Opinion
DOCKET NO. A-4235-12T1 DOCKET NO. A-4619-12T1 DOCKET NO. A-4933-12T1
03-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTIAN ORTEGA-REY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALVEIRO BRAVO, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN M. APONTE-ORTIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Juan M. Aponte-Ortiz (Alan I. Smith, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Alveiro Bravo (Carolyn V. Bostic, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Christian Ortega-Rey (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 11-04-0607, 11-04-0608. Joseph E. Krakora, Public Defender, attorney for appellant Juan M. Aponte-Ortiz (Alan I. Smith, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Alveiro Bravo (Carolyn V. Bostic, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Christian Ortega-Rey (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
On December 10, 2010, two homes in Edison Township were burglarized and items worth over $10,000 were taken. During one of the home break-ins, the intruders encountered the owner and tied him up. Shortly after the crimes were reported, police stopped a gray Acura occupied by the three defendants and arrested all three. A search of the vehicle conducted pursuant to a warrant revealed items that had been taken from both of the burglarized homes. After a jury trial, defendants Juan M. Aponte-Ortiz, Alveiro Bravo and Christian Ortega-Rey were convicted of various crimes and now appeal both their convictions and sentences. We have consolidated these appeals for purposes of this opinion. Having reviewed the record in light of the contentions advanced on appeal, we affirm the convictions, but remand for clarification of the sequence in which the consecutive sentences are to be served.
I.
In the fall of 2010, over twenty residential burglaries occurred in the northern part of Edison and the surrounding area in the evening hours. Because the burglaries had similar characteristics in terms of the method of invasion and the type of items taken, the Edison Police believed the burglaries were committed by the same individuals. Witnesses reported seeing several Hispanic men near the scenes of earlier burglaries. Witnesses also reported seeing a gray or silver car resembling an Acura or Audi. As part of its investigation, the Edison police obtained video footage from a surveillance camera at a home that had been burglarized on December 7, 2010. That video footage showed several men breaking into the home. The video captured one man's face and, thereafter, a still photograph was distributed to police. The video footage also showed a silver, four-door vehicle near the home during the break-in.
The evidence at trial established that the first home burglarized in Edison on December 10, 2010 was owned by a married couple. During that break-in, the intruders encountered the sixty-four-year-old husband, who they tied up with a belt and a telephone cord. After the intruders left the home, the owner removed the restraints and called 911 to report the robbery. The homeowners reported that diamond rings, a necklace and coins had been taken; they estimated the value of those items at approximately $10,000.
Later that evening, another home in Edison was burglarized. When the homeowners returned, they discovered a sliding glass door had been shattered, the house had been ransacked, and jewelry and other items had been taken. The estimated value of the items taken from the second home was approximately $1000.
Edison Police Officer Robert Duffy was "working surveillance" on December 10, 2010. Officer Duffy was aware of information garnered from the investigations of the previous residential burglaries. For example, Officer Duffy had seen the video footage from the December 7, 2010 burglary which showed a silver, four-door vehicle, as well as the man who was breaking into the home. Officer Duffy had also seen the still photograph of the face of the man whose image had been captured on video.
Officer Duffy was advised of both break-ins when they were reported on December 10, 2010, and responded to the second call. On route, he saw a silver, four-door Acura with tinted windows drive past him. The vehicle was coming from the area of the second break-in. Officer Duffy decided to follow the vehicle because he believed it was the vehicle he had seen in the video footage. Officer Duffy testified that at the time that he decided to follow the Acura, he was aware of a report of a gray Acura or Audi being involved in burglaries that had taken place in Woodbridge and South Brunswick.
Officer Duffy followed the Acura into Scotch Plains where he enlisted the assistance of a Scotch Plains police officer to stop the Acura. Officer Duffy observed Bravo in the driver's seat, Ortega-Rey in the front passenger seat, and Aponte-Ortiz in the back seat. Officer Duffy testified that Aponte-Ortiz and Ortega-Rey were wearing black clothing that matched the descriptions given by the first homeowner. Officer Duffy also observed a pocket behind the driver's seat containing a flashlight and screwdriver. He testified that he suspected the items were burglary tools.
All three defendants were directed to get out of the car. Officer Duffy recognized Aponte-Ortiz as the man whose face had been captured on the home surveillance video of the December 7, 2010 burglary. Aponte-Ortiz was also asked to remove his hands from his pockets, and when he removed them, he pulled out a ripped piece of telephone cord. Through a conversation with a fellow officer, Officer Duffy learned that the first homeowner had been tied up with a telephone cord.
