STATE OF NEW JERSEY v. ORLANDO MATOS
Annotate this CaseNOT 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-1337-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORLANDO MATOS, a/k/a
JOSE APONTE, BEBO
MATOS, and ORLANDO
MATOS-LUGUS,
Defendant-Appellant.
Argued September 21, 2020 - Decided December 15, 2020
Before Judges Currier, Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-03-
0386.
Anastasia Stylianou, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Anastasia Stylianou, on the briefs).
Steven Cuttonaro, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Steven Cuttonaro, of counsel and on
the brief).
PER CURIAM
Defendant appeals from his convictions and sentence following a jury trial
in August and September 2018. After a review of his contentions in light of the
record and applicable principles of law, we affirm.
I.
We derive our facts from the testimony elicited at trial. On the day of
these events, Sanjay and Priti Kaple were working in their store – a mini market.
A store patron, Mariano Soto, was sitting near the front counter. Two men
entered the store. The first man, later identified as defendant, was wearing a red
baseball hat underneath a blue hoodie with white lettering that covered his face.
The second man, identified as co-defendant Efrain Fernandez, was wearing a
black baseball hat and a black hooded jacket that covered his face.
Sanjay testified that defendant approached Soto and pointed a small black
gun1 at Soto's face and chest and demanded money. After Soto told defendant
he did not have any money, defendant approached Sanjay and told him to open
1
It was later discovered the gun was fake.
A-1337-18T4
2
the cash register. After a brief struggle, defendant ripped a gold chain necklace
from Sanjay's neck.
While defendant and Sanjay were struggling, Soto quickly left the store
and used a phone at a restaurant next door to call 9-1-1. At that time, Soto stated
he did not recognize either assailant.
In the meantime, Fernandez approached Priti from behind, and demanded
she give him her gold chain necklace. When she refused, he tore it off her neck.
Priti fell to the ground. Fernandez then walked toward the front entrance of the
store and told defendant that they should leave. Throughout this time, defendant
continued to point the gun at the Kaples.
After defendant tore off Sanjay's necklace, he approached the cash register
and unsuccessfully attempted to open it. While defendant was distracted with
the register, Sanjay ran toward the door and pushed Fernandez out of the store
and onto the street where a struggle ensued. Priti ran after Sanjay out of the
store. Defendant then ran after them.
During the struggle, Sanjay and Priti tore off Fernandez's hoodie and hat.
They immediately recognized him as a frequent patron of their store but did n ot
know his name. Because they could not see defendant's face, they were unable
to identify him.
A-1337-18T4
3
As defendant and Fernandez ran to a waiting car driven by a third man,
co-defendant Yorvin Caba-Placencia, Fernandez left his hoodie and hat behind.
Sanjay chased after the men and saw them get into the car. He was able to note
a partial license plate.
After the assailants drove off, Sanjay flagged down Perth Amboy police
officer Javier Morillo, who was responding to the area in search of the suspects
and their vehicle. At the same time, Priti re-entered the store and called 9-1-1.
Other callers to 9-1-1 described the suspects as well.
Additional police officers responded to the scene and took statements
from the victims. They also retrieved surveillance video from the store and
nearby residences that captured the events. One piece of footage shows
defendant and Fernandez getting out of a car, walking down the street toward
the Kaples' store, and, minutes later, running back to the vehicle. The video also
shows Fernandez returning to the vehicle after the robbery without the jacket he
was wearing when he got out of the car. The detectives also retrieved a San
Antonio Spurs hat and a black jacket lying on the ground outside the store.
Later that evening, the police pulled over the car seen in the video and
described by Sanjay as the one in which defendant and Fernandez were riding
in when they left the scene. Caba-Placencia was driving the car and consented
A-1337-18T4
4
to a search of the car, during which the police found a red hat in the back seat.
Caba-Placencia was arrested and charged with conspiracy to commit robbery.
