                        NOT FOR PUBLICATION WITHOUT THE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-0679-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JERMY B. PORTILLO,

     Defendant-Appellant.
___________________________________

              Argued May 21, 2018 – Decided June 11, 2018

              Before Judges Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              13-09-0805.

              Margaret McLane, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Margaret McLane, of counsel and on the
              briefs).

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

PER CURIAM
     A jury found defendant Jermy B. Portillo guilty of two counts

of first-degree robbery, N.J.S.A. 2C:15-1; one count of second-

degree robbery, ibid.; third-degree receiving stolen property,

N.J.S.A. 2C:20-7; third-degree possession of a weapon, a knife,

for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree

unlawful possession of a weapon, the knife, N.J.S.A. 2C:39-5(d).

The convictions arise out of Portillo's knife-point robbery of two

pedestrians and his robbery of a third victim, as the three stood

outside a friend's house in Elizabeth.         Portillo was accompanied

by five others, including one who swung a machete in the air near

the victims.    After merger, the court sentenced defendant to two

ten-year prison terms for the first-degree robbery counts, and a

five-year prison term for the second-degree robbery count, to run

consecutively, for an aggregate term of twenty-five years.             Under

the No Early Release Act, defendant must serve eighty-five percent

of the sentence before parole eligibility.          N.J.S.A. 2C:43-7.2.

     Portillo    presents   three   issues    in    his   appeal   from   his

conviction and sentence.    He argues the court erred in denying his

suppression    motion,   which   challenged   law    enforcement's     motor

vehicle stop that led to his identification by the victims, and

the recovery of weapons and stolen items.          He also contends it was

plain error to permit the prosecutor to state in summation that

thirty seconds was sufficient for the victims to identify him and

                                    2                                A-0679-16T3
that this error warrants reversal.      Portillo also argues the

consecutive sentences were inappropriate, and the aggregate term

manifestly excessive.   We reject defendant's arguments and affirm.

                                 I.

     The principal issue on appeal is defendant's challenge to the

police stop.    According to the sole witness at the suppression

hearing, Elizabeth patrol officer Michael Nicolas, police received

a dispatch fifteen minutes before midnight on November 15, 2010,

that a group of "six Hispanic males dressed in black sweatshirts

or hooded sweatshirts" had participated in a robbery at Washington

and Grove.     At 1:26 a.m., Nicolas and his partner, while in a

marked police car, spied a three-row passenger van parked on the

300-block of High Street.     Nicolas saw an Hispanic-looking man

standing outside the van, later identified as D.V., a juvenile.

Nicolas observed multiple people inside the van.   Although he did

not initially get a firm count, he could see they all wore dark

clothing, some in dark sweatshirts.    The driver – who, he later

learned, was Portillo – appeared to be Hispanic.

     They were less than a mile from the robbery scene.   There was

no other pedestrian or vehicular traffic.     Nicolas said it was

unusual for anyone to be out in the High Street neighborhood at

that hour of the night.



                                 3                          A-0679-16T3
     Nicolas's partner drove slowly as they closely passed the

van, and then executed a U-turn.        D.V. starting walking down the

block at a "concerned pace."      He seemed nervous.    He was carrying

what appeared to be a dark piece of clothing.         The officers then

activated their vehicle's overhead lights as they pulled behind

the van.

     Nicolas   approached   the    passenger   side   and   his   partner

approached the driver's side.      At that point, Nicolas counted six

men in the vehicle.     All appeared Hispanic, and all wore dark

clothing.   D.V. then reappeared and the officers detained him.          As

police removed the van's occupants to prepare for the victims'

show-up identification, police noticed a black jacket on the seat.

Later found to belong to a victim, Nicolas removed it, to make

sure it was free of weapons.      A victim's debit card fell out.

     The victims positively identified Portillo as the knife-

wielding robber, and D.V. as the possessor of the machete.             The

victims also testified at trial that they recognized the van as

the vehicle they saw circle before the robbery.         Police found a

knife and a machete in the area where D.V. had walked, before he

returned to the van.

     In denying defendant's suppression motion, Judge Joseph P.

