STATE OF NEW JERSEY VS. RHUDELL C. CRUZ- SNELLING (17-01-0005, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2057-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RHUDELL C. CRUZ-SNELLING,
a/k/a RHUDY CRUZ, RHODELL
SNELLING, RHUDELL CHARLES
CRUZ-SNELLING, RHUDY C.
CRUZ, RHUDELL C. CRUZ, and
RHODELL CRUZ,

Defendant-Appellant.
_________________________________

Submitted December 18, 2019 – Decided April 21, 2020

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-01-0005.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
 Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Alanna M. Jereb, Assistant Prosecutor, on
the brief).

PER CURIAM

Defendant Rhudell C. Cruz-Snelling appeals from a November 21, 2017

judgment of conviction after a jury found him guilty of second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) and fourth-degree

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). We affirm.

Defendant raises the following issues on appeal:

POINT I: THE STATE'S FAILURE TO COMPLY
WITH [RULE] 3:13-3(b) REGARDING PRODUCING
TRANSCRIPTS FOR ELECTRONICALLY
RECORDED STATEMENTS WITHIN [THIRTY]
DAYS OF TRIAL MANDATED THE EXCLUSION
OF THE RECORDED JAIL CALLS.

POINT II: THE DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL ON THE CHARGE OF
RESISTING ARREST SHOULD HAVE BEEN
GRANTED.

POINT III: CERTAIN COMMENTS MADE BY THE
PROSECUTOR DURING HIS SUMMATION
[WERE] IMPROPER AND DEPRIVED
DEFENDANT OF A FAIR TRIAL. (Not raised
below).

POINT IV: THE EXTENDED TERM SENTENCE OF
FIFTEEN [] YEARS WITH SEVEN AND A HALF []

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 YEARS OF PAROLE INELIGIBILITY WAS
MANIFESTLY EXCESSIVE AND SHOULD BE
MODIFIED AND REDUCED. (Not raised below).

We discern the following facts from the record. In the early hours of

October 2, 2016, Officer Jose Perez of the Jersey City Police Department

received a report of "shots fired" at Sherman Avenue and Franklin Street. Perez

and his partner, Officer Edwin Medina, went to the area where they spoke with

a man who identified a white Mazda that had allegedly sped through a stop sign.

The officers ordered the Mazda driver to shut off the vehicle and show his hands.

Perez and Medina both approached the Mazda. Perez went toward the

passenger's side of the vehicle while Medina went towards the front. Perez,

standing in front of the passenger door with his weapon drawn, said "Stop. Don't

move. Stop. Don't move." Perez looked directly at the front passenger of the

vehicle, who he later identified as defendant. Instead of stopping, the Mazda

drove away. The officers gave chase. Medina radioed identifying information

"over the air." Sergeant Crisant Bereguette observed a white vehicle drive down

the street in the wrong direction and pull into a driveway where a man exited

the vehicle and ran across the street towards the sidewalk. Bereguette used her

flashlight to look inside the vehicle, and noticed a handgun, later identified as a

black semi-automatic Smith & Wesson, on the floorboard of the passenger's

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side. Officer Nancy Rojas heard, over dispatch, the description of a male wanted

in connection with the shots fired call and saw defendant, who matched the

description, walking. Rojas stopped defendant for an investigation and noticed

dirt marks and grass stains on his pants. Perez and Medina responded to Rojas'

location, identified defendant as the man they were looking for and defendant

was then taken into custody.

The police later executed a search warrant for the Mazda, recovering

defendant's wallet from the front passenger's side of the vehicle, as well as a

fully-loaded magazine, which contained nine-millimeter Winchester Luger

rounds, for a Smith & Wesson handgun from the center console. Detective

Joseph Chidichimo recovered two shell casings from the scene, one from a nine-

millimeter Luger and another from a .380 Winchester. He also recovered

surveillance video from buildings in the area showing four people walking south

on Sherman Avenue away from Franklin Street. A silver revolver was recovered

nearby with six spent casings inside its cylinder.

Co-defendant Jason Smith, the driver, pled guilty to third-degree eluding,

N.J.S.A. 2C:29-2 and agreed to testify against his co-defendants after giving a

statement. He testified that on October 1, 2016, between 11:00 a.m. and 2:00

p.m., defendant and Smith's sister, Holly Wippert, picked him up in the Mazda.