Two weeks after the robbery, Sanjay reported to police that a customer
told him that he knew the identity of one of the assailants. The customer
provided the suspect's Facebook name of "Efra Picatay." Sanjay gave Detective
Luis Corro pictures from the Facebook page and told Corro the man was a
frequent patron of the store. Based on these photographs, Corro identified
Fernandez as a suspect.
Later that day, Fernandez was questioned by police regarding his
participation in the robbery. 2 Fernandez confessed to police that he, along with
defendant and Caba-Placencia, planned and committed the robbery; Fernandez
and defendant committed the robbery and Caba-Placencia was the getaway
driver.
Fernandez referred to defendant by a nickname, "Bebo." He said he had
known him for about two months and Bebo had committed the robbery with
him.3 Based on this information, police located and arrested defendant.
2
Fernandez was already in custody after being arrested for unrelated charges.
3
During trial, Fernandez testified that defendant was his cousin.
A-1337-18T4
5
DNA testing revealed: defendant's and Fernandez's DNA were found on
the black Spurs baseball hat found at the crime scene, defendant's DNA was
found on the red hat and Fernandez's DNA was found on the black jacket.
Prior to trial, the State offered Fernandez a favorable plea deal in exchange
for his testimony at trial against defendant and Caba-Placencia. In June 2018,
Fernandez pled guilty to first-degree robbery and, in an unrelated case, to
second-degree attempted armed burglary and fourth-degree unlawful possession
of a weapon. The agreement recommended a sentence of six years'
imprisonment with an eighty-five percent parole disqualifier.4 The plea was
conditioned on Fernandez providing truthful testimony in the trial against his
co-defendants. Fernandez was a witness for the State during the trial.
On the second to last day of trial, the judge advised the parties he would
conduct a charge conference the following morning. He inquired whether the
charge should include theft from a person 5 as a lesser-included offense for
robbery. Defense counsel stated he was not seeking any lesser-included offense
charges.
4
Fernandez was sentenced according to the plea agreement on November 9,
2018.
5 N.J.S.A. 2C:20-2(b)(2)(d).
A-1337-18T4
6
The following day, the judge again addressed the issue, advising he did
not think the facts supported a charge on any lesser-included offenses:
So -- and I -- the way the facts came out, and let me
know, I don't think anybody is going to disagree. I
know we always have to consider theft from a person,
aggravated assault, but I think the way the facts came
out on this case, it leads us towards a clear path of this
was an attempt, a focus on a robbery, a focus on an
armed robbery, and a conspiracy to commit same, not a
focus on committing an aggravated assault or a theft
from a person. Nothing in the testimony that would
lead me to think that anybody had that particular intent.
So that's why I'm not going with the lesser includeds,
and I know, [defense counsel], you indicated you
weren't asking for any.
Defense counsel confirmed he was not requesting a charge for any lesser-
included offenses.
During its instructions to the jury, the court gave the model jury charge
on cooperating witnesses for the evaluation of Fernandez's testimony:
The law requires that the testimony of such a witness
be given careful scrutiny. In weighing his testimony,
therefore, you may consider whether . . . Fernandez has
a special interest in the outcome of the case and whether
his testimony was influenced by the hope of expecting
or expectation of any favorable treatment or reward or
by any feelings of revenge or reprisal. If you believe
this witness to be credible and worthy of belief, you
have the right to convict the defendants on his
testimony alone provided, of course, that upon
A-1337-18T4
7
consideration of the whole case, you are satisfied
beyond a reasonable doubt of the defendant's guilt. 6
The judge also charged the jury regarding prior inconsistent statements of
witnesses. See Model Jury Charges (Criminal), "Prior Contradictory Statements
of Witnesses (Not Defendant)" (approved May 23, 1994).
II.
The jury convicted defendant on the charges of second-degree conspiracy
to commit armed robbery, first-degree armed robbery, and fourth-degree
possession of an imitation firearm. He was acquitted of the third-degree
terroristic threats charge.
