STATE OF NEW JERSEY VS. LUIS MANGUAL (14-10-2506 AND 14-10-2508, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-5137-17

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LUIS MANGUAL,

     Defendant-Appellant.
________________________

                   Submitted January 12, 2021 – Decided February 22, 2021

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 14-10-2506
                   and 14-10-2508.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anderson D. Harkov, Designated Counsel,
                   on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Lucille M.
                   Rosano, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      On the evening of December 28, 2013, Jose Alfaro got into an argument

outside his home on Mt. Prospect Avenue in Newark with his neighbor, Eduardo

Arce. The argument ended when defendant Luis Mangual – as witnessed by

others who so testified at trial – shot Alfaro right between the eyes. Mangual

was convicted of all the charges contained in two indictments: the first-degree

murder of Jose Alfaro, N.J.S.A. 2C:11-3(a); second-degree unlawful possession

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

an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree being a person not

entitled to be in possession of a handgun, N.J.S.A. 2C:39-7(b).        He was

sentenced to an aggregate fifty-five-year prison term, subject to the No Early

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

      Defendant appeals, presenting numerous issues for our consideration.

Through appointed counsel and by way of his own supplemental brief, defendant

argues: (1) the judge erred in failing to charge the jury on the lesser-included

offense of aggravated manslaughter; (2) the judge failed to instruct the jury

about how it should deliberate; (3) the judge should have suppressed the out-of-

court identifications made by Fidel Alfaro and Jose Evaristo Amaya; (4) the

prosecutor engaged in misconduct; (5) the judge erred by not giving a third-

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party guilt instruction to the jury; (6) trial counsel was ineffective in failing "to

perceive or preserve constitutional error for appeal"; (7) the judge mistakenly

admitted into evidence "altered photos of defendant"; (8) the judge abused his

discretion by failing to answer a question from a juror near the end of the trial;

(9) the verdict was against the weight of the evidence; (10) "consideration of

issues raised for the first time on appeal is warranted to address errors of

constitutional dimension affecting defendant's right to a fair trial"; (11) "the

cumulative effect of the errors, combined with trial counsel's omissions,

deprived defendant of a fair trial"; and (12) the judge imposed an excessive

sentence.1 We find no merit in these arguments.

                                          I

      In his first point, defendant argues that the judge erred in refusing to

instruct the jury about the lesser-included offense of aggravated manslaughter.

We reject this contention.

      Trial judges must instruct juries on lesser-included offenses so long as

there is evidence that would support a conviction on that lesser basis. See



1
  The brief of defendant's counsel contained the first, second, third and twelfth
points. Defendant filed a pro se supplemental brief that reprised the third point
and included eight other arguments, all of which we have renumbered for
convenience's sake.
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                                         3
N.J.S.A. 2C:1-8(d)(1) (lesser-included offenses are "established by proof of the

same or less than all the facts required to establish the commission of the offense

charged"). Aggravated manslaughter, on which defendant sought an instruction,

involved the same elements of knowing and purposeful murder except that the

defendant's state of mind need only consist of an intent to "recklessly cause[]

death under circumstances manifesting extreme indifference to human life."

N.J.S.A. 2C:11-4(a)(1).     The question for the trial judge – in considering

defendant's request for instructions on this lesser-included offense – was

whether the evidence would support a finding that defendant acted only

"recklessly" rather than purposefully or knowingly, or with passion or by

provocation.2

        We reject defendant's argument that the evidence would support a finding

of recklessness. The evidence reflected only that defendant acted deliberately

and was, at best, provoked by the argument between Arce and the victim. That

defendant fired a single shot at the victim, at close range, and hit Jose Alfaro

directly between the eyes exemplifies the deliberateness and lack of recklessness

in defendant's actions.




