NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0692-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY RECIOFIGUEROA, a/k/a ANTHONY FIGUEROA, ANTHONY R. FIGUEROA, ANTHONY FIGUERORA, ANTHONY RECIO, and ANTHONY RICEO,
Defendant-Appellant. ____________________________
Argued December 17, 2024 – Decided March 11, 2025
Before Judges Gilson, Bishop-Thompson, and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 19-12-0794.
Lucas B. Slevin, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Lucas B. Slevin, of counsel and on the briefs). Amanda G. Schwartz, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Amanda G. Schwartz, of counsel and on the brief).
PER CURIAM
On July 6, 2019, C.R. was shot and killed on a street in Elizabeth. 1 A jury
convicted defendant Anthony Reciofigueroa of the first-degree murder of C.R.,
N.J.S.A. 2C:11-3(a)(1), (2). The jury also convicted defendant of two related
weapons offenses: second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1). Defendant was sentenced to an aggregate
prison term of fifty-five years, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. He appeals from his convictions and sentence.
The key issue at trial was the identity of the shooter. No witness who
testified at trial saw the shooting. Moreover, the State never found the gun that
was used to shoot the victim. Instead, the primary evidence against defendant
was a series of fifty clips from surveillance videos, none of which captured the
shooting. Rather, the videos were from surrounding areas. A detective
described those videos in detail for the jury. During her testimony, the detective
1 We use initials and fictitious names for the victims and witnesses to protect their privacy interests. A-0692-22 2 twice identified defendant as the person depicted in two of the video clips and
essentially told the jury that defendant was the shooter. The detective also
repeatedly described a car depicted in the videos as the car identified by
witnesses who saw a car near the scene of the shooting.
Because the detective's narrations of the video clips were inadmissible
opinion testimony, we reverse defendant's convictions. Those errors were
compounded by the trial court's failure to instruct the jury on the defense of
third-party guilt. Defendant had presented evidence that another person may
have been the shooter, but the trial court failed to charge the jury on that defense.
Given our reversal of defendant's convictions, we need not address the
sentencing issues. Accordingly, we vacate the judgment of conviction and
remand for a new trial.
I.
We discern the facts from the testimony and evidence presented at trial.
Twenty witnesses testified on behalf of the State. None of those witnesses saw
the shooting.
Two of the witnesses knew C.R. M.R. (Mark), C.R.'s brother, testified
that on the evening of July 6, 2019, he was standing on the front steps of a
building on East Jersey Street in Elizabeth, where he lived. C.R. approached
A-0692-22 3 the building, told Mark to go inside, and Mark did. Mark then heard gunshots,
came back outside, and saw his brother lying on the ground. C.R. was later
pronounced dead from gunshot wounds to his head.
Sometime after the shooting, a person known to Mark as "Al" sent him a
photo of a car and indicated to Mark that the car was connected to the shooting.
Mark, thereafter, gave the photo to a police detective investigating the shooting.
Q.E. (Quinn), who used to date Mark, was also on the steps of the building
on the evening of the shooting. She testified that she was "sitting talking. Just
doing regular stuff. And, I don't know, just some random guy walked down the
block . . . and asked, like, [w]hy are you running? Why is everybody running?
And then he just pulled a weapon out." So, Quinn ran into the building. When
Quinn came back out, she saw C.R. "lying on the floor" and "the guy running
down the street."
Quinn called 9-1-1 and described the shooter as "[B]lack." At trial, Quinn
described the man as "African American or Hispanic" and stated that he was
dressed in gray clothing with a hood on. She also testified that the shooter was
wearing "Nike Air Force" sneakers. Quinn did not identify defendant as the man
who came up to the steps of the building just before the shooting.
A-0692-22 4 Three other witnesses were in the area of the shooting and heard gunshots.