The police arrested all three defendants and impounded the Acura. The police then obtained a search warrant and a search of the car revealed the items stolen from both homes on December 10, 2010. The police also found gloves, flashlights and screwdrivers in the Acura.
The police seized defendants' cell phones and their phone records showed that Bravo and Ortega-Rey had been communicating with each other throughout the day on December 10, 2010. The pieces of the telephone cord found on Aponte-Ortiz's person and at the home of the first homeowner were analyzed and a State police forensic scientist testified at trial that those pieces matched.
Before trial, defendants moved to suppress the physical evidence recovered from the Acura arguing that Officer Duffy lacked reasonable suspicion to stop the vehicle. The trial judge denied that motion finding that Officer Duffy had reasonable suspicion based on the totality of the circumstances. The trial judge found that once the vehicle was stopped, Officer Duffy made observations that provided probable cause for the arrest of all three defendants.
The trial judge also denied defendants' motion to preclude the State's forensic expert from testifying about his analysis of the telephone cord pieces. Defendants argued that the State provided its forensic expert report only three weeks before the beginning of trial and one defense counsel received the report on the first day of trial. The trial judge afforded defendants the opportunity to obtain their own expert, but was informed by defense counsel that they were not able to find an expert. Counsel for Aponte-Ortiz also informed the court that his client intended to argue that the piece of telephone cord found on him had been "planted." After finding that the State's forensic expert was qualified, the trial judge denied defendants' motion and permitted the forensic expert to testify at trial.
The jury found all three defendants guilty of crimes related to both December 10, 2010 home invasions. With regard to the first home, all three defendants were found guilty of second-degree robbery, N.J.S.A. 2C:15-1, second-degree burglary, N.J.S.A. 2C:18-2, third-degree theft, N.J.S.A. 2C:20-3(a), second-degree conspiracy to commit robbery, burglary and theft, N.J.S.A. 2C:5-2, and false imprisonment as a lesser-included offense of kidnapping, N.J.S.A. 2C:13-3. With regard to the second home invasion, all three defendants were found guilty of third-degree burglary, N.J.S.A. 2C:18-2, third-degree theft and third-degree conspiracy to commit burglary and theft, N.J.S.A. 2C:5-2.
For the crimes related to the first home invasion, Aponte-Ortiz and Ortega-Rey were sentenced to (1) seven years in prison with eighty-five percent of that time to be served without parole and three years of parole supervision following their release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA) for the second-degree robbery and burglary convictions; (2) four years in prison for the third-degree theft conviction; and (3) six months of incarceration for the false imprisonment conviction. All those sentences were to run concurrent to each other and the conspiracy conviction was merged into the robbery conviction. For the second home invasion, Aponte-Ortiz and Ortega-Rey were sentenced to three years in prison for the third-degree burglary and theft convictions. Those convictions were to run concurrent to each other, but consecutive to the sentences imposed for the first home invasion. The conspiracy conviction was merged into the burglary conviction.
For the crimes related to the first home invasion, Bravo was sentenced to (1) six-and-a-half years in prison with eighty-five percent of that time to be served without parole and three years of parole supervision following his release pursuant to NERA for the convictions of second-degree robbery and burglary; (2) four years in prison for the third-degree theft conviction; and (3) six months of incarceration for the false imprisonment conviction. All those sentences were to run concurrent to each other and the conspiracy conviction was merged into the robbery conviction. For the second home invasion, Bravo was sentenced to three years in prison for the third-degree burglary and theft convictions; the conspiracy conviction merged into the burglary conviction. The burglary and theft convictions were to run concurrent to each other, but consecutive to the sentences for the first home invasion.
II.
On appeal, all three defendants raise a number of overlapping arguments. Specifically, Aponte-Ortiz contends:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.Bravo argues:
POINT II: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO PRECLUDE PAUL VERDINO FROM TESTIFYING BECAUSE OF THE DISCOVERY VIOLATION.
POINT III: IMPOSITION OF THE AGGREGATE BASE CUSTODIAL TERM OF TEN (10) YEARS WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF THE WARRANTLESS STOP OF THE DEFENDANT'S
VEHICLE WHERE THE STATE FAILED TO ESTABLISH REASONABLE SUSPICION FOR THE STOP.