2
    The judge instructed the jury on passion/provocation.
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      In arguing to us that the judge erred in refusing to instruct on aggravated

manslaughter, defendant relies only on the testimony of two eyewitnesses: Cruz

Amaya and Jose Amaya.        Defendant's argument, however, is based on a

mischaracterization of their testimony. Their versions of events do not allow

for a finding that defendant acted recklessly, only purposefully and knowingly

or through passion or provocation. The testimony of these two witnesses cannot

support the argument defendant presents to us that he "fired one shot wildly

towards Amaya and the victim when they were standing next to each other, and

he was probably not aiming at the victim." For example, Cruz Amaya gave the

following testimony:

            Q. So the defendant took out a weapon. And then what
            happened after the defendant took out a weapon?

            A. He starts threatening.

            Q. How is he threatening? What does that mean?

            A. With the weapon.

            Q. Okay, let me ask you. Is he saying something or is
            he pointing the weapon somewhere or is there
            something else going on?

            A. No, he's pointing his weapon.

            Q. So the defendant's pointing the weapon, the gun?

            A. Yes.

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                                        5
            Q. And what happens?

            A. Later, they made like they were leaving.

            Q. How did they make like they were leaving?

            A. They turned around like they were leaving to their
            house. I don't know.

            Q. Okay, and then what happened?

            A. Then, finally, he takes out his handgun and shoots
            at my uncle.

            Q. And when you say "he," you mean the defendant?

            A. Yes.

            Q. Did you see the defendant shoot your uncle?

            A. Yes.

            Q. Where were you standing when the defendant shot
            your uncle?

            A. Behind my uncle's back.

Jose Amaya gave this testimony, upon which defendant relies in support of the

theory espoused in his first point:

            Q. And what did he do, the taller guy?

            A. He ordered [defendant] to shoot him.

            Q. To shoot who?


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                                      6
A. Jose Alfaro.

      ....

Q. When he said to shoot the victim, who was he
talking to?

A. To him.

Q. The defendant?

A. Yes.

Q. What did the defendant do after the tall guy told him
to shoot?

A. He raised his hand and fired at him.

Q. Did you actually see the shot?

A. Perfectly.

Q. When he raised his hand, did he point it at the
victim?

A. Yes.

Q. What happened to the victim after he got shot?

A. He fell and I said, "They killed him."

      ....

Q. Now you just said that, at the time, you said, "They
killed him." How many people shot the victim?

A. Only one person.


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                           7
            Q. And that's the defendant?

            A. Yes.

Contrary to defendant's argument, these witnesses provided no evidence from

which a jury could rationally find that defendant acted recklessly. See State v.

Mejia, 

141 N.J. 475

, 489 (1995). The judge correctly rejected defendant's

request for a charge of aggravated manslaughter. Accord State v. Rose, 

112 N.J. 454

, 480-83 (1988); State v. Ramsey, 

415 N.J. Super. 257

, 267-69 (App. Div.

2010).

                                       II

      In his second point, defendant argues that he was deprived of a fair trial

because the judge did not instruct the jury about deliberations, as in the

following instructions:

            There is nothing different in the way a jury is to
            consider the proof in a criminal case from that in which
            all reasonable persons treat any questions depending
            upon evidence presented to them. You are expected to
            use your own good common sense; consider the
            evidence for only those purposes for which it has been
            admitted and give it a reasonable and fair construction
            in the light of your knowledge of how people behave.
            It is the quality of the evidence, not simply the number
            of witnesses that control[s].

            As I said before, any exhibit that has not been marked
            into evidence cannot be given to you in the jury room
            even though it may have been marked for identification.

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            Only those items marked in evidence can be given to
            you.

            Very shortly you will go into the jury room to start your
            deliberations. I remind you that, during deliberations,
            and, in fact, any time that you are in the jury
            deliberation room, you must keep any cell phone, pager
            or other communication device you may possess turned
            off.

            You are to apply the law as I have instructed you to the
            facts as you find them to be, for the purpose of arriving
            at a fair and correct verdict. The verdict must represent
            the considered judgment of each juror and must be
            unanimous as to each charge. This means all of you
            must agree if the defendant is guilty or not guilty on
            each charge.

