW)[.]
After considering the arguments presented in light of the record and applicable
law, we affirm the convictions and sentence, but remand for amendment of the
judgment of conviction.
We recount the pertinent facts from the trial record. At approximately
12:30 a.m. on the morning of March 5, 2016, three friends gathered after work
at Caesars Casino, Guadencio Camacho, Brian Flores, and Jose Reyes.
Defendant arrived with Reyes. Over the next several hours, they gambled,
drank, and socialized until Camacho and Reyes started arguing "about
[Camacho's] ex-girlfriend" and "decided to go outside and fight." Flores and
defendant accompanied them. According to Flores, he wanted "[t]o watch the
fight and make sure that things stay[ed] clean."
Once outside on the boardwalk, instead of Camacho and Reyes fighting,
Flores and defendant began arguing when Flores told defendant not to "get
involved" in the fight between Camacho and Reyes. The argument became
A-3020-17T2
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physical when defendant pushed Flores and "lunged at [him] with a knife,"
ultimately stabbing Flores "[t]hree" times, twice "in the stomach" and once in
his left side. Flores described the knife as a "small" "fold[ing]" knife. The entire
incident, which lasted approximately four to five minutes, was captured on
Caesar's surveillance video, which was played for the jury during Flores'
testimony.1 After the stabbing, once Flores "noticed that [he] was bleeding," he
went inside the casino "to ask security to call the police." The police responded
and apprehended defendant in a parking lot, approximately two blocks from the
casino. However, no weapon was recovered from defendant's person. At the
scene, while Flores was receiving medical attention in an ambulance, he
identified defendant as his assailant when police brought defendant to the
ambulance. Flores was transported to the hospital for treatment, and his medical
records were admitted into evidence during the trial.
Following the jury verdict, the trial judge denied defendant's motion for a
judgment of acquittal notwithstanding the verdict and for a new trial. 2 See R.
1
Camacho also testified at the trial and largely confirmed Flores' account.
According to Camacho, no one other than defendant threw punches during the
entire episode.
2
The judge had previously denied defendant's motion for a judgment of
acquittal at the close of the State's case. See R. 3:18-1.
A-3020-17T2
4
3:18-2. The judge then sentenced defendant to a five-year term of
imprisonment, subject to NERA, on count one, a concurrent three-year term of
imprisonment on count two, and a concurrent eighteen-month term of
imprisonment on count three. A conforming judgment of conviction was entered
on February 16, 2018, and this appeal followed.
In Point I, defendant argues "[t]he prosecutor committed two separate
errors in summation." According to defendant, "[f]irst, the prosecutor
improperly argued that the video established that [defendant] was the aggressor
and that the video '[was] not capable of lying.'" Second, the prosecutor stated
that "purposely or knowingly . . . were 'not just legal terms' but that jurors 'only
need[ed] common sense to understand them.'" Defendant asserts these errors
deprived him of a fair trial because "videos can indeed be misleading[,]" and
jurors cannot "use a non-legal definition of terms contained in the indictment to
reach a guilty verdict."
Courts afford prosecutors "considerable leeway" in the vigor and force of
the language used in closing arguments, "so long as their comments are
reasonably related to the scope of the evidence presented." State v.
Timmendequas, 161 N.J. 515, 587 (1999) (citing State v. Harris, 141 N.J. 525,
559 (1995)). Thus, as long as prosecutors do "not make inaccurate legal or
A-3020-17T2
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factual assertions during a trial and . . . confine their comments to evidence
revealed during the trial and reasonable inferences to be drawn from that
evidence[,]" "what is said . . . 'by way of comment, denunciation or appeal, will
afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001)
(citations omitted). However, courts have "not hesitated to reverse convictions
where . . . the prosecutor in his summation over-stepped the bounds of propriety
and created a real danger of prejudice to the accused." State v. Johnson, 31 N.J.
489, 511 (1960).
In determining whether to reverse a conviction for improper remarks
during the prosecutor's summation, an appellate court must decide whether "the
prosecutor's misconduct was so egregious that it deprived the defendant of a fair
trial." Frost, 158 N.J. at 83 (citations omitted). To that end, we must consider
whether the defendant objected to the remarks, "whether the remarks were
withdrawn[,]" and "whether the court ordered the remarks stricken from the
record and instructed the jury to disregard them." Ibid. (citations omitted).
Additionally, we "will consider whether the offending remarks were prompted
by comments in the summation of defense counsel." State v. Smith, 212 N.J.
365, 404 (2012).
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Here, during her summation, defense counsel attacked the victim's
credibility and described him as "drunk" and unable to "remember much[.]" She
explained that "[r]easonable doubt [could] be found in inconsistencies between
witnesses [and] . . . in a video authenticated . . . only by a man [referring to the
victim] who recognize[d] himself in the video as the man in the backpack[.]"
Defense counsel described the video as "grainy" and pointed out that there was
"no testimony that the video [was] complete[,]" "no evidence that the video as
shown [was] whole[,]" and "no testimony that the date timestamped . . . on the
video on the bottom of the screen [was] accurate."
She stated:
If you accept the video for what it showed of the
events that are said to have transpired, the video shows
[a] chaotic disorganized fight. There's nothing to show
as the State alleged in its opening that the defendant
was aiming [at] internal organs as he threw his punches.
....
The video shows, if you accept it as it was
shown[,] at worse a mutual fight between two grown
men pushing, shoving, [and] punching[.]