POINT II: THE DEFENDANT'S CONVICTIONS UNDER INDICTMENT NO. 11-04-0607 MUST BE REVERSED BECAUSE THE TRIAL COURT ISSUED INADEQUATE JURY CHARGES ON ACCOMPLICE LIABILITY AND CONSPIRACY, AND FAILED TO EXPLAIN THAT THEFT, AS CHARGED IN COUNT 15, WAS A LESSER-INCLUDED OFFENSE OF ROBBERY AS CHARGED IN COUNT 13 (Not Raised Below).
A. The Erroneous Accomplice Charge, Combined With the Trial Court's Failure to Explain That Theft was a Lesser-Included Offense of Robbery, was Clearly Capable of Producing an Unjust Result.
B. The Jury Instruction on Conspiracy was Deficient.
POINT III: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE TESTIMONY OF THE STATE'S PURPORTED EXPERT ON TRACE EVIDENCE AND THE SUBFIELD OF PHYSICAL FIT FRACTURE ANALYSIS.
A. The State Failed to Establish Reliability and Acceptance in the Scientific Community of Trace Evidence and Physical Fit Fracture Analysis as Required Under N.J.R.E. 702 and Frye.
B. The Trial Court Abused Its Discretion In Allowing the Expert to Testify Where the State Did Not Comply With Its Discovery Obligations Under R. 3:13-3, and the Defendant was Prejudiced as a Result.
POINT IV: THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND FOR RESENTENCING.
Ortega-Rey asserts:A. DEFENDANT RECEIVED AN EXCESSIVE SENTENCE BECAUSE THE TRIAL COURT FAILED TO APPLY SUFFICIENT WEIGHT TO DEFENDANT'S COOPERATION AND LESSER ROLE IN THE OFFENSES AS MITIGATING FACTORS.
B. THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT FAILED TO MAKE SPECIFIC FINDINGS AS TO WHY IT ORDERED THE MORE RESTRICTIVE SENTENCE TO RUN CONSECUTIVE TO THE LESS RESTRICTIVE SENTENCE.
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE DETECTIVE DUFFY DID NOT HAVE REASONABLE SUSPICION TO STOP THE CAR IN WHICH DEFENDANT WAS A PASSENGER.
POINT II: ORTEGA-REY'S CONVICTIONS UNDER INDICTMENT NO. 11-04-0607 MUST BE REVERSED BECAUSE THE TRIAL COURT DELIVERED A GROSSLY INADEQUATE JURY CHARGE ON ACCOMPLICE LIABILITY AND CONSPIRACY, AND FAILED TO EXPLAIN TO THE JURY THAT THEFT AS CHARGED IN COUNT 15 WAS A LESSER-INCLUDED OFFENSE OF ROBBERY AS CHARGED IN COUNT 13. (Not Raised Below).
A. The Erroneous Accomplice Charge, Combined With The Trial Court's Failure To Explain That Theft Was A Lesser Offense Of Robbery, Was Clearly Capable Of Producing An Unjust Result.
B. The Conspiracy Charge, Which Suffered From A Similar Deficiency As The Accomplice Charge, Requires Reversal Of Ortega-Rey's Conspiracy Conviction.
POINT III: BECAUSE THE TRIAL COURT DID NOT MAKE SPECIFIC FINDINGS AS TO WHY IT ORDERED THE MORE RESTRICTIVE SENTENCE TO RUN CONSECUTIVE TO THE LESS RESTRICTVE SENTENCE, THE MATTER MUST BE REMANDED FOR THE COURT TO RECONSIDER THE ORDER OF THE SENTENCES.
The arguments raised by defendants may be grouped and analyzed as five issues concerning whether the trial judge erred in: (1) denying defendants' motion to suppress the physical evidence seized from the Acura; (2) allowing the State's forensic expert to testify; (3) charging the jury on accomplice liability and conspiracy, and in explaining that theft is a lesser-included offense of robbery; (4) imposing excessive sentences on Aponte-Ortiz and Bravo; and (5) sequencing the consecutive sentences to be served by defendants.
A.
All three defendants contend that the trial judge erred in denying their motion to suppress the evidence seized from the Acura. Specifically, defendants argue that Officer Duffy lacked reasonable and articulable suspicion to stop the vehicle and, therefore, the stop violated their Fourth Amendment rights. We disagree.