The State moved to sentence defendant to an extended term, pursuant to
N.J.S.A. 2C:44-3(a), as a persistent offender. Defense counsel stipulated
defendant was eligible for an extended term but asserted an extended term was
not warranted because Fernandez was the mastermind behind the robbery.
Counsel requested the court sentence defendant at the bottom of the extended
term range.
In granting the State's motion to sentence defendant to an extended term,
the court stated:
6
See Model Jury Charges (Criminal), "Testimony of a Cooperating Co-
Defendant or Witness" (rev. Feb. 6, 2006).
A-1337-18T4
8
The defendant presents himself today as a 32-year-old
male whose first contact with the criminal justice
system was in 2005. He has seven contacts with the
municipal court, and 11 findings of guilt. He has 11
contacts with the Superior Court resulting in 15
Superior Court convictions.
Now, these 15 convictions were accumulated as a result
of four separate dates where he pled guilty to various
charges, and four separate dates that he received a
sentence.
As recognized by [defense counsel], just based on the
background alone, [defendant] qualifies for extended
term as a persistent offender, which would then change
his range for sentencing from ten to 20 years to 20 to
life, still with the restrictions of the No Early Release
Act.
[Defendant] is young, he's 32. That weighs in his favor
against an extended term sentence given that . . . the
[c]ourt would think that a 32-year-old, you would have
to think there is some belief that he still has a chance to
make something of his life once he finishes a sentence
for a crime that he's been convicted of. But the problem
with [defendant] is this, unabated, without any
deterrence, without anything influencing him to resist
engaging in criminal activity since 2005 without fail
every year, except for the years when he was serving a
prison sentence, he's engaged in criminal behavior,
significant criminal behavior, starting from, if you
could call receiving stolen property a mild offense, you
would do that only when you compare it to the assaults,
the aggravated assaults, the assaults with a firearm, the
handgun charges that he was charged with in 2007, a
plea of guilty to an aggravated assault with causing
bodily injury with a deadly weapon resulted in a period
of probation which was subsequently revoked, and he
was re-sentenced on a [violation of probation] to three
A-1337-18T4
9
years incarceration on October 20th of 2008 after
having first pled guilty on [June 7, 2007] and being
sentenced initially to probation on [August 27, 2007].
....
[As to the first-degree armed robbery count (count
two),] the [c]ourt grants the State's application for an
extended term sentence, because there is an absolute
need to impress upon [defendant], and to be quite
honest if for no other reason to keep him off the streets
and make the streets safer from his brand of violence
for a period of time far beyond the seven or the three
years that he would receive . . . and [an] extended term
sentence is warranted because [defendant] has clearly
proven himself to be over the past 12 years to be
someone who has escalated his behavior into violent
behavior and puts anyone at risk for whatever gain he
deems is necessary for himself, whether it be personal
or financial, that is clear. And it's a level of violence
that is about as significant as we can have, to be quite
honest, short of committing a homicide.
....
There is an absolute need to protect society from
[defendant's] behavior, which remains uncontrolled and
[sic] by the prior prison sentences imposed at a
minimum on two separate occasions.
[emphasis added.]
The court then sentenced defendant to an extended term of twenty-five
years' imprisonment with an eighty-five percent parole disqualifier pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the armed robbery
A-1337-18T4
10
conviction (count two), and a concurrent seven-year imprisonment term for the
conspiracy conviction. The court merged the count for possession of an
imitation firearm (count three) with the count for armed robbery (count two).
III.