In response, the prosecuting attorney reminded the jurors that it was their
job "to judge the credibility of the witnesses." The prosecutor explained that
although the victim was "drinking[,]" this was not "a case where it[ was] just a
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victim saying what[] happened." Instead, the victim was corroborated by a
video, depicting "only one aggressor[,]" and the victim's account "match[ed] up
with the video." The prosecutor stated:
This was an attack, plain and simple. It's not
complicated. The whole thing is on video. The
defendant picks a fight with [Flores] and then uses a
knife to finish it. . . .
The video is not capable of lying. It's a recording
of the attack. It's a recording of the defendant's
aggression.
Following summations, defense counsel objected to the prosecutor
"[s]aying the video [was] not capable of lying." The judge overruled the
objection, noting she did "not think the prosecutor . . . overstepped his bounds
under the circumstances . . . ." We agree. The comment countered defense
counsel's attacks on the victim's credibility, the video's reliability, and the
characterization of the altercation as a mutual fight. In any event, the video
spoke for itself, and the judge promptly instructed the jurors that "what the
attorneys have just said to you in closings is not evidence." Rather, "[i]t is their
argument as to what their recollections are of the evidence." Addressing the
jurors, the judge stated, "[i]t's your recollection at this point as to what the
evidence presented was and . . . your recollection collectively [that] will be
controlling." In the absence of some evidence to the contrary, "[t]here can be
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no assumption that the jury did not faithfully follow the [court's] admonition."
State v. Nelson, 173 N.J. 417, 447 (2002) (quoting State v. Manley, 54 N.J. 259,
271 (1969)).
Turning to the second offending comment, during her summation, defense
counsel told the jury "[t]he judge [was] going to instruct [them] on mental states
that appl[ied] in the case[,]" but disputed that the prosecutor had established
defendant had the requisite mental states. Relying on the video, defense counsel
pointed out that "it show[ed] t[w]o men fighting with little or no room or time
to form a specific intent to carry out a plan with such . . . precision to create
substantial risk of death."
In response, the prosecutor stated:
Purposefully and knowingly . . . [are] not just legal
terms. They're terms we use every day in our
conversations.
We only need common sense to understand them.
You saw the video . . . . Purposeful. The defendant
purposely stabbed [Flores] in the stomach . . . . The
defendant purposely stuck the knife in [Flores'] side.
Knowingly. He knew what he was doing. What
else could it be? The knife didn't just stumble into
[Flores]. He stuck it there twice.
Later, the prosecutor continued, "[a]gain, purposeful. It's not just a legal term,
it's a word we use every day. We only need common sense to understand it."
A-3020-17T2
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Defense counsel objected, stating on "multiple" occasions, "the prosecutor
. . . misstated the law" by "urg[ing] the jury to apply common sense[.]"
However, according to defense counsel, "[t]hese are legal terms of art that have
a specific meaning . . . ." At defense counsel's request, the judge agreed to give
a curative instruction, and instructed the jury as follows:
If anything said by either attorney . . . about the law is
contradictory to what I now tell you[, you] must follow
my instructions.
....
. . . [Y]ou must accept and apply this law for this case
as I give it to you in this charge. Any ideas you have
or you may have of what the law is[,] what the law
should be[,] or any statements by the attorneys as to
what the law may be must be disregarded by you if they
conflict with this charge.
Subsequently, the judge instructed the jury on the legal definitions of the terms
purposely and knowingly.
Defendant renewed his challenge to the prosecutor's "misstatement" of the
requisite mental states in his motion for a new trial following the jury verdict,
asserting it "led to a manifest denial of justice," notwithstanding the curative
instruction. However, the judge rejected defendant's contention, finding
defendant failed to establish that a new trial was required. Given the curative
instruction, we are satisfied the prosecutor's summation did not deny defendant
A-3020-17T2
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of his right to a fair trial, and we presume the jury followed the judge's
instructions.
Finally, defendant argues count three, possession of the knife under
circumstances not manifestly appropriate for such lawful uses as it may have,
N.J.S.A. 2C:39-5(d), should have merged into count two, possession of the knife
for an unlawful purpose, N.J.S.A. 2C:39-4(d), and count two should have
merged into count one, aggravated assault. The State concedes that merger is
warranted. See State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986)
(mandating merger of the defendant's conviction under N.J.S.A. 2C:39-5(d) into
the conviction under N.J.S.A. 2C:39-4(d) because "all the elements of [N.J.S.A.]
2C:39-5[(d)] are part of the proof necessary to establish a violation of [N.J.S.A.]
2C:39-4[(d),]" and "[t]he offense set forth in [N.J.S.A.] 2C:39-5[(d)] is a lesser
included offense of the crime set forth in [N.J.S.A.] 2C:39-4[(d)]."); see also
State v. Tate, 216 N.J. 300, 312 (2013) (explaining that "'[w]hen the only
unlawful purpose in possessing the [weapon] is to use it to commit the
substantive offense, merger is required'") (alterations in original) (quoting State
v. Diaz, 144 N.J. 628, 636 (1996)).
Because the sentences imposed on counts two and three are concurrent,
the merger may have no practical effect on the overall length of defendant's
A-3020-17T2
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sentence. We affirm the convictions and sentence, but remand for an
amendment of the judgment of conviction to reflect the merger.
Affirmed in part; remanded to amend the judgment of conviction
consistent with this opinion. We do not retain jurisdiction.
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