STATE OF NEW JERSEY VS. HECTOR A. GUEVARA (16-01-0057, 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NOT FOR PUBLICATION WITHOUT THE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-1441-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR A. GUEVARA,

Defendant-Appellant.
______________________________

Submitted April 17, 2018 – Decided August 28, 2018

Before Judges Fasciale and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 16-01-0057.

Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Hector A. Guevara appeals from his conviction for

first-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(j)

and his sentence. He presents the following points of arguments:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. [I],
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S INSTRUCTION
EXPRESSLY AUTHORIZING THE JURY TO FIND THAT
THE DEFENDANT POSSESSED THE FIREARM SOLELY ON
THE BASIS OF HIS PRESENCE IN THE CAR. (Not
Raised Below).

POINT II

THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHT
TO DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I, PAR. 1 OF THE NEW
JERSEY CONSTITUTION BY PERSUADING THE JURY
WITH HIS PERSONAL BELIEF BASED ON HIS LAW
ENFORCEMENT EXPERIENCE THAT THE DEFENDANT IS
GUILTY. (Not Raised Below).

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE ADMISSION OF HIGHLY
PREJUDICIAL EVIDENCE PERTAINING TO A REMOTE
CONVICTION TO IMPEACH THE DEFENDANT'S
CREDIBILITY.

POINT IV

THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.

2 A-1441-16T1
 POINT V

THE DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. 7
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

A. The Police Seizure Under Threat of Deadly
Force Was Unreasonable.

B. The Police Acted Illegally by Searching the
Vehicle and Seizing Evidence without a
Warrant, Which Was Required at the Time of the
Search and Seizure.

POINT VI

THE TRIAL COURT IMPROPERLY BALANCED THE
AGGRAVATING AND MITIGATING CIRCUMSTANCES.

In defendant's pro se supplemental brief, he argues the

following point:

THE DEFENDANT HECTOR A. GUEVARA'S RIGHTS(S)
TO DUE PROCESS OF LAW WERE CLEARLY VIOLATED
BY THE TRIAL COURT'S JURY INSTRUCTION

He also argues the prosecutor used inflammatory language to

convince the jury and that trial counsel failed to raise several

issues.

For the reasons that follow, we affirm.

I

We first address defendant's contention in Point V that the

trial judge erred in denying his pretrial motion to suppress the

search of a black FJ cruiser (the vehicle), in which defendant was

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a passenger, along with the seizure of guns found in the vehicle

and shotgun shells found in defendant's pants pockets. Because

the weapons and shotgun shells were seized without a warrant, the

burden was upon the State to prove that the search and seizure did

not violate the constitutional rights of defendant as well as his

co-defendant Bruce Jackson. State v. Pineiro, 181 N.J. 13, 19

(2004).

The State's case was presented through the testimony of three

Millville Police officers. A few weeks prior to defendant's

arrest, Millville police responded to a call regarding shots fired

at a local garden apartment complex from a black FJ cruiser with

a white top that had been subsequently seen at a local convenience

store. After an investigating officer obtained a photo of the

vehicle from the store's surveillance video system, and was able

to identify Jackson as the driver, members of the police force

were alerted about the incident.

On the night in question, about nineteen minutes after

midnight, there was a report of shots fired from a vehicle at the

same garden apartment complex, matching the description of the

vehicle from the earlier shooting. While investigating the

shooting at the complex, the police found shell casings and bullet

holes in the building, and an informant relayed that a black FJ

cruiser had been involved in the shooting. Police also observed

4 A-1441-16T1
the vehicle enter the complex with its headlights on, and then saw

the vehicle immediately turn around to exit the complex with its

lights off in violation of N.J.S.A. 39:3-47(a). Later that

evening, the vehicle was seen at the same convenience store where

it was depicted on the surveillance video a few weeks earlier.

After the occupants, including defendant and Jackson, were ordered

out of the vehicle by police with their firearms drawn, the police,

without entering the vehicle, observed a handgun in the pouch

behind the passenger-side front seat and the butt of another

handgun was seen protruding from underneath a towel. A subsequent

search revealed another handgun and a shotgun in the vehicle's

cargo area. All of the firearms were loaded. A search incident

to arrest discovered shotgun ammunition in defendant's pants

pocket. The stop and search of the vehicle was depicted on a

police vehicle's mobile vehicle recording device.

The judge denied the motion to suppress. Finding the police

officers' gave credible testimony, the court determined that they

had a right to stop the vehicle due to the motor vehicle violation

and that under State v. Pena-Flores, 198 N.J. 6, 11 (2009),1 there

were exigent circumstances of a felony investigation – its presence

1
We are mindful that State v. Witt, 223 N.J. 409, 450 (2015),
overturned Pena-Flores prospectively for searches occurring after
September 24, 2015, which is after the search in this case.

