                                NOT FOR PUBLICATION WITHOUT THE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-4779-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE M. CORTES, a/k/a JOSE
CORTEZ,

     Defendant-Appellant.
___________________________

                   Argued September 16, 2019 – Decided October 1, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 15-05-1578.

                   Peter T. Blum, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Peter T. Blum, of counsel
                   and on the brief).

                   Maura M. Sullivan, Assistant Prosecutor, argued the
                   cause for respondent (Mary Eva Colalillo, Camden
                   County Prosecutor, attorney; Maura M. Sullivan, of
                   counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      After a jury trial, defendant Jose M. Cortes (whose nickname the State

contends is "Pep") was found guilty of first-degree acting as a leader of a

narcotics trafficking network, N.J.S.A. 2C:35-3; first-degree conspiracy to

murder Jose Vega, N.J.S.A. 2C:11-3(a)(1)(2); first-degree conspiracy to murder

Christopher Humphrey; N.J.S.A. 2C:11-3(a)(1)(2); and various weapons

offenses, including first-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b) and (j), and a second-degree "certain persons" violation, N.J.S.A.

2C:39-7(b)(1).

      The trial court sentenced defendant to a mandatory extended term of life

in prison with a thirty-year period of parole ineligibility on the narcotics

trafficking offense. In total, the aggregate sentence amounted to life in prison

plus seven years, subject to a thirty-five-year parole disqualifier.

      On appeal, defendant argues for a new trial based on the admission of

inadmissible and harmful hearsay evidence. Defendant also makes a number of

sentencing related arguments. In a pro se supplemental brief defendant argues

that the trial court should have granted his motions for acquittal at the close of




                                                                          A-4779-16T3
                                         2
the State's case. For the reasons that follow, we affirm defendant's convictions

but remand for his conspiracy offenses.

                                        I.

      The State's evidence showed that defendant had co-managed a drug

distribution enterprise selling cocaine and heroin out of a house on Fourth Street

in Camden. The State's two key fact witnesses were Jessica Savage, a drug addict

who frequently bought drugs at the house and sometimes acted as a lookout; and

Robert Thompson, a cocaine user who also regularly bought drugs at the house.

Savage and Thompson each observed the drug-related activities in the house.

They both noticed a gun was kept there, evidently to be used as needed.

      As to the murder victims, Humphrey worked as a lookout and Vega

worked as a dealer for the organization. In late December 2013, Humphrey told

a friend that he and Vega were going out on their own and starting a drug

distribution "set." Around that same time, Savage learned that Vega had been

selling the heroin of another competing supplier out of the house.

      In late December 2013, Humphrey and Vega disappeared. Eventually,

their dead bodies were discovered by a woman walking a dog. They had been

shot to death, and their bodies had been dropped several feet into the woods

without any drag marks. Police obtained a search warrant of the house in


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                                        3
Camden. As they were conducting the search, people upstairs threw out of the

second-story window 126 bags of heroin and twenty-nine bags of powder

cocaine.

      The police found DNA from Humphrey's blood on a wall on the right side

of the front door of the house, and DNA from Vega on swabs from the leg of a

pool table.    In addition, cellphone records show that defendant's phone

connected to towers near the drug house and where the victims' bodies were

found on the day of the murders. Further, DNA testing from the tailgate of

defendant's pickup truck identified Humphrey as the source of DNA from at

least one of the specimens, and Vega as matching the minor DNA profile of one

of the other specimens.

      Defendant did not testify at trial. He moved for a judgment of acquittal at

the end of the case and that motion was denied.

      In his attorney's brief on appeal, defendant argues:

              POINT I

              A NEW TRIAL SHOULD BE GRANTED BECAUSE
              OF IMPROPER HEARSAY THAT THE DRUG
              HOUSE WAS KNOWN AS "PEP'S HOUSE," THUS
              SUPPORTING THE PROSECUTOR'S THEORY
              THAT THE DEFENDANT—NICKNAMED "PEP"—
              WAS THE BOSS WHO WAS RESPONSIBLE FOR
              THE CHARGED CRIMES. U.S. CONST. AMENDS.
              VI, XIV; N.J. CONST. ART. I, PARA. 10.