On appeal, defendant raises the following arguments:
I. THE TRIAL COURT DENIED [DEFENDANT]
A FAIR TRIAL AND DUE PROCESS OF LAW BY
FAILING TO ALLOW THE JURY TO CONSIDER
THEFT AS AN ALTERNATIVE VERDICT TO
ROBBERY
II. THE TRIAL COURT FAILED TO INSTRUCT
JURORS TO EVALUATE WITH CAUTION THE
ALLEGATIONS THAT [DEFENDANT] IN
UNRECORDED ORAL REMARKS, CONSPIRED
WITH MR. FERNANDEZ TO COMMIT THEFT
III. THE STATE'S HEAVY RELIANCE ON
INHERENTLY UNRELIABLE JAILHOUSE SNITCH
TESTIMONY AT TRIAL IS INCOMPATIBLE WITH
THE DUE PROCESS RIGHTS GUARANTEED
UNDER THE NEW JERSEY CONSTITUTION AND
THE COURT FAILED TO PROPERLY INSTRUCT
THE JURY ON HOW TO EVALUATE SUCH
TESTIMONY
IV. [DEFENDANT'S] DISCRETIONARY
TWENTY-FIVE-YEAR EXTENDED TERM
SENTENCE SHOULD BE VACATED OR REDUCED
BECAUSE IT WAS MANIFESTLY EXCESSIVE
A-1337-18T4
11
A.
We begin by addressing defendant's contention that the trial court erred in
not charging the jury on theft as a lesser-included charge of robbery. Defendant
relies on State v. Sein, 124 N.J. 209, 211 (1991), arguing that because the use
of force was directed at removing Sanjay's necklace instead of at Sanjay's
person, there was a rational basis to support a jury charge for theft. We disagree.
In Sein, the defendant reached across the victim to grab her purse. Ibid.
There was no evidence that "the taking of [her] purse was accompanied by the
use of force against her person . . . ." Ibid. The Court contrasted the elements
of robbery, N.J.S.A. 2C:15-1(a) with those of theft, N.J.S.A. 2C:20-3 and found
that "robbery requires more force than that necessary merely to snatch the
object." Id. at 217. The Court found a purse-snatching that involved some
degree of force to wrest the object from the victim would fall within the ambit
of the robbery statute. Ibid.
N.J.S.A. 2C:15-1(a) provides that:
A person is guilty of robbery if, in the course of
committing a theft, he:
(1) Inflicts bodily injury or uses force upon
another; or
A-1337-18T4
12
(2) Threatens another with or purposely
puts him in fear of immediate bodily
injury; or
(3) Commits or threatens immediately to
commit any crime of the first or second
degree.
An act shall be deemed to be included in the phrase "in
the course of committing a theft" if it occurs in an
attempt to commit theft or in immediate flight after the
attempt or commission.
"Theft is defined, generally, as the unlawful taking or exercise of unlawful
control over property of another with purpose to deprive him thereof . . . N.J.S.A.
2C:20-3." State v. Farrad, 164 N.J. 247, 257 (2000) (quoting State v. Carlos,
187 N.J. Super. 406, 412 (App. Div. 1982)).
Robbery is elevated to a crime of the first-degree "if in the course of
committing the theft the actor attempts to kill anyone, or purposely inflicts or
attempts to inflict serious bodily injury, or is armed with, or uses or threa tens
the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). The definition of
a "deadly weapon" includes simulation of a deadly weapon, "enabling a
defendant's conviction of first-degree armed robbery to be based on . . .
simulation of the possession of such a weapon." State v. Chapland, 187 N.J.
275, 283 (2006). Indeed,
A-1337-18T4
13
"[d]eadly weapon" means any firearm or other weapon,
device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used or
is intended to be used, is known to be capable of
producing death or serious bodily injury or which in the
manner it is fashioned would lead the victim reasonably
to believe it to be capable of producing death or serious
bodily injury . . . .
[N.J.S.A. 2C:11-1(c).]
