STATE OF NEW JERSEY VS. JUAN F. HERNANDEZ (15-03-0237, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1138-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN F. HERNANDEZ,

Defendant-Appellant.
____________________________

Argued January 22, 2019 – Decided April 26, 2019

Before Judges Haas, Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 15-03-
0237.

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

Stephen C. Sayer, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
Cumberland County Prosecutor, attorney; Stephen C.
Sayer, of counsel and on the brief).
PER CURIAM

Tried by a jury, defendant Juan F. Hernandez was convicted of first-degree

conspiracy to commit the murder of Jose Luis Ortiz, N.J.S.A. 2C:11-3(a)(1) and

N.J.S.A. 2C:5-2; first-degree promoting organized street crime, N.J.S.A. 2C:33-

30(a); first-degree conspiracy to commit the murder of Eduardo Bernal, N.J.S.A.

2C:11-3(a)(1) and N.J.S.A. 2C:5-2; and first-degree conspiracy to commit

robbery of Bernal, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1). After merger,

defendant was sentenced to a twenty-two year prison term, subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for promoting organized street

crime, to run consecutive to two consecutive seventeen-year prison terms,

subject to NERA, for conspiracy to commit the murders of Ortiz and Bernal,

respectively.

Defendant appeals contending:

POINT I

CONSPIRACY REQUIRES AN AGREEMENT TO
PURPOSELY ACCOMPLISH THE CRIMINAL
RESULT. HERE, ONE OF THE CHARGED
CONSPIRACIES TO MURDER WAS, BY THE
STATE'S OWN ADMISSION, UNSUPPORTED BY
SUFFICIENT EVIDENCE THAT IT WAS A
CONSPIRACY TO PURPOSELY KILL.
MOREOVER, NONE OF THE JURY
INSTRUCTIONS ON CONSPIRACY TO KILL OR
TO ROB PROPERLY CONFINED THE REQUISITE

A-1138-17T4
2
INTENT TO A PURPOSEFUL ACCOMPLISHMENT
OF THE CRIMINAL RESULT. (NOT RAISED
BELOW).

A. THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE CONVICTION FOR
CONSPIRACY TO MURDER EDUARDO
BERNAL BECAUSE THERE WAS NO
EVIDENCE OF AN AGREEMENT TO
PURPOSELY KILL HIM.

B. THE JURY INSTRUCTIONS ON
CONSPIRACY TO MURDER IMPROPERLY
EXPANDED THE RANGE OF POSSIBLE
CONSPIRACIES BEYOND AN AGREEMENT
TO PURPOSELY KILL.

C. THE JURY INSTRUCTIONS ON
CONSPIRACY TO ROB EDUARDO BERNAL
IMPROPERLY EXPANDED THE RANGE OF
POSSIBLE CONSPIRACIES BEYOND AN
AGREEMENT TO PURPOSELY ROB THE
VICTIM.

POINT II

THE JURY INSTRUCTIONS ON THE CRIME OF
"PROMOTION OF ORGANIZED STREET CRIME"
IMPROPERLY ALLOWED THE JURY TO REACH A
NON-UNANIMOUS VERDICT ON THE CRIMINAL
SUBJECT OF THE CONSPIRACY, AND ALSO
DEFINED "ORGANIZER" IN AN OVERBROAD
MANNER THAT INCLUDED ANYONE INVOLVED
IN THE CONSPIRACY; ALTERNATIVELY,
MERGER SHOULD BE ORDERED. (NOT RAISED
BELOW).

A-1138-17T4
3
 POINT III

THE TRIAL PROSECUTOR REPEATEDLY
IMPROPERLY BOLSTERED HER CASE AGAINST
DEFENDANT BY REFERRING TO SECRET
EVIDENCE OUTSIDE THE RECORD THAT
DEFENDANT COULD NOT CONFRONT. (NOT
RAISED BELOW).

POINT IV

THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE; DEFENDANT WAS PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL AT
SENTENCING, AND THE JUDGE INCORRECTLY
BELIEVED THAT A CONSECUTIVE SENTENCE
WAS STATUTORILY REQUIRED FOR
[PROMOTING ORGANIZED STREET CRIME].

For the reasons that follow, we affirm.

