                                NOT FOR PUBLICATION WITHOUT THE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-5032-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN TORRES-ARROYO,
a/k/a JONATHON TORRES,
JONATHAN SRROYO,
JOHMATHAN TORRES-ARROYO,
and JONATHAN T. ARROYO,

     Defendant-Appellant.
___________________________________

                    Argued November 7, 2018 – Decided November 21, 2018

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 15-12-1657.

                    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).

                    Lauren Bonfiglio, Deputy Attorney General, argued the
                    cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Lauren Bonfiglio, of counsel and on
            the brief).

PER CURIAM

      After being away for a Fourth of July weekend, two pastors returned to

their Jersey City residence to find a gate unlocked, the front door ajar, and other

signs of a burglary. Two laptops, an iPad, an iPhone, cash, and other property

were missing; found, however, was a soda bottle belonging to neither of them.

Police obtained DNA from the soda bottle, and testing revealed the DNA, which

would match less than one in seven trillion persons, matched defendant.

      Defendant was charged with and convicted by a jury of third-degree

burglary, N.J.S.A. 2C:18-2, and third-degree theft, N.J.S.A. 2C:20-3, and later

sentenced to a seven-year prison term, subject to a twenty-eight-month parole

disqualifier on the former, and a concurrent five-year prison term on the latter.

Defendant appeals, arguing:

            I. THE EVIDENCE THAT A BOTTLE WITH
            [DEFENDANT'S] DNA WAS LEFT IN A JERSEY
            CITY HOUSE DURING A TWO-DAY PERIOD
            WHEN A BURGLARY ALSO OCCURRED WAS
            INSUFFICIENT TO PROVE THAT [DEFENDANT]
            WAS THE BURGLAR. U.S. CONST. AMEND. XIV;
            N.J. CONST. ART. I, PARA. 1.

            II. [DEFENDANT] WAS DEPRIVED OF THE RIGHT
            TO A JURY TRIAL BY A PAROLE DISQUALIFIER
            THAT WAS BASED ON THE COURT'S, NOT THE

                                                                           A-5032-16T4
                                        2
              JURY'S, FACTFINDINGS. U.S. CONST. AMENDS.
              VI, XIV; N.J. CONST. ART. I, PARAS. 9, 10.

We find insufficient merit in these arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(2). We add only a few comments.

      Defendant first argues that the presence of his DNA at the crime scene

was alone insufficient to support a conviction. He draws an analogy to our prior

holding that "a conviction may be based solely upon fingerprint evidence as long

as the attendant circumstances establish that the object upon which the prints are

found was generally inaccessible to the defendant and, thus, a jury could

rationally find beyond a reasonable doubt such object had been touched during

the commission of the crime." State v. Watson, 224 N.J. Super. 354, 361 (App.

Div. 1988).

      Applying that standard, we are satisfied the DNA evidence could support

the burglary and theft convictions because the soda bottle would not likely have

been present unless defendant unlawfully intruded into the victims' residence.

Even defendant's theory – that the soda bottle merely demonstrated he trespassed

into premises previously or subsequently burgled by others – does not remotely

fit the concerns we expressed in Watson. There, the defendant's fingerprint was

found on a column outside the victim's apartment accessible to anyone. Ibid. In

United States v. Collon, 426 F.2d 939, 941-42 (6th Cir. 1970), upon which

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                                        3
defendant also relies, the court held that the defendant's fingerprints on a

roadmap in a getaway car constituted insufficient evidence of criminal

involvement because it was shown that the years-old roadmap was available at

most service stations and, once touched, the defendant's fingerprints could have

remained for an indefinite period.

      The DNA here provided ample evidence that defendant was present in the

burgled premises sometime after the victims left at noontime on Friday, July 4,

2014, and before they returned approximately forty-eight hours later. At best,

defendant's theory presupposes that he trespassed into the premises within

whatever smaller part of that short time frame preceded or followed the burglary.

Those circumstances are a far cry from Collon. And, in Watson, while there

may theoretically have been an innocent explanation for the defendant's

fingerprint in a public area outside the victim's apartment,1 we held it was for a

jury to determine that evidence's worth:

            We need not embark upon a speculative excursion and
            conjure up all possible innocent explanations as to why

1
    In Watson, the State presented evidence to support its theory that the
defendant, who had never resided in the apartment complex, 224 N.J. Super. at
358, had apparently climbed a column outside the victim's second-floor
apartment, hoisted himself up to the apartment's balcony by grabbing a flagpole
holder, and cut through the balcony's screen door; the fingerprint was high
enough on the column to suggest it was not likely placed there by one standing
at ground level. 224 N.J. Super. at 357.
                                                                          A-5032-16T4
                                        4
            defendant's fingerprints appeared at the scene of the
            crime. That function is not lawfully ours. As judges,
            we do not have a monopoly on common sense. We are
            entirely satisfied that the trial court was correct in
            submitting the issue to the jury.

            [224 N.J. Super. at 361-62 (citation omitted).]

Applying this same approach, we recognize that defendant was free to argue his

DNA was in the victim's Jersey City premises for reasons other than the burglary

or theft for which he was convicted.2 But the persuasiveness of this theory and

the weight or sufficiency of the evidence was for the jury to determine.

      Defendant's second point is also without merit. He argues the parole

disqualifier – imposed because he was shown to be a persistent offender – was

unconstitutionally based on facts only the jury could determine. Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (adopting what Justice Stevens stated in

his concurring opinion in Jones v. United States, 526 U.S. 227, 252 (1999), that

"[i]t is unconstitutional for a legislature to remove from the jury the assessment

of facts that increase the prescribed range of penalties to which a criminal

defendant is exposed"). We disagree that Apprendi was offended here.




2
  The judge also charged trespass, so the jury had the means to adopt defendant's
theory if they believed the evidence failed to support the State's claim that
defendant committed burglary and theft.
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                                        5
      The trial judge made a determination that three aggravating factors – the

risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3),

defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and the need for

deterrence, N.J.S.A. 2C:44-1(a)(9) – substantially outweighed the mitigating

factor that defendant would compensate the victim, N.J.S.A. 2C:44-1(b)(6).

Those aggravating factors, however, were not based on evidence that

constitutionally required a jury finding.         They instead emanated from

defendant's prior record and his numerous past burglaries, starting in 2005; the

judge was constitutionally permitted to rely on the undisputed facts about

defendant's past criminal troubles in finding the three aggravating factors that

justified the twenty-eight-month period of parole ineligibility. See Alleyne v.

United States, 570 U.S. 99, 116-17 (2013); see also Apprendi, 530 U.S. at 490;

State v. Kiriakakis, __ N.J. __, __ (2018) (slip op. at 4).

      Affirmed.




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