Our Supreme Court has stated the definition of "[d]eadly weapon" under
N.J.S.A. 2C:11-1(c) requires either an "unambiguous simulation of a weapon"
or a combination of words and gestures that "complete the impression of a
concealed weapon[.]" State v. Nero, 195 N.J. 397, 400 (2008) (alteration in
original) (quoting Chapland, 187 N.J. at 292). However, "[a] threat or reference
to a deadly weapon alone is not enough." State v. Hutson, 107 N.J. 222, 227
(1987). To convict on a charge of armed robbery, the jury must find the
defendant used an object in a manner such that the victim "reasonably believes
it to be capable of causing serious bodily harm or death." Id. at 228 (emphasis
in original). This requires a "link between the threat and the object viewed by
the victim." Ibid.
Here, defendant did not request that the court instruct the jury on theft as
a lesser-included offense. To the contrary, defense counsel explicitly stated he
did not want the court to charge the lesser-included offense. Where an error has
A-1337-18T4
14
not been brought to the trial court's attention, we will not reverse on the ground
of such error unless the error is "clearly capable of producing an unjust result."
R. 2:10-2. "When a party does not object to a jury instruction, [we] review[] the
instruction for plain error." State v. Montalvo, 229 N.J. 300, 320 (2017).
Even if there is no request by a party to charge the jury on a lesser -
included offense, a trial court has an independent, non-delegable duty to instruct
a jury on such a charge "when the facts adduced at trial clearly indicate that a
jury could convict on the lesser while acquitting on the greater offense." State
v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted). Therefore, in order for
the trial court here to charge the jury with theft as a lesser-included offense, the
facts adduced at trial had to clearly indicate that a jury could have convicted
defendant of theft while acquitting him of robbery.
We discern no error regarding the charge because there was no rational
basis to charge the jury on theft as a lesser-included offense. The surveillance
video evidence shows defendant entered the store with his face covered to
conceal his identity, clearly holding a gun in his hand. These actions support a
finding that defendant threatened the victims inside the store with immediate
use of a deadly weapon, reasonably putting them in fear of immediate bodily
A-1337-18T4
15
injury. Sanjay and Soto believed the gun was real, describing it as a "small
black gun" that appeared to be made of metal.
Defendant used the gun to render the victims in fear of him and to demand
money from them by repeatedly pointing it at them and shoving it into their
bodies. Defendant approached Soto first, grabbed his shirt collar, and pointed
the firearm into his chest demanding money. Soto clearly believed the gun was
real, explaining he quickly escaped from the store as "[he] was afraid that guy
might shoot [him]."
After defendant was unsuccessful in robbing Soto, he went behind the
register, pointing the gun at Sanjay and cornering him. Defendant grappled with
Sanjay, grabbing his neck from behind and pointing the gun at Sanjay's chest to
prevent Sanjay's escape.
The surveillance video shows Sanjay is visibly frightened – with his eyes
wide and hands up as he struggles to escape from defendant, who is repeatedly
shoving the gun into Sanjay's body. At some point during their struggle,
defendant yanked the chain off Sanjay's neck. The gun never leaves defendant's
hand.
The evidence does not support defendant's claim that the force was
directed only at the jewelry. While holding the gun, defendant grabbed Sanjay's
A-1337-18T4
16
clothes and body as they struggled, eventually ripping off his chain necklace.
That force plainly was directed at the victim, not the chain.
We are satisfied the evidence presented at trial did not clearly indicate that
a jury could have convicted defendant of theft while acquitting him of robbery.
See Jenkins, 178 N.J. at 361. Because the facts supported the charge of first-
degree robbery, the trial court did not err in failing to instruct on the lesser -
included charge of theft.
B.
During trial, Fernandez testified that after he told defendant he needed
money, defendant agreed to help him rob the mini mart. Defendant asserts this
statement established he conspired to commit a robbery or theft. Defendant
contends the trial court erred by failing to sua sponte give a Hampton7 and
Kociolek8 charge and the model jury charge for alleged statements made by a
defendant. See Model Jury Charges (Criminal), "Statements of Defendant –
Allegedly Made" (rev. Jun. 14, 2010). Without these instructions, and coupled
with Fernandez's disputed credibility, defendant contends the jury was unable to
7
State v. Hampton, 61 N.J. 250 (1972).