                                                                         A-4779-16T3
                                        4
      POINT II

      THE TWO CONSPIRACY COUNTS SHOULD HAVE
      MERGED. U.S. CONST. AMENDS. V, XIV; N.J.
      CONST. ART. I, PARA. 1.

      POINT III

      ALL OF THE GUN POSSESSION COUNTS
      SHOULD HAVE MERGED. U.S. CONST. AMENDS.
      V, XIV; N.J. CONST. ART. I, PARA. 1.

      POINT IV

      THE EXTENDED TERM FOR LEADER OF A
      NARCOTICS NETWORK SHOULD BE REDUCED
      TO THE REGULAR TERM BECAUSE THE
      PROSECUTOR'S MOTION TO IMPOSE AN
      EXTENDED TERM WAS INEXPLICABLY LATE.

Additionally, defendant raises these points in a pro se supplemental brief:

      THE TRIAL COURT ERRED IN DENYING THE
      DEFENSE'S MOTION FOR A JUDGMENT OF
      ACQUITTAL (Raised Below).

      A. CONSPIRACY TO COMMIT MURDER.

      B. LEADING        A    NARCOTICS       TRAFFICKING
      NETWORK.

      C. POSSESSING A HANDGUN.


                                 II.




                                                                   A-4779-16T3
                                 5
      The main issue defendant raises on appeal is his contention that

Thompson's testimony for the State implied that non-testifying persons referred

to the premises of the drug dealing as "Pep's house." According to defendant,

Thompson's testimony prejudicially conveyed to the jury hearsay ass ertions

from those other unnamed persons, and their belief that "Pep" ran the drug

house.

      The disputed testimony occurred in the course of Thompson's direct

examination by the prosecutor. The following exchange transpired, interrupted

by an objection by defendant's trial counsel that the trial judge sustained:

                  [THE PROSECUTOR]: Mr. Thompson, you
            were saying a moment ago that you didn't really hang
            out with the guy [who appeared to be in charge of the
            drug house]. Did you see him at the house?

            A.     A few times, yeah.

                 Q.    What was his relation to the house, if you
            know, based on you observations?

            A.    For the most part, you know, when I heard about
            the house or anybody would talk about the house –

                  [DEFENSE COUNSEL]: Objection, Judge. This
            is going to be calling for hearsay.

                   THE COURT:         Counsel, rephrase.

                  [THE PROSECUTOR]: I'll          rephrase    –    I'll
            rephrase the question.

                                                                           A-4779-16T3
                                        6
                  Q.    Mr. Thompson, what would – I think you
            were starting to talk about what people – what other
            people would say about the house?

            A.      What it was called, yeah, it was –

                    Q.     What would you call the house?

            A.      Pep's house is –

                  Q.    Did you make any observations – and
            leaving to one side for a second what other people said,
            okay?
            A     Okay.

                   Q.    I just want to talk about what you yourself
            observed. Did you ever observe the defendant at this
            house that you pointed out in the photo and you referred
            to as Pep's house?

            A       Yes.

            [(Emphasis added)].

      This was not the only trial testimony stating that the premises were known

as "Pep's house." Before Thompson took the stand, Savage testified that "[t]he

bags [of drugs] that came out of Pep's house always said [']kiss['] on them."

(emphasis added).

      During closing argument, the prosecutor made multiple references to the

drug dealing premises being known as "Pep's house."




                                                                        A-4779-16T3
                                         7
                   Now here – here's a picture of the State's Exhibit
             163, this is what the witnesses referred to as Pep's
             house, the address is [number omitted] South 4th Street.

                   ....

                    So Chris Humphrey and Jose Vega, they start
             selling their drugs out of Pep's house. . . .

                    And the tie into that, the fact that their ultimate
             goal is to set up shop around the corner, or somewhere
             else in Camden, tells you why they would start selling
             out of Pep's house, because it's easier that way, right?

                   ....

             Chris and Jose Vega's ultimate plan is to lure customers
             from Pep's house to their own location.
                   ....

                  And you have Robert Thompson who buys drugs
             from Pep's house. Sometimes he has to wait for the
             defendant to re-up when he goes in there.

