NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2854-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLY MINAYA, a/k/a WILLY R. MINAYA,
Defendant-Appellant. _____________________________
Submitted April 17, 2018 – Decided June 27, 2018
Before Judges Reisner, Hoffman, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 13-07-0664.
Joseph E. Krakora, Public Defender, attorney for appellant (Rebecca L. Gindi, Assistant Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Arielle E. Katz, Deputy Attorney General, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Willy Minaya appeals from his conviction for first-
degree robbery, N.J.S.A. 2C:15-1(a)(2), fourth-degree theft,
N.J.S.A. 2C:20-3, and third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d). He also appeals from the
sentence of eighteen years in prison, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
On this appeal, he presents the following points of argument
through counsel:
I. FAILURE TO INSTRUCT THE JURY ON HOW TO EVALUATE MINAYA'S ALLEGED ORAL OUT-OF-COURT STATEMENTS AND TO USE CAUTION IN SAID EVALUATION DENIED MINAYA DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW)
II. THE TRIAL COURT ERRED BY ALLOWING THE INVESTIGATING OFFICER TO TESTIFY TO ISSUES SOLELY IN THE PROVINCE OF THE JURY. (NOT RAISED BELOW)
III. THE TRIAL COURT'S CONFUSING AND UNTAILORED ACCOMPLICE LIABILITY INSTRUCTION VIOLATED BIELKIEWICZ AND LEFT THE JURY WITH NO UNDERSTANDING OF HOW THE THEORY APPLIED, VIOLATING MINAYA'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
IV. THE CUMULATIVE IMPACT OF THE ERRORS DENIED MINAYA A FAIR TRIAL. (NOT RAISED BELOW)
V. BECAUSE THE JUDGE'S PERSONAL REPUGNANCE TOWARD MINAYA GUIDED IMPOSITION OF HIS SENTENCE, MINAYA'S SENTENCE WAS NOT IMPOSED IN ACCORDANCE WITH THE SENTENCING CODE, REQUIRING RESENTENCING.
A. The Sentencing Judge Improperly Considered Non-Statutory Aggra-
2 A-2854-15T3 vating Factors When He Made Moral Judgments About Minaya's Parenting Decisions, Immigration Status, And Drug Use, Evidencing His Personal Repugnance Towards Minaya And Denying Minaya His Right To A Fair And Impartial Sentencing Hearing.
B. The Trial Court Abused Its Discretion By Failing To Find Mitigating Factor Eleven And By Affording Undue Weight To Aggravating Factors Three, Six And Nine.
He raises the following issues in a supplemental pro se brief:
I. THE PROSECUTOR COMMITTED MISCONDUCT IN HER SUMMATION, THEREBY DEPRIVING MINAYA [OF] A FAIR TRIAL
II. THE TRIAL COURT'S FAILURE TO GIVE A CURATIVE INSTRUCTION ON ACCOMPLICE LIABILITY DEPRIVED MINAYA [OF] A FAIR TRIAL
III. TRIAL COUNSEL DEPRIVED MINAYA OF HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO ARGUE MINAYA'S PRO SE MOTION TO SUPPRESS EVIDENCE
After reviewing the record in light of the applicable legal
standards, we find no plain error with respect to any of
defendant's newly-raised contentions, and we find no abuse of
discretion or other error in the sentence. Defendant's first two
pro se arguments are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). We decline to consider
defendant's third pro se argument, without prejudice to his right
to file a petition for post-conviction relief. See State v.
3 A-2854-15T3 Preciose, 129 N.J. 451, 460 (1992). We affirm the conviction and
the sentence.
I
The following summary of the trial record will suffice to
illustrate our decision of the legal issues. The Paterson police
apprehended defendant and a co-defendant, Emmanuel Rodriguez,
shortly after the two men robbed the victim by threatening him
with a sharp object. At around 1:00 a.m., Officer Campos and his
partner, Officer Hernandez, were cruising the Union Avenue area
in a patrol vehicle. From a few yards away, Campos and Hernandez
saw two men crouching over a third man (the victim), but at first
they were not sure what was happening. When the patrol car came
closer, the two crouching men got up and started walking away.
Campos asked one of the men, later identified as defendant, what
was going on. When defendant replied that "nothing" was happening,
Campos let defendant and his companion get into a green Honda and
drive away. However, suspecting that something might be awry,
Campos checked the Honda's license plate number in his computer.