5 A-1441-16T1
at the second shooting at garden apartment complex within weeks

of the initial shooting – and their concern over safety due to two

other individuals who had left the vehicle and were not in police

custody. The judge further found that the police officers' plain

view observation of two handguns inside the vehicle's passenger

area and another handgun and a shotgun in the vehicle's cargo area

were discovered inadvertently.

We begin by noting our standard of review. It is well

understood that when considering a trial judge's ruling on a motion

to suppress evidence, "[w]e conduct [our] review with substantial

deference to the trial [judge]'s factual findings, which we 'must

uphold . . . so long as those findings are supported by sufficient

credible evidence in the record.'" State v. Hinton, 216 N.J. 211,

228 (2013) (fourth alteration in original) (quoting State v. Handy,

206 N.J. 39, 44 (2011)). "Those findings warrant particular

deference when they are substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the

'feel' of the case, which a reviewing court cannot enjoy." State

v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original)

(citation omitted). We review de novo the judge's pure

determinations of law, State v. Mann, 203 N.J. 328, 337 (2010)

(citation omitted), as well as the application of legal principles

6 A-1441-16T1
to such factual findings, State v. Harris, 181 N.J. 391, 416 (2004)

(citation omitted).

In accordance with the Fourth Amendment to the United States

Constitution and Article I, paragraph 7 of the New Jersey

Constitution, "police officers must obtain a warrant . . . before

searching a person's property, unless the search 'falls within one

of the recognized exceptions to the warrant requirement.'" State

v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163

N.J. 657, 664 (2000)). An investigatory stop, commonly referred

to as a Terry stop, is a valid exception "if it is based on

'specific and articulable facts which, taken together with

rational inferences from those facts,' give rise to a reasonable

suspicion of criminal activity." State v. Rodriguez, 172 N.J.

117, 126-27 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

The State need not prove the defendant actually committed the

offense involved. State v. Williamson, 138 N.J. 302, 304 (1994).

When an investigatory stop is based on a confidential

informant's tip, the State must establish the reliability of the

tip under the totality of the circumstances. State v. Smith, 155

N.J. 83, 92 (1998) (citing Illinois v. Gates, 462 U.S. 213, 238

(1983)). The informant's veracity and basis of knowledge for the

tip are two highly relevant factors. State v. Caldwell, 158 N.J.

452, 460 (1999) (citations omitted). A sufficient basis of

7 A-1441-16T1
knowledge may be established "if the tip itself relates expressly

or clearly how the informant knows of the criminal activity."

Smith, 155 N.J. at 94. "Even in the absence of a disclosure that

expressly indicates the source of the informant's knowledge, the

nature and details revealed in the tip may imply that the

informant's knowledge of the alleged criminal activity is derived

from a trustworthy source." Ibid.

In situations involving an investigatory stop of a motor

vehicle, if authorities have a reasonable and articulable

suspicion that violations of motor vehicle or other laws have been

or are being committed, the stop is legitimate. State v. Carty,

170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351

(2002). Although our State through the enactment of N.J.S.A.

39:5-252 authorizes both issuance of a summons and arrest for a

motor vehicle violation, such a violation does not authorize a

vehicular search incident to all traffic stops absent probable

cause of some other criminal conduct or the occupants posed a

safety threat. State v. Pierce, 136 N.J. 184, 190-93 (1994).

Another exception to the warrant requirement is the plain

view doctrine, which allows law enforcement to seize contraband

2
A law enforcement officer is authorized by statute to arrest,
without a warrant, a person "violating in his presence any
provision of chapter 3" or "chapter 4" of Title 39. N.J.S.A.
39:5-25.

8 A-1441-16T1
without a warrant. To apply, three prongs must be satisfied.

"First, the police officer must be lawfully in the viewing area."

Mann, 203 N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236

(1983)). Second, the officer's discovery of the evidence must be

"inadvertent[], meaning that he did not know in advance where

evidence was located nor intend[ed] beforehand to seize it." Ibid.

(quoting Bruzzese, 94 N.J. at 236). Finally, "it has to be

immediately apparent to the police that the items in plain view

were evidence of a crime, contraband, or otherwise subject to

seizure." Ibid. (quoting Bruzzese, 94 N.J. at 236). Our court

has also held that there is no reasonable expectation of privacy

in those areas of a vehicle viewable through the windows by a

police officer located outside the vehicle. State v. Reininger,

430 N.J. Super. 517, 534 (App. Div. 2013) (citation omitted).

Thus, the automobile exception under Pena-Flores does not apply

where there is a firearm seizure under the plain view doctrine.

Id. at 537.