8
State v. Kociolek, 23 N.J. 400 (1957).
A-1337-18T4
17
critically assess whether he made the incriminating oral statements to Fernandez
in which he agreed to help Fernandez commit a robbery.
Defendant further argues that although the court provided a general
instruction concerning the jury's role in assessing the credibility of witnesses, a
specific instruction regarding Fernandez's statements was necessary because the
court's preclusion of cross-examination questions regarding Fernandez's prior
inconsistent statements prevented defendant from fully challenging Fernandez's
credibility.
Because defendant did not request these specific charges at trial or raise
an error regarding the jury charge, we review for plain error. See State v.
Funderburg, 225 N.J. 66, 79 (2016). "Under that standard, [this court]
disregard[s] any alleged error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
A trial court should provide a Hampton charge "[w]hether requested or
not, whenever a defendant's oral or written statements, admissions, or
confessions are introduced in evidence . . . ." State v. Jordan, 147 N.J. 409, 425
(1997). A jury "shall be instructed that they should decide whether . . . the
defendant's [statement] is true[,]" and if they conclude that it is "not true, then
A-1337-18T4
18
they must . . . disregard it for purposes of discharging their function as fact
finders on the ultimate issue of guilt or innocence." Hampton, 61 N.J. at 272.
Hampton applies where the inculpatory statement is made to police. Here,
Fernandez relayed to the police a statement made to him by defendant.
Therefore, a Hampton charge was not required. See State v. Baldwin, 296 N.J.
Super. 391, 398 (App. Div. 1997) (holding that "a special cautionary instruction
is not required when a defendant has allegedly made a voluntary inculpatory
statement to a non-police witness without being subjected to any form of
physical or psychological pressure").
Under these circumstances, the trial court could have provided the jury
with a Kociolek charge, used whenever a witness at trial testifies regarding a
defendant's oral statements. 23 N.J. at 421. The jury is instructed that it "'should
receive, weigh and consider such evidence with caution,' in view of the generally
recognized risk of inaccuracy and error in communication and recollection of
verbal utterances and misconstruction by the hearer." Ibid. "[T]he Kociolek
charge should be given whether requested or not." Jordan, 147 N.J. at 428.
However, a Kociolek charge need not be provided to the jury where "an
alleged oral inculpatory statement was not made in response to police
questioning, and there is no genuine issue regarding its contents, . . . because
A-1337-18T4
19
the only question the jury must determine is whether the defendant actually
made the alleged inculpatory statement." Baldwin, 296 N.J. Super. at 401-02.
Moreover, the failure to give the Hampton and Kociolek charges is not
always reversible error. Jordan, 147 N.J. at 425, 428. We will only reverse
when omission of the charges was clearly capable of producing an unjust result
in the context of the entire case. Id. at 425, 429. If the statements were
unnecessary to prove the defendant's guilt "because there is other evidence that
clearly establishes guilt, or . . . the defendant has acknowledged the truth of his
statement," the failure to give a Hampton charge will not require reversal. Id.
at 425-26. Likewise, whether the failure to give the Kociolek charge constitutes
plain error, "will depend on the facts of each case." Id. at 428.
Here, as stated, defendant made the statement to Fernandez and not in
response to police questioning. There was no dispute as to the content of the
statements at trial, just a denial that defendant made the statement. See Baldwin,
296 N.J. Super. at 401-02. Moreover, defendant's counsel thoroughly cross-
examined Fernandez concerning his testimony about the robbery and his
statement to police and argued in summation that Fernandez's testimony was
unreliable.
A-1337-18T4
20
The trial judge also instructed the jury on how to evaluate the credibility
of witnesses and gave a cooperating witness charge. A prior inconsistent
statement instruction was also read to the jury, directing the jury to scrutinize
Fernandez's testimony in light of the inconsistencies in his statement to police
and trial testimony.