As defendant and his companion were driving away, the victim
shouted in Spanish that they had taken his cell phone. At that
point, Campos, who spoke Spanish, realized that he had witnessed
a robbery. According to Campos, he and Hernandez began chasing
the green Honda, and called for back-up. A back-up unit quickly
4 A-2854-15T3 stopped the fleeing car and detained the two occupants, defendant
and Rodriguez. The police found the victim's cell phone and a
screwdriver in defendant's pocket. At the trial, Campos and
Hernandez both identified defendant as the man who they saw at the
robbery scene, and who told them that "nothing" was going on.1
The defense called Rodriguez as a witness. Initially,
Rodriguez testified that the robbery was entirely his idea. He
testified that he and defendant were at a bar, and Rodriguez saw
the victim waving cash around. Rodriguez told defendant that he
was going to rob the victim, and told defendant to go get his car,
which was parked some distance away. When the victim came out of
the bar, Rodriguez followed him and robbed him. Rodriguez
indicated that defendant arrived with the car after the robbery
was over. However, on cross-examination Rodriguez recanted that
testimony, which was contrary to prior sworn statements he had
made. Rodriguez admitted that defendant had contacted him before
the trial and urged him to give exculpatory testimony. Rodriguez
then admitted that defendant fully participated in the robbery and
threatened the victim with the screwdriver.
1 The victim, who was grabbed from behind and was lying face down on the ground during the robbery, did not identify defendant at the trial.
5 A-2854-15T3 II
Addressing defendant's first point, we find no plain error
in the court's failure to sua sponte give a Hampton2 or a Kociolek3
charge. A Hampton charge instructs the jury to decide whether a
defendant's confession to the police is credible and to disregard
the statement if it is not credible. See State v. Baldwin, 296
N.J. Super. 391, 401 (App. Div. 1997). A Kociolek charge is given
where a defendant has made an allegedly inculpatory oral statement
to a witness, and there is a genuine issue regarding precisely
what the defendant said. Baldwin, 296 N.J. Super. at 401. In
that situation, the jury must be instructed "with respect to the
risk that the hearer misunderstood or inaccurately recalled the
statement." Ibid. Defendant did not request either charge at the
Free access — add to your briefcase to read the full text and ask questions with AI
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-2854-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLY MINAYA, a/k/a WILLY R. MINAYA,
Defendant-Appellant. _____________________________
Submitted April 17, 2018 – Decided June 27, 2018
Before Judges Reisner, Hoffman, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 13-07-0664.
Joseph E. Krakora, Public Defender, attorney for appellant (Rebecca L. Gindi, Assistant Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Arielle E. Katz, Deputy Attorney General, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Willy Minaya appeals from his conviction for first-
degree robbery, N.J.S.A. 2C:15-1(a)(2), fourth-degree theft,
N.J.S.A. 2C:20-3, and third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d). He also appeals from the
sentence of eighteen years in prison, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
On this appeal, he presents the following points of argument
through counsel:
I. FAILURE TO INSTRUCT THE JURY ON HOW TO EVALUATE MINAYA'S ALLEGED ORAL OUT-OF-COURT STATEMENTS AND TO USE CAUTION IN SAID EVALUATION DENIED MINAYA DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW)
II. THE TRIAL COURT ERRED BY ALLOWING THE INVESTIGATING OFFICER TO TESTIFY TO ISSUES SOLELY IN THE PROVINCE OF THE JURY. (NOT RAISED BELOW)
III. THE TRIAL COURT'S CONFUSING AND UNTAILORED ACCOMPLICE LIABILITY INSTRUCTION VIOLATED BIELKIEWICZ AND LEFT THE JURY WITH NO UNDERSTANDING OF HOW THE THEORY APPLIED, VIOLATING MINAYA'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
IV. THE CUMULATIVE IMPACT OF THE ERRORS DENIED MINAYA A FAIR TRIAL. (NOT RAISED BELOW)
V. BECAUSE THE JUDGE'S PERSONAL REPUGNANCE TOWARD MINAYA GUIDED IMPOSITION OF HIS SENTENCE, MINAYA'S SENTENCE WAS NOT IMPOSED IN ACCORDANCE WITH THE SENTENCING CODE, REQUIRING RESENTENCING.