Looking at the totality of the circumstances, we have no

reason to disturb the judge's findings or conclusions that the

vehicle stop and warrantless search were justified. The court

found the police officers' testimony credible regarding: the motor

vehicle violation by the vehicle's operation without its

headlights on in an apparent attempt to conceal itself when leaving

9 A-1441-16T1
the crime scene; the reasonable belief from the informant that the

vehicle was involved in the shooting for the second time within a

month at the same location; the safety concerns with the two

occupants who left the vehicle and were not located; and the plain

view observations of weapons. Through our review of the record,

the court's findings are supported by sufficient credible evidence

and proper application of the law.

II

During the trial, the State's witnesses essentially

reiterated the testimony they gave at the suppression hearing.

Defendant, who did not testify at the hearing, did so at the trial.

Prior to defendant's testimony, the court determined in a

Sands3 hearing that a sanitized version of his prior conviction –

a second-degree robbery when he was a fourteen-year-old juvenile4

– limited to the degree of the offense and his eight-year sentence

was admissible. The court reasoned that because he was released

within ten years of this new offense, the conviction was

sufficiently probative of his credibility should he testify.

Defendant testified that he was merely in the wrong place at

the wrong time. While he was going to the convenience store, the

3
State v. Sands, 76 N.J. 127 (1978).
4
The charge of second-degree robbery was waived up to an adult
offense.

10 A-1441-16T1
vehicle pulled up to him and he was offered a ride to the store

by an acquaintance of his stepdaughter who was a front-seat

passenger. Not wanting to drive his girlfriend's vehicle without

a license, he accepted the offer. He did not know the driver, but

had seen the two-backseat passengers in Bridgeton. After they

arrived at the store, the backseat passengers got out of the

vehicle, and he never saw them again. A police officer then pulled

up and ordered defendant, and the remaining two occupants out of

the vehicle. A vehicle search resulted in the seizure of four

weapons, which defendant stated he had never seen before. A search

of defendant's pants pockets revealed shotgun shells that he

claimed he picked up off the vehicle's floor so that he could sell

them to his friends who were hunters.

The jury found defendant guilty of possession of the shotgun,

but not guilty of possession of the handguns. After finding

aggravating factors three, six and nine applied, but no mitigating

factors applied, the judge imposed a sentence of sixteen years

with eight years of parole ineligibility. N.J.S.A. 2C:44-1(a)(3)

(the risk of re-offense); -1(a)(6) (prior record and seriousness

of offense); -1(a)(9) (the need to deter).

In Point III, defendant contends the admission of his prior

conviction was error because it improperly discredited his

testimony. We disagree.

11 A-1441-16T1
 The decision as to whether a prior conviction may be admitted

"rests within the sound discretion of the trial judge." Sands,

76 N.J. at 144. "[A] trial [judge]'s evidentiary rulings are

'entitled to deference absent a showing of an abuse of discretion,

i.e., there has been a clear error of judgment.'" State v. Brown,

170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469,

484 (1997)). As for the remoteness of the prior conviction,

N.J.R.E. 609(b)(1) states:

If, on the date the trial begins, more than
ten years have passed since the witness's
conviction for a crime or release from
confinement for it, whichever is later, then
evidence of the conviction is admissible only
if the [judge] determines that its probative
value outweighs its prejudicial effect. . . .

Under these guidelines, the judge properly considered the date of

defendant's release and the date of the current trial. And, we

are satisfied that he did not abuse his discretion in admitting

defendant's prior conviction.

III

In Point II, defendant argues for the first time that the

prosecutor denied him a fair trial in his closing argument:

But I'm here at this point, ladies and
gentlemen, to tell you that I believe that the
evidence in this case, when you combine it
with the law, as given to you by the [c]ourt[,]
[i]s more than enough to prove [defendant's]
guilt beyond a reasonable doubt as to both
counts.

12 A-1441-16T1
Defendant now argues that the prosecutor's statement improperly

persuaded the jury with his expertise, law enforcement experience

and personal opinion of defendant's guilt.

To warrant a new trial for prosecutorial misconduct, the

conduct must have been "'clearly and unmistakably improper,' and

must have substantially prejudiced defendant's fundamental right

to have a jury fairly evaluate the merits of his defense." State

v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.

Timmendequas, 161 N.J. 515, 575 (1999)). In determining whether

a prosecutor's actions were sufficiently egregious, we consider:

(1) whether defense counsel made a timely and proper objection;

(2) whether the remarks were promptly withdrawn; and (3) whether

the judge struck the remarks from the record and issued a curative

instruction. Id. at 182. In our review, we "consider the tenor

of the trial and the responsiveness of counsel and the court to

the improprieties when they occurred." Timmendequas, 161 N.J. at

575.

If no objection was made, the prosecutor's conduct generally

will not be deemed prejudicial, as the failure to object indicates

counsel did not consider the conduct improper and deprives the

trial judge of the opportunity to take curative action. State v.

