NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3805-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RODNEY ROSARIO, a/k/a RONNEY ROSARIO,
Defendant-Appellant. ________________________
Submitted November 18, 2025 – Decided February 11, 2026
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-11-0792.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Jeffrey L. Weinstein, Designated Counsel, on the briefs).
William A. Daniel, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a supplemental brief on appellant's behalf. PER CURIAM
Following a jury trial, defendant Rodney Rosario was found guilty of first-
degree murder, conspiracy to commit murder, first-degree felony murder,
second-degree burglary, second-degree possession of a weapon for an unlawful
purpose, second-degree unlawful possession of a weapon, two counts of third-
degree criminal restraint, and two counts of fourth-degree aggravated assault.
The offenses arose from the killing of Jose Luis Disla Cordero in a drug -related
conspiracy involving co-defendants Miguel Angel Rosario Mejia, Mayrenid
Hidalgo-Bautista, and Alejandro Lopez. Defendant was sentenced to an
aggregate prison term of sixty-eight years.
Defendant appealed his conviction and sentence. We affirmed his
conviction but remanded to the trial court to correct the judgment of conviction
to reflect an aggregate prison term of sixty-four years.1
In February 2022, defendant filed a post-conviction relief (PCR) petition
claiming ineffectiveness of trial counsel. On March 9, 2023, PCR Judge John
1 We remanded defendant's conviction to vacate the sentences on the merged offenses (conspiracy, felony murder, possession of a weapon for an unlawful purpose, and aggravated assault with a firearm), amend two unlawful restraints counts to run concurrent with each other, and amend Rosario's conviction to reflect an aggregate term of sixty-four years.
A-3805-23 2 M. Deitch entered an order and written decision denying the petition without an
evidentiary hearing.
Defendant appeals, arguing:
POINT I
TRIAL COUNSEL'S REJECTION OF APPLICABLE LESSER[-]INCLUDED OFFENSES NEEDLESSLY DEPRIVED [DEFENDANT] OF THE OPPORTUNITY FOR A SIGNIFICANTLY LOWER SENTENCE.
POINT II
TRIAL COUNSEL'S FAILURE TO REQUEST CRITICAL INSTRUCTIONS FOR A FALSE IN ONE FALSE IN ALL CHARGE DEPRIVED [DEFENDANT] OF A FAIR TRIAL; IT WAS UNCONTROVERTED THAT THE STATE'S KEY WITNESS, ANGEL MEJIA, LIED IN HIS INITIAL STATEMENT AND SUCH ERROR IMPACTED THE OUTCOME BECAUSE THE STATE'S CASE HINGED UPON MEJIA'S CREDIBILITY AND THE LACK OF PROPER INSTRUCTION DEPRIVED THE JURY THE PROPER FRAMEWORK TO ASSESS THIS WITNESSES' CREDIBILITY. THE PCR COURT MADE A MISTAKEN FACTUAL FINDING IN REJECTING THIS CLAIM, NECESSITATING A REMAND.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO MEJIA'S TRIAL TESTIMONY THAT [DEFENDANT] WAS THE
A-3805-23 3 "BOSS" OF A NARCOTICS TRAFFICKING NETWORK THAT INCLUDED [DEFENDANT], CO- DEFENDANTS AND THE VICTIM.
POINT IV
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE A DISMISSAL FOR THE VIOLATION OF [DEFENDANT]'S RIGHT TO A SPEEDY TRIAL; THE DELAY BETWEEN INDICTMENT AND TRIAL OF OVER FOUR YEARS WHILE [DEFENDANT] WAS INCARCERATED WAS EXCESSIVE AS A MATTER OF FUNDAMENTAL FAIRNESS.
POINT V
THE PCR COURT WRONGLY DETERMINED THAT [DEFENDANT]'S CLAIM OF DISPARATE SENTENCING WAS PROCEDURALLY BARRED, SINCE A DISPARATE SENTENCING CLAIM QUALIFIES AS A SENTENCE NOT AUTHORIZED BY LAW AND IS THUS COGNIZABLE PURSUANT TO [RULE 3:22-2(c)].
In defendant's self-represented supplemental brief,2 he argues:
DEFENDANT'S EXTENDED TERM SENTENCE OF 64 YEARS WITH AN 85% PAROLE DISQUALIFIER IS AN ILLEGAL SENTENCE, IN LIGHT THAT NO PRIOR CONVICTIONS EXIST. THE FIFTH AND SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, ARTICLE I, PAR. 6 OF THE NEW JERSEY CONSTITUTION, AND ERLINGER V. UNITED STATES, 602 U.S. 821 (June 21 2024), REQUIRE THE JURY-NOT A SENTENCING JUDGE
2 We set forth defendant's argument verbatim. A-3805-23 4 TO DETERMINE THE FACTS AND THE LAW, AND WHETHER PRIOR CONVICTIONS USED TO ESTABLISH THE BASIS FOR ENHANCED SENTENCING. ALLSENTENCES MUST BE VACATED (Partially raised below).
After reviewing the parties' arguments, the record, and the governing legal
principles, we affirm.
I.
We recount the relevant facts and procedural rulings culminating in
defendant's conviction and sentence.
Defendant, Mejia, Lopez, and Hidalgo-Bautista sold drugs together.
Believing that Cordero had stolen money, drugs, a gun, and jewelry from them,
they planned to kill Cordero and recover the stolen items. On the day of the
offense, defendant, Mejia, and Lopez drove Hidalgo-Bautista's car to a bar down
the street from Cordero's apartment. After Cordero drove past them, they drove
to his apartment, and forced Cesar Mercado Torres, who was sitting in Cordero's
car, to open the door to Cordero's apartment. Defendant, Mejia, and Lopez each
possessed a handgun. While inside, they instructed Torres, Wallington
Mosquera, Eduardo Ramos, and Cordero to stand against a wall to be searched.
After a struggle broke out between defendant and Cordero over defendant's gun,
defendant instructed Mejia to shoot Cordero in the leg. Lopez subsequently shot
A-3805-23 5 Cordero four times in the leg, and defendant "administered a final shot to
[Cordero's] head."
Prior to his October 1, 2018 trial, defendant was held in pretrial detention
for almost four and a half years following his indictment for numerous offenses
arising from Cordero's killing. While defendant was detained, Mejia pled guilty
to conspiracy to commit murder and agreed to testify for the State as part of his
plea agreement; the State filed a superseding indictment on November 28, 2016,
after Mejia's guilty plea; defendant retained new trial counsel on June 16, 2017;
defendant moved for speedy trial on April 19, 2018, but withdrew it after a trial
date was scheduled; and the trial court decided various motions from February
to June of 2018, regarding the admission of testimony and statements, including
a Rule 104 hearing in which the trial court admitted Mejia's testimony to show
defendant's motive for killing Cordero under Rules 403 and 404(b)(2).
At trial, the court considered the State's request to instruct the jury
regarding lesser-included charges. The court questioned defendant, who
unequivocally stated he did not want the jury to consider lesser-included
charges. Trial counsel followed up by explaining that defendant is "either not
guilty or guilty of the murder. I don't want to give the jury the opportunity to
compromise in this case. I think this is an all or nothing case and I would object
A-3805-23 6 to any lesser-included offense." The trial court denied the State's request. Citing
State v. Brent, 137 N.J. 107, 115 (1994), the court reasoned that "where the
proof goes to the higher-inclusive offense and would not justify any other
verdict, except the conviction of that offense or an acquittal, it would be
improper to instruct the jury with respect to included offenses" because it "might
well be an invitation to the jury to return a compromise or otherwise unwarranted
verdict."
Prior to Mejia's testimony, the court gave a False-in-one, False-in-all jury
instruction, stating:
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case with the intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may, in your discretion, disregard all of it.
Mejia explained that defendant was the "boss" of their drug enterprise and
owned the apartment where they dealt drugs, which he had not stated at the Rule
104 hearing. Mejia also noted that Lopez "would provide [them] with the
drug[s] . . . . [Defendant] would receive it . . . and [Hidalgo-Bautista] and
[Mejia] would sell [the drugs]." On the day of the offense, Mejia had a .357
revolver provided by Lopez, while defendant had 9-millimeter gun and gave
A-3805-23 7 Lopez a .38 revolver. After Cordero was killed, they retrieved drugs, chains,
and other items that Cordero possessed.
More than two months after the jury's guilty verdict, defendant was
sentenced to sixty years subject to the No Early Release Act's (NERA) eighty-
five percent parole ineligibility requirement, N.J.S.A. 2C:43-7.2, for murder,
and two concurrent terms to the sixty-year sentence as follows: an eight-year
term for burglary, subject to NERA; and an eight-year term for unlawful
possession, subject to the Graves Act, N.J.S.A. 2C:43-6.2. The court imposed
two concurrent four-year terms for the criminal restraint convictions; however,
they were to be served consecutive to the sixty-year sentence. Despite merging
conspiracy, felony murder, possession of a weapon for an unlawful purpose, and
both aggravated assault with a firearm convictions into the murder conviction,
the court sentenced these offenses individually—eighteen years for conspiracy,
sixty years for felony murder, eight years for the possession of a weapon for an
unlawful purpose, and one year for each aggravated assault with a firearm.
II.
In defendant's PCR petition, he argued that his trial counsel was
ineffective in: (1) failing "to provide [d]efendant with a full copy of discovery";
(2) failing "to request an evidentiary hearing pursuant to N.J.R.E. 612 regarding
A-3805-23 8 witness . . . Mosquera, and failing to cross-examine him during trial"; (3) failing
to "present the defenses, jury charges, and arguments addressed on [d]efendant's
direct appeal"; (4) failing "to prepare and file a motion for severance"; and (5)
failing "to argue effectively for the reasons set forth in [d]efendant's direct
appeal." Defendant also alleged that: (1) "[t]he [c]ourt failed to notice the
defense of lack of jurisdiction in the court at any time during the pendency of
the proceeding, which caused instant wrongful conviction"; and (2) that
defendant's sentence was disparate and should be vacated.
On March 9, 2023, Judge Deitch denied defendant's petition without an
evidentiary hearing, reasoning in a thirty-eight-page written decision that
defendant's arguments were either procedurally barred by Rule 3:22-4 or Rule
3:10-2(c) and failed on its merits in not setting forth a prima facie case of
ineffective assistance of trial counsel. The judge also dismissed defendant's
speedy trial claim, noting that although the first factor set forth in Barker v.
Wingo, 407 U.S. 514, 530 (1972), weighed in favor of defendant, the other three
factors favored the State.
On April 10, the self-represented defendant moved for reconsideration.
Over four months later, defendant's PCR counsel filed a supplemental letter
memorandum in support of the motion. On October 3, the judge entered an order
A-3805-23 9 and a five-page written opinion denying the motion. The judge noted that
defendant's motion was untimely pursuant to Rule 1:7-4(b) because it was filed
more than twenty days after the court's denied PCR. Notwithstanding that
deficiency, the judge noted defendant's motion lacked merit because it did "not
put forth any new evidence or sufficiently allege[] that the [judge] failed to
consider any probative, competent evidence to warrant reconsideration," or
establish that denial of relief rested on a "palpably incorrect or irrational basis."
Defendant's appeal followed.
III.
A.
We review PCR judge's legal conclusions de novo. State v. Harris, 181
N.J. 391, 419 (2004). Under the two-pronged test to determine a trial counsel's
ineffectiveness, the defendant must demonstrate that: (1) "counsel's
performance was deficient," that is, "that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the
Sixth Amendment;" and (2) "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord
State v. Fritz, 105 N.J. 42, 58 (1987).
A-3805-23 10 PCR "is neither a substitute for direct appeal, R. 3:22-3, nor an
opportunity to relitigate cases already decided on the merits," R. 3:22-5; State
v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). Under Rule 3:22-
4(a)(1) to (3), any issue that was not raised on direct appeal cannot be a basis
for PCR unless it could not have reasonably been raised on direct appeal,
denying relief would result in fundamental injustice, or would violate the
Constitution of the United States or the State of New Jersey.
B.
Defendant's arguments in Points I and III—that his trial counsel was
ineffective in rejecting applicable lesser-included offenses and in failing to
object to Mejia's testimony—are barred by Rule 3:22-5 because as Judge Deitch
ruled, they were already litigated and rejected on direct appeal. See State v.
Hidalgo-Bautista, No. A-2966-18 (App. Div. June 30, 2021) (slip op. at 22-23,
32-33). Moreover, as the judge ruled, the record reveals they are without merit.
Defendant objected to the State's request to instruct the jury on the lesser-
included offense of manslaughter. Trial counsel explained to the court that
excluding the instruction was a part of an "all or nothing" strategy; either
defendant committed the murder or not, and a lesser included offense instruction
could encourage the jury to compromise and convict defendant of manslaughter.
A-3805-23 11 Additionally, there was no reasonable basis for trail counsel to object to Mejia's
testimony that defendant was the "boss" of the drug enterprise because the
testimony did not exceed the scope of the trial court's Rule 104 ruling admitting
Mejia's testimony to show defendant's motive for killing Cordero under N.J.R.E.
404(b)(2). We affirmed the ruling's challenge on direct appeal. Ibid.
C.
Defendant argues in Point II that trial counsel was ineffective in failing to
request a false-in-one-false-in-all jury instruction. This assertion is contradicted
by the record.
Providing the exact language from the model jury instructions, the trial
court charged the jury:
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case with the intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may, in your discretion, disregard all of it.
Defendant's argument is therefore without merit.
D.
Defendant argues in Point IV that trial counsel was ineffective for failing
to dismiss the indictment on speedy trial grounds. The right to a speedy trial is
guaranteed by the Sixth Amendment and applied to the states through the Due
A-3805-23 12 Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386
U.S. 213, 222-23 (1967); State v. Cahill, 213 N.J. 253, 264 (2013). The right to
a speedy trial attaches at the time of the defendant's arrest. State v. Tsetsekas,
411 N.J. Super. 1, 8 (App. Div. 2009). A violation of a defendant's speedy trial
rights typically requires dismissal of the indictment against the defendant or
vacatur of the sentence. Strunk v. United States, 412 U.S. 434, 438 (1973).
In determining whether a defendant's Sixth Amendment right to a speedy
trial has been violated, courts weigh the following factors: (1) the "length of the
delay"; (2) "the reason for the delay"; (3) "the defendant's assertion of his right";
and (4) "prejudice to the defendant." Barker, 407 U.S. at 530; accord State v.
Gallegan, 117 N.J. 345, 355 (1989). "No single factor is a necessary or sufficient
condition" to establish a violation of the right to a speedy trial and "the factors
are interrelated, and each must be considered in light of the relevant
circumstances of each particular case." Tsetsekas, 411 N.J. Super. at 10; see
Cahill, 213 N.J. at 270 (rejecting a "rigid bright-line try-or-dismiss rule" and
applying a "case-by-case analysis" to speedy trial claims). When determining
whether to dismiss an indictment on speedy trial grounds, a court must balance
"'the societal right to have the accused tried and punished'" with the defendant's
right "'to be prosecuted fairly and not oppressively.'" State v. Dunns, 266 N.J.
A-3805-23 13 Super. 349, 380 (App. Div. 1993) (quoting State v. Farmer, 48 N.J. 145, 175
(1966)).
Although the first Barker factor weighs in favor of defendant, because he
was jailed for approximately four-and-a-half years from his arrest until trial, the
remaining three factors weigh in favor of the State. The second factor weighs
in favor of the State because the delay was due to "motion practice, the schedules
of multiple counsel in this three-defendant case, and [defendant]'s change of
counsel [in 2017]," all of which were "neutral reason[s]" and were not "[a]
deliberate attempt [by the State] to delay the trial in order to hamper the
defense." Barker, 407 U.S. at 531. As for the third factor, the PCR court
properly noted that "defendant's failure to assert the right to a speedy trial in the
face of delay by the State," by filing and withdrawing his speedy trial motion,
was a factor weighing in favor of the State. See Barker, 407 U.S. at 532. Finally,
because defendant fails to allege how the delay prejudiced him and the length
of the delay was reasonable given the complicated nature of the offense, the
fourth factor weighs in favor of the State. See Cahill, 213 N.J. at 265
(acknowledging that "longer delays can be tolerated for serious offenses or
complex prosecutions"). As a result, the PCR court properly denied defendant's
IAC claim regarding speedy trial.
A-3805-23 14 E.
Defendant argues in Point V that his sentence was disparate to Mejia. This
assertion is barred under Rule 3:22-4 because he should have raised this issue
on direct appeal and imposing the procedural bar would not result in a
fundamental injustice or be contrary to constitutional law.
Notwithstanding Rule 3:22-4's bar, defendant's disparate sentencing
argument lacks merit. The purpose of the sentencing guidelines is "to promote
fairness and public confidence" in our legal system. State v. Roach, 146 N.J.
208, 232 (1996). To that end, the essential question is whether the disparity is
"justifiable or unjustifiable." Id. at 233. Furthermore, although sentencing
disparities "may invalidate an otherwise sound and lawful sentence[,] . . . '[a]
sentence of one defendant not otherwise excessive is not erroneous merely
because a co-defendant's sentence is lighter.'" Id. at 232 (1996) (alteration in
original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). In assessing
sentencing disparities, the trial court must determine "whether the co -defendant
is identical or substantially similar to the defendant regarding all relevant
sentencing criteria[,] . . . the basis of the [defendants'] sentences," and "the
length, terms, and conditions of the sentences imposed on the" defendants. Id.
at 233.
A-3805-23 15 Based on the trial testimony, the court determined that defendant, in
contrast to Mejia, played a significant role in planning the crime, "supplied the
weapons that were used in this killing," was "the boss of the other defendants,"
and administered the final shot that killed Cordero. Since Mejia and defendant's
roles in the killing were not "identical or substantially similar" and they were
not "equally culpable perpetrators," the different sentences were not unfair. Id.
at 232 (internal quotation omitted).
F.
In his self-represented supplemental brief, defendant argues that his
sentence is illegal under Erlinger because the jury, not the trial court, should
have determined whether he qualified as a "persistent offender." See Erlinger,
602 U.S. at 834-35. We reject that argument because Erlinger does not apply
retroactively to a collateral challenge, State v. Carlton, 480 N.J. Super. 311, 326-
27 (App. Div. 2024),3 and defendant's appeal was not in the direct appeals
pipeline, and he did not receive an enhanced sentence under the statutory
guidelines for murder.
3 Our Supreme Court granted certification but has not ruled as of the date of this decision. State v. Carlton, 260 N.J. 478 (2025). A-3805-23 16 G.
In conclusion, we have considered the facts in the light most favorable to
defendant and concluded that he has not set forth a prima facie case in support
of the requested relief. Preciose, 129 N.J. at 462-63. Accordingly, an
evidentiary hearing is not warranted. Id. at 462.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A-3805-23 17