STATE OF NEW JERSEY VS. WILLY MINAYA (13-07-0664, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-2854-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLY MINAYA, a/k/a
WILLY R. MINAYA,

Defendant-Appellant.
_____________________________

Submitted April 17, 2018 – Decided June 27, 2018

Before Judges Reisner, Hoffman, and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
13-07-0664.

Joseph E. Krakora, Public Defender, attorney
for appellant (Rebecca L. Gindi, Assistant
Deputy Public Defender, of counsel and on the
brief).

Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz, Deputy
Attorney General, of counsel and on the
briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Willy Minaya appeals from his conviction for first-

degree robbery, N.J.S.A. 2C:15-1(a)(2), fourth-degree theft,

N.J.S.A. 2C:20-3, and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d). He also appeals from the

sentence of eighteen years in prison, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

On this appeal, he presents the following points of argument

through counsel:

I. FAILURE TO INSTRUCT THE JURY ON HOW TO
EVALUATE MINAYA'S ALLEGED ORAL OUT-OF-COURT
STATEMENTS AND TO USE CAUTION IN SAID
EVALUATION DENIED MINAYA DUE PROCESS AND A
FAIR TRIAL. (NOT RAISED BELOW)

II. THE TRIAL COURT ERRED BY ALLOWING THE
INVESTIGATING OFFICER TO TESTIFY TO ISSUES
SOLELY IN THE PROVINCE OF THE JURY. (NOT
RAISED BELOW)

III. THE TRIAL COURT'S CONFUSING AND
UNTAILORED ACCOMPLICE LIABILITY INSTRUCTION
VIOLATED BIELKIEWICZ AND LEFT THE JURY WITH
NO UNDERSTANDING OF HOW THE THEORY APPLIED,
VIOLATING MINAYA'S RIGHT TO A FAIR TRIAL. (NOT
RAISED BELOW)

IV. THE CUMULATIVE IMPACT OF THE ERRORS DENIED
MINAYA A FAIR TRIAL. (NOT RAISED BELOW)

V. BECAUSE THE JUDGE'S PERSONAL REPUGNANCE
TOWARD MINAYA GUIDED IMPOSITION OF HIS
SENTENCE, MINAYA'S SENTENCE WAS NOT IMPOSED
IN ACCORDANCE WITH THE SENTENCING CODE,
REQUIRING RESENTENCING.

A. The Sentencing Judge Improperly
Considered Non-Statutory Aggra-

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 vating Factors When He Made Moral
Judgments About Minaya's Parenting
Decisions, Immigration Status, And
Drug Use, Evidencing His Personal
Repugnance Towards Minaya And
Denying Minaya His Right To A Fair
And Impartial Sentencing Hearing.

B. The Trial Court Abused Its
Discretion By Failing To Find
Mitigating Factor Eleven And By
Affording Undue Weight To
Aggravating Factors Three, Six And
Nine.

He raises the following issues in a supplemental pro se brief:

I. THE PROSECUTOR COMMITTED MISCONDUCT IN HER
SUMMATION, THEREBY DEPRIVING MINAYA [OF] A
FAIR TRIAL

II. THE TRIAL COURT'S FAILURE TO GIVE A
CURATIVE INSTRUCTION ON ACCOMPLICE LIABILITY
DEPRIVED MINAYA [OF] A FAIR TRIAL

III. TRIAL COUNSEL DEPRIVED MINAYA OF HIS
RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN
HE FAILED TO ARGUE MINAYA'S PRO SE MOTION TO
SUPPRESS EVIDENCE

After reviewing the record in light of the applicable legal

standards, we find no plain error with respect to any of

defendant's newly-raised contentions, and we find no abuse of

discretion or other error in the sentence. Defendant's first two

pro se arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). We decline to consider

defendant's third pro se argument, without prejudice to his right

to file a petition for post-conviction relief. See State v.

3 A-2854-15T3
Preciose, 129 N.J. 451, 460 (1992). We affirm the conviction and

the sentence.

I

The following summary of the trial record will suffice to

illustrate our decision of the legal issues. The Paterson police

apprehended defendant and a co-defendant, Emmanuel Rodriguez,

shortly after the two men robbed the victim by threatening him

with a sharp object. At around 1:00 a.m., Officer Campos and his

partner, Officer Hernandez, were cruising the Union Avenue area

in a patrol vehicle. From a few yards away, Campos and Hernandez

saw two men crouching over a third man (the victim), but at first

they were not sure what was happening. When the patrol car came

closer, the two crouching men got up and started walking away.

Campos asked one of the men, later identified as defendant, what

was going on. When defendant replied that "nothing" was happening,

Campos let defendant and his companion get into a green Honda and

drive away. However, suspecting that something might be awry,

Campos checked the Honda's license plate number in his computer.

As defendant and his companion were driving away, the victim

shouted in Spanish that they had taken his cell phone. At that

point, Campos, who spoke Spanish, realized that he had witnessed

a robbery. According to Campos, he and Hernandez began chasing

the green Honda, and called for back-up. A back-up unit quickly

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stopped the fleeing car and detained the two occupants, defendant

and Rodriguez. The police found the victim's cell phone and a

screwdriver in defendant's pocket. At the trial, Campos and

Hernandez both identified defendant as the man who they saw at the

robbery scene, and who told them that "nothing" was going on.1

The defense called Rodriguez as a witness. Initially,

Rodriguez testified that the robbery was entirely his idea. He

testified that he and defendant were at a bar, and Rodriguez saw

the victim waving cash around. Rodriguez told defendant that he

was going to rob the victim, and told defendant to go get his car,

which was parked some distance away. When the victim came out of

the bar, Rodriguez followed him and robbed him. Rodriguez

indicated that defendant arrived with the car after the robbery

was over. However, on cross-examination Rodriguez recanted that

testimony, which was contrary to prior sworn statements he had

made. Rodriguez admitted that defendant had contacted him before

the trial and urged him to give exculpatory testimony. Rodriguez

then admitted that defendant fully participated in the robbery and

threatened the victim with the screwdriver.