            It is your duty, as jurors, to consult with one another
            and to deliberate with a view to reaching an agreement,
            if you can do so without violence to individual
            judgment. Each of you must decide the case for
            yourself, but do so only after an impartial consideration
            of the evidence with your fellow jurors. In the course
            of your deliberations, do not hesitate to re-examine
            your own views and change your opinion if convinced
            it is erroneous but do not surrender your honest
            conviction as to the weight or effect of evidence solely
            because of the opinion of your fellow jurors, or for the
            mere purpose of returning a verdict. You are not
            partisans. You are judges – judges of the facts.

      Defendant is correct that, when orally instructing the jury, the judge

omitted this portion of the charge. Defense counsel did not alert the judge to

this omission and she did not object when the judge completed her instructions.


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                                       9
So, we examine the impact of the omission under the plain-error standard, which

precludes our intervention unless we may conclude that the omission from the

oral version was clearly capable of producing an unjust result. See R. 2:10-2;

State v. Funderburg, 

225 N.J. 66

, 79 (2016).

      In undertaking this analysis, we consider the whole of the charge. See

State v. R.B., 

183 N.J. 308

, 324-25 (2005); State v. Wilbely, 

63 N.J. 420

, 422

(1973). Other than the fact that the judge included these instructions in the

written charge given to the jury at the completion of the oral charge, we note

that the judge's oral instructions throughout the trial contained instructions akin

to those inadvertently omitted.

      For instance, at other times the judge instructed the jury that: it was their

"sworn duty to arrive at a just conclusion after considering all the evidence

which was presented during the course of the trial" and disregard excluded

evidence; their verdict was to be unanimous and based solely on the evidence

presented during the trial; they were the sole judges of the facts; and cellphones

and other similar devices were to be turned off during the trial and deliberations.

The judge instructed that the jurors were obligated to adhere to the judge's

instructions, keep an open mind, and weigh the evidence "calmly and without

passion, prejudice, or sympathy" and to decide the issues upon the merits.


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                                       10
      We are satisfied from an examination of all the judge's instructions

throughout the trial that the jury had already been advised of the content of the

omitted five paragraphs and understood it was "to deliberate objectively, freely,

and with an untrammeled mind." State v. Czachor, 

82 N.J. 392

, 402 (1980).

                                          III

      In defendant's third argument, he contends that the judge erred by failing

to find the out-of-court photo identifications of defendant by Fidel Alfaro and

Jose Evaristo Amaya overly suggestive and, thus, inadmissible. We disagree.

      By way of background, we note that several individuals were present at

the December 28, 2013 shooting; this group included four individuals who

testified: Fidel Alfaro (the victim's brother); Cruz Amaya (the victim's nephew);

Jose Evaristo Amaya (a friend of the victim's); and Eduardo Arce (who had argued

with the victim prior to the shooting). Cruz testified that he saw defendant shoot

Jose Alfaro, and he made an in-court identification of defendant as the shooter. Jose

Amaya similarly testified that he saw defendant shoot Jose Alfaro; he also selected

defendant's photo from an array prior to trial and identified defendant as the shooter

at trial. Eduardo Arce testified that he was present when Jose Alfaro was shot

although he did not actually see the shooting; instead, he testified that, after hearing




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                                         11
a shot, he turned to see defendant walking toward him "laughing [and] putting the

gun away." Prior to trial, Arce had selected defendant's photo out of an array.

       Fidel Alfaro also selected defendant's photograph from an array shown to him

by police and identified the photograph of defendant as depicting the man he saw

shoot his brother. At trial, Fidel was unable to identify defendant as the shooter,

although he did testify to witnessing the shooting.

       On defendant's motion, the judge conducted a two-day Wade3 hearing.

Defendant's claim of an unduly suggestive and unreliable out-of-court identification

by Fidel was based on his allegation that detectives improperly provided feedback,

allowed multiple viewings of the photo array, improperly constructed the photo array

by making defendant appear lighter-skinned than individuals in the other photos, and

failed to inquire about whether the witnesses discussed the case between or among

themselves.