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They drove Wippert to Manchester, where they dropped her off, and Smith then

drove the Mazda, with defendant in the front passenger seat, to Bound B rook

where they picked up co-defendant Saquan S. Peace.

Smith, defendant and Peace drove to Newark, where they drank alcohol.

Then Smith drove to Jersey City with defendant, Peace, and two other

individuals to meet "females . . . and then . . . go get another bottle of liquor.

. . ." He eventually parked and waited as the four other occupants of the Mazda

left to meet up with the women and "to go get the liquor." After five to ten

minutes, the four ran back to the car, got in their original seats and told Smith

to drive off as if they were in a rush. Smith testified that defendant had a black

gun in his hand and he believed Peace had a big silver gun in his hand. Smith

drove away from the scene with the others in the car as defendant told him where

to drive. Eventually, Smith arrived at a stop sign and "a bunch of cops" appeared

"out of nowhere" and a police officer, with his gun drawn, directed him to "turn

off the car." Smith testified that defendant told him to "go." He drove until he

crashed the vehicle, then ran and threw away his gray hoodie while running.

A-2057-17T2
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 Peace also gave a video-recorded statement to police. Peace reported he

was in the Mazda with Smith, an individual known to him as "Big Boy," 1 and

someone named Johnny. Peace reported that Big Boy had a black gun in his

hand. Peace explained that Big Boy was "beefing with someone." Peace denied

getting out of the car. He stated the shooting occurred on the first time they

"spun the block" and that on their third time coming around the police spotted

them. He asserted that he told the other passengers he was "not going down for

ya'll straps," the other passengers then threw their guns out the window, and

when the car came to a stop, all the occupants jumped out of the car.

On January 10, 2017, defendant was indicted for second-degree unlawful

possession of a weapon, handgun, without a permit, N.J.S.A. 2C:39-5(b)(1);

second-degree possession of a weapon for an unlawful purpose N.J.S.A. 2C:39-

4(a)(1); third-degree aggravated assault against a law enforcement officer,

N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree resisting arrest by flight, N.J.S.A.

2C:29-2(a)(2); and fourth-degree criminal mischief N.J.S.A. 2C:17-3(a)(1).2

1
The State contends that defendant is Big Boy.
2
The charges for third-degree aggravated assault against a law enforcement
officer and fourth-degree criminal mischief were dismissed prior to trial. Co-
defendants Peace and Smith were charged in the remaining counts of the
indictment. Co-defendant Smith pleaded guilty to eluding N.J.S.A. 2C:29-2(b).
Peace was tried with defendant.
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 On August 15, 2017, defendant, while incarcerated at the Hudson County

Correctional Facility, called Wippert. During the call, defendant asked Wippert,

"[w]hy . . . you always lying?" and "where did you get that gun from?"

Defendant told Wippert that he learned the gun was registered to her grandfather

and accused her of lying about her knowledge of the gun.

On September 28, 2017, the court granted the State's motion to admit co-

defendant Peace's statements into evidence, subject to redactions. The trial

began on October 4, and on October 13, 2017, the jury returned a guilty verdict

finding defendant guilty of all counts. On October 19, the State moved for the

imposition of an extended term which the court granted. On November 17,

2017, the trial judge sentenced defendant to an aggregate fifteen-year term of

imprisonment with seven and one-half years of parole ineligibility.

This appeal followed.

On appeal, defendant argues the trial court erred by admitting his phone

call to Wippert and denying his motion for judgment of acquittal. The defendant

also argues comments made by the prosecutor in summation rose to the level of

prosecutorial misconduct and the imposition of an extended sentence was

unduly punitive and shocks the judicial conscience. We reject these arguments

and affirm.

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 Defendant argues his jail call to Wippert should be excluded because of

the State's failure to comply with its obligation to provide discovery within the

thirty-day timeframe of Rule 3:13-3(b)(1)(B). The State filed its notice of

motion on September 15, and the defendant's trial commenced on October 3,

2017.

The trial court relaxed Rule 3:13-3, pursuant to Rule 1:1-2, because

defense counsel was aware of the subject call as early as August 29, and the

defense listened to the call on September 11, 2017. Moreover, defendant did

not object to the State's motion to admit the call.

