                                NOT FOR PUBLICATION WITHOUT THE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

statement.

      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
