STATE OF NEW JERSEY VS. JOSE SANTANA (13-08-2521, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-5308-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE SANTANA, a/k/a JOSE
DURAN,

Defendant-Appellant.

______________________________

Submitted June 5, 2018 – Decided July 6, 2018

Before Judges Sumners and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-08-2521.

Joseph E. Krakora, Public Defender, attorney
for appellant (Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Adam Klein, Deputy Attorney
General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant appeals from jury-tried convictions for second-

degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (a

lesser-included offense under count two), arguing:

POINT I

THE COURT FAILED TO CHARGE THE JURY IN
RELATION TO [DEFENDANT'S] STATEMENT AND THE
REMAINDER OF THE CHARGE THAT WAS GIVEN WAS
INSUFFICIENT TO ADVISE THE JURY OF THE NEED
TO CRITICALLY AND EFFECTIVELY EVALUATE HIS
STATEMENT IN LIGHT OF THE REALITY THAT JURORS
HAVE GREAT DIFFICULTY DISTINGUISHING BETWEEN
FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S.
CONST. AMEND. VI; N.J. CONST. ART I, ¶ 10.

POINT II

THE SENTENCE IS MANIFESTLY EXCESSIVE.

And contending, in a supplemental pro se brief,

POINT I

THE TRIAL COURT ERRED IN CONCLUDING THAT
APPELLANT'S STATEMENTS WERE NOT IN VIOLATION
OF THE MIRANDA[1] WARNING WHERE A SPANISH
INTERPRETER SHOULD HAVE BEEN AFFORDED TO HIM
BEFORE HIS SIGNATURE WAS PLACED ON THE WAIVER
OF RIGHTS FORM.

We affirm.

Defendant contends the trial judge erred – following the

admission of his video-recorded statement to detectives from the

Camden County Prosecutor's Office and Cherry Hill Police

1
Miranda v. Arizona, 384 U.S. 436 (1966).

2 A-5308-15T2
Department – when she failed to present to the jury the "Statements

of Defendant" model jury charge,2 – familiarly referred to as a

Hampton3 charge or instruction – which he argues should have been

modified to reflect the unreliability of false statements.

Defendant neither requested a Hampton charge nor objected to

the instruction provided the jury. Nonetheless, our Supreme Court,

in State v. Jordan, 147 N.J. 409, 425 (1997), instructed:

Whether requested or not, whenever a
defendant's oral or written statements,
admissions, or confessions are introduced in
evidence the Hampton instruction, directing
the jury to determine the credibility of the
statements without any knowledge that the
court has already determined the issue of
voluntariness, should be given. By using the
term "shall" in N.J.R.E. 104(c), we expressly
recognized that a Hampton charge is required.
Because of the critical role that a
defendant's oral and written statement may
have, a jury should be advised to focus on the
credibility of those statements. Indeed,
unless a defendant specifically requests that
the Hampton charge not be given, and the trial
court satisfies itself with written findings
that such reasons have merit, a Hampton charge
should always be given.

As reflected in the model charge, once a defendant's statement is

submitted to the jury, jurors must be "instructed that they should

2
Model Jury Charge (Criminal), "Statements of Defendant" (rev.
June 14, 2010).
3
State v. Hampton, 61 N.J. 250 (1972).

3 A-5308-15T2
decide whether in view of all the . . . circumstances" regarding

whether the statement was voluntary, including the waiver of

Miranda rights after administration of Miranda warnings, "the

defendant's confession is true. If they find that it is not true,

then they must treat it as inadmissible and 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;

see also Model Jury Charge (Criminal), "Statements of Defendant"

(rev. June 14, 2010).

Because this alleged error went unchallenged at trial, it is

subject to plain error analysis. R. 2:10-2; State v. Macon, 57

N.J. 325, 336-37 (1971). In the setting of this case we consider

that:

The failure of a court to give a Hampton
charge, however, is not reversible error per
se. It is reversible error only when, in the
context of the entire case, the omission is
"clearly capable of producing an unjust
result. . . ." R. 2:10-2. That problem would
arise most frequently when the defendant's
statement is critical to the State's case and
when the defendant has challenged the
statement's credibility. If, however, the
defendant's statement is unnecessary to prove
defendant's guilt because there is other
evidence that clearly establishes guilt, or
if the defendant has acknowledged the truth
of his statement, the failure to give a
Hampton charge would not be reversible error.