O.V. (Onna) testified that she lived on East Jersey Street about two and a half
blocks from where the victim was found. She explained that she was standing
in the doorway of her home when she heard gunshots and shortly thereafter saw
a person running from East Jersey Street towards Sixth Street. She described
the person as a "tall and skinny" man wearing all gray. She also explained that
she could not see the man's face because his sweatshirt covered it, but she
noticed "[he] had something in [his] hands and [he was] putting it in [his]
sweater's pocket."
J.G. (Jessica) testified that she was at a supermarket with her mother, A.L.
(Anne), and sister. While they were walking home, Jessica heard gunshots and
about thirty seconds later she saw a man running by the intersection of East
Jersey and Sixth Street. She described the man as wearing a gray hoodie ,
approximately five feet eight inches to five feet ten inches tall, with light skin,
"[l]ike, tannish." She stated that the shooter got into a white car parked on Sixth
Street.
Anne testified that she was returning home with her daughters when she
heard gunshots. She then saw a person running and saw him put something in
his pants pocket. In her initial statement and again at trial, Anne said that the
A-0692-22 5 person was wearing gray pants and a white shirt. Anne described the man's
complexion as "light brown [in] color." Like Jessica, Anne stated that the man
got into a white car.
A lieutenant with the prosecutor's office later located and interviewed
"Al." Al's statement was played for the jury following a Gross hearing.2 Al told
the lieutenant that on July 6, 2019, he was hanging out with his girlfriend who
lived on East Jersey Street. He left East Jersey Street in his car, which was a
2005 white Honda, to pay his barber. As he was returning, he made a right turn
onto Sixth Street and heard "firecrackers or gunshots."
Al stated that he then saw an individual running with a hoodie on before
getting into a "dark colored vehicle." Al thought the situation was suspicious,
so he followed the car and tried to take a picture of its license plate, but the
picture did not capture the license plate. Al explained that he stopped following
the car when it "jumped on the highway." Al also stated that he was confident
2 "[A] Gross hearing is the name given to the Rule 104 hearing that the trial court conducts to determine the admissibility of a witness's inconsistent out -of- court statement -- offered by the party calling that witness -- by assessing whether the statement is reliable." State v. Greene, 242 N.J. 530, 540 n.2 (2020) (first citing State v. Gross, 121 N.J. 1, 15-17 (1990); and then citing State v. Cabbell, 207 N.J. 311, 322 n.5 (2011)). A-0692-22 6 that the car's license plate was not a New Jersey license plate, and he thought it
might have looked "green maybe."
The State's theory at trial was that defendant was the shooter and that he
had driven a black Chevy Malibu to and from the scene of the shooting. On July
26, 2019, a 2010 black Chevy Malibu with a Vermont license plate was stopped
by a police officer for a traffic violation. That car was driven by D.P. (Dave).
Dave was a Black male, approximately six feet and two inches tall, weighing
210 pounds.
On August 5, 2019, the same Chevy Malibu was pulled over by a police
officer in Jersey City. Defendant was driving the Malibu.
At trial, the State called J.P. (Joe), who testified that in the spring or early
summer of 2019, he had helped a woman and her boyfriend purchase a black
Chevy Malibu in Vermont. Joe identified a photograph of defendant as the
boyfriend. Joe also identified a photograph of Dave as resembling a man he
helped to get the Malibu out of impoundment approximately a month or two
after the car had been purchased.
Defendant's former girlfriend, R.M. (Ruth), also testified at trial. She
identified a photo of a black Chevy Malibu as a vehicle defendant sometimes
drove. Ruth was also shown several photographs depicting individuals. She
A-0692-22 7 described some of the photos as "blurry" and stated she could not make an
identification. When asked if she could identify defendant in another
photograph, she stated that one picture looked like defendant, but she was not
sure because the individual's back was turned from the camera. Concerning
other photographs, she stated that the person depicted "resembled" defendant,
but she was not sure.
Lead Detective Sonia Rodriguez obtained over thirty videos from
residential homes and commercial businesses in the area around the shooting
scene on East Jersey Street and on streets leading to and from the New Jersey
Turnpike. Rodriguez testified that she organized the video clips into what she
believed was a chronological order depicting a "vehicle of interest" driving
towards and away from the scene of the crime.