       Only Detectives Ventola and Perez testified at the Wade hearing. Their

testimony focused predominantly on the process they followed when Fidel was

shown a photo array, as well as the "unique situation" created by Fidel being both

an eyewitness and the victim's nearest family member.




3
    United States v. Wade, 

388 U.S. 218

(1967).
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                                        12
      The testimony at the Wade hearing revealed that hours after the shooting,

Fidel accompanied police from the scene and gave a formal statement; he later

testified at trial that he did not speak with Cruz Amaya or Jose Evaristo Amaya

before giving the statement. When then asked by police which of the two men shot

his brother, Fidel told police he was "not sure." But Fidel later identified defendant

when presented with a photo array on February 11, 2014. He was shown a series of

six photographs by Detective Raphael Ramos, a "blind detective" without

knowledge of the case; when shown the fourth photo, Fidel first said "[n]o" but soon

after said, "[h]e looks familiar." Once all the photos were shown to him, Fidel asked

to see them again, after which he identified the fourth photo – the photo of defendant

– as the man who shot his brother.

      After this identification was completed, Detectives Ventola and Perez spoke

with Fidel. Detective Ventola testified at the Wade hearing that this conversation

took place not because Fidel was a witness, but because he was the victim's brother

and next of kin. Detective Ventola also believed that Fidel was scared and "asking

for some kind of confirmation of . . . what's going to happen next" with the

investigation.   Recognizing the potential for a "feedback" problem, Detective

Ventola testified he did not "at any point before or after" tell Fidel that he identified

"the correct suspect" or identify for Fidel "who the suspect was."


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                                          13
      Detective Ventola also testified that he knew that Fidel, Cruz, and Jose Amaya

"lived essentially in the same building" with "some in the same apartment," and that

they all were either related or were friends. Despite the proximity of the witnesses'

living situations, and their familiarity with each other and the case, Detective

Ventola testified that he did not ask Fidel, during his February identification,

whether he had spoken to anyone else about the case. When confronted with the

Attorney General's Guidelines for photo array and eyewitness identification

procedures, Detective Ventola said he had never seen the Guidelines and admitted

he did not follow them in asking the witness "whether he . . . had previously spoken

to anyone (law enforcement or civilian) about the identification."

      Detective Perez also testified at the Wade hearing about Fidel's out-of-court

identification of defendant. He acknowledged that after the identification made

during the photo-array procedure, Fidel asked a "question in reference to an

individual that lives in close proximity to where he live[d]"; Detective Perez

assumed he meant Eduardo Arce, the individual who was arguing with the victim

and who was present with the defendant when the shooting occurred. Detective

Perez testified that although he was aware he was not permitted to provide Fidel with

any feedback, he nevertheless tried to "give him the positive of us continuing the

investigation and [the identification] . . . part of the procedures and process" because


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                                         14
Fidel was the victim's next of kin. Detective Perez admitted he "could have probably

chosen different words" but his overall intent was "to provide . . . the at least amount

[sic] of information" without revealing that the person chosen from the array was the

person who would be charged. He also stated that he did not ask whether Fidel had

spoken to another person about the identification, and he admitted he told Fidel, after

the photo-array procedure, that he was "glad" Fidel was "able to identify someone."

      Once the two detectives finished their testimony, the State moved to conclude

the hearing and asked for a denial of the defendant's suppression motion, orally

setting forth the reasons why the State believed there were no faulty system variables

at play, and why the conversations between the officers and Fidel after the

identification were not impermissible feedback but merely "ambiguous statements

made by the officers" that neither confirmed nor denied the accuracy of Fidel's

identification. After a few brief comments, defense counsel sought the opportunity

to submit a brief containing her arguments as to why the identification should be

excluded from trial.

      Based on the testimony of the two detectives, the trial judge denied

defendant's motion for reasons expressed in a written opinion. Defendant now

argues, among other things, that testimony elicited at the hearing demonstrated the




                                                                                 A-5137-17
                                         15
out-of-court identifications made by both Fidel Alfaro and Jose Amaya4 were

"unreliable and tainted by suggestive pretrial identification procedures." Because

we substantially agree with the reasons expressed by the trial judge in her written

opinion, we reject this argument without further comment.         The judge made

thorough findings, to which we defer, see State v. Robinson, 

200 N.J. 1

, 15 (2009),

and rejected each of defendant's arguments.