I.

We begin by briefly summarizing the trial testimony of three co-

defendants, Aris Tejada, Ricardo Then Flete, and Antonio Estrella, who all pled

guilty and agreed to testify against defendant, and two Bridgeton police officers,

Detectives Kenneth Leyman and Vincent Cappoli. Defendant did not testify.

A-1138-17T4
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 The Murder of Jose Luis Ortiz

On the night of August 16, 2014, Tejada, Flete and Andy Reyes 1 traveled

from New Brunswick to Bridgeton to do a "job" for defendant and "go shoot a

person regarding . . . [a] brothel." Tejada testified that defendant explained the

job to him earlier that day; advising him the target was a "worker" at a Bridgeton

brothel. Tejada recruited Flete and Reyes to assist him because the job required

more than one person. Flete confirmed that Tejada received all of the

instructions from defendant.

According to Tejada, armed with two handguns – .357-mm and 9-mm –

provided by defendant, they went to the brothel to shoot the target, Ortiz, but he

was not there. Tejada subsequently called defendant, who informed them that

Ortiz was at a local pharmacy. The men then picked up Ortiz, who was

anticipating their arrival based on arrangements he made with defendant.

After driving for some time, Tejada told Flete to stop the car. Tejada got

out of the car and walked over to the passenger's side window, pulled out his

gun, and ordered Ortiz to get out. Once Ortiz exited the vehicle, Tejada told

him to "get on his knees." Tejada testified he was about to shoot Ortiz when he

realized the safety was on, and instead Reyes shot Ortiz in the back of the head

1
Reyes did not testify against defendant.
A-1138-17T4
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with the .357 handgun. Tejada claimed he then shot Ortiz several times with the

9-mm handgun after Ortiz was already dead. To the contrary, Flete testified that

Tejada shot first.

After shooting Ortiz, the three men failed to follow defendant's

instructions to take Ortiz's cell phone, which was allegedly provided by

defendant for brothel business, and had defendant's name saved in the contacts

as "Guero."

Det. Leyman responded to the crime scene, where Ortiz was pronounced

dead, lying in the road on his back, with gunshot wounds to his "head, torso and

lower body, and . . . a large quantity of blood around his body." There was a

white cell phone and house key next to Ortiz's body, and five 9-mm shell casings

nearby.

Although the police found no witnesses to the shooting, they located a

home surveillance video that aided their investigation. Although the video's

quality was poor, Det. Leyman testified that three individuals were depicted

exiting a "dark colored" sedan just before what appeared to be multiple muzzle

flashes emanating from a gun. The next day, police went to Ortiz's residence

where they seized – with the permission of his roommate – a missed package

notice for a Bridgeton address. Based upon a prior investigation, the police

A-1138-17T4
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knew the location operated as a brothel and went to the address, where they

found several slips of paper with Ortiz's name written on them.

The Murder of Eduardo Bernal

Two weeks later, on the night of August 30, defendant picked up Reyes,

Flete and Tejada in an Acura TL 2 for another "job" in Bridgeton. Prior to

leaving, defendant drove to a nearby parking lot in New Brunswick where

homeless individuals waited to be hired for work. Estrella 3 was there looking

for work and accepted defendant's work offer, allegedly without knowing what

it entailed. They all travelled to a brothel in Bridgeton, different from the one

associated with Ortiz.

Upon arriving at the brothel, defendant gave Estrella money and instructed

him to go inside, have sex with a prostitute, see how many people were there,

and report back to him. According to Tejada, he went with Estrella to the door

of the brothel, but only Estrella went inside. Estrella reported that there were

two people, a male, later identified as Bernal, and an unidentified female inside.

Tejada and Flete testified defendant then instructed them, along with Reyes and

2
Estrella testified that Reyes was driving a Honda.
3
In their testimony, Tejada and Flete repeatedly refer to Estrella by his alias
"Chuckie."
A-1138-17T4
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Estrella, "to go in there and deliver a message . . . ," by robbing the location and

to "stab [Bernal] up but not kill him."