Through Rodriguez's testimony, the State presented fifty video clips.
According to Rodriguez, these clips depicted the purported route of the vehicle
of interest as reconstructed by the police using location and time stamps from
the videos. As she described the videos to the jury, Rodriguez marked the
location of each surveillance camera on a large poster-board map and outlined
the route that she believed the shooter took based on her review of the videos.
A-0692-22 8 As the videos were played for the jury, Rodriguez identified what she
believed to be "the vehicle of interest which was the [Chevy] Malibu."
Rodriguez repeatedly described the car seen in the video clips as the Chevy
Malibu.
During her testimony, Rodriguez also twice identified a person sitting in
the car or standing outside the car as defendant. Concerning one video clip,
Exhibit S-12, Rodriguez told the jury that she was "able to see the defendant and
[his girlfriend]." In describing another video clip, Exhibit S-38, Rodriguez told
the jury that she believed the individual depicted was "[t]he defendant."
Defense counsel did not object to the testimony of Rodriguez or to the
admission of the map showing the locations of the various surveillance cameras.
In closing argument, counsel for defendant pointed out that the witnesses
who testified had described the man seen near the scene of the shooting in
inconsistent ways and that their descriptions were vague. Defense counsel
emphasized that the State did not offer any testimony that identified the man at
the scene of the shooting as defendant. He pointed out that there was no
evidence of a motive, and the State had not found the weapon used in the
shooting. Defense counsel also contended that the description of the suspected
shooter was more consistent with Dave and that there had been testimony
A-0692-22 9 establishing that Dave had access to and had driven the Chevy Malibu. Defense
counsel did not, however, ask for a jury instruction on the defense of the third-
party guilt of Dave.
The jury convicted defendant of the first-degree murder of C.R., second-
degree possession of a weapon for an unlawful purpose, and second-degree
unlawful possession of a handgun. On the murder conviction, defendant was
sentenced to fifty-five years in prison, with periods of parole ineligibility and
parole supervision as prescribed by NERA. He was also sentenced to a
concurrent term of eight years in prison for the conviction for unlawful
possession of a handgun. The conviction for possession of a weapon for an
unlawful purpose was merged with the murder conviction. Defendant now
appeals from his convictions and sentence.
II.
On appeal, defendant makes four arguments. Three of those arguments
challenge his convictions based on the detective's narration of the video clips
and the trial court's failure to charge the jury on the defense of the third-party
guilt of Dave. The last argument challenges defendant's sentence on several
grounds. Specifically, defendant articulates his arguments as follows:
A-0692-22 10 POINT I – DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE DETECTIVE IMPROPERLY NARRATED VIDEO FOOTAGE BY (A) DESCRIBING EVENTS ON VIDEO OF WHICH SHE HAD NO FIRSTHAND KNOWLEDGE, (B) DESCRIBING THE PATH OF TRAVEL TAKEN BY THE SUSPECT, AND (C) IDENTIFYING THE DEFENDANT ON VIDEO.
A. The Detective Improperly Identified The Shooter And Described Him Exiting The Vehicle Of Interest.
B. The Detective Improperly Identified The Suspect's Path Of Travel, And Created A Map Illustrating Her Belief As To The Path Of Travel.
C. The Detective Improperly Identified The Defendant On Video.
POINT II – THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THIRD-PARTY GUILT.
POINT III – THE CUMULATIVE IMPACT OF THE DETECTIVE'S IMPROPER VIDEO NARRATION TESTIMONY COMPOUNDED BY THE LACK OF PROPER JURY INSTRUCTION DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
POINT IV – RESENTENCING IS REQUIRED BECAUSE THE COURT IMPROPERLY CONSIDERED DEFENDANT'S EXERCISE OF HIS RIGHT AGAINST INCRIMINATION, AND ACCORDED INSUFFICIENT WEIGHT TO YOUTH AS A MITIGATING FACTOR.
