                                 NOT FOR PUBLICATION WITHOUT THE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 cas es is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4236-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NERI R. SANCHEZ, a/k/a
PAUL A. ROTHMALLER,
NARRY SANCHEZ, and
NESS SANTIAGO,

     Defendant-Appellant.
_____________________________

                    Submitted December 3, 2019 – Decided January 2, 2020

                    Before Judges Gilson and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 15-06-
                    0684.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Marcia H. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Jennifer    Webb-McRae,        Cumberland       County
                    Prosecutor, attorney for respondent (Andre R. Araujo,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

        A jury convicted defendant Neri Sanchez of first-degree murder, N.J.S.A.

2C:11-3(a)(1) or (2), and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a). The weapon conviction was merged into the

murder conviction, and defendant was sentenced to sixty years in prison, subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals

and argues that references to drugs and gangs during questioning by the police,

a video recording of which was played for the jury, was reversible error and his

sentence was excessive. We disagree and affirm.

                                          I.

        On November 14, 2014, J.C. was shot in the back of his head and died

while at defendant's apartment.1 The evidence at trial established that seven

people were at defendant's apartment at the time of the murder: the victim,

defendant, and five visitors.

        One of the visitors, R.H., testified that on November 14, 2014, he was at

defendant's apartment playing video games with the victim. According to R.H.,

defendant suddenly shot the victim in the back of his head, said, "fuck that

n___," and walked out of the apartment. Another visitor, A.G., testified that he


1
    We use initials to protect the privacy interests of the victim and witnesses.
                                                                            A-4236-17T4
                                          2
was in the kitchen when he heard a gunshot. A.G. then ran out of the apartment

and defendant walked past him holding a gun.

      Someone called 911, and the police responded. Sergeant Joseph Paul

Hoydis, Jr. testified that he arrived at defendant's apartment at approximately

6:15 p.m. and found the victim lying face-down on the living room floor with a

pool of blood around his head. Police officers discovered what they believed to

be drugs and drug paraphernalia in the kitchen of defendant's apartment. A

photograph of what appeared to be drugs and paraphernalia on a table was

introduced into evidence at trial without comment by the prosecution.

      As part of their investigation, police obtained security video footage from

defendant's apartment complex. The video, which was admitted into evidence,

showed that defendant and two of the visitors, A.G. and A.R., left the apartment

at approximately 6 p.m. on November 14, 2014.

      Defendant elected not to testify at trial, but the State played redacted

portions of a recorded statement defendant gave to the police on November 15,

2014. Before defendant's statement was played for the jury, the court conducted

a series of hearings, including an evidentiary hearing concerning the

admissibility of the statement and the need for redactions to the statement.




                                                                         A-4236-17T4
                                        3
       The trial court found that defendant had been given his Miranda2 warnings

and that he had knowingly and voluntarily waived those rights. Defendant,

thereafter, answered certain questions, but later invoked his right to counsel and

the questioning ended. Thus, the trial court ruled that defendant's statements

before the invocation of his right to counsel could be played at trial, subject to

specific objections to particular questions that could be made at trial.

       Thereafter, counsel and the court conferred and, at defendant's request,

the court redacted portions of the statement concerning defendant's mental

health. Defendant also objected to the portions of the statement that discussed

the drugs and paraphernalia found at defendant's apartment. The court noted

that redacting all references to drugs would be difficult and suggested that the

drugs were "intrinsic to what happened that day." The State argued that the

drugs might be relevant to a motive for the murder and could also be relevant to

the credibility of the witnesses who were present at the apartment.

       The court stated that it would review defendant's statement and try to

redact as many of the references to drugs and paraphernalia as possible. The

court also stated that it would give the jury a limiting instruction concerning any

references to the drugs and drug paraphernalia.         Subsequently, the court


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-4236-17T4
                                        4
reviewed and redacted certain portions of the statements and provided the

redacted statements to counsel. Defense counsel acknowledged that she had

reviewed the redactions and that the redactions were consistent with the trial

court's prior ruling.

      At trial, the State played a video recording of defendant's redacted

statement. The jury was also provided with a redacted transcript but instructed

that the transcript was only an aid and that the jury should be guided by what it

heard in the video recording.

      In the portion of the statement played for the jury, defendant denied

committing the murder and stated that he left his apartment before the murder

occurred. Several times during the interview, detectives asked defendant about

drugs and paraphernalia that were found on the kitchen table in defendant's

apartment. Defendant denied knowing anything about the drugs or to whom the

drugs belonged. Detectives also asked defendant whether he or any of the other

people in his apartment were affiliated with a gang. Defendant denied any gang

affiliation.

      After the jury had seen and heard defendant's redacted statement, the court

conferred with counsel regarding the references to drugs and gang affiliation.