While Tejada, Flete and Reyes went inside the brothel, Estrella remained

outside on the steps. Once inside, Reyes took Bernal into the back room and

asked him where the money was. Unable to locate the money, Reyes became

irate and started beating Bernal. Believing Bernal "was lying about the money,"

Reyes stabbed Bernal multiple times with a knife he found in the kitchen. The

three men cleaned their clothing and left to meet defendant at a nearby location.

Once in the car, Tejada informed defendant "the job was done" and "the person

was poked and might die," to which defendant responded, "[t]hat's good. Good

job." The four men drove back to New Brunswick.

Receiving a report of a homicide, Det. Leyman went to the brothel.

Bernal, "lying on his back beside a mattress sitting on the floor" with "multiple

apparent stab wounds to his torso" and "cast-off blood . . . splattered on the

wall[,]" was pronounced dead at the scene. During his investigation, Det.

Leyman was able to locate surveillance footage from a nearby business, which

showed a "gray Acura TL with a[] . . . primer gray or black front fender" circle

the block multiple times before two men got out. The video further revealed

one man return and then three more men got out of the car; and later four men

A-1138-17T4
8
returned. Det. Leyman testified that he "received information" that revealed

defendant was the owner of the Acura TL and local law enforcement agencies

assisted in determining that the vehicle was at the brothel on the night of the

Bernal murder

The surveillance video footage also enabled Det. Leyman to identify

Tejada and link him to the incident through arrest photographs provided by the

Middlesex County Police Department. A subsequent search of Tejada's

residence discovered a Colt King Cobra .375 magnum revolver and

ammunition.4

During his interview with Det. Leyman, defendant stated that he did not

know Flete or Reyes, and referred to Estrella as a homeless man in New

Brunswick, known as "Pike." Defendant indicated: he did not know his own

phone number; there were no guns in the car; and he only knew about the brothel

through Ortiz, who previously asked about the location. He also stated that he

went to Bridgeton, somewhere off US 77, on August 30, to see a man named

"Guero," however, Det. Leyman, indicated that this statement contradicted

4
Although the gun and ammunition were never formally linked through
testimony, Det. Leyman testified they were found under a false floorboard. The
gun, ammunition and pictures of where the gun was located were all placed in
evidence for the jury.
A-1138-17T4
9
surveillance footage, because the Acura passed straight through US 77 and US

40. Lastly, Det. Leyman asked defendant if it would surprise him if "the four

people who got out of his Acura had killed someone," and defendant stated "he

didn't see it with his own eyes . . . he couldn't say that they had killed him," even

though during questioning, Det. Leyman never referred to the victim's gender.

II.

In defendant's first brief point he argues that improper jury charges were

overly broad and led to his conviction for conspiracy – an inchoate offense – to

commit the robbery or murder of Bernal that was based on insufficient evidence,

because there was no proof of his "purposeful state of mind toward

accomplishing the criminal result." State v. Harmon, 104 N.J. 189, 203 (1986).

Consequently, he maintains his federal and state due process rights and right to

a fair trial were violated, constituting reversible error. We conclude this

contention is without merit.

A.

We begin with an analysis of the offenses of conspiracy and murder. To

convict defendant of conspiracy to commit a crime, the State had to satisfy

N.J.S.A. 2C:5-2(a), which provides in pertinent part, that

A-1138-17T4
10
 [a] person is guilty of conspiracy with another person
or persons to commit a crime if with the purpose of
promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or

(2) Agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy

charge." State v. Samuels, 189 N.J. 236, 245 (2007). It is well settled that a

conspiracy may be proven by circumstantial evidence. State v. Phelps, 96 N.J.

500, 509 (1984). Generally, circumstantial evidence is tested

by the rules of ordinary reasoning such as govern
mankind in the ordinary affairs of life. While certain
actions of each of the defendants, when separated from
the main circumstances and the rest of the case, may
appear innocent, that is not significant and undoubtedly
appears in every case of criminal conspiracy.

[Samuels, 189 N.J. at 246 (quoting State v. Graziani, 60
N.J. Super. 1, 13-14 (App. Div. 1959)).]

Hence, "[a]n implicit or tacit agreement may be inferred from the facts and

circumstances[,]" State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992),

A-1138-17T4
11
because co-conspirators generally act in silence and secrecy, State v. Cagno, 211

N.J. 488, 512 (2013).