An investigatory stop is permissible if it is "reasonable and justified by articulable facts." State v. Coles, 218 N.J. 322, 343 (2014). The burden is on the State to show by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion. See State v. Pineiro, 181 N.J. 13, 19-20 (2004). That reasonable suspicion standard requires "some minimal level of objective justification for making the stop." State v. Amelio, 197 N.J. 207, 211-12 (2008) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion . . . ." State v. Stovall, 170 N.J. 346, 357 (2002) (alteration in original) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).
In determining whether reasonable suspicion exists, a court should consider the "totality of the circumstances." State v. Gamble, 218 N.J. 412, 431 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). Those circumstances include a number of considerations. See Pineiro, supra, 181 N.J. at 22 ("officer's experience and knowledge"); State v. Zutic, 155 N.J. 103, 110 (1998) (information provided by a confidential informant); State v. Arthur, 149 N.J. 1, 11-12 (1997) (cumulative suspicious facts).
In reviewing a motion to suppress, we defer to the trial court's factual and credibility findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of a trial court are reviewed de novo. Id. at 263.
Applying these principles, we discern no basis for disturbing the trial judge's denial of the motion to suppress. Officer Duffy testified at the hearing on the motion to suppress; the judge found his testimony "highly credible." Officer Duffy articulated the basis for his stop, explaining that he made the stop based on several suspicions. First, he had just received reports of two burglaries and the Acura was coming from the direction of the most recently reported burglary. Second, he had reviewed video footage of a prior burglary that showed a car resembling the Acura. Third, Officer Duffy was aware that witnesses from prior burglaries had reported seeing a gray vehicle; one witness had described it as an Acura. Under the totality of those circumstances, Officer Duffy articulated a sufficient basis for reasonable suspicion to make an investigatory stop.
Once the stop was made, Officer Duffy made observations that gave him probable cause to arrest all three defendants. Those observations included: (1) a flashlight, screwdriver and broken glass in the vehicle; (2) Ortega-Rey and Aponte-Ortiz's black clothing that matched the description given by the first homeowner; (3) Aponte-Ortiz's face matching the photograph taken from a surveillance camera during a prior burglary; and (4) Aponte-Ortiz pulling a ripped piece of telephone cord from his pocket. Prior to the arrest, Officer Duffy learned a telephone cord had been used to tie up the homeowner at the first burglary.
Following defendants' arrest, the police obtained a warrant to search the Acura. Defendants did not challenge the probable cause for that search warrant at the motion to suppress nor on this appeal. Because the investigatory stop and search of the Acura were lawful, the motion to suppress was properly denied.
B.
Aponte-Ortiz and Bravo contend that the trial judge abused his discretion in not precluding the State's forensic expert from testifying because he was identified too late. The trial judge found no prejudice to defendants, and allowed the expert to testify. We discern no abuse of discretion.
Rule 3:13-3(b)(1)(I) directs prosecutors to identify any proposed expert and produce a report or statement of facts and opinions. The Rule provides that "if this information is not furnished [thirty] days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial." R. 3:13-3(b)(1)(I). The decision whether to exclude an expert's testimony is left to the trial judge's discretion. See State v. Heisler, 422 N.J. Super. 399, 414-15 (App. Div. 2011); see also State v. Toro, 22 9 N.J. Super. 215, 223 (App. Div. 1988) ("A trial court has broad discretion in determining what sanctions, if any, to impose when a party fails to comply with discovery obligations."), certif. denied, 118 N.J. 216 (1989).
In exercising that discretion, trial judges may consider factors such as: "(1) the absence of any design to mislead, (2) the absence of the element of surprise if the evidence is admitted and (3) the absence of prejudice which would result from the admission of evidence." State v. LaBrutto, 114 N.J. 187, 205 (1989) (quoting Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985) and Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)).
Here, the State identified two pieces of telephone cord as evidence in 2010; one used to tie up the victim in the first break-in on December 10, 2010, and the other pulled out of Aponte-Ortiz's pocket. The trial was scheduled to begin on January 7, 2013. On December 3, 2012, the prosecutor notified defense counsel that he was sending the telephone cord for forensic analysis. On December 20, 2012, the prosecutor received the test results, immediately notified counsel for defendants of the results, and then faxed a copy of the report to counsel for Aponte-Ortiz. After the defense objected to its admission, the prosecutor informed the judge that he had only recently learned that such analysis could be conducted and he then submitted the evidence for analysis in December 2012. Although given additional time, defense counsel did not retain an expert and instead informed the judge that Aponte-Ortiz intended to argue that the piece of telephone cord found on him had been planted. Thus, the trial judge found defendants were not prejudiced and allowed the forensic expert to testify. Given these facts, we see no abuse of discretion and will not disturb the trial judge's discovery ruling.