      First, the judge noted that defendant argued the identification was unduly

suggestive because Fidel viewed the same six photographs twice. The judge held

this did not violate the "multiple viewings" system variable, which prohibits the

witness from viewing the suspect multiple times "as part of multiple identification

procedures," State v. Henderson, 

208 N.J. 208

, 290 (2011), because, as the judge

determined, "[o]nly one identification procedure was used in this case: a photo

array."

      Second, the judge rejected defendant's contention that the construction of the

photo array was suggestive. This system variable prohibits an array that contains a

photo of the suspect that stands out from the others.

Ibid. Having examined the



4
  Neither the State nor defendant elicited any testimony from the two detectives
about the photo identification made by Jose Amaya.
                                                                              A-5137-17
                                       16
photo array, the judge concluded that the photo array was not constructed in a

suggestive way.5

      Third, the judge rejected defendant's argument of another system variable:

"private actors."

Ibid. Defendant contended that

since the witnesses knew each

other and the victim, the detectives erred in not inquiring about discussions the

witnesses may have had with each other. The judge rejected this, noting that the

witnesses had been instructed by police not to discuss their identifications with

anyone else and there was no evidence in the record to suggest they had.

      Fourth, the judge rejected the contention that the detectives gave Fidel

positive feedback about his identification.     The judge credited the detectives'

testimony that no one told Fidel directly or indirectly "who the suspect was." They

merely gave Fidel an update on the investigation, without identifying for him the

suspect or the individual he identified.

      After close examination, we are satisfied that the testimony adduced during

the Wade hearing fully supported each of the judge's findings and conclusions.

      In appealing, however, defendant also argues that the judge erred by failing

"to conduct a full evidentiary hearing by requiring Fidel and [Jose Amaya] to



5
  The record on appeal does not contain the photo array or the video recordings
of the identification procedures.
                                                                             A-5137-17
                                           17
testify." We reject this contention as well. When the Henderson Court revamped

the way in which courts are to determine the admissibility of an out-of-court

identification, it did not impose on the State, once a determination was made that a

hearing was required, an obligation to call every witness with personal knowledge

of the identification procedures. The Court clearly stated that the accused always

possesses the initial burden of showing suggestiveness that could lead to a mistaken

identification in order to obtain a hearing. 

Henderson, 208 N.J. at 288

. Once the

decision is made to conduct a hearing, the State has the burden of offering "proof to

show that the proffered eyewitness identification is reliable – accounting for system

and estimator variables," while the trial court "can end the hearing at any time if it

finds from the testimony that defendant's threshold allegation of suggestiveness is

groundless."

Id. at 289.

In the third step described by the Court, "the ultimate burden

remains on the defendant to prove a very substantial likelihood of irreparable

misidentification" and, "[t]o do so, a defendant can cross-examine eyewitnesses and

police officials and present witnesses and other relevant evidence linked to system

and estimator variables."

Ibid. (emphasis added). The

defense called no witnesses. The State called the two detectives to testify

and defense counsel thoroughly cross-examined both. The judge did not terminate

the hearing, as permitted by 

Henderson, 208 N.J. at 289

. Instead, once the second


                                                                                A-5137-17
                                         18
detective's testimony was completed, the prosecutor immediately moved for a ruling

in the State's favor and explained why he felt entitled to this relief. In response,

defense counsel did not assert that the hearing hadn't ended or that she had witnesses

to call; defense counsel merely stated that she would prefer to put her argument in

writing once she had the transcript of the first day of hearing.