As for the crime of murder, N.J.S.A. 2C:11-3(a) provides that "criminal

homicide constitutes murder when: (1) [t]he actor purposely causes death or

serious bodily injury resulting in death; or (2) [t]he actor knowingly causes death

or serious bodily injury resulting in death[.]" To convict a defendant of

purposeful serious bodily injury murder under N.J.S.A. 2C:11-3(a)(1), the State

must prove that it was the defendant's "conscious object . . . to cause serious

bodily injury that then resulted in the victim's death" and that the defendant

"knew that the injury created a substantial risk of death and that it was highl y

probable that death would result." State v. Cruz, 163 N.J. 403, 418 (2000).

Guided by these principles, our review of the record indicates the State

provided evidence beyond a reasonable doubt that defendant entered into an

agreement with co-defendants Tejada, Flete and Reyes with the purpose of

promoting or facilitating the purposeful or knowing serious bodily injury of

Bernal, which ultimately resulted in Bernal's death. The clear essence of co-

defendants' testimony recounted that defendant, as the ringleader, recruited and

instructed them to go inside the brothel and stab Bernal. The fact that defendant

told them not to kill Bernal, does not exonerate him from Bernal's murder. By

A-1138-17T4
12
directing them to stab Bernal, it was clear that defendant's goal was to inflict

serious bodily injury, which could probably, and in fact did, cause his death.

Defendant's culpability is further supported by co-defendants' testimony

regarding his response to the "job" they did. When Tejada informed defendant

"[the job] was done" and "the person was poked and . . . might die," defendant

coldly responded, "[t]hat's good. Good job." Flete likewise testified that

defendant "was happy about" Bernal's death.

We agree with the State that defendant's reliance on State v. Abrams, 256

N.J. Super. 390 (App. Div. 1992), to show that his mere expression of

satisfaction that Bernal might die is insufficient evidence of his conspiracy to

murder him, is misplaced. In Abrams, this court held that a wife's pleasure about

her husband's death, her feelings regarding his death and whatever discussions

she may have had about the subject, alone were not sufficient evidence of a

conspiracy to kill him. 256 N.J. Super at 402. Here, there was more than an

expression of satisfaction that Bernal was murdered; there was testimony by co-

defendants that defendant directed them to stab Bernal, which could clearly

cause serious bodily injury that results in death, and that he was pleased with

the result.

A-1138-17T4
13
 B.

Turning to the jury instruction on conspiracy to commit the murder of

Bernal, defendant argues that it "fail[ed] to confine the crime to agreements to

purposely kill the victim." Likewise, he argues the jury instruction for

conspiracy to commit robbery was not "carefully confined to agreements to

[purposely] rob [Bernal]." Since defendant raises this argument for the first time

on appeal, we review it under the "plain error" standard of appellate review. R.

2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971).

To be sure, we recognize that "[a]ppropriate and proper charges to a jury

are essential for a fair trial[,]" State v. Green, 86 N.J. 281, 287 (1981), and that

the trial court has an "independent duty . . . to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each

case[.]" State v. Reddish, 181 N.J. 553, 613 (2004). An alleged unchallenged

error in the jury charge is analyzed "in light of 'the totality of the entire charge,

not in isolation.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)). Even so, we are unpersuaded that these

unobjected-to flaws in the jury instructions, identified for the first time in

defendant's appellate brief, produced an unjust result and warrant a new trial.

A-1138-17T4
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 Instructing the jury on conspiracy to commit the murder of Bernal, the

judge advised it to apply the same model jury instruction he had just provided

with respect to the charge of conspiracy to commit the murder of Ortiz. Those

instructions, in pertinent part from model charges5 were:

A person is guilty of [c]onspiracy with another person
or persons to commit a crime if with the purpose of
promoting or facilitating its commission, he agrees with
such other person or persons that they or one or more
of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such
crime.

....

Our statute provides that a person is guilty of
murder if he, one, caused the victim's death or serious
bodily injury that then resulted in the victim's death
and, two, [Tejada] and [Reyes] did so purposely and
knowingly.

....

. . . [S]erious bodily injury means bodily injury
that creates a substantial risk of death. A substantial
risk of death exists where it is highly probable that the
injury will result in death.