Donohue found Nicolas to be credible and believable.                After



                                    4                             A-0679-16T3
recounting the facts as generally set forth above, Judge Donohue

stated:

            I'm satisfied that the officers had a
            reasonable, articulable suspicion. The timing
            of this event 40 minutes after the robbery,
            the fact that six individuals, that there were
            multiple individuals, that they . . . appeared
            to be Hispanic, that they were in the general
            location in which this occurred, the officer's
            testimony was that there [were] not too many
            people out that night . . . the location and
            the descriptions were close enough that they
            believed that they may have taken part in the
            robbery.

The judge found the police were entitled to clear the vehicle, and

to detain the suspects for identification.

                                      II.

     As point I in his appeal, defendant argues:

            SEEING SOME HISPANIC MEN ABOUT A MILE FROM THE
            SCENE OF A ROBBERY IS NOT REASONABLE SUSPICION
            TO CONDUCT AN INVESTIGATORY STOP.

Noting    that   the   Census    identified     roughly    sixty   percent      of

Elizabeth's residents as Hispanic or Latino, defendant contends

the police lacked a sufficiently detailed description of the

robbers to justify stopping the van and its occupants.

     On a motion to suppress, we deferentially review the trial

court's fact-findings.          State v. Elders, 192 N.J. 224, 243-44

(2007).    Yet, defendant does not challenge the trial court's fact-

finding.     Also,     the   State   concedes    that     the   police   stopped


                                       5                                 A-0679-16T3
defendant once they activated their overhead lights.          The issue

is whether the facts, such as they are, justified the stop.             We

review that legal issue de novo.         State v. Watts, 223 N.J. 503,

516 (2015).

       Police may conduct a warrantless, investigatory stop of a

vehicle and its occupants if they have an objectively reasonable,

particularized, and articulable suspicion of criminal activity.

See, e.g., State v. Davis, 104 N.J. 490, 505 (1986).             "Common

sense and good judgment . . . require that police officers be

allowed to engage in some investigative street encounters without

probable cause."    Ibid.   Yet, the stop must be based on more than

a "police officer's subjective hunch."         Ibid.   We consider the

"totality of the circumstances," ibid., including inferences that

a trained law enforcement officer makes, which may elude others.

Id. at 501.      "Facts that might seem innocent when viewed in

isolation can sustain a finding of reasonable suspicion when

considered in the aggregate . . . ."        State v. Nishina, 175 N.J.

502, 511 (2003).     The court "balanc[es] the State's interest in

effective law enforcement against the individual's right to be

free   from   unwarranted   and/or   overbearing   police   intrusions."

Davis, 104 N.J. at 504.

       "No mathematical formula exists" for determining reasonable

suspicion.    Id. at 505.    However, certain principles are evident

                                     6                           A-0679-16T3
from our caselaw.   A "non-particularized racial description of the

person sought" is not enough to justify a stop.     State v. Shaw,

213 N.J. 398, 411, 421 (2012) (stating police lacked requisite

level of suspicion to detain man based on "the most generic

description . . . [of] a black male"); State v. Maryland, 167 N.J.

471, 485 (2001) (stating that "an investigatory stop predicated

solely on race would be . . . defective"); State v. Caldwell, 158

N.J. 452, 460 (1999) (suppressing evidence from a stop based on

tip from informant that an individual described merely as "'black

male in front of 86 Butler Street'" was engaged in criminal

activity).

     Yet, a racial description, coupled with other particularized

facts, may suffice.   In State v. Coles, 218 N.J. 322, 328 (2014),

a robber was described as a black male wearing black pants and a

gray hooded sweatshirt who used a weapon. The Supreme Court upheld

the initial stop of a man who met that description two blocks from

the crime scene within minutes of the robbery.    Id. at 329, 345.

Police were also justified in prolonging the stop to ascertain the

suspect's identity after he appeared nervous and gave implausible

answers to questions.    Id. at 329, 345-46.    Notably, the Court

found it reasonable to detain the individual for a show-up, by

which he would be on his way if exonerated. Id. at 345. Similarly,

in State v. Todd, 355 N.J. Super. 132, 136-38 (App. Div. 2002),

                                 7                          A-0679-16T3
we sustained a stop of a burglary suspect who matched the general

description of a man of average height and weight in light-colored

clothing.     The man was reported running from the scene and the

suspect was found within a few blocks, soon after the crime.               Id.

at   138.    He     was   visibly   nervous   and   sweating,   and   he   gave

implausible answers to an officer's questions.            Id. at 136, 138.