      We do not agree that defense counsel's enigmatic comment after the hearing

had concluded, and the discussion that occurred about when defendant would submit

a written summation on the issue, is the equivalent of a request for an opportunity to

call a witness. That is, after the second detective testified, after the prosecutor asked

for a ruling in the State's favor, after the prosecutor explained orally why he believed

defendant's motion should have been denied, and after defense counsel asked for

time to file a written summation, the judge asked defense counsel whether there was

any issue "about the other witness," likely meaning Jose Amaya. Defense counsel

then asserted that the "only person who can truly testify to that is Mr. Alfaro,"

perhaps meaning that only Fidel could testify about whether he spoke with other

eyewitnesses prior to the photo-array identification. Defense counsel concluded

these brief comments as to what would be contained in the written submission with,

"I think that should be – should warrant a hearing where Mr. Alfaro should have to




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                                          19
testify to explain what happened." The judge did not respond to that comment but

instead said, "Okay. Moving forward, when will we expect a trial date?"

      Considering the timing of defense counsel's statement about the need for

Fidel's testimony at the Wade hearing, assuming that is what that last comment

meant, we conclude that the allegation now made – that Fidel and perhaps others

should have been called to testify about whether they spoke about the shooting and

the suspect either before or after the photo identifications – was not preserved for

appellate review. Moreover, we note the abundance of eyewitness testimony at trial,

including in-court identifications of defendant as the shooter, and the thorough

instructions about system and estimator variables the jury could consider when

considering proof of out-of-court identifications, all of which demonstrate that any

claimed error about the scope of the Wade hearing was harmless.

                                        IV

      We find insufficient merit in the remainder of defendant's arguments to

warrant discussion in written opinion. R. 2:11-3(e)(2). We add only a few brief

comments as to each. 6


6
   We express no view on defendant's argument in his sixth point that his trial
attorney was ineffective for failing to request "appropriate jury instructions." In
this point, defendant does not describe the instructions he believes his attorney
should have requested, but we assume that this argument relates to the third-


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                                        20
      In his fourth argument, defendant contends that the prosecutor exceeded

the bounds of proper advocacy. The statement in question concerned Cruz

Amaya and his statements soon after the shooting that he wasn't sure he would

be able to identify the culprit. Cruz never made a photo identification of

defendant, only identifying defendant as the shooter at the time of trial. In his

summation, the prosecutor gave the following argument that defendant now

claims was improper:

            Cruz is scared in his first statement [to police]. He
            never lies about anything but, he's scared. He doesn't
            say anything false but he says ["]ah, I don't know if I
            could recognize [the shooter"]. Hours earlier he just
            saw someone murdered right in front of his face. Not
            just in front of his face, in front of his home. The place
            where he's supposed to be safe. He knows that the guy
            who just shot and killed Jose Alfaro knows where he
            lives and he tells the police in his first statement ["]I
            don't know if I'd be able to recognize him["] and then
            he comes and says ["]yeah, you know what? I'd be able
            to recognize him.["] And he comes into court and he
            recognizes him. And he recognizes him because he's
            never going to forget that face because again, he saw
            him from as close as basically you and I are now. But,
            he saw him kill somebody and that's just not something
            he's going to forget.

party guilt charge that defendant contends was warranted and, perhaps, the
instructions referred to in defendant's first and second points.           This
ineffectiveness argument is best left for consideration at the post-conviction
stage; if then pursued, defendant would be able to develop a more fulsome
record in an attempt to illuminate why counsel failed to request what defendant
now believes should have been instructed. R. 3:22-2(e).
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                                       21
Although, in one respect – with the statement that Cruz "never lies about

anything" – the prosecutor engaged in improper vouching, the balance of the

summation as a whole represented a legitimate and proper argument about the

evidence and the inferences the jury might draw from Cruz's earlier professed

inability to make an identification.

      Because defendant did not object to these statements at the time of trial,

we review the inappropriate vouching for Cruz Amaya using the plain-error

standard. We conclude that the statement, in the overall context of the case, was

incapable of producing an unjust result.

      Defendant's contention in his fifth point, that the judge should have

instructed the jury on third-party guilt, is without merit because the instruction

was never requested. His seventh point, in which he contends a detective altered

photos used in a photo array, is without merit because there was no evidence of

such an alteration.