5
See Model Jury Charges (Criminal), "Conspiracy (N.J.S.A. 2C:5-2)," (rev.
Apr. 12, 2010); Model Jury Charges (Criminal), "Murder (N.J.S.A. 2C:11-
3(a)(1) and 3(a)(2))," (rev. June 14, 2004).

A-1138-17T4
15
 The judge further instructed the jury on the model jury charge definitions

of "knowingly" and "purposeful." 6 With respect to the specific charge for

conspiracy to commit the murder of Bernal, he told the jury:

[T]he State must prove the following elements: number
one, that the [d]efendant agreed with another person or
persons that they or one or more of them would engage
in conduct which constitutes a crime or an attempt or
solicitation to commit such crime, and two, that the
[d]efendant's purpose was to promote or facilitate the
commission of the crime of [m]urder.

He then instructed the jury on the model charge for the lesser-included offense

of conspiring to commit aggravated assault. 7

We thus conclude based upon the facts of this case, the judge properly

instructed the jury on the charge of conspiracy to commit murder of Bernal. As

noted, the State's proofs strongly established that defendant was guilty of the

charge.

6
See Model Jury Charges (Criminal), "Murder (N.J.S.A. 2C:11-3(a)(1) and
3(a)(2))," (rev. June 14, 2004).
7
See Model Jury Charges (Criminal), "Aggravated Assault – Bodily Injury
with Deadly Weapon (Purposely or Knowingly) (N.J.S.A. 2C:12-1(b)(2))," (rev.
Nov. 3, 2008); Model Jury Charges (Criminal), "Conspiracy (N.J.S.A. 2C:5-2),"
(rev. Apr. 12, 2010).
A-1138-17T4
16
 C.

As for the charge of conspiracy to commit robbery, defendant contends

the jury instructions were not "carefully confined to agreements to purposely

rob [Bernal]." He asserts that although a "purposeful state of mind" was

referenced in parts of the instructions, the judge repeatedly referenced

"knowingly" rather than "purposely" and, therefore, the conviction must be

reversed and remanded for a new trial. Samuels, 189 N.J. at 245-47. Applying

the plain error standard, as defendant did not object to the instructions when

given, we see no unjust result.

Adhering to the model charge, the judge informed the jury that: "[A]

person is guilty of [r]obbery if he knowingly inflicts bodily injury or uses force

upon another while in the course of committing a theft." 8 Thus, the requisite

mental state is "knowingly," or said differently, the State must prove a defendant

had knowledge of the injury or force. State v. Sewell, 127 N.J. 133 (1992).

The "purposeful" language of conspiracy to commit robbery that

defendant's argument hinges on, is only required when establishing that

defendant agreed with another for the purpose of promoting or facilitating the

8
Model Jury Charges (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-
1)," (rev. Sept. 10, 2012).
A-1138-17T4
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crime of robbery. N.J.S.A. 2C:15-1(a)(1). Within the robbery charge itself,

only the definition of theft includes "purposeful." N.J.S.A. 2C:20-3(a) ("the

unlawful taking or exercise of unlawful control over the property of another with

the purpose to deprive him thereof."). These definitions, however, were

provided to the jury, with the exact language of the model jury charges.

Therefore, the jury was instructed that defendant needed a purposeful state

of mind for the conspiracy, and of the elements of robbery. Considering the jury

instructions in their entirety, there was no plain error in the instructions given.

III.

In Point II, defendant contends that the jury instructions for promotion of

organized street crime were "not specific enough to avoid non-unanimity

problems" because the judge included two substantive offenses, first -degree

murder and robbery, as the possible conspiratorial goal crimes committed

between August 16 through August 30, 2014. Relying on State v. Frisby, 174

N.J. 583, 596 (2002), he argues that because the instruction was overbroad, it

allowed the jury to find any of the two murders and the single robbery sufficient

to satisfy the conspiratorial goal. He further argues that the judge's definition

of "organizer" under N.J.S.A. 2C:33-30 was "absurdly overbroad" to include

conspirators and constitutes reversible error. Additionally, relying upon State

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v. Gonzalez, 444 N.J. Super. 62 (App. Div. 2016), defendant contends that in

regard to the "vicarious conspiratorial liability for a substantive offense under

N.J.S.A. 2C:2-6," the "and/or" language used by the judge alone constitutes a

unanimity error. Again applying the plain error standard, as defendant did not

object to the instructions when given, we see no unjust result in the instructions

given.