A-0692-22 11 A. The Sentencing Court Improperly Considered Defendant's Exercise Of His Right Against Self- Incrimination As Contributing Substantial Weight To Aggravating Factor Three.
B. The Sentencing Court Did Not Accord Appropriate Weight To Mitigating Factor Fourteen, Resulting In An Excessive Sentence.
Having reviewed defendant's arguments in light of the evidence at trial
and the governing law, we hold that three of the arguments require a reversal of
his convictions and a remand for a new trial. The first ground warranting a
reversal was the improper narration of the video clips by a detective who had no
firsthand knowledge of the shooting, but nonetheless identified defendant, the
car allegedly driven by defendant, and the route defendant allegedly drove to
and from the scene of the shooting.
The second ground warranting a reversal was the trial court's failure to
instruct the jury on the defense of third-party guilt. Defendant presented
evidence that Dave could have been the person driving the Chevy Malibu and
that he may have been the shooter. That evidence should have caused the trial
court to charge the jury on the defense of third-party guilt.
While defense counsel failed to object to the testimony of the detective
and failed to request a third-party guilt charge, the trial court's failure to exclude
the detective's testimony and give the charge constituted plain errors. See R.
A-0692-22 12 2:10-2. Moreover, in combination, we are convinced that the cumulative effects
of those errors deprived defendant of a fair trial.
A. The Narrations of the Video Evidence.
The New Jersey Supreme Court has established rules governing what is
and is not permissible when a witness narrates video evidence of events the
witness did not observe in real time. See State v. Watson, 254 N.J. 558, 600-02
(2023); State v. Singh, 245 N.J. 1, 17-20 (2021). The Court has explained "that
Rules 701, 602, and 403 in tandem provide the proper framework to assess video
narration evidence by a witness who did not observe events in real time."
Watson, 254 N.J. at 600.
The Court then set forth four principles to guide the admission of narrative
testimony concerning video evidence by an investigating law enforcement
officer. In that regard, the Court explained:
First, neither the rules of evidence nor the case law contemplates continuous commentary during a video by an investigator whose knowledge is based only on viewing the recording. To avoid running commentary, counsel must ask focused questions designed to elicit specific, helpful responses. "What do you see?" as an introductory question misses the mark.
Second, investigators can describe what appears on a recording but may not offer opinions about the content. In other words, they can present objective, factual comments, but not subjective interpretations. . . .
A-0692-22 13 Third, investigators may not offer their views on factual issues that are reasonably disputed. Those issues are for the jury to decide. So a witness cannot testify that a video shows a certain act when the opposing party reasonably contends that it does not. . . .
Fourth, although lay witnesses generally may offer opinion testimony under Rule 701 based on inferences, investigators should not comment on what is depicted in a video based on inferences or deductions, including any drawn from other evidence.
[Id. at 603-04 (citations omitted).]
In giving specific examples, the Court also explained that an investigator cannot
say "that's the defendant," if that fact is disputed, while describing video
evidence to a jury. Id. at 604 (internal quotation marks omitted).
Applying these principles to defendant's trial, Detective Rodriguez's
testimony violated Rules 701, 602, and 403 in two ways. First, she identified
defendant as the person depicted in the video clips. Second, she gave extensive
comments on the route defendant allegedly drove the Chevy Malibu to and from
the scene of the shooting.
Detective Rodriguez did not observe the shooting, the shooter, or the
Chevy Malibu. Accordingly, she lacked firsthand knowledge of the event, and
her testimony was based primarily on her review of the video clips.
A-0692-22 14 During her testimony, Rodriguez twice identified defendant as the person
depicted in certain video clips. The detective was shown a video clip from 705
Third Avenue, which had been marked as Exhibit S-12. She was then asked to
explain the purpose of why that video clip was being displayed. Rodriguez
responded: "The video was - - we conducted more video search and we noticed
in this video that we were able to see the defendant and [his girlfriend]."