      In his eighth point, defendant argues that the judge erred "by not

answering" a question posed by a juror at the end of the third day of trial. The

transcript reveals that as the judge was giving the standard instructions at the

close of the day's testimony, a juror interrupted with:       "Can I ask you a



                                                                            A-5137-17
                                       22
question?"    The judge called the juror to sidebar, and the juror posed the

following:

              I just wanted to – the defendant was arrested when the
              gentleman that was supposedly with him identified? I
              just want to confirm with that? Like what – we never
              got clarification as to when and how he was arrested.

The judge responded only with: "That's a question I cannot answer at sidebar."

Defendant's argument is that the judge abused her discretion by not answering

this question. We find this argument lacks sufficient merit to warrant further

discussion.    R. 2:11-3(e)(2).   To the extent defendant's argument may be

interpreted as claiming the judge should have required the State to elicit such

testimony from one or more witnesses also lacks merit and warrants no further

discussion.

Ibid. Defendant argues in

his ninth point that the verdict was against the weight

of the evidence. Although the trial record is replete with evidence from which

the jury could convict defendant beyond a reasonable doubt, this argument is

not cognizable on appeal because defendant did not move for a new trial. See

R. 2:10-1.

      Defendant's remaining arguments warrant no discussion beyond what has

already been said in this opinion. R. 2:11-3(e)(2).



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                                       23
      We lastly reject defendant's arguments about the sentence imposed. The

judge imposed a fifty-five-year NERA prison term on the murder conviction and

lesser concurrent terms on the other convictions. The judge applied the third,

sixth, and ninth aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6), (9), because of

defendant's extensive criminal history, which included eight arrests, seven

dispositions of guilt, and one open aggravated assault charge. Defendant had

previously received a seven-year prison term on drug offenses and was on parole

when he killed Jose Alfaro. And while awaiting disposition of these matters,

defendant was arrested and charged with aggravated assault based on an incident

that occurred while he was incarcerated. The judge was thus entitled to find

from defendant's criminal history that "a high risk of recidivism" existed. In

addition, the judge was entitled to consider, in imposing a fifty-five-year term,

that Jose Alfaro was "murdered in front of his residence . . . [and] in full view

of his brother in a residential neighborhood[;] [the] shoot[ing] [of] an unarmed

individual in a manner as cavalier as discarding a gum wrapper on a sidewalk,

is indefensible." See State v. Megargel, 

143 N.J. 484

, 501 (1996); see also State

in the Int. of C.A.H. & B.A.R., 

89 N.J. 326

, 337 (1982) (determining that

"demands for deterrence are strengthened in direct proportion to the gravity and

harmlessness of the offense and the deliberateness of the offender").


                                                                            A-5137-17
                                       24
      The judge found no mitigating factors, and defense counsel also

recognized at sentencing that there "are no mitigating circumstances that I can

present to this [c]ourt that would [a]ffect the [s]entence." Defendant now argues

the judge should have found and applied mitigating factors four and thirteen.

See N.J.S.A. 2C:44-1(b)(4), (13).      Although not argued at sentencing and

therefore not mentioned by the sentencing judge, we find no evidence in the

record to support the application of either mitigating factor. The allegation that

defendant acted on the orders of Arce, allegedly a higher-ranking gang member,

does not trigger the thirteenth mitigating factor, which allows consideration

whether a young offender's conduct was influenced by a more mature offender.

And the fact that Arce and the victim were or had been engaged in a verbal

argument does not present a "substantial ground[] tending to excuse or justify

the defendant's conduct."

      In the final analysis, we will not second-guess or intervene in a trial

judge's sentencing decision if the sentence was imposed in accordance with the

sentencing laws and guidelines. State v. Jabbour, 

118 N.J. 1

, 5-6 (1990). The

judge imposed an entirely appropriate sentence well within the bounds of

accepted legal principles. The sentence imposed was richly deserved and not

"shock[ing] to the judicial conscience." State v. Roth, 

95 N.J. 334

, 363 (1984).


                                                                            A-5137-17
                                       25
Affirmed.




                 A-5137-17
            26

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