[Jordan, 147 N.J. at 425-26 (alteration in
original).]

4 A-5308-15T2
 We note the State's introduction of: the eight-year-old

victim's fresh complaint4 on the date of the assault; her video-

recorded statement admitted into evidence under the tender-years

exception;5 and a sexual assault nurse examiner's testimony that

on physical examination on the date of the assault, the victim's

vaginal and anal area was red and swollen – and photographs of

that condition – buttressed the allegations against defendant.

Moreover, we mark the use to which defendant put the statement

during the trial. Reminding the jury that they could not draw an

adverse inference from defendant's choice not to testify, defense

counsel told the jury, "Because even though he didn't personally

stand before you, his video, which was allegedly the admission of

guilt testified for him."

Defense counsel – as he did many times during summation –

strategically referred to defendant's statement as "testimony"

which supported the defense theory that the touching was

accidental, not criminally intentional, a tactic obvious from

counsel's questioning of the prosecutor's detective during the

4
State v. Bethune, 121 N.J. 137 (1990).
5
N.J.R.E. 803(c)(27); State v. D.G., 157 N.J. 112 (1999).

5 A-5308-15T2
Miranda hearing.6 After apprising the jury of the judge's

anticipated instruction that the State must prove that the sexual

contact was intentional, defense counsel told the jury:

Well when you go back in your mind and
think about that video of [defendant], one
thing is certain, that [defendant] at no time
said that he intentionally did anything to
that little girl.

It never happened. There was no such
confession on that video. . . .

Now the most that I can say that the
defendant may have said on that video was that
he adopted something that one of the
detectives said, is it possible. His
response, anything is possible, that in the

6
Referring to a point in the statement where defendant admitted
to "playing with her," the following colloquy ensued:

[DEFENSE COUNSEL]: Prior to that, he's
made no statement about doing anything. She
gets scared. There's nothing here at all
until after that about somebody suggests and
one of you all suggested that it could have
been a mistake, correct?

[DETECTIVE RHOADS]: Yes.

[COUNSEL]: And he repeated that. He
said:

"ANSWER: Well, it could have been a
mistake."

[RHOADS]: Yes.

[COUNSEL]: That's not a confession is it?

[RHOADS]: It's – in that context it's not.

6 A-5308-15T2
 wrestling or whatever, you may have
accidentally.

Well if you accept that as the
confession, where they say -- and he does on
the video say well it may have been
accidentally, but then after that he says I
don't think so. I don't do that in his best
English, all right?

So he never says that I did this thing.
He only adopts what the detectives had already
put into his mind by saying well could -- is
it possible that there was an accidental
touching. So he said well maybe there was an
accidental, but I don't think so. And I
certainly never formed any intent in my mind
to do so. If you remember that he said I never
had any such an intent in my mind.

So the testimony of the defendant on that
video is evidence in this court, as is the
testimony of [Wisleidy] and the detective.
That's all evidence that you have to consider.

The question is do you believe the
defendant. In order to believe the defendant
you have a couple of things you can look at.
How he testified on the video, whether or not
any of the things he said on that video were
corroborated by the evidence.

In speaking of defense-witness testimony that defense counsel

said corroborated her client's statement about the time he arrived

home after lunch at TGI Friday's – and contradicted the victim's

testimony – defense counsel argued, "So you can believe [defendant]

on that video when he says, [']I was at [TGI] Friday. I got home

around 4:00.['] I corroborate that evidence." He repeated to the

jury, in speaking of the witnesses who testified about defendant's

7 A-5308-15T2
character for truthfulness that they "can also believe

[defendant's] testimony." And in advancing defendant's version

of events, defense counsel said, "Well the testimony that you can

believe is his." Defense counsel continued:

So now we look back at this video. He says
that's what happened that day. He went to the
bathroom, came back out to the living room.
She doesn't dispute any of that. She said she
saw him in the hallway. Well she may have.
He was coming from the bathroom. He went to
his computer. She came and turned that
computer on. I think you can find that from
the totality of the evidence that's what
happened.