We "review . . . a trial court's discovery order [under] the abuse of

discretion standard." State in Interest of A.B., 219 N.J. 542, 554 (2014) (citation

omitted). "Thus, [we] should generally defer to a trial court's resolution of a

discovery matter, provided its determination is not so wide of the mark or is not

'based on a mistaken understanding of the applicable law.'" Ibid. (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

However, "[i]n construing the meaning of a statute, court rule, or case law, 'our

review is de novo,'" and we owe no deference to the trial court's legal

conclusions. Id. at 554-55.

Rule 3:13-3(b)(1)(B) provides, in pertinent part, that discovery includes:

A-2057-17T2
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 [R]ecords of statements or confessions, signed or
unsigned, by the defendant or copies thereof, and a
summary of any admissions or declarations against
penal interest made by the defendant that are known to
the prosecution but not recorded. The prosecutor also
shall provide the defendant with transcripts of all
electronically recorded statements or confessions by a
date to be determined by the trial judge, except in no
event later than [thirty] days before the trial date set at
the pretrial conference.

The State has a "continuing duty to provide discovery pursuant to this rule." R.

3:13(f). Rule 3:13(f) vest in courts the ability to take remedial action when a

party fails to comply with the rule. "A court's failure to take appropriate action

to remedy a discovery violation can implicate the defendant's right to a fair

trial." State v. Smith, 224 N.J. 36, 48 (2016) (citation omitted). That right to a

fair trial requires a "'meaningful opportunity to present a complete defense.'"

Ibid. (citation omitted).

Rule 1:1-2 allows that the rules "shall be construed to secure a just

determination, simplicity in procedure, fairness in administration, and the

elimination of unjustifiable expense and delay." Nonetheless, our Supreme

Court has warned that the relaxation provision of Rule 1:1-2 should be sparingly

resorted to as the rule is the exception rather than the norm. Ramagnola v.

Gillespie, Inc., 194 N.J. 596, 604 (2008) (citations omitted).

A-2057-17T2
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 Here, we discern no abuse of discretion in the relaxation of Rule 3:13-3(b)

because defendant was not prejudiced by the State's technical noncompliance

with this rule. The defendant was aware of the substance of the evidence and

has not illustrated how the purported error prejudiced his "opportunity to present

a complete defense."

We also reject defendant's argument the trial court erroneously denied his

motion for a judgment of acquittal on the charge of resisting arrest. He asserts

that when Perez approached and confronted the stopped Mazda none of the

occupants of the vehicle were under arrest, and thus the State failed to prove all

the essential elements of the resisting arrest offense beyond a reasonable doubt.

The judge correctly denied the motion stating:

[Regarding] [t]he issue of resisting[,] the [i]ndictment
reads, preventing a law enforcement [officer] from
making lawful arrests.

I saw the video, I heard the testimony. Clearly
there was an order to stop with the gun drawn, the car
sped away. At that point in time, prior to the flight,
there may not have been an attempt to arrest, but when
they refused to obey the policeman's order and fled
certainly they prevented a lawful arrest.

In order to be found guilty of fourth-degree resisting arrest, defendant

must have "by flight, purposefully prevent[ed] or attempt[ed] to prevent a law

enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a). "[A]

A-2057-17T2
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citizen's duty to submit [to an arrest] obtains when the restraint by the police

officer is for any lawful purpose even if it does not amount to an arrest." State

v. Brennan, 344 N.J. Super. 136, 145 (App. Div. 2001) (citations omitted).

Based on the evidence presented at trial, a jury could have found defendant

violated N.J.S.A. 2C:29-2(a)(2).

Defendant also asserts that certain comments made by the prosecutor

during his summation deprived defendant of his right to a fair trial. Defendant

did not object at trial to the following statements made by the prosecutor:

As I said in the beginning of - - in my opening, [Smith
is] not without sin. Right? He's not a saint here. He
made a very stupid mistake by running from the police.
But [Smith] took responsibility. He plead guilty. It's
your turn to hold these people responsible for what they
did.

Defendant argues the prosecutor's statement that "[i]t's your turn to hold these

people responsible" impermissibly conveyed to the jury that it was their

responsibility to find the defendant guilty.