In his jury instruction on promotion of organized street crime, the judge

used the "and/or" construction in referring to the crimes:

You have to decide whether the [d]efendant's purpose
was that he or a person with whom he was conspiring
would commit the crimes of [m]urder and/or [r]obbery.
The State has to prove beyond a reasonable doubt that
when he agreed it was his conscious object or purpose
to promote or make it easier to commit the crimes of
[m]urder and/or [r]obbery.

The judge further instructed the jury that "[t]he State must prove beyond a

reasonable doubt that [defendant] conspired to commit any of these crimes. You

must unanimously agree about the crimes that [defendant] conspired to commit."

(emphasis added). The language in the instruction, however, was not repeated

on the verdict sheet, which simply reiterated the statutory language.

Although the judge did not include the unanimity instruction on the

verdict sheet, based upon the totality of the instructions given, there was no plain

A-1138-17T4
19
error. The judge carefully and clearly instructed the jury that it must be

unanimous about the crime to which defendant conspired and there was no

objection to the instruction at trial. We presume the jury followed the

instructions given by the judge, see State v. Winder, 200 N.J. 231, 256 (2009),

and defendant presents no evidence or argument supporting an abandonment of

that presumption.

Moreover, defendant does not argue, and the record does not reveal, any

indication of jury confusion concerning the acts for which it found defendant

guilty. Thus, there was no unjust result from the instructions concerning

promotion of organized street crime based on the lack of a specific unanimity

instruction.

As for defendant's argument that the judge's definition of "organizer" was

overbroad, we conclude it is without merit. N.J.S.A. 2C:33-30 states, "[a]

person promotes organized street crime if he conspires with others as an

organizer." The judge properly defined "organizer" as "a person who purposely

arranges, devises[,] or plans an organized crime of [c]onspiracy." See State v.

Alexander, 136 N.J. 563, 575 (1994) (holding that under N.J.S.A. 2C:35-3 –

leader of narcotics trafficking network – an "organizer" is "a person who

[purposely] arranges, devises, or plans a drug-trafficking [conspiracy].").

A-1138-17T4
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 Contrary to defendant's assertion, the judge's definition did not include

mere conspirators to the crime. A conspirator is an individual who participates

in an agreement, but not one who purposely plans arranges or devises the

conspiracy. In fact, the common sense definition of "organizer" is "a person

who organizes," and to "organize" means "to arrange by systematic planning and

united effort." Organizer, Merriam-Webster's Collegiate Dictionary (11th ed.

2003); Organize, Merriam-Webster (emphasis added). Therefore, the judge's

definition and use of organizer was not improper and accordingly not grounds

for reversal.

We likewise reject defendant's argument that the promotion of organized

street crime and conspiracy offenses for murder and robbery should be merged

since they "would pass the same-element test." The merger of offenses requires

a double-jeopardy analysis. State v. Quezada, 402 N.J. Super. 277, 287-88

(App. Div. 2008); see State v. Miles, 229 N.J. 83, 86 (2017) ("We now join the

majority of jurisdictions in returning to the Blockburger 9 same-elements test as

the sole test for determining what constitutes the 'same offense' for purposes of

double jeopardy."). This analysis requires two steps, and "[t]he first step

9
Blockburger v. U.S., 284 U.S. 299 (1932).
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21
requires the court to consider whether the legislature intended to impose

multiple punishments." Quezada, 402 N.J. Super. at 288.

The analysis may stop here, because N.J.S.A. 2C:33-30(b) states:

b. Grading. Promotion of organized street crime is a
crime of one degree higher than the most serious
underlying crime referred to in subsection a. of this
section, except that where the underlying offense is a
crime of the [first-degree], promotion of organized
street crime is a [first-degree] crime and the defendant,
upon conviction, and notwithstanding the provisions of
paragraph (1) of subsection a of [N.J.S.A. 2C:43-6],
shall be sentenced to an ordinary term of imprisonment
between 15 and 30 years. A sentence imposed upon
conviction of the crime of promotion of organized
street crime shall be ordered to be served consecutively
to the sentence imposed upon conviction of any
underlying offense referred to in subsection a. of this
section.