             [(Emphasis added).]

Notably, defense counsel did not object to these portions of the State's

summation.

      Defendant argues that Thompson's testimony prejudicially conveyed

hearsay to the jurors about his alleged connection as "Pep" to the house where

the drug sales occurred, and that the prosecutor unfairly punctuated those




                                                                          A-4779-16T3
                                         8
references during the closing arguments. He contends this had a clear capacity

to produce an unjust verdict, and that he is thereby entitled to a new trial.

      For starters, we are unpersuaded that Thompson conveyed inadmissible

hearsay to the jury. Hearsay consists of "a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted."      N.J.R.E. 801(c).     Hearsay evidence is

inadmissible unless a relevant exception applies. N.J.R.E. 802.

      A close inspection of the Thompson colloquy shows that he seemed to be

on the verge of telling the jurors what other people called the premises when

defendant's trial attorney interjected an objection. The transcript reflects that

Thompson did not finish that answer. The objection appears to have been made

in time. The trial judge sustained it, by directing the prosecutor to rephrase the

question. The prosecutor complied, by asking Thompson what would "you"

(meaning Thompson) call the house? Thompson then uttered "Pep's house."

      Defendant contends the prosecutor and Thompson were talking over one

another, and the jury might have construed his words "Pep's house" to relate

back to the earlier disallowed question about what "others" said, rather than

relating the ensuing query about what Thompson called it personally. Although

this interpretation is plausible, we are unpersuaded the exchange produced a


                                                                            A-4779-16T3
                                         9
clear instance of error. Moreover, defense counsel made no effort to have the

judge strike the "Pep's house" response, or instruct the jury to disregard it.

      Even assuming, for the sake of discussion, we adopt defendant's claim that

the jurors construed Thompson's reference to "Pep's house" to encompass

hearsay assertions by other people, that hypothetical construct was merely

cumulative. First of all, Thompson himself testified that he knew the premises

as "Pep's house." His expression of that belief is an appropriate lay opinion,

based upon his on personal knowledge. See N.J.R.E. 701 (allowing lay opinions

that are "rationally based on the perception of the witness," and which will assist

the trier of fact); N.J.R.E. 602 (the personal knowledge requirement). This is

not a situation of a police officer witness implying to jurors that he "possesses

superior knowledge, outside the record, that incriminate the defendant." State

v. Branch, 182 N.J. 338, 351 (2005). Thompson, a lay witness, told the jurors

what he personally knew, which is allowable under both Evidence Rules 602

and 701. The restricting principles of Branch were not violated here.

      Further, the alleged implication that Thompson conveyed to the jury that

other people also called the premises Pep's house actually was corroborated in

the State's favor by Savage's testimony. As we have already noted, Savage

likewise called the premises "Pep's house." Her testimony on this point was not


                                                                           A-4779-16T3
                                       10
objected to by defense counsel. In addition, as we have noted, defense counsel

did not object to the prosecutor's references to "Pep's house" in summations.

When defense counsel fails to object to a prosecutor's remarks at trial, a

"reviewing court may infer that counsel did not consider the remarks to be

inappropriate." State v. Vazquez, 265 N.J. Super. 528, 560 (App. Div. 1993);

see also State v. Nelson, 173 N.J. 417, 471 (2002) (same).

      We reject defendant's argument that the trial court, sua sponte, should

have instructed the jury pursuant to N.J.R.E. 403 to ignore any suggestion that

"other people" called the premises "Pep's house." N.J.R.E. 403 is a discretionary

rule, providing that a trial judge "may" exclude unduly prejudicial proof only if

its harmful characteristics "substantially outweigh" its probative value. We are

unconvinced the court was obligated to take such a discretionary measure here.

      In light of our analysis, we discern no harmful error rising to a level

indicative of a mistake "clearly capable of producing an unjust result." R. 2:10-

2. There was other circumstantial proof of defendant's role in the drug activities

at the premises and, moreover, of his involvement in a conspiracy to take the

lives of two disloyal people (Humphrey and Vega) who were attempting to

undermine his drug network.       The brief portion of Thompson's testimony

focused upon by defendant did not manifestly deprive him of a fair trial.