"When a defendant fails to object to an error or raise an issue before the

trial court, we review for plain error." State v. Ross, 229 N.J. 389, 407 (2017)

(citing R. 2:10-2). "We may reverse on the basis of unchallenged error only if

the error was 'clearly capable of producing an unjust result.'" Ibid. (quoting R.

A-2057-17T2
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2:10-2). Our Supreme Court has articulated the standard for review of alleged

prosecutorial misconduct with respect to remarks in summation:

An appellate court, in reviewing the trial record
to determine whether the conduct of the prosecutor
exceeded these bounds, must consider several factors,
including whether "timely and proper objections" were
raised, whether the offending remarks "were withdrawn
promptly," and whether the trial court struck the
remarks and provided appropriate instructions to the
jury. Additionally, an appellate court will consider
whether the offending remarks were prompted by
comments in the summation of defense counsel. If,
after completing such a review, it is apparent to the
appellate court that the remarks were sufficiently
egregious, a new trial is appropriate, even in the face of
overwhelming evidence that a defendant may, in fact,
be guilty. In contrast, if the prosecutorial remarks were
not "so egregious that [they] deprived the defendant of
a fair trial[,]" reversal is inappropriate.

[State v. Smith, 212 N.J. 365, 403-04 (2012)
(alterations in original) (citations omitted) (quoting
State v. Frost, 158 N.J. 76, 83 (1999)).]

"Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented." Frost, 158 N.J. at 82. However, they may not issue a "call to arms,"

asking the jury to "send a message" to the defendant and the public, since such

statements could "mislead a jury as to its role and duty," State v. Hawk, 327 N.J.

Super. 276, 282-83 (App. Div. 2000), and "improperly divert jurors' attention

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from the facts of the case and intend to promote a sense of partnership with the

jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super.

522, 537 (App. Div. 2003) (citations omitted).

The prosecutor's statement here was not an inappropriate call to arms. The

prosecutor did not imply the jurors would violate their oaths if they failed to

convict, see State v. Pennington, 119 N.J. 547, 576 (1990), nor did he suggest

the jury had a societal duty to convict, Hawk, 327 N.J. Super. at 282. Considered

in context, the prosecutor's comment did not cross the line and it did not amount

to plain error in light of the substantial evidence of guilt. See State v. Feal, 194

N.J. 293, 312-13 (2008) (finding an improper prosecutorial statement was not

plain error based on the evidence of guilt).

Finally, defendant argues the trial court's imposition of an extended term

was unduly punitive. We review a judge's sentencing decision under an abuse

of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v.

Roth, 95 N.J. 334, 363-64 (1984). When reviewing a judge's sentencing

decision, we "may not substitute [our] judgment for that of the trial court . . . ."

State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210,

215 (1989)). However, we may review and modify a sentence when the judge's

determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990)

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(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). However, in determining

the propriety of a sentence, we must make sure that the sentencing guidelines

have been met, that the findings on aggravating and mitigating factors are based

upon "competent credible evidence in the record," and that the sentence is not

"clearly unreasonable so as to shock the judicial conscience." State v. Dalziel,

182 N.J. 494, 501(2005) (citing Roth, 95 N.J. at 364-65).

"New Jersey's Code of Criminal Justice . . . provides for ordinary

sentences . . . as well as extended-term sentences that carry greater punishment

for the same crime." Pierce, 188 N.J. at 161 (citations omitted). "The persistent

offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to

impose an extended sentence when the statutory prerequisites for an extended-

term sentence are present." Ibid.

We reject defendant's argument. The trial court found, and defendant

conceded, that he met the statutory pre-requisites of a persistent offender. The

court then found that aggravating factors three, risk of committing another

offense; six, the nature and extent of defendant's criminal record; and nine, the

need to deter defendant as well as others from violating the law, applied and the

court also determined, and defendant conceded, that no mitigating factors were

present in this case.

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 Addressing the extended term, the court again considered the aggravating

and mitigating factors and noted defendant's criminal history included four

indictable convictions, including unlawful possession of a firearm and another

weapon. The court found defendant demonstrated a "flagrant disregard for the

law and a clear indication that he will commit a future offense." In light of the

weight afforded to the applied aggravating and the absence of any mitigating

factors, we discern no abuse of the court's discretion.

Affirmed.

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