Thereafter, the detective was asked to describe a video clip taken from
East Jersey Street, which was marked as Exhibit S-38. The video clip was
played for the jury, and the detective was asked to stop the video clip when there
was something she wanted to point out to the jury. The detective then asked for
the video clip to be stopped, and she was asked to explain to the jury "what
exactly it was [she] [was] pointing to." The detective pointed to the video clip,
and she was asked, "[w]ho do you believe that to be?" The detective responded:
"The defendant."
The trial court immediately interrupted the testimony and gave the jury an
instruction concerning the detective's testimony. In that regard, the court told
the jury:
You just heard the detective's opinion as the person who's worked on the case. Ladies and gentlemen, whether or not that is or is not the defendant is a question for you to answer. That's something that you
A-0692-22 15 have to decide independently yourself based upon all information that is presented in this case.
The detective's testimony identifying defendant was inadmissible opinion
testimony without a factual basis. In that regard, the detective's testimony
violated the third and fourth principles set forth in Watson, 254 N.J. at 603-04.
Whether the video clips depicted defendant was clearly a disputed issue at trial.
Thus, that issue was for the jury to decide, and the detective's testimony was
highly prejudicial and without a factual basis. See N.J.R.E. 403. Moreover, the
detective's testimony was based on a series of inferences, including inferences
apparently drawn from the detective's investigation of the shooting and murder.
Furthermore, the detective's testimony identifying defendant in two video
clips clearly suggested to the jury that defendant was the person in the car in all
the video clips presented through her testimony. In that regard, in describing
other video clips to the jury, the detective offered her opinion concerning an
individual who she described as "the shooter."
The trial court's instruction to the jury following one of the identifications
did not cure the problem. Indeed, that instruction was a further error because it
suggested that the detective's testimony was admissible and should be
considered by the jury. Without striking the testimony, the jury was left with
A-0692-22 16 the impression that they could consider the detective's opinion, but they would
have to make up their own mind as to whether it was persuasive.
Detective Rodriguez also violated the principles set forth in Watson by
identifying for the jury the type of car depicted in the video clips and the route
the car took. She repeatedly identified a car seen in various video clips as the
vehicle of interest. At other points, she identified that vehicle as a Chevy
Malibu. The detective, however, had no basis for that testimony other than her
review of the video clips.
"[A] trial court's evidentiary rulings are entitled to deference absent a
showing of an abuse of discretion, i.e., there has been a clear error of judgment."
Singh, 245 N.J. at 12-13 (alteration in original) (quoting State v. Nantambu, 221
N.J. 390, 402 (2015)). Moreover, when there is no objection to an alleged error
at trial, the issue is reviewed for plain error. Id. at 13 (first citing R. 2:10-2; and
then citing State v. Camacho, 218 N.J. 533, 554 (2014)). Under the plain error
standard, we reverse if the error is "clearly capable of producing an unjust
result." State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2) (internal
quotation marks omitted).
The admission of the detective's testimony was an abuse of discretion and
a plain error. Whether defendant was the person who shot C.R. was the critical
A-0692-22 17 issue at trial. There was no eyewitness testimony to the shooting and there was
no physical evidence linking defendant to the shooting. Additionally, the State
did not recover the gun used in the shooting or offer evidence directly linking
defendant to the possession of a weapon at the time of the shooting. Instead, all
the evidence was circumstantial and primarily based on the inadmissible opinion
testimony of Detective Rodriguez.
B. The Defense of Third-Party Guilt.
Defendant contends that the trial court erred by not providing the jury with
an instruction on his defense of third-party guilt. Defense counsel, however, did
not request that jury instruction. Accordingly, we review this issue for plain
error. See R. 2:10-2.
Trial courts have an independent responsibility to provide complete jury
instructions, even when specific instructions are not requested. State v. Reddish,
181 N.J. 553, 613 (2004) ("It is the independent duty of the court to ensure that
the jurors receive accurate instructions on the law as it pertains to the facts and
issues of each case, irrespective of the particular language suggested by either
party."). Accordingly, incomplete charges can warrant a reversal. State v.