[(Emphasis added).]

It is therefore clear that the legislature intended to allow multiple punishments,

because the fact that the crime of promoting organized street crime is separate

and higher than a mere conspiracy, and that it expressly calls for consecutive

sentences, all signal this intent.

IV.

Defendant, in Point III, citing State v. Branch, 182 N.J. 338 (2005), and

State v. Dehart, 430 N.J. Super. 108 (App. Div. 2013), argues the State violated

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the Confrontation Clause of the Sixth and Fourteenth Amendments of the United

States Constitution and analogous New Jersey constitutional provisions when

Det. Leyman gave hearsay testimony about information he gathered from his

investigation that led him to identify defendant and his co-defendants as

suspects. He specifically points to Det. Leyman's testimony that: (1) "he

received 'information' . . . [indicating] that defendant was 'known to drive an

Acura with a discolored front fender'"; (2) he "was [provided] an address for

[defendant] in New Brunswick"; (3) "his investigation led him to agree with the

prosecutor's description of [co-defendant] Tejada as a 'known' associate of

defendant,"; and (4) "unspecified 'assistance from other departments' allowed

him to establish the identities of all the suspects." As with several of defendant's

other aforementioned arguments raised for the first time on appeal , since he did

not object to Det. Leyman's testimony at trial, we apply the plain error standard

of review.

The Sixth Amendment to the Constitution of the United States and Article

I, Paragraph 10 of our State Constitution guarantee an accused in a criminal case

the right to confront adverse witnesses. State v. Guenther, 181 N.J. 129, 147

(2004). "A defendant's right to confrontation is exercised through cross -

examination, which is recognized as the most effective means of testing the

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State's evidence and ensuring its reliability." Ibid. (citations omitted). Hence,

the intent of the Confrontation Clause is to afford a criminal defendant the

opportunity to challenge anyone who presents testimony against him or her.

Crawford v. Washington, 541 U.S. 36, 51-59 (2004). This includes "when, at

trial, a police officer conveys, directly or by inference, information from a non-

testifying declarant to incriminate the defendant in the crime charged." Branch,

182 N.J. at 350 (citing State v. Bankston, 63 N.J. 263, 268-69 (1973)). However,

in State v. Luna, 193 N.J. 202, 216-17 (2007), our Supreme Court limited the

principle in Bankston, holding that a witness may testify regarding certain

investigative steps, but "cannot repeat specific details about a crime relayed to

them[,]" by another, unless the testimony would not create an inference that a

defendant was implicated in the crime by a non-testifying individual.

We conclude defendant's assertion that Det. Leyman's testimony

implicating defendant violates the Confrontation Clause and warrants a reversal

of his conviction is without merit, as his reliance on Branch and Dehart is

misplaced. In Branch, the jury learned nothing more about the detective's

testimony regarding the source of information that had him place defendant's

picture in a photo array and was thus left with the impression that the detective

had some other knowledge implicating the defendant in the crime. Branch, 182

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N.J. at 348. Similarly, in Dehart, this court concluded it was plain error for a

police officer to testify that the defendant's photo was included in a photo array

because another non-testifying individual told him defendant was a suspect

where the critical issue before the jury was identification of the defendant. 430

N.J. Super. at 111-16. In this case, however, the allegedly damaging testimony

can be supported by independent sources.

The testimony regarding defendant's vehicle was based on surveillance

video footage showing an Acura with a distinctly discolored front fender. Det.

Leyman's response to the question of whether he "receive[d] information that

indicated an individual known to drive an Acura with a discolored front

fender[]" and whether that individual was identified as defendant were "yes."

Moreover, the information is corroborated by the co-defendants' testimony.

Therefore, the testimony cannot reasonably be said to impress upon the jury the

inference that Det. Leyman had some other information of defendant's guilt, nor

did it necessarily tie defendant to the crime.

The challenged testimony that Det. Leyman was "provided an address for

[defendant] in New Brunswick" does not violate the Confrontation Clause for

similar reasons. Simply put, defendant's address for these crimes is irrelevant

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considering all of the testimony and evidence provided to the jury implicating

his involvement in the alleged crimes.