                                                                          A-4779-16T3
                                       11
                                      III.

      Except for a discrete sentencing merger on the conspiracy counts, none of

the other issues presented by defendant and his appellate counsel have any merit.

R. 2:11-3(e)(2). Only a few comments are in order.

                                       A.

      We reject defendant's pro se contention the verdict was against the weight

of the evidence and that the trial court should have granted his counsel's motion

for a judgment of acquittal. There was ample evidence, viewed in a light most

favorable to the State, from which "a reasonable jury could find guilty of the

[various] charge[s] beyond a reasonable doubt." State v. Reyes, 50 N.J. 454,

459 (1967); see also R. 3:18-1.

      With respect to the two conspiracy-to-murder convictions, Savage's

testimony that defendant was one of the bosses of the drug house, and that Vega

was selling someone else's drugs at the location, provided a clear motive for

defendant to have wanted the victims killed. Furthermore, Savage's testimony

that defendant and Jorge Lopez, another drug dealer at the house, were both in

defendant's truck when she returned with the bags that Vega was selling

provided a basis for a jury to find that they could have discussed killing the

victims.


                                                                         A-4779-16T3
                                      12
      Further, the victims' blood was found in the house, forensic proof which

could support a rational inference that they were killed there after Savage told

defendant and Lopez about Vega's transgression.         In addition, some of the

victims' blood was found in defendant's truck, providing a reasonable basis for

an inference that defendant participated in transporting the bodies, or at least

lent the use of his vehicle for purposes their transport.

      The police testimony that there were no drag marks by the bodies helped

support an inference that multiple people must have been involved in disposing

of the bodies. Furthermore, cellphone evidence showed that defendant's phone

was near where the victims' bodies were found on the night of December 21.

Taken together, this evidence provided a reasonable basis for a jury to conclude

that defendant conspired with other individuals to murder the victims.

      As to defendant's drug trafficking conviction under N.J.S.A. 2C:35-3, the

State's evidence provided sufficient details about the operation of the Fourth

Street drug house and defendant's role in it. Savage testified that defendant was

one of two "bosses" of the drug house on Fourth Street. Testimony from her

and Thompson showed that both heroin and cocaine were sold from this

location. Thompson testified that defendant would resupply the loc ation when

it ran out of drugs. When police raided the home, they found 126 bags of heroin


                                                                         A-4779-16T3
                                       13
and 29 bags of powder cocaine as well as $3,096 in cash. This was hardly a

small scale operation, but instead one that satisfied the narcotics trafficking

network element of N.J.S.A. 2C:35-3.

      This case is unlike State v. Ellis, 424 N.J. Super. 267 (App. Div. 2012), in

which we concluded the State had failed to prove the requisite "connectiveness"

between the people involved in selling drugs. In Ellis, there was limited proof

about the number of drug transactions and the quantities involved. The State's

evidence in that case showed only two "runners" had provided drugs on one

occasion to an undercover officer, and each transaction averaged less than five

grams of cocaine. Id. at 276.

      Here, Savage and Thompson provided ample testimony establishing the

characteristics of a narcotics trafficking network led, or co-led, by defendant.

Savage identified multiple drug dealers working at the house. Those sellers may

have been responsible for obtaining and paying their own lookouts, but Savage

explained that the dealers gave their customers' money to either defendant or the

other alleged leader known as "Big Andy." The uniformity in narcotics products

was shown by Savage's testimony that the bags sold at the house "always said

'kiss' on them." Savage explained that selling drugs without this label "messed

with Lopez" and defendant's money. This reasonably establishes there was


                                                                          A-4779-16T3
                                      14
control over what was sold in the house, and that the people selling drugs there

were working together as part of a drug trafficking network.

      The "certain persons" weapons conviction was likewise adequately

supported by the proofs. Savage testified that a gun at the Franklin Street

premises "was available in case anybody needed it." Thompson, moreover,

testified that he had seen a gun on and in the pool table in the house and on a

worker. In addition, Savage testified she looked for the gun after Vega's and

Humphrey's murders because she "wanted to hide [the gun] for [defendant]."

(emphasis added).