C.
Ortega-Rey and Bravo argue that the trial court improperly charged the jury on accomplice liability and conspiracy, and failed to explain that theft is a lesser-included offense of robbery. Specifically, Ortega-Rey and Bravo argue that they only intended to take items from empty homes and Aponte-Ortiz alone threatened and restrained the first homeowner. Therefore, defendants contend that their second-degree convictions for robbery, burglary and conspiracy stemming from the first home invasion should be reversed. We reject these arguments.
Defendants did not object to the jury charge at trial and, thus, we review these arguments under the plain error standard. See R. 2:10-2. Accordingly, unless the instructions were "clearly capable of producing an unjust result," they will not warrant a reversal. State v. Munafo, 222 N.J. 480, 488 (2015) (quoting R. 2:10-2). In the context of jury instructions, plain error means a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court." State v. McKinney, 223 N.J. 475, 494 (2015) (alteration in original) (quoting State v. Camacho, 218 N.J. 533, 554 (2014)). "Clear and correct jury instructions are essential for a fair trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div. 2015) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "[A] reviewing court must evaluate a challenged jury instruction in the context of the entire charge to determine whether the challenged language was misleading or ambiguous." State v. Nelson, 173 N.J. 417, 447 (2002). Moreover, "any finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Here, the trial judge instructed the jury on the definitions and elements of robbery, burglary (including the difference between second-degree and third-degree burglary), and theft. The judge also gave instructions on accomplice liability, explaining that to be guilty as an accomplice a defendant must possess the state of mind that is required to be proven against the person who actually committed the criminal act. See Model Jury Charge (Criminal), "Liability for Another's Conduct/Accomplice" (1995). The judge then explained that if the jury found that the defendant was not an accomplice to a specific crime, the jury could consider whether the defendant was an accomplice to a lesser crime. As an example, the judge explained that if a defendant committed kidnapping, the jury could find that a co-defendant only acted as an accomplice to the commission of a lesser offense of false imprisonment. The trial judge also instructed the jury on the conspiracy charges and provided the jury with a verdict sheet that identified each conspiracy being charged. See Model Jury Charge (Criminal), "Conspiracy" (2010). Finally, the judge gave instructions on lesser-included charges.
Having reviewed the jury instructions as a whole, we find no plain error.
D.
Bravo and Aponte-Ortiz assert that their sentences were excessive. Aponte-Ortiz contends that his seven-year sentence for a second-degree robbery and burglary are excessive. Aponte-Ortiz also argues that the trial judge abused his discretion in imposing consecutive sentences. Bravo argues that his sentence of six-and-a-half years for second-degree robbery and burglary are excessive because he had been designated as the getaway driver and, thus, had a more limited role than his co-defendants. Bravo also contends that his cooperation was not given sufficient weight by the trial judge.
Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). Whether a sentence violates sentencing guidelines is a question of law that is reviewed de novo. State v. Robinson, 217 N.J. 594, 604 (2014). If the sentencing court has not demonstrated "a clear error of judgment" or the sentence does not "shock the judicial conscience," appellate courts should not substitute their judgment for that of the trial judge. State v. Roth, 95 N.J. 334, 364-65 (1984).
Aponte-Ortiz was sentenced to seven years in prison for the second-degree convictions of robbery and burglary related to the first home invasion. He was also sentenced to four years in prison for the third-degree conviction of theft, and six months incarceration for the disorderly persons conviction of false imprisonment. The conviction for conspiracy was merged into the robbery conviction. All of those sentences were to run concurrent to each other, but consecutive to the sentences for the second home invasion.
For the second home invasion, Aponte-Ortiz was sentenced to three years in prison for the third-degree convictions of burglary and theft. The conspiracy conviction merged into the burglary conviction. Those sentences were to run concurrent to each other, but consecutive to the sentences for the first home invasion.