Counsel's concluding remarks regarding defendant's statement

continued that theme:

Again, talking to you about the
defendant's video, I want you to find that the
defendant was truthful in his statements to
the police officers. . . .

. . . .

. . . You should hang your hats on whether
or not you find that the defendant was
truthful. If you find that he was truthful
and he didn't get home until 4:00, that he was
at his computer working, that he was on his
cell phone talking, that she turned it on for
him, then you're going to have to believe him.
You're going to have to find him not guilty.

The State in summation "disagreed" with defendant's

profession that the touching was accidental, contending "the

photographs [of the victim's vaginal and anal areas] and the

8 A-5308-15T2
evidence suggest that he did it on purpose and he did it roughly

and violently."

Under these circumstances, we conclude the failure to give

the Hampton charge was not plain error. The defendant entreated

the jury to believe his recorded statement that the touching was

not intentional. Thus, the Hampton charge, which instructs the

jury to disregard a statement if it finds the statement not

credible, would have been antithetical to the proffered defense.

Defendant's choice not to testify, but to rely on the "testimony"

set forth in the recorded statement, militated against giving the

jury instruction.

We will not consider defendant's attack on the sufficiency

of the model jury charge and his proposed change to same in that

those issues were not raised before the trial court. State v.

Robinson, 200 N.J. 1, 20 (2009). Absent a trial court record

regarding the research cited by defendant in his merits brief, the

issues are not before us. State v. Herrera, 187 N.J. 493, 501

(2006).

We reject defendant's argument – made in his pro se

supplemental brief – claiming a Miranda rights violation requiring

suppression of his statement because he was not provided a Spanish-

language interpreter during the recorded statement. The trial

judge reviewed the recording and found defendant "responsive in

9 A-5308-15T2
his answers and he's speaking English in reference to the

statements that he's given." She noted a portion of the statement

where defendant actually responded to the detective's question,

"I understand what you're saying. I understand." After detailing

much of the colloquy with the detectives, the judge "found

[defendant] to be very responsive. When you watch the flow of the

conversation it was responsive." The judge concluded:

I'm more than satisfied that [defendant]
understood and I want to make clear that this
is not a case that I see where you have an
individual who has Spanish as their native
tongue and that questions are being presented
to that individual and he's saying non-
responsive things or . . . he's just giving a
yes or a no, that's not what is before the
[c]ourt.

The trial judge's findings, from our review of the statement,7 are

supported by sufficient credible evidence in the record and are

entitled to our deference. State v. S.S., 229 N.J. 360, 379-381

(2017).

Defendant contends the seven-year state prison sentence

imposed by the judge on the second-degree sexual assault count was

excessive "[b]ecause [defendant] can be adequately punished for

this offense with a lesser sentence." He does not contend the

7
We reviewed the statement as set forth in the transcripts
provided; a video recording of the statement was not part of the
record.

10 A-5308-15T2
trial judge's findings of aggravating factors two, N.J.S.A. 2C:44-

1(a)(2) (youthful victim); three, N.J.S.A. 2C:44-1(a)(3) (risk of

re-offense); and six, N.J.S.A. 2C:44-1(a)(9) (deterrence); or

mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (no prior

record); eight, N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct

was the result of circumstances unlikely to recur"); and nine,

N.J.S.A. 2C:44-1(b)(9) (the defendant's character and attitude

indicate an unlikelihood of reoffending), were not based on

competent credible evidence.

We review a "trial court's 'sentencing determination under a

deferential standard of review.'" State v. Grate, 220 N.J. 317,

337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).

We may "not substitute [our] judgment for the judgment of the

sentencing court." Lawless, 214 N.J. at 606. We must affirm a

sentence if: (1) the trial judge followed the sentencing

guidelines; (2) its findings of fact and application of aggravating

and mitigating factors were "based upon competent, credible

evidence in the record"; and (3) the application of the law to the

facts does not "shock[] the judicial conscience." State v.

Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)).

We determine defendant's argument is without sufficient merit

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

11 A-5308-15T2
The mid-range sentence does not shock our conscious and was meted

in accordance with the sentencing guidelines.

Affirmed.

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