      Were the stop in this case based solely on a crime victim's

non-particularized description of an Hispanic male in an Hispanic-

Latino majority city, the stop unquestionably would have been

defective.    However, in stopping to investigate, the police relied

on   much    more    in   forming    a   reasonable,    particularized     and

articulable suspicion that Portillo and his cohorts had engaged

in criminal activity.

      The police did not stop a single man matching a racial or

ethnic description.        They were looking for a group of six persons,

all male, all of the same ethnic group, all wearing the same dark

clothing.    Statistically speaking, coming across such a grouping,

even where the majority of the community is Hispanic-Latino, is

much less likely than finding a single person matching that

description.      Although Nicolas did not specifically count six such

individuals before executing the stop, he identified a group of

men, all with matching clothing, two matching the specified ethnic

group, and none of a non-matching group.               See United States v.

                                         8                            A-0679-16T3
Arthur, 764 F.3d 92, 98 (1st Cir. 2014) (noting that the number

of   suspects     was   an    acceptable        factor   in    finding     reasonable

suspicion).

       Furthermore,     police       came   upon   the   van    within     forty-five

minutes of the robbery, within a relatively short distance from

the crime scene.        See Coles, 218 N.J. at 329, 345; Todd, 355 N.J.

Super. at 138 (stating that proximity in time and distance to

crime are factors in forming reasonable suspicion).                       The van was

also conspicuously out of place. Nicolas testified that pedestrian

and vehicular traffic on High Street was unusual in the early

morning hour when the stop occurred.               See State v. Valentine, 134

N.J. 536, 547 (1994) (noting significance of a defendant's activity

that was "entirely inconsistent with time of day").                        D.V. also

acted nervously, walking off at a "concerned pace" while carrying

clothing that matched the victims' description.                      See Elders, 192

N.J.   at   250    (stating        that   nervousness    may    be    considered     in

determining       whether     reasonable        suspicion      exists);    State     v.

Pineiro,    181    N.J.      13,    26    (2004)   (stating      that     flight   "in

combination with other circumstances . . . may support reasonable

and articulable suspicion").

       Notably, the initial investigation – to ascertain the precise

number of occupants, and whether they all matched the description

the victims provided – was destined to be exceedingly brief.                         It

                                            9                                 A-0679-16T3
required a stop only long enough to enable the officers to approach

the vehicle, and identify the occupants' gender, number, clothing,

and ethnic background.         Balancing the needs of law enforcement

against   the   nature    of   the   intrusion,       the   initial   stop    was

reasonable.     And when the police confirmed a match with the

victims' description, along with the other circumstances, they

were justified in prolonging the stop, and removing the occupants

to await a show-up identification.

     In sum, we discern no error in the trial court's order denying

the motion to suppress.

                                     III.

     As his second point, defendant contends:

           THE PROSECUTOR'S MISSTATEMENT OF THE LAW
           SURROUNDING    EYEWITNESS    IDENTIFICATIONS
           CONFUSED THE JURY AND REQUIRES REVERSAL OF
           DEFENDANT'S CONVICTION. (Not raised below).

     Defendant takes issue with the prosecutor's argument that

thirty seconds was sufficient time to enable the victims to

identify Portillo.       We are unpersuaded.

     The prosecutor responded to the defense argument that the

victims lacked sufficient time to make the show up identification.

Defense   counsel   argued:    "Thirty      to   60   seconds   to    view   each

individual, ten to 15 feet away.            Thirty to 60 seconds to view

each individual that – who were ten to 15 feet away.                   At night


                                     10                                  A-0679-16T3
with   spotlights,     30   to    60   seconds."      In   her    summation,    the

prosecutor stood silent while she allowed thirty seconds to elapse

and then argued, "The 30 seconds is up.              Ladies and gentlemen, 30

seconds is more than enough time to be able to look at somebody,

stare at them . . . remember their face an hour later, remember

their face five years later.             It's more than enough time."

       The   prosecutor     did   not     mislead    the   jury,   nor    did   the

prosecutor purport to instruct the jury, as to the relevant and

appropriate factors in assessing an identification.                      The court

correctly instructed the jury in that regard, adhering to the

post-Henderson model instruction.              See State v. Henderson, 208

N.J.   208   (2011);   Model      Jury    Charge    (Criminal),    "Out-of-Court

Identification     Only"     (2012).          The   prosecutor     appropriately

responded to defense counsel's arguments.              State v. Bradshaw, 392

N.J. Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195

N.J. 493 (2008); State v. Hawk, 327 N.J. Super. 276, 284 (App.