The court agreed to give the jury a limiting instruction concerning the drugs and


                                                                         A-4236-17T4
                                       5
drug paraphernalia. Defense counsel and the prosecutor agreed that it would be

better not to call further attention to the reference to gangs and they suggested

that no instruction concerning gangs should be given to the jury. The trial court

agreed with that suggestion.

      The trial court then instructed the jury that defendant was not charged with

any drug offense, it was not to consider the references to drugs as an indication

that defendant had a propensity to commit crimes, and it was not to consider the

drugs in any way in determining if defendant committed the murder. The jury

was also instructed that it was not being asked to determine if there were drugs

present in the apartment or to whom the drugs belonged.

      After hearing all of the testimony and considering the evidence, the jury

found defendant guilty of murder and possession of a weapon for an unlawful

purpose. As noted earlier, the weapon conviction was merged with the murder

conviction, and defendant was sentenced to sixty years in prison subject to

NERA.

                                       II.

      On appeal, defendant challenges his conviction and sentence. He presents

two arguments for our consideration, which he articulates as follows:

            POINT I – IT WAS ERROR TO ADMIT THE
            IRRELEVANT AND PREJUDICIAL DISCUSSIONS

                                                                          A-4236-17T4
                                        6
            IN THE INTERROGATION ABOUT DRUGS AND
            GANGS, AND THE INSTRUCTION WAS
            INEFFECTIVE IN LIMITING THE JURY'S
            CONSIDERATION OF THE DRUGS AND SAID
            NOTHING ABOUT GANGS.

                  A.    The drug evidence was inadmissible
                  because it was irrelevant to the charged
                  homicide, constituted prejudicial other-crime
                  evidence that had no bearing on Sanchez's motive
                  for the homicide, and was not intrinsic to the
                  homicide.

                  B.    The gang references were inadmissible
                  because they were irrelevant to the charged
                  homicide, constituted prejudicial other-crime
                  evidence that had no bearing on Sanchez's motive
                  for the homicide, and were not intrinsic to the
                  homicide.

                  C.    The jury instruction failed to limit the
                  prejudice caused by the erroneous admission of
                  the evidence tying Sanchez to drugs and gangs.

            POINT II – THE SENTENCE OF 60 YEARS, 51
            YEARS WITHOUT PAROLE, IMPOSED ON THIS
            29-YEAR-OLD DEFENDANT FOR HIS ONLY
            INDICTABLE CONVICTION IS UNSUPPORTED
            AND EXCESSIVE.

      Having considered defendant's arguments in light of the evidence at trial,

we discern no reversible error. We will first analyze defendant's arguments

concerning the references to drugs and gangs and then analyze his sentence.




                                                                        A-4236-17T4
                                       7
      A.    Defendant's Statement

      "A trial court's ruling on the admissibility of evidence is reviewed on

appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). Unless

a trial court commits a "clear error of judgment" we will not reverse based on

such an evidentiary ruling. Id. at 158 (quoting State v. Barden, 195 N.J. 375,

391 (2008)).

      There is no dispute that portions of defendant's statements to the police

were admissible. Defendant voluntarily and knowingly waived his Miranda

rights and initially agreed to answer questions by the police. When he invoked

his right to counsel, the questioning ended. The issues raised by defendant ,

therefore, do not go to the admissibility of the entire statement. Instead, the

issue is whether all references to drugs and gangs in defendant's statement

should have been redacted.

      We start by analyzing the references to the drugs. Defendant argues that

evidence concerning the alleged drugs found at the scene of the crime was

irrelevant to the crimes charged, constituted prejudicial other-crime evidence,

and was not intrinsic to the charged crimes. Defendant also argues that the jury

instruction was insufficient. The State responds that defendant ultimately failed

to object to the admission of the references to drugs, the references did not


                                                                         A-4236-17T4
                                       8
constitute a manifest denial of justice, and even if the references should have

been excluded, their inclusion was invited error.

      Counsel and the trial court addressed the references to drugs over a series

of pretrial motions and conferences during the trial. Defense counsel initially

argued that all references to drugs should be redacted. The trial court observed

that redacting all references would be difficult. Ultimately, the trial court

correctly ruled that the drugs and drug paraphernalia were not relevant to the

murder charge. The trial court then conducted a review of defendant's statement,

made redactions, and showed those redactions to counsel. At that point, the

defense did not request further redactions. Nevertheless, several references to

drugs were not redacted from the portion of defendant's recorded statement that

was played for the jury.

      There should have been no reference to drugs or drug paraphernalia. The

drugs were not relevant to the charges of murder or possession of a weapon.

Moreover, defendant was not charged with a drug offense.