A. The Sentencing Judge Improperly Considered Non-Statutory Aggra-
2 A-2854-15T3 vating Factors When He Made Moral Judgments About Minaya's Parenting Decisions, Immigration Status, And Drug Use, Evidencing His Personal Repugnance Towards Minaya And Denying Minaya His Right To A Fair And Impartial Sentencing Hearing.
B. The Trial Court Abused Its Discretion By Failing To Find Mitigating Factor Eleven And By Affording Undue Weight To Aggravating Factors Three, Six And Nine.
He raises the following issues in a supplemental pro se brief:
I. THE PROSECUTOR COMMITTED MISCONDUCT IN HER SUMMATION, THEREBY DEPRIVING MINAYA [OF] A FAIR TRIAL
II. THE TRIAL COURT'S FAILURE TO GIVE A CURATIVE INSTRUCTION ON ACCOMPLICE LIABILITY DEPRIVED MINAYA [OF] A FAIR TRIAL
III. TRIAL COUNSEL DEPRIVED MINAYA OF HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO ARGUE MINAYA'S PRO SE MOTION TO SUPPRESS EVIDENCE
After reviewing the record in light of the applicable legal
standards, we find no plain error with respect to any of
defendant's newly-raised contentions, and we find no abuse of
discretion or other error in the sentence. Defendant's first two
pro se arguments are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). We decline to consider
defendant's third pro se argument, without prejudice to his right
to file a petition for post-conviction relief. See State v.
3 A-2854-15T3 Preciose, 129 N.J. 451, 460 (1992). We affirm the conviction and
the sentence.
I
The following summary of the trial record will suffice to
illustrate our decision of the legal issues. The Paterson police
apprehended defendant and a co-defendant, Emmanuel Rodriguez,
shortly after the two men robbed the victim by threatening him
with a sharp object. At around 1:00 a.m., Officer Campos and his
partner, Officer Hernandez, were cruising the Union Avenue area
in a patrol vehicle. From a few yards away, Campos and Hernandez
saw two men crouching over a third man (the victim), but at first
they were not sure what was happening. When the patrol car came
closer, the two crouching men got up and started walking away.
Campos asked one of the men, later identified as defendant, what
was going on. When defendant replied that "nothing" was happening,
Campos let defendant and his companion get into a green Honda and
drive away. However, suspecting that something might be awry,
Campos checked the Honda's license plate number in his computer.
As defendant and his companion were driving away, the victim
shouted in Spanish that they had taken his cell phone. At that
point, Campos, who spoke Spanish, realized that he had witnessed
a robbery. According to Campos, he and Hernandez began chasing
the green Honda, and called for back-up. A back-up unit quickly
4 A-2854-15T3 stopped the fleeing car and detained the two occupants, defendant
and Rodriguez. The police found the victim's cell phone and a
screwdriver in defendant's pocket. At the trial, Campos and
Hernandez both identified defendant as the man who they saw at the
robbery scene, and who told them that "nothing" was going on.1
The defense called Rodriguez as a witness. Initially,
Rodriguez testified that the robbery was entirely his idea. He
testified that he and defendant were at a bar, and Rodriguez saw
the victim waving cash around. Rodriguez told defendant that he
was going to rob the victim, and told defendant to go get his car,
which was parked some distance away. When the victim came out of
the bar, Rodriguez followed him and robbed him. Rodriguez
indicated that defendant arrived with the car after the robbery
was over. However, on cross-examination Rodriguez recanted that
testimony, which was contrary to prior sworn statements he had
made. Rodriguez admitted that defendant had contacted him before
the trial and urged him to give exculpatory testimony. Rodriguez
then admitted that defendant fully participated in the robbery and
threatened the victim with the screwdriver.
1 The victim, who was grabbed from behind and was lying face down on the ground during the robbery, did not identify defendant at the trial.
5 A-2854-15T3 II
Addressing defendant's first point, we find no plain error
in the court's failure to sua sponte give a Hampton2 or a Kociolek3
charge. A Hampton charge instructs the jury to decide whether a
defendant's confession to the police is credible and to disregard
the statement if it is not credible. See State v. Baldwin, 296
N.J. Super. 391, 401 (App. Div. 1997). A Kociolek charge is given
where a defendant has made an allegedly inculpatory oral statement
to a witness, and there is a genuine issue regarding precisely
what the defendant said. Baldwin, 296 N.J. Super. at 401. In
that situation, the jury must be instructed "with respect to the
risk that the hearer misunderstood or inaccurately recalled the
statement." Ibid. Defendant did not request either charge at the
trial, and thus we review for plain error. R. 1:7-2; R. 2:10-2.