Finally, any error regarding these charges did not have the capacity to
produce an unjust result because defense counsel contested the reliability of
defendant's statement to Fernandez and there was other evidence – surveillance
footage and DNA evidence – that clearly established defendant's guilt. See State
v. Feaster, 156 N.J. 1, 72-73 (1998) (holding there was no plain error in the trial
court's failure to give a Kociolek charge even though the defendant's
incriminating oral statements were "at the heart of the State's case against
defendant"); R. 2:10-2.
C.
Defendant challenges Fernandez's testimony on another front not raised at
trial – asserting "the inherently unreliable jailhouse snitch testimony" was a
violation of his due process rights. He supports his argument with several
secondary sources not binding on this court, and a footnote in the dissenting
opinion in State v. Feaster, 165 N.J. 388, 460 n.8 (2000) (Long, J., dissenting)
A-1337-18T4
21
(citations omitted) ("Testimony by jailhouse informants is especially
problematic in and of itself."). He also cites to several federal and out-of-state
cases.
Defendant acknowledges the United States Supreme Court has already
held that the United States Constitution does not bar the introduction of
cooperating witness testimony. See Kansas v. Ventris, 556 U.S. 586, 594
(2009).
Therefore, he contends if this court finds Fernandez's testimony is not so
inherently unreliable to be constitutionally barred, we should nevertheless find
the cooperating witness model jury charge is insufficient and reverse on that
basis. See Model Jury Charges (Criminal), "Testimony of a Cooperating Co-
Defendant or Witness" (rev. Feb. 6, 2006). We decline to so find.
Under our case law, the State may condition a plea agreement on a
defendant's agreement to give truthful testimony as the State's witness. State v.
Long, 119 N.J. 439, 489 (1990). Such cooperating witness testimony is
routinely admitted by courts. Ibid. (citing Hoffa v. United States, 385 U.S. 293
(1966)). However, "the risk of perjury must be balanced against the potential
contribution of truthful testimony." Ibid. (citing United States v. Dailey, 759 F.2d 192 (1st Cir. 1985)). Therefore, the disclosure of a plea agreement with a
A-1337-18T4
22
cooperating witness "allow[s] 'the veracity of a witness to be tested by cross -
examination, and the credibility of his testimony to be determined by a properly
instructed jury.'" Ibid. (quoting Hoffa, 385 U.S. at 311).
It is the jury's province to decide issues of credibility. "[T]he jury is
charged with making credibility determinations based on ordinary experiences
of life and common knowledge about human nature, as well as upon
observations of the demeanor and character of the witness." State v. Jamerson,
153 N.J. 318, 341 (1998) (citing State v. J.Q., 252 N.J. Super. 11, 39 (App. Div.
1991)). Here, the State's plea agreement with Fernandez was disclosed to the
jury and explored during direct and cross-examination. Defendant's and Caba-
Placencia's counsel elicited testimony that Fernandez was only testifying for his
own benefit and was lying about defendant's and Caba-Placencia's involvement
in the robbery by highlighting Fernandez's prior inconsistent statements to
police and in his affidavit to the prosecutor.
In addition, the jury was properly instructed on witness credibility –
including about potential bias – and charged with the model jury charge for
cooperating witnesses and inconsistent statements. We are satisfied that
defendant's due process rights were not violated. Nor was the introduction of
A-1337-18T4
23
Fernandez's testimony an error "clearly capable of producing an unjust result."
R. 2:10-2.
D.
Defendant contends his discretionary twenty-five-year extended term
sentence should be vacated or reduced because it was manifestly excessive.