Echols, 199 N.J. 344, 360 (2009). Absent an objection, defendant

must establish the conduct constitutes plain error, State v. Feal,

13 A-1441-16T1
194 N.J. 293, 312 (2008), meaning that our inquiry is to determine

whether this was an error that was "clearly capable of producing

an unjust result," R. 2:10-2. Under that standard, reversal is

required if there was error "sufficient to raise a reasonable

doubt as to whether [it] led the jury to a result it otherwise

might not have reached." State v. Green, 447 N.J. Super. 317, 325

(App. Div. 2016) (citation omitted).

We find insufficient merit in defendant's argument to warrant

extensive discussion here. R. 2:11-3(e)(2). The prosecutor was

allowed to draw legitimate inferences from the facts presented at

trial, namely that he used his common sense to think about the

evidence. The prosecutor did not allude to his opinion as being

the correct choice that the jury should abide by, and did not

prejudice defendant's right to have the jury objectively weigh the

evidence so as to require reversal. See State v. Land, 435 N.J.

Super. 249, 269 (App. Div. 2014). We thus conclude there was no

plain error.

IV

In Point I, defendant contends for the first time that the

court's jury instruction erroneously authorized the jury to find

defendant had constructive possession of a firearm based solely

on his presence in the vehicle. We thus must determine whether

there was plain error.

14 A-1441-16T1
 "[A]ppropriate and proper [jury] charges are essential for a

fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting

State v. Reddish, 181 N.J. 533, 613 (2004)). We consider the

charge as a whole in determining whether it was prejudicial. State

v. Figueroa, 190 N.J. 219, 246 (2007). Model jury charges are

often helpful to trial courts performing this important function.

See Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 466

(2000) (holding that instructions given in accordance with model

charges, or which closely track model charges, are generally not

considered erroneous).

There was nothing prejudicial about the judge's charge to the

jury in this case. The portion of the charge at issue tracked the

model charge for N.J.S.A. 2C:39-2. See Model Jury Charges

(Criminal), "Possession Of Firearms, Weapons, Destructive Devices,

Silencers or Explosives In A Vehicle (N.J.S.A. 2C:39-2)" (approved

Mar. 1993). The charge was an accurate reflection of the law and

it did not misinform or mislead the jury, and therefore did not

constitute plain error.

V

In Point IV, defendant argues that the court erred in denying

his motion to dismiss the verdict as against the weight of the

evidence. He contends there was "woefully insufficient evidence"

to show he "had ever seen the shotgun, let alone possessed it."

15 A-1441-16T1
In support, defendant cites his testimony, the lack of forensic

evidence linking him to the shotgun, and his lack of connection

with the vehicle other than being a momentary passenger.

A motion for a new trial is only granted when a trial judge

sets aside a jury's verdict as "against the weight of the

evidence," if "having given due regard to the opportunity of the

jury to pass upon the credibility of the witnesses, it clearly and

convincingly appears that there was a manifest denial of justice

under the law." R. 3:20-1.

In his oral decision, the judge found that the jury's verdict

was "completely consistent with evidence presented at trial." He

cited defendant's possession of shotgun shells similar to the

shell found inside the shotgun in the vehicle's cargo area, and

the jury's obvious exercise of its prerogative in rejecting

defendant's version of the events.

Defendant's contentions are without sufficient merit to

warrant discussion, R. 2:11-3(e)(2), and we affirm substantially

for the reasons stated by the judge.

VI

In Point VI, defendant contends that his sentence was

excessive because there was no support for aggravating factor nine

and to do so was double-counting aggravating factor six.

16 A-1441-16T1
 Review of a criminal sentence is limited; a reviewing court

must decide, "whether there is a 'clear showing of abuse of

discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting

State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard,

a criminal sentence must be affirmed unless "(1) the sentencing

guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible

evidence in the record;' or (3) 'the application of the guidelines

to the facts' of the case 'shock[s] the judicial conscience.'"

Ibid. (alteration in original) (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)). If a sentencing court properly identifies

and balances the factors and their existence is supported by

sufficient credible evidence in the record, this court will affirm

the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001);

State v. Megargel, 143 N.J. 484, 493-94 (1996).

Defendant's contentions are without sufficient merit to

warrant discussion, R. 2:11-3(e)(2), and we affirm substantially

for the reasons stated by the judge expressed at sentencing. We

only add that we find support in the record for the judge's

findings, and the sentence does not shock our judicial conscience.

VII

Finally, in considering defendant's pro se supplemental

brief, we conclude it is procedurally deficient under Rule 2:6-

17 A-1441-16T1
2(a)(6) because it fails to cite any law with appropriate reference

to the record to support his arguments. See State v. Hild, 148

N.J. Super. 294, 296 (App. Div. 1977). In addition, from what we

can glean from his arguments, they are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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