      The drugs were also not intrinsic to the murder or weapon charges. There

are "two narrow categories" of intrinsic evidence.       Rose, 206 N.J. at 180

(quoting United States v. Green, 617 F.3d 233, 248 (3rd Cir. 2010)). "First,

evidence is intrinsic if it 'directly proves' the charged offense." Ibid. (quoting


                                                                          A-4236-17T4
                                        9
Green,   617    F.3d    at   248).      "Second,    'uncharged    acts   performed

contemporaneously with the charged crime may be termed intrinsic if they

facilitate the commission of the charged crime.'" Ibid. (quoting Green, 617 F.3d

at 249); see also State v. Santamaria, 236 N.J. 390, 409-10 (2019) (holding that

evidence of other crimes or wrongs is not admissible for a propensity inference).

Evidence must be intrinsic to a charged crime; it cannot be intrinsic to a crime

scene.

      Thus, the issue is whether the references to drugs and drug paraphernalia

that the jury did hear constitute reversible error. We do not deem the lack of a

request for further redactions by defense counsel as a failure to object or invited

error. Accordingly, we review this issue to determine if the error was "clearly

capable of producing an unjust result." R. 2:10-2.

      Rule 2:10-2 "requires that there be 'some degree of possibility that [the

error] led to an unjust result.'" State v. R.B., 183 N.J. 308, 330 (2005) (alteration

in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). Our Supreme

Court has explained that to warrant reversal, the error must be "sufficient to raise

a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might

not have reached." State v. Scott, 229 N.J. 469, 484 (2017) (alteration in

original) (quoting Bankston, 63 N.J. at 273). Moreover, the error "must be


                                                                             A-4236-17T4
                                        10
evaluated 'in light of the overall strength of the State's case.'" State v. Prall, 231

N.J. 567, 588 (2018) (quoting State v. Sanchez-Medina, 231 N.J. 452, 468

(2018)).

      We hold that the references to drugs and drug paraphernalia were harmless

error for two related reasons. First, the other evidence against defendant was

strong. That evidence included testimony from two witnesses who were present

at the time of the murder and one of the witnesses was sitting next to the victim

when defendant shot the victim in the back of his head. Moreover, the references

to drugs in the apartment were not highly prejudicial to defendant. Defendant

denied any knowledge of or involvement with the drugs. Importantly, the State

never argued that defendant was responsible for the drugs.

      Second, and more importantly, the trial court gave a curative instruction

concerning the drugs. The jury was instructed that it was not to consider the

drugs in determining whether defendant did or did not commit the murder. The

jury was also instructed that it was not to consider the drugs as an indication that

defendant had a propensity to commit crimes. In addition, the jury was told that

defendant was not charged with any drug-related crime and it was not being

asked to determine if there were drugs in the apartment or who possessed or

controlled those drugs.


                                                                              A-4236-17T4
                                        11
      We also hold that the reference to gang affiliation was harmless error. In

contrast to the references to drugs, neither counsel nor the trial court focused on

the questions concerning gang affiliation until after defendant's statement had

been played for the jury. When the issue was raised, defense counsel and the

prosecutor agreed that the questioning was limited and that it would b e better

not to draw further attention to the issue by giving a limiting instruction. As

previously noted, the trial court agreed with that position and did not give the

jury a limiting instruction concerning the reference to gang affiliation.

      We discern no reversible error in that decision. When viewed in full

context, the reference to gang affiliation was very limited. Moreover, defendant

denied any affiliation in his recorded statement. The State also did not present

any evidence or arguments that defendant committed the crimes because he was

affiliated with a gang. Like our ruling with regard to the drugs, this ruling is

based on the strong, independent evidence that defendant committed the murder

with a gun.

      B.      The Sentence

      We review sentencing decisions under an abuse of discretion standard.

State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J.

503, 512 (1979)).     We will affirm a trial court's sentence unless "(1) the


                                                                            A-4236-17T4
                                       12
sentencing guidelines were violated; (2) the finding of aggravating and

mitigating factors were not 'based upon competent and credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95

N.J. 334, 364-65 (1984)).

      Defendant contends that his sixty-year sentence, subject to NERA, was

manifestly excessive. He also contends that the court should have applied

mitigating factor four – that there were substantial grounds tending to excuse or

justify his conduct, N.J.S.A. 2C:44-1(b)(4). He asked for mitigating factor four

because he had been diagnosed with paranoid schizophrenia.

      The sentencing judge assessed the aggravating factors and found

aggravating factors three – the risk that defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3) – and nine – the need for deterrence, N.J.S.A. 2C:44-

1(a)(9). The judge also considered mitigating factors but found none.                In

rejecting mitigating factor four, the judge noted that there was no evidence

showing that defendant's mental health condition contributed to the murder. The

judge's findings concerning the aggravating factors and lack of mitigating

factors were supported by evidence in the record. The judge then followed the

sentencing guidelines. The sentence for first-degree murder ranges from thirty


                                                                              A-4236-17T4
                                         13
years to life, and NERA prescribes the period of parole ineligibility. N.J.S.A.

2C: 11-3(b); N.J.S.A. 2C:43-7.2. The sentence, moreover, does not shock our

judicial conscience.

      Affirmed.




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                                     14