Div. 2000).      We discern nothing improper in the prosecutor's

argument.      As a result, it fell far short of the egregious

prosecutorial misconduct that deprives a defendant of a fair trial.

See State v. Frost, 158 N.J. 76, 83-84 (1999).




                                         11                                A-0679-16T3
                                IV.

     Lastly, defendant challenges his twenty-five-year aggregate

sentence, consisting of three consecutive terms for each of the

three robbery counts, involving three separate victims. He argues:

          CONSECUTIVE SENTENCES WERE INAPPROPRIATE FOR
          THIS SINGLE ROBBERY INCIDENT, AND THE TWENTY-
          FIVE YEAR SENTENCE IS MANIFESTLY EXCESSIVE.
          (Not Raised Below).

     Although the robberies occurred during one episode, they

involved discrete threats.   According to the evidence at trial,

Portillo pressed a knife against the ribcage of one victim, as he

demanded that he empty his pockets.   When another victim took back

his property from one of Portillo's cohorts, who was unarmed,

Portillo went over to that victim, placed the knife against his

ribcage, and demanded that he surrender his belongings.     The jury

found that Portillo did not threaten the third victim with the

knife.

     Noting that this was Portillo's first conviction, the court

found that aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he

need for deterring the defendant and others from violating the

law"), was in equipoise with mitigating factor seven, N.J.S.A.

2C:44-1(b)(7)   ("[t]he   defendant   has   no   history   of     prior




                                12                              A-0679-16T3
delinquency or criminal activity").1         The court imposed sentences

at the bottom of the range for each robbery count.                However, the

court ordered that the terms be served consecutively.

     We   are    satisfied    that   the   court   correctly      applied     the

guidelines for imposing consecutive terms under State v. Yarbough,

100 N.J. 627 (1985), as amended by N.J.S.A. 2C:44-5(a).              See State

v. Cassady, 198 N.J. 165, 182 (2009).                The court implicitly

recognized that the robberies were related and close in time.                 See

Yarbough, 100 N.J. at 644 (citing as factors in                    considering

consecutive terms whether the "crimes and their objectives were

predominantly independent of each other" and whether "the crimes

were committed at different times or separate places, rather than

being committed so closely in time and place as to indicate a

single period of aberrant behavior").              In imposing consecutive

terms, the court principally relied on the fact that the crimes

involved three separate victims.           Ibid. (citing as a factor in

considering     consecutive   sentences    whether    "any   of    the    crimes

involved multiple victims").          Furthermore, as to two victims,

Portillo engaged in separate and discrete criminal acts.                   Ibid.




1
  At one point, the judge misspoke and referred to aggravating
factor seven and mitigating factor nine. That mistake was repeated
in the judgment of conviction.

                                     13                                  A-0679-16T3
(citing as a factor whether "the crime involved separate acts of

violence or threats of violence").

       Consecutive sentences for multiple victims in multiple counts

are consistent with the oft-stated principle that "there can be

no free crimes in a system for which the punishment shall fit the

crime."     Id. at 643; see also State v. Carey, 168 N.J. 413, 429-

30 (2001) (stating, in context of vehicular homicide cases, "the

multiple-victims factor is entitled to great weight and should

ordinarily result in the imposition of at least two consecutive

terms when multiple deaths or serious bodily injuries have been

inflicted upon multiple victims"); State v. Molina, 168 N.J. 436,

442 (2001) (approving consecutive sentences in vehicular homicide

case   where   the   only    Yarbough        factor   supporting       consecutive

sentences is the presence of multiple victims, stating "crimes

involving    multiple    victims    represent         an   especially    suitable

circumstance for the imposition of consecutive sentences").

       We also discern no merit to defendant's reliance on Miller

v. Alabama, 567 U.S. 460 (2012) and State v. Zuber, 227 N.J. 422

(2017),     addressing     considerations        applicable       to    sentencing

juveniles.      Portillo    was   not    a    juvenile.      He   committed     the

robberies when he was eighteen years old.

       Given our deferential standard of review, see Cassady, 198

N.J. at 180, we discern no abuse of discretion, departure from

                                        14                                 A-0679-16T3
sentencing   guidelines,   or   sentence   that   shocks   the   judicial

conscience and warrants correction.

    We therefore affirm the conviction and sentence, but remand