The argument here concerns defendant's threat to "go through"
or cut the victim with the screwdriver, defendant's instruction
to Rodriguez to search the victim's pockets, and defendant's
instruction to Rodriguez to throw some incriminating evidence out
the car window.
2 State v. Hampton, 61 N.J. 250 (1972). 3 State v. Kociolek, 23 N.J. 400 (1957).
6 A-2854-15T3 The statements were not made during police questioning, and
none of them constituted an admission of guilt. Rather, they were
either threats or instructions. Further, there was no issue in
this case as to whether the witnesses misheard the statements or
recounted them inaccurately. The only issues were whether
defendant – as opposed to Rodriguez — made the statements the
victim heard, and whether defendant made the statements to which
Rodriguez testified or whether Rodriguez was lying. In the context
of this record, the Hampton and Kociolek charges were not required.
See Baldwin, 296 N.J. Super. at 401-02. However, even if they
should have been given, any error in failing to sua sponte instruct
the jury with those charges was harmless. See R. 2:10-2.
Defendant's second point, also raised for the first time on
appeal, is equally unconvincing. Relying on State v. McLean, 205
N.J. 438, 460 (2011), defendant argues that it was error to allow
Officer Campos to testify that a robbery had occurred. Campos
gave that brief testimony in the context of explaining that, once
he heard the victim cry out that the two men had taken his phone,
the officer realized that he made a mistake in initially letting
the two other men leave the scene. We find no plain error in
allowing that testimony. There was no genuine issue in this case
as to whether a robbery occurred. The issue was who committed the
crime. In this context, the officer's testimony about witnessing
7 A-2854-15T3 a robbery did not have a clear capacity to produce an unjust
result. See R. 2:10-2.
For the first time, defendant next argues that the judge
erred in responding to the jury's question about accomplice
liability. In their summations, both sides thoroughly explained
to the jury the theory of accomplice liability in the context of
this case, and the judge instructed them with the Model Charge.
After beginning deliberations, the jury asked: "How does
accomplice liability apply to this defendant, if it does, and does
[sic] the verdict sheet charges reflect this option?" Both counsel
agreed that the judge should explain to the jury that the theory
of accomplice liability could only apply to the robbery and theft
counts; it was up to the jury to decide if accomplice liability
applied to those counts; and the accomplice issue did not appear
on the verdict sheet because it was not a separate charge but
rather was a theory by which the State could prove particular
charges. The judge also told the jury to re-read the accomplice
liability sections of the written charge, which he had given them.
In the context of this case, we find no plain error in the
judge's response to the jury's question. The evidence of
defendant's guilt on the first-degree robbery and theft charges,
either as a principal or an accomplice, was overwhelming. The
police officers saw two assailants crouching over the victim. The
8 A-2854-15T3 victim testified that there were at least two men involved in
robbing him, and one of the robbers pressed a sharp object into
his back and threatened to cut him. On this record, the jury
could not find defendant guilty only of theft, unless they believed
Rodriguez's initial testimony, which was contrary to his prior
sworn statements and which he thoroughly recanted on cross-
examination. Defendant's argument on this point is without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Since we find no plain error in any of defendant's first
three arguments, we also find no cumulative error.
We find no merit in defendant's sentencing arguments. The
trial judge scrupulously and thoroughly considered all of the
proposed aggravating and mitigating factors, explaining in detail
why he found that each factor applied or did not apply. See State
v. Case, 220 N.J. 49, 65 (2014).
We find no abuse of discretion in the judge's conclusion that
mitigating factor eleven (hardship to dependents) was
inapplicable. See N.J.S.A. 2C:44-1(b)(11). The judge did not
consider non-statutory aggravating factors, and we do not perceive
anything improper in his explanation for rejecting mitigating
factor eight or for applying aggravating factor three. N.J.S.A.
2C:44-1(b)(8) (defendant's conduct was the result of circumstances
unlikely to recur); N.J.S.A. 2C:44-1(a)(3) (risk of re-offense).
9 A-2854-15T3 Nothing in the judge's sentencing opinion indicated bias.
Defendant's sentencing arguments are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
10 A-2854-15T3