1
The victim, who was grabbed from behind and was lying face down
on the ground during the robbery, did not identify defendant at
the trial.

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 II

Addressing defendant's first point, we find no plain error

in the court's failure to sua sponte give a Hampton2 or a Kociolek3

charge. A Hampton charge instructs the jury to decide whether a

defendant's confession to the police is credible and to disregard

the statement if it is not credible. See State v. Baldwin, 296

N.J. Super. 391, 401 (App. Div. 1997). A Kociolek charge is given

where a defendant has made an allegedly inculpatory oral statement

to a witness, and there is a genuine issue regarding precisely

what the defendant said. Baldwin, 296 N.J. Super. at 401. In

that situation, the jury must be instructed "with respect to the

risk that the hearer misunderstood or inaccurately recalled the

statement." Ibid. Defendant did not request either charge at the

trial, and thus we review for plain error. R. 1:7-2; R. 2:10-2.

The argument here concerns defendant's threat to "go through"

or cut the victim with the screwdriver, defendant's instruction

to Rodriguez to search the victim's pockets, and defendant's

instruction to Rodriguez to throw some incriminating evidence out

the car window.

2
State v. Hampton, 61 N.J. 250 (1972).
3
State v. Kociolek, 23 N.J. 400 (1957).

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 The statements were not made during police questioning, and

none of them constituted an admission of guilt. Rather, they were

either threats or instructions. Further, there was no issue in

this case as to whether the witnesses misheard the statements or

recounted them inaccurately. The only issues were whether

defendant – as opposed to Rodriguez — made the statements the

victim heard, and whether defendant made the statements to which

Rodriguez testified or whether Rodriguez was lying. In the context

of this record, the Hampton and Kociolek charges were not required.

See Baldwin, 296 N.J. Super. at 401-02. However, even if they

should have been given, any error in failing to sua sponte instruct

the jury with those charges was harmless. See R. 2:10-2.

Defendant's second point, also raised for the first time on

appeal, is equally unconvincing. Relying on State v. McLean, 205

N.J. 438, 460 (2011), defendant argues that it was error to allow

Officer Campos to testify that a robbery had occurred. Campos

gave that brief testimony in the context of explaining that, once

he heard the victim cry out that the two men had taken his phone,

the officer realized that he made a mistake in initially letting

the two other men leave the scene. We find no plain error in

allowing that testimony. There was no genuine issue in this case

as to whether a robbery occurred. The issue was who committed the

crime. In this context, the officer's testimony about witnessing

7 A-2854-15T3
a robbery did not have a clear capacity to produce an unjust

result. See R. 2:10-2.

For the first time, defendant next argues that the judge

erred in responding to the jury's question about accomplice

liability. In their summations, both sides thoroughly explained

to the jury the theory of accomplice liability in the context of

this case, and the judge instructed them with the Model Charge.

After beginning deliberations, the jury asked: "How does

accomplice liability apply to this defendant, if it does, and does

[sic] the verdict sheet charges reflect this option?" Both counsel

agreed that the judge should explain to the jury that the theory

of accomplice liability could only apply to the robbery and theft

counts; it was up to the jury to decide if accomplice liability

applied to those counts; and the accomplice issue did not appear

on the verdict sheet because it was not a separate charge but

rather was a theory by which the State could prove particular

charges. The judge also told the jury to re-read the accomplice

liability sections of the written charge, which he had given them.

In the context of this case, we find no plain error in the

judge's response to the jury's question. The evidence of

defendant's guilt on the first-degree robbery and theft charges,

either as a principal or an accomplice, was overwhelming. The

police officers saw two assailants crouching over the victim. The

8 A-2854-15T3
victim testified that there were at least two men involved in

robbing him, and one of the robbers pressed a sharp object into

his back and threatened to cut him. On this record, the jury

could not find defendant guilty only of theft, unless they believed

Rodriguez's initial testimony, which was contrary to his prior

sworn statements and which he thoroughly recanted on cross-

examination. Defendant's argument on this point is without

sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Since we find no plain error in any of defendant's first

three arguments, we also find no cumulative error.

We find no merit in defendant's sentencing arguments. The

trial judge scrupulously and thoroughly considered all of the

proposed aggravating and mitigating factors, explaining in detail

why he found that each factor applied or did not apply. See State

v. Case, 220 N.J. 49, 65 (2014).

We find no abuse of discretion in the judge's conclusion that

mitigating factor eleven (hardship to dependents) was

inapplicable. See N.J.S.A. 2C:44-1(b)(11). The judge did not

consider non-statutory aggravating factors, and we do not perceive

anything improper in his explanation for rejecting mitigating

factor eight or for applying aggravating factor three. N.J.S.A.

2C:44-1(b)(8) (defendant's conduct was the result of circumstances

unlikely to recur); N.J.S.A. 2C:44-1(a)(3) (risk of re-offense).

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Nothing in the judge's sentencing opinion indicated bias.

Defendant's sentencing arguments are without sufficient merit to

warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

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