In sentencing Aponte-Ortiz, the trial judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9). He also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). The judge articulated the factual basis for those aggravating and mitigating factors, noting that the convictions for separate crimes indicated a risk that defendant would commit other crimes, justifying aggravating factor three; and that these were serious crimes, justifying aggravating factor nine. With regard to the mitigating factor, the judge noted that Aponte-Ortiz did not have a criminal record. The trial judge then explained why he was imposing a seven year sentence, which is in the mid-range for a second-degree crime. The judge also explained why he was running the sentences for the two separate home invasions consecutive. We discern no abuse of discretion in the sentencing of Aponte-Ortiz.
Bravo was sentenced to six-and-a-half years in prison for the second-degree convictions of robbery and burglary related to the first home invasion. He was also sentenced to four years in prison for the third-degree conviction of theft, and six months incarceration for the disorderly persons conviction of false imprisonment. The conviction for conspiracy was merged into the robbery conviction. All of those sentences were to run concurrent to each other, but consecutive to the sentences for the second home invasion.
For the second home invasion, Bravo was sentenced to three years in prison for the third-degree convictions of burglary and theft. The conspiracy conviction merged into the burglary conviction. Those sentences were to run concurrent to each other, but consecutive to the sentences for the first home invasion.
In sentencing Bravo, the trial judge found aggravating factors three and nine, and mitigating factors seven and twelve, N.J.S.A. 2C:44-1(b)(12). The judge again articulated the factual basis for those aggravating and mitigating factors. The judge noted that defendant had cooperated and that his cooperation was the basis for imposing a shorter prison term on him than the co-defendants. We find no abuse of discretion in Bravo's sentencing.
E.
Finally, Ortega-Rey and Bravo argue that the trial judge erred in sequencing the consecutive sentences. The judge stated when sentencing Ortega-Rey, "Indictment 1104-608, 1104-607 will run consecutive to each other." After discussing Bravo's sentence for Indictment 11-04-607, he stated, "[t]hese sentences will run consecutive to Counts 13, 14, 15, and 16 of Indictment 11-04-608." Defendants contend that the trial judge ordered that their seven year and six-and-a-half year NERA sentences for the convictions related to the first home invasion (Indictment 11-04-607) were improperly ordered to begin after those related to the second home invasion (Indictment 11-04-608), which did not contain mandatory minimum terms. The State, in response, argues that the judge had the discretion to require the least restrictive sentences to be served first.
The criminal sentencing code does not articulate the sequence for imposing consecutive prison sentences for more than one offense. See State v. Ellis, 346 N.J. Super. 583, 590 (App. Div.), aff'd o.b., 174 N.J. 535 (2002). In Ellis, we held that neither the criminal code nor case law "precludes a sentencing judge from requiring that the less restrictive term be served before the more restrictive term." Id. at 594. We also held, however, that a judge imposing such a sentence must make specific findings and explain the reasons for such a sequencing:
Although specification that the less restrictive sentence be served prior to the more restrictive sentence is not illegal, it may, on a particular occasion, constitute an abuse of discretion. In a very real sense, directing that a less restrictive sentence be served prior to the more restrictive sentence is akin to the discretionary
imposition of an additional period of parole ineligibility. It should be imposed only when accompanied by specific findings. A trial court that chooses to impose such a sentence should place on the record the specific consequences of that sentence. A sentencing direction of this nature has a significant impact on defendant's real "in" time, and should not be rendered casually or with only a vague understanding of its import.
[Id. at 597 (citations omitted).]
Here, the trial judge did not state why he was requiring the less restrictive sentence to be served first. Indeed, the record is unclear as to whether such a sequence was what the trial judge intended. The judgments of convictions (JOCs) imposing the sentences for all three defendants state that the sentences for the two home invasions are to run consecutively to each other. Those JOCs, however, do not state in which order the sentences are to be served. Consequently, no express findings of fact or articulation of the reasons for sequencing the consecutive sentences exist. In sentencing Aponte-Ortiz, the trial judge was similarly unclear, stating, "The sentence on both indictments are to run consecutive to each other." Although Aponte-Ortiz did not specifically raise the issue of sequential sentencing, he did raise an excessive sentence issue. In the interest of justice, we also remand his case for review. Thus, for each of the defendants, we remand the matter so that the trial judge may make an express ruling on the sequence of the consecutive sentences, make fact findings, and explain his reasons for the sequencing of the sentences.
The convictions for all three defendants are affirmed, but all three matters are remanded for a ruling on the sequence of the consecutive sentences. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION