NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0140-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR L. RAMOS, a/k/a HECTOR L. RAMOS-COLLAZO, HECTOR L. CHIQUITTIN, HECTOR COLLAZO, HECTOR RAMOS, and HECTOR L. CHIQUITIN,
Defendant-Appellant.
Submitted November 14, 2019 – Decided January 29, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 14-10- 0867.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Hector Ramos was acquitted of the charge of
first-degree leader of a narcotics network, N.J.S.A. 2C:35-3. The jury convicted
him, however, of first-degree possession with intent to distribute heroin in a
quantity of five ounces or more, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1), and
second-degree conspiracy to commit first-degree distribution of heroin, N.J.S.A.
2C:35-5(a)(1), 2C:35-5(b)(1), and 2C:5-2. Thirteen other persons were named
in his indictment. Defendant was sentenced as a mandatory extended-term
offender on the merged charges on August 1, 2017, see N.J.S.A. 2C:43-6(f), to
forty-five years imprisonment subject to a twenty-two-and-one-half-year term
of parole ineligibility. We affirm, except we remand as to the sentence imposed.
The testimony of numerous witnesses presented by the State at trial
established that defendant and his co-defendants were the subject of surveillance
over the course of several months. The investigating authorities obtained a
wiretap order permitting the monitoring of defendant's text messages and calls,
which were intercepted for approximately a month. At trial, the jury heard
recorded conversations between defendant and his co-defendants regarding drug
A-0140-17T4 2 transactions. A search warrant was obtained and executed for defendant's van.
From that vehicle, police seized 7712 clear Ziploc baggies with blue wax paper
folds inside, stamped "White House," containing heroin. The drugs' total weight
was 214 grams. Police also seized $8200 in cash and another 140 baggies also
containing blue wax paper folds stamped "White House" from defendant's
camper. Although investigators assumed the contents were heroin, those
baggies were not tested.
Defendant waived his Miranda1 rights, and made an inculpatory statement
to police in which he admitted having approximately 550 bundles of heroin in
his van as well as cash earned from the drug trade in his trailer. He named one
of his co-defendants as his supplier, and said that he only sold "White House"
heroin. Defendant explained that he would pass on the drugs he obtained from
his supplier to four or five people who would sell for him, including Toby
Simmons, whom he specifically named.
One of defendant's street sellers, a co-defendant and a drug user, Maritza
Jenkins, testified at trial that she had sold drugs for defendant since 2014. He
would front her the drugs, and she would give him the sales proceeds. Police
intercepted phone calls between the two, and about nine were played to the jury
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0140-17T4 3 while she was on the stand. She identified defendant as the person at the other
end of the line.
Pre-trial, the judge discussed with counsel the necessity to carefully
instruct the jury regarding the wiretap evidence and the search warrants. It was
agreed that although the State was entitled to inform the jury that the intercepts
and the searches were judicially sanctioned, the judge needed to charge the jury
that they could not use the issuance of search warrants or wiretap orders as
evidence of guilt. Counsel agreed to work together to arrive at a limiting
instruction on the issue. The judge discussed the proposed language during the
charge conference. The judge instructed in his closing charge as follows:
"Additionally, you have heard testimony regarding court authorization for
wiretap and search warrants. The underlying basis for these court orders is not
for your consideration. You may not use this testimony in your determination
of the defendant's guilt or innocence of these charges."
During the trial, one of the investigators testified that defendant's
associates, including Toby Simmons, were identified as a result of the intercepts
and the surveillance. Counsel objected to Simmons and others being named on
the basis of relevance. The State responded that the name, like those of others,
A-0140-17T4 4 was mentioned by defendant in his inculpatory statement. The jury heard the
statement.
In summation, the prosecutor commented, "When you have the facts, you
argue the facts. When you don't have the facts, you argue the investigation." In
addition, while acknowledging that the substances seized from defendant's
trailer were not tested for heroin, the prosecutor referred to the 140 baggies as
containing heroin. Defendant had said the baggies contained heroin in his
The prosecutor repeatedly advised defendant on the record of the State's
intent to seek extended-term sentencing if he were convicted. During the pretrial
conference, defendant acknowledged his exposure to that mandatory extended
term. The mandatory extended-term application must be filed and served within
fourteen days of conviction, see R. 3:21-4(e), but was not filed until July 25,
2017, over a month after the jury returned its guilty verdicts. Because the
prosecutor had informed defendant of the State's intent to seek extended-term
sentencing pursuant to the mandatory sentencing provisions of N.J.S.A. 2C:43-
6(f), the judge found good cause to allow the late filing and sentenced defendant
accordingly.
Now on appeal, defendant contends the following:
A-0140-17T4 5 POINT I MR. RAMOS WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE STATE REPEATEDLY PRESENTED TESTIMONY THAT A JUDGE GRANTED LAW ENFORCEMENT AUTHORITIES THE RIGHT TO OBTAIN ELECTRONIC WIRETAP SURVEILLANCE OF MR. RAMOS' PHONES AND THAT THERE WAS A "COURT ORDERED" SEARCH WARRANT FOR MR. RAMOS' VAN AND TRAILER HOME PRIOR TO HIS ARREST.
POINT II THE TRIAL COURT ERRED BY ALLOWING DETECTIVE HOLT TO PROVIDE EXPERT TESTIMONY THAT "TOBY SIMMONS" WAS WORKING FOR MR. RAMOS TO TRAFFIC IN NARCOTICS.
POINT III THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION BY STATING THAT (A) WHEN THE DEFENSE DOES NOT HAVE THE FACTS YOU ARGUE THE INVESTIGATION AND (B) THE STATE DID NOT TEST THE ALLEGED HEROIN SEIZED FROM MR. RAMOS' TRAILER BECAUSE IT REALLY WASN'T NECESSARY.
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE'S MOTION FOR THE IMPOSITION OF AN EXTENDED PRISON TERM OUT-OF-TIME.
POINT V THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
A-0140-17T4 6 I.
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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-0140-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR L. RAMOS, a/k/a HECTOR L. RAMOS-COLLAZO, HECTOR L. CHIQUITTIN, HECTOR COLLAZO, HECTOR RAMOS, and HECTOR L. CHIQUITIN,
Defendant-Appellant.
Submitted November 14, 2019 – Decided January 29, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 14-10- 0867.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Hector Ramos was acquitted of the charge of
first-degree leader of a narcotics network, N.J.S.A. 2C:35-3. The jury convicted
him, however, of first-degree possession with intent to distribute heroin in a
quantity of five ounces or more, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1), and
second-degree conspiracy to commit first-degree distribution of heroin, N.J.S.A.
2C:35-5(a)(1), 2C:35-5(b)(1), and 2C:5-2. Thirteen other persons were named
in his indictment. Defendant was sentenced as a mandatory extended-term
offender on the merged charges on August 1, 2017, see N.J.S.A. 2C:43-6(f), to
forty-five years imprisonment subject to a twenty-two-and-one-half-year term
of parole ineligibility. We affirm, except we remand as to the sentence imposed.
The testimony of numerous witnesses presented by the State at trial
established that defendant and his co-defendants were the subject of surveillance
over the course of several months. The investigating authorities obtained a
wiretap order permitting the monitoring of defendant's text messages and calls,
which were intercepted for approximately a month. At trial, the jury heard
recorded conversations between defendant and his co-defendants regarding drug
A-0140-17T4 2 transactions. A search warrant was obtained and executed for defendant's van.
From that vehicle, police seized 7712 clear Ziploc baggies with blue wax paper
folds inside, stamped "White House," containing heroin. The drugs' total weight
was 214 grams. Police also seized $8200 in cash and another 140 baggies also
containing blue wax paper folds stamped "White House" from defendant's
camper. Although investigators assumed the contents were heroin, those
baggies were not tested.
Defendant waived his Miranda1 rights, and made an inculpatory statement
to police in which he admitted having approximately 550 bundles of heroin in
his van as well as cash earned from the drug trade in his trailer. He named one
of his co-defendants as his supplier, and said that he only sold "White House"
heroin. Defendant explained that he would pass on the drugs he obtained from
his supplier to four or five people who would sell for him, including Toby
Simmons, whom he specifically named.
One of defendant's street sellers, a co-defendant and a drug user, Maritza
Jenkins, testified at trial that she had sold drugs for defendant since 2014. He
would front her the drugs, and she would give him the sales proceeds. Police
intercepted phone calls between the two, and about nine were played to the jury
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0140-17T4 3 while she was on the stand. She identified defendant as the person at the other
end of the line.
Pre-trial, the judge discussed with counsel the necessity to carefully
instruct the jury regarding the wiretap evidence and the search warrants. It was
agreed that although the State was entitled to inform the jury that the intercepts
and the searches were judicially sanctioned, the judge needed to charge the jury
that they could not use the issuance of search warrants or wiretap orders as
evidence of guilt. Counsel agreed to work together to arrive at a limiting
instruction on the issue. The judge discussed the proposed language during the
charge conference. The judge instructed in his closing charge as follows:
"Additionally, you have heard testimony regarding court authorization for
wiretap and search warrants. The underlying basis for these court orders is not
for your consideration. You may not use this testimony in your determination
of the defendant's guilt or innocence of these charges."
During the trial, one of the investigators testified that defendant's
associates, including Toby Simmons, were identified as a result of the intercepts
and the surveillance. Counsel objected to Simmons and others being named on
the basis of relevance. The State responded that the name, like those of others,
A-0140-17T4 4 was mentioned by defendant in his inculpatory statement. The jury heard the
statement.
In summation, the prosecutor commented, "When you have the facts, you
argue the facts. When you don't have the facts, you argue the investigation." In
addition, while acknowledging that the substances seized from defendant's
trailer were not tested for heroin, the prosecutor referred to the 140 baggies as
containing heroin. Defendant had said the baggies contained heroin in his
The prosecutor repeatedly advised defendant on the record of the State's
intent to seek extended-term sentencing if he were convicted. During the pretrial
conference, defendant acknowledged his exposure to that mandatory extended
term. The mandatory extended-term application must be filed and served within
fourteen days of conviction, see R. 3:21-4(e), but was not filed until July 25,
2017, over a month after the jury returned its guilty verdicts. Because the
prosecutor had informed defendant of the State's intent to seek extended-term
sentencing pursuant to the mandatory sentencing provisions of N.J.S.A. 2C:43-
6(f), the judge found good cause to allow the late filing and sentenced defendant
accordingly.
Now on appeal, defendant contends the following:
A-0140-17T4 5 POINT I MR. RAMOS WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE STATE REPEATEDLY PRESENTED TESTIMONY THAT A JUDGE GRANTED LAW ENFORCEMENT AUTHORITIES THE RIGHT TO OBTAIN ELECTRONIC WIRETAP SURVEILLANCE OF MR. RAMOS' PHONES AND THAT THERE WAS A "COURT ORDERED" SEARCH WARRANT FOR MR. RAMOS' VAN AND TRAILER HOME PRIOR TO HIS ARREST.
POINT II THE TRIAL COURT ERRED BY ALLOWING DETECTIVE HOLT TO PROVIDE EXPERT TESTIMONY THAT "TOBY SIMMONS" WAS WORKING FOR MR. RAMOS TO TRAFFIC IN NARCOTICS.
POINT III THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION BY STATING THAT (A) WHEN THE DEFENSE DOES NOT HAVE THE FACTS YOU ARGUE THE INVESTIGATION AND (B) THE STATE DID NOT TEST THE ALLEGED HEROIN SEIZED FROM MR. RAMOS' TRAILER BECAUSE IT REALLY WASN'T NECESSARY.
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE'S MOTION FOR THE IMPOSITION OF AN EXTENDED PRISON TERM OUT-OF-TIME.
POINT V THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
A-0140-17T4 6 I.
Defendant's first point on appeal, that references to wiretap surveillance
of his phone, and the search warrants for his van and trailer home were unduly
prejudicial, lacks merit. Our standard of review on this issue is plain error. See
R. 2:10-2. We will not reverse unless the alleged error raises a reasonable doubt
as to whether it led the jury to a result it might not have otherwise reached. State
v. Daniels, 182 N.J. 80, 95 (2004). During some jury trials, there is no
alternative to references to search warrants to explain police conduct. State v.
Cain, 224 N.J. 410, 435 (2016) ("[A] search warrant can be referenced to show
that the police had lawful authority in carrying out a search to dispel any
preconceived notion that the police acted arbitrarily."). A prosecutor cannot,
however, emphasize a judge's involvement in the issuance of warrant "if doing
so creates the likelihood that a jury may draw an impermissible inference of
guilt." Ibid.
That certainly did not happen here. The prosecutor was scrupulous in
avoiding mention of the wiretaps or search warrants, and when unavoidable, did
so carefully.
Both counsel had no realistic choice but to acknowledge that since
defendant's arrest and the seizure of the narcotics resulted from an ongoing
A-0140-17T4 7 broad-based investigation, mention of the wiretap and search warrants was
unavoidable. For that reason, counsel and the court discussed the issue on the
record, and the lawyers fashioned an appropriate instruction, which the judge
gave to the jury. Any prejudice resulting from the jury being advised of
judicially authorized intercepts and warrants was adequately addressed by the
judge's charge which was collaborated on, and agreed to, by both parties. We
assume that a jury follows instructions and that this jury did so. State v.
Marshall, 173 N.J. 343, 355 (2002). Thus, references to the wiretap order and
search warrants in this case were not capable of producing an unjust result.
II.
Defendant now argues on appeal that the investigator's mention of Toby
Simmons was unduly prejudicial. Counsel objected at the time, but on the basis
of relevance. Simmons was not charged in the indictment, nor was defendant
indicted for any offense involving him. Defendant contends that the officer's
reference to Simmons as a street dealer employed by defendant violated the
proscription against evidence of other crimes being introduced at trial.
The Cape May County Prosecutor's Office lieutenant who testified as an
expert witness in the field of narcotics, referred to Simmons and another person
identified by defendant in his inculpatory statement as individuals who sold
A-0140-17T4 8 drugs on defendant's behalf. Nothing else was said about Simmons's
involvement.
The State responds that Simmons's identification as a seller was merely
testimony intrinsic to the charge of being a leader of a narcotics network. In
State v. Rose, 206 N.J. 141, 177 (2011), the Court held, among other things, that
evidence intrinsic to a charged crime "is exempt from the strictures of Rule
404(b)." That certainly is true in this case where the actual charge is defendant's
distribution of drugs to others for sale on the street.
In any event, the objected-to testimony was nothing more than a
reiteration of defendant's inculpatory statement regarding his street sellers, and
is probative of one or more of the statutory elements of the crime of being the
leader of a narcotics network. The passing reference had probative value that
was not substantially outweighed by the risk of undue prejudice. See N.J.R.E.
403. It could not have prejudiced defendant any more than the State's other
proofs—such as Jenkins's testimony about selling drugs for defendant.
III.
Defendant did not object at the time of trial to the prosecutor's statements
he now argues were unduly prejudicial. Thus, it is his burden to establish that
they were clearly capable of producing an unjust result. See Daniels, 182 N.J.
A-0140-17T4 9 at 95. The offending remarks must have been so egregious as to have deprived
him of a fair trial. State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003).
Our review of the record establishes the remarks were simply not prejudicial at
all.
A prosecutor is allowed to present forceful arguments on behalf of the
State. State v. Frost, 158 N.J. 76, 82 (1999). That the prosecutor observed that
defendant's defense was an attack on the investigation, not the facts, was fair
comment. That was the defense theory—an attack on the investigation in a case
with overwhelming State's proofs, including direct testimony against defendant,
recordings of him engaging in the business of drug dealing, and his own
confession.
For the prosecutor to have also observed that the State did not test the
heroin seized from the trailer because it was not necessary was similarly
unobjectionable. When defendant confessed, he said he only sold heroin marked
"White House." Defendant told the interviewing officers that there was heroin
packaged in a similar manner in the trailer, and he described where it was
hidden. When officers searched the trailer, the baggies containing blue wax
paper folds were located where he said they would be found. Thus, there was
evidence that the folds discovered in defendant's trailer were, at least in
A-0140-17T4 10 defendant's opinion, illegal substances. A very substantial quantity of similarly
packaged drugs was tested. The prosecutor's passing reference was
unremarkable in light of defendant's statement and other proofs in the case. In
any event, the heroin seized from defendant's van, which was tested, exceeded
the statutory requirement of five ounces or more. This comment was not error
at all, certainly not error clearly capable of producing an unjust result.
IV.
Defendant contends the court should not have imposed an extended-term
sentence because the State filed out of time. He also argues the sentence was
unduly excessive and punitive.
At sentencing, the State did not offer an explanation for the late filing.
Instead, the prosecutor argued that defendant was well aware that the State
would be seeking an extended sentence, and that the extended term was
mandatory.
The record supports the State's claim that defendant knew, prior to the
motion, that he was subject to extended-term mandatory sentencing up to life
imprisonment. Failure to impose a statutorily mandated sentence is itself an
illegal sentence. State v. Acevedo, 205 N.J. 40, 45 (2011). Nonetheless, the
A-0140-17T4 11 State is required to file written notice of the motion for extended-term
sentencing within two weeks of conviction.
Defendant, who was forty-five years old when convicted, had been found
guilty of a robbery in 1992 in Puerto Rico, a disorderly persons attempted theft
in 2001, and a second-degree drug distribution in 2002, for which he was
sentenced to state prison. The judge found no mitigating factors, only
aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (9). He
gave all the aggravating factors substantial weight. A mandatory first-degree
drug distribution sentence ranges from twenty years to life in prison.
The court accorded substantial weight to aggravating factor three because
defendant had been previously convicted of selling drugs on one occasion, and
also gave substantial weight to aggravating factor six for the same reason.
Finally, the judge attributed very substantial weight to factor nine because the
prior term of incarceration had not deterred defendant and was necessary to deter
him and the public from distributing drugs.
Sentences are reviewed deferentially. State v. Lawless, 214 N.J. 594, 606
(2013). We ask only if legislative guidelines have been followed, if competent
credible evidence supports each finding of fact upon which the judge based the
sentence, and whether application of the facts to the law is a clear error of
A-0140-17T4 12 judgment which shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-
65 (1984).
The statutory aggravating and mitigating factors relied upon by a
sentencing judge must be fully supported by the record. The purpose served by
these statutory considerations is to advance the goal of uniformity in sentencing.
State v. Blackmon, 202 N.J. 283, 296 (2010). They create a common framework
for all judges. State v. Case, 220 N.J. 49, 63-65 (2014). Balancing the
aggravating and mitigating factors is more than just counting whether one set of
factors outnumbers the other. Id. at 65. The court must qualitatively assess
them, assigning appropriate weight to each. Ibid.
In this case, the judge found aggravating factors three and six had
substantial weight based on a relatively minimal prior criminal history, a
qualitative assessment not fully supported by the record. In light of the quantity
of drugs defendant possessed at the time of arrest, it was not improper to give
substantial weight to factor nine. However, the factor is present in every case,
and hardly entitled to substantial weight except where "particular emphasis" is
explained. See Case, 220 N.J. at 68. It is not clear how the fifty-year sentence
was necessary to deter defendant specifically when a lesser sentence can have
the same deterrent effect. It is not clear to us that defendant's relatively limited
A-0140-17T4 13 prior criminal history, admittedly including one similar offense, even in the
absence of mitigating factors, warrants a sentence that at best will see defendant
released from state prison at age sixty-seven. For that reason, we remand for
the judge to revisit the weight he accorded the aggravating factors. We do not
suggest the number of years to which defendant should be sentenced , but only
that a comparatively scant criminal history may not warrant the substantial
weight the judge assigned to aggravating factors three and six.
Affirmed, except remanded as to the sentence.
A-0140-17T4 14