Collier, 90 N.J. 117, 122-23 (1982).
A-0692-22 18 "In the context of jury instructions, plain error is '[l]egal impropriety in
the charge prejudicially affecting the substantial rights of the defendant and
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result.'" Camacho, 218 N.J. at 554 (alteration in original) (quoting State v.
Adams, 194 N.J. 186, 207 (2008)) (internal quotation marks omitted). In
addition, the error should be evaluated "in light 'of the overall strength of the
State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.
Chapland, 187 N.J. 275, 289 (2006)).
As already noted, the key issue at trial was the identification of the
shooter. One of the primary ways the State tried to prove that defendant was the
shooter was evidence that defendant had driven a black Chevy Malibu, which
the State contended the shooter used to travel to and from the scene of the
shooting. There was also evidence, however, that Dave had previously driven
and had access to the Chevy Malibu in July 2019. Accordingly, in his closing
argument, defense counsel emphasized that Dave might have been the shooter
because he could have been the person driving the Chevy Malibu. Defense
counsel also argued that several witnesses described the shooter as "[B]lack" or
A-0692-22 19 "African American" and pointed out that Dave is Black. Defendant, in contrast,
is Hispanic.
As part of its case, the State disputed that Dave was the shooter. Lead
Detective Rodriguez was specifically asked about Dave, and she testified that
her superiors had decided not to interview him. The State also disputed that the
witnesses' descriptions of the shooter matched Dave.
Given that the evidence against defendant was circumstantial, we hold that
it was plain error not to have charged the jury on the defense of third-party guilt
concerning Dave. While defense counsel should have requested that charge,
defense counsel's arguments in closing and the State's effort to rebut the third-
party guilt of Dave made that issue clear enough that it was incumbent on the
trial court to provide the jury instruction.
The State cites to State v. Cotto to argue that the jury was properly charged
to determine whether defendant was responsible for C.R.'s death. See 182 N.J.
316 (2005). In Cotto, our Supreme Court found that although identification was
a "key issue" at trial, the trial court did not commit plain error in failing to
provide a detailed identification instruction. Id. at 325-27. Initially, we note
that the identification instruction discussed in Cotto differs from the third-party
guilt charge involved in this matter. More significantly, however, the Court in
A-0692-22 20 Cotto relied on "the strength and quality" of the State's overall evidence in
concluding that the jury instructions were adequate. Id. at 327.
In this case, in contrast, there was no eyewitness to the shooting and the
witnesses who saw a person running after the shooting provided conflicting
descriptions of that person. So, overall, the State did not present a strong enough
case against defendant to alleviate the need for a third-party guilt charge.
C. The Cumulative Impact of the Errors.
As we have detailed, the narrations of the video clips by Detective
Rodriguez, and particularly the identification of defendant during those
narrations, constituted reversible error. The plain error concerning the trial
court's failure to give an instruction on the defense of third-party guilt is a closer
call. See ibid.
Cumulatively, however, the two errors warrant a new trial. "[E]ven when
an individual error or series of errors does not rise to reversible error, when
considered in combination, their cumulative effect can cast sufficient doubt on
a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008).
Moreover, "the predicate for relief for cumulative error must be that the probable
effect of the cumulative error was to render the underlying trial unfair ." State
A-0692-22 21 v. Burney, 255 N.J. 1, 29 (2023) (quoting State v. Wakefield, 190 N.J. 397, 538
(2007)) (internal quotation marks omitted).
As we have already pointed out, the identity of the shooter was the key
issue at trial. The State's evidence as to the shooter, however, was far from
overwhelming. Consequently, the cumulative errors of admitting Detective
Rodriguez's video narrations and failing to give a jury instruction on the defense
of third-party guilt demonstrate that defendant was not accorded a fair trial.
III.
We, therefore, reverse defendant's convictions and vacate the judgment of
conviction. Given that holding, we need not address the sentencing issues. This
matter is remanded for a new trial or further proceedings.
Reversed and remanded. We do not retain jurisdiction.
A-0692-22 22