Lastly, Det. Leyman's testimony that he knew Tejada was a known

associate of defendant and that he received help from other law enforcement

agencies to help establish the identities of all the suspects, may have violated

Confrontation Clause principles because it necessarily requires the jury to infer

there was some outside information that would tie defendant, Tejada, and the

other suspects together. See Branch, 182 N.J. at 384. Nevertheless, this only

amounts to harmless error based upon other independent evidence. Det. Leyman

testified that he obtained photographs of Tejada and compared them to the

surveillance footage and, based on the similarities, he was able to identify

Tejada as one of the men in the video. Additionally, Det. Leyman's testimony

that his investigation was assisted by other law enforcement agencies was

mitigated by not specifying why the three men were suspects and because the

co-defendants testified regarding their involvement in the killings.

V.

In his final brief point, defendant argues that his sentence for first-degree

promotion of organized street crime was excessive and his trial counsel was

ineffective during the sentencing hearing.

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 We first address the excessive sentence argument. N.J.S.A. 2C:33-30(b),

states, in pertinent part, that: "A sentence imposed upon conviction of the crime

of promotion of organized street crime shall be ordered to be served

consecutively to the sentence imposed upon conviction of any underlying

offense referred to in subsection a. of this section." Defendant asserts the

statute's plain language mandates a consecutive term for only the underlying

offenses listed in the designated subsection that are "purely substantive crimes."

Defendant therefore argues that since this case dealt entirely with inchoate

conspiracy offenses, the mandatory sentencing provision does not apply and this

court should reverse and remand for proper resentencing. We disagree.

The consecutive prison term requirement of N.J.S.A. 2C:33-30(b) clearly

includes defendant's convictions. N.J.S.A. 2C:33-30(a) states that "a person

promotes organized street crime if he conspires with others as an organizer,

supervisor, financier or manager to commit any crime specified in chapters 11

through 18 . . ." of the criminal code. (emphasis added). Accordingly,

defendant's convictions for conspiracy to commit the murders of Ortiz and

Bernal, N.J.S.A. 2C:11-3(a)(1), and conspiracy to commit robbery of Bernal,

N.J.S.A. 2C:15-1(a)(1), require consecutive sentences to the promotion of

organized street crime conviction.

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 As for defendant's claims of ineffective assistance, they are normally

reserved for a future petition for post-conviction relief, and not resolved on

direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) (citing State v.

Preciose, 129 N.J. 451, 460 (1992)). Only when the ineffective assistance claim

can be determined on the trial record alone is it appropriate to dispose of the

issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Such is the

case here.

To establish a claim for ineffective assistance of counsel, a defendant must

establish: (1) his attorney's performance was deficient; and (2) defendant was

prejudiced as a result of the allegedly deficient performance. Strickland v.

Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). "[B]ald

assertions" of ineffective assistance are not enough. State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999). A petitioner "must allege facts sufficient

to demonstrate counsel's alleged substandard performance[,]" and the court must

view the facts alleged in the light most favorable to the petitioner. Ibid.

At sentencing, the judge gave specific reasons for strongly applying the

requisite aggravating factors and indicated that, in his discretion, no mitigating

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factors applied.10 Defendant contends counsel's failure to argue that the sentence

was inappropriate and counsel's mere statement that defendant "maintains his

innocence" constitutes ineffective assistance. Defendant, however, presents no

facts even remotely suggesting that any mitigating factor applied or that an

argument should have been made to dissuade the judge from applying any

particular aggravating factor. Defendant's only statement during sentencing was

that he "is innocent" and the accusations against him were false. Counsel's

reiteration that defendant maintained his innocence does not suggest

incompetency absent any factual contention that would have resulted in a lesser

sentence. As such, trial counsel was not deficient at sentencing.

Affirmed.

10
The judge found the following aggravating factors: defendant has been
arrested eight times prior, including three prior indictable offenses, and others,
N.J.S.A. 2C:44-1(a)(3); defendant's criminal record and seriousness of the
convicted offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and
others from violating the law, N.J.S.A. 2C:44-1(a)(9).
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