Specifically, he asserts the trial court erred by: (1) using the incorrect minimum
of the sentencing range in its extended term analysis; (2) failing to conduct
separate and distinct analyses for the extended term and N.J.S.A. 2C:44-1
factors; (3) double-counting his extensive criminal record in imposing an
extended term and finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) and
six, N.J.S.A. 2C:44-1(a)(6); and (4) failing to find any mitigating factors.
We review the trial court's sentencing decision under an abuse of
discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). A sentence will
be affirmed "as long as the trial court properly identifies and balances
aggravating and mitigating factors that are supported by competent credible
evidence in the record." State v. Lawless, 214 N.J. 594, 606 (2013) (quoting
State v. Natale, 184 N.J. 458, 489 (2005)).
To be accorded such deference, the trial court is required to "identify the
relevant aggravating and mitigating factors, determine which factors are
A-1337-18T4
24
supported by a preponderance of evidence, balance the relevant factors, and
explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J.
210, 215 (1989) (citations omitted); see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g).
Defendant does not dispute he was eligible for an extended term. He
contends rather that the sentence was improper because the trial court used the
incorrect minimum of the sentencing range in its extended term analysis. In
finding defendant was eligible for an extended term "based on [defendant's]
background alone," the trial judge stated that the applicable sentencing range
would change from "ten to [twenty] years to [twenty] to life, still with the
restrictions of [NERA]."
The applicable sentencing range here was between ten years'
imprisonment and life imprisonment. See N.J.S.A. 2C:43-6(a)(1), -7(a)(2).
Defendant is correct that the judge misspoke when he said that the minimum
sentence range for defendant's offenses was twenty years' imprisonment. Our
Supreme Court has made clear that, while the "top" of the extended term range
is the maximum sentence applicable to a persistent offender, a defendant need
not be sentenced within the enhanced range. State v. Pierce, 188 N.J. 155, 169
(2006). Rather, "the permissible range has expanded so that it reaches from the
bottom of the original-term range to the top of the extended-term range." Ibid.
A-1337-18T4
25
The trial court sentenced defendant to an extended term of twenty-five
years' imprisonment with an eighty-five percent parole disqualifier for the first-
degree armed robbery conviction (count two) and a concurrent term of seven
years for the second-degree conspiracy conviction (count one). In holding
defendant was eligible for an extended term, the court implicitly found that a
sentence in the ten to twenty years' imprisonment range was inadequate and
sentenced defendant to twenty-five years' imprisonment, which was squarely
within the correct sentencing range.
The sentencing court, in its sound judgment, still chooses a defendant's
sentence "subject to reasonableness and the existence of credible evidence in the
record to support the court's finding of aggravating and mitigating factors and
the court's weighing and balancing of those factors found." Ibid. There is no
rational basis to conclude that the trial judge would have sentenced defendant to
a lower term simply because the bottom of the range was lower. Even if the trial
court erred by misstating the minimum term, the error is not "clearly capable of
producing an unjust result," and it is not a reason to disturb the sentence. See
State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.
We briefly address defendant's remaining contentions regarding his
sentence. The trial court found the imposition of an extended prison term
A-1337-18T4
26
applicable due to defendant's extensive prior criminal record. He had six prior
indictable convictions from 2007 to 2014, as well as several probationary and
prison sentences. The court further noted defendant had violated his probation
and his criminal activity had escalated over time, noting defendant "engaged in
criminal activity . . . without fail every year [since 2005], except for the years
when he was serving a prison sentence . . . ." He also had pending charges for
burglary, weapons offenses and crimes against law enforcement officers.
The judge's application of aggravating factors three, six, and nine were
supported by the evidence in the record. See N.J.S.A. 2C:44-1(a)(3), (6), (9).
The judge also provided sufficient reasons supporting his finding that there were
no mitigating factors. Because the trial court placed great weight on its finding
of three aggravating factors, supported by the substantial facts and evidence in
the record, and no mitigating factors, we are satisfied there was no abuse of
discretion in the imposed sentence.
Affirmed.
A-1337-18T4
27
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