      Although no gun was recovered by police and he was not seen by a State's

witness carrying one, there is sufficient evidence of defendant's constructive

possession of a gun, as a person who was in charge of the drug house. See

N.J.S.A. 2C:2-1(c) (defining possession under the Criminal Code); State v.

Schmidt, 110 N.J. 258, 270-71 (1988) (explaining the concept of constructive

possession to encompass a person's capacity, by direct or indirect means, to gain

almost immediate physical control and an ability to affect the item). Viewing

the record, as we must, in a light most favorable to the State, we conclude the

trial court did not err in denying defendant's motion for acquittal on the "certain

persons" count.


                                                                           A-4779-16T3
                                       15
                                      B.

      We now turn to the sentencing points. Through his counsel, defendant

argues the two conspiracy counts relating to the respective murders of

Humphrey and Vega had to merge. The trial judge at sentencing found no such

merger was required "because they involve different victims." We respectful ly

disagree with that reasoning.

      In essence, the State's theory at trial was that defendant conspired to

murder Humphrey and Vega because they were selling their own drugs for the

drug house. The conspiracy-to-murder had a manifestly common objective: to

kill both Humphrey and Vega because they were each attempting to divert

proceeds from defendant's operation. The two victims were apparently killed

on the same night and their bodies were disposed of in the same location.

      The "totality of circumstances" reflects a single conspiracy to murder the

two men who had betrayed the drug operation. State v. Kamienski, 254 N.J.

Super. 75, 114-15 (App. Div. 1992) (applying a "totality of circumstances"

analysis to determine if multiple conspiracies or a single conspiracy existed).




                                                                        A-4779-16T3
                                      16
The matter is remanded for correction of the judgment of conviction to merge

the two conspiracy counts. 1

      We are unpersuaded, however, that defendant's conviction on the "certain

persons" count, N.J.S.A. 2C:39-7(b)(1), must merge with his conviction under

N.J.S.A. 2C:39-5(b) and (j) of the unlawful possession of a firearm by a person

previously convicted of an offense subject to the No Early Release Act

("NERA"), N.J.S.A. 2C:43-7.

      Defendant's prior convictions included a "school zone" drug offense, in

violation of N.J.S.A. 2C:35-7, and a conviction for aggravated manslaughter, in

violation of N.J.S.A. 2C:11-4(a). Both of these crimes are eligible to qualify

defendant as predicate offenses for the "certain persons" weapons conviction

pursuant to N.J.S.A. 2C:39-7(b)(1).          However, only the aggravated

manslaughter conviction is a crime "subject to NERA" under N.J.S.A. 2C:39-

5(j). Therefore, only that specific predicate crime formed a basis for the first-

degree unlawful weapons possession. N.J.S.A. 2C:43-7.2(d)(2). Thus, since

defendant has an independent conviction for distribution of a controlled

dangerous substance near a school property, which by itself can support the


1
 The practical effect of such a merger is limited, since the sentences imposed
on these two counts appear to have been imposed concurrently, not
consecutively, with one another.
                                                                         A-4779-16T3
                                      17
"certain persons" offense, the two convictions should not have merged for

sentencing.

      Lastly, we are not persuaded the trial court incorrectly or unfairly imposed

the extended term on defendant for his offense as the leader of a narcotics

trafficking network. The effect of this extended term increased his parole

ineligibility period on that count from twenty-five years to thirty-five years. See

N.J.S.A. 2C:35-3 and N.J.S.A. 2C:43-7(c). Although the prosecutor filed her

motion for the extended term a few weeks beyond the fourteen-day deadline

provided by Rule 3:21-4(e), the State indisputably established the statutory

requirements for a mandatory extended term under N.J.S.A. 2C:43-7(c).

Defendant had ample fair notice of the prosecutor's request before sentencing,

and sufficient time to respond. We discern no basis to set this aspect of the

sentence aside.

                                       III.

      Affirmed as to defendant's convictions. Affirmed as to his sentence,

except the matter is remanded for the limited purpose to revise the judgment of

conviction to merge the conspiracy-to-murder offenses in counts three and four.




                                                                           A-4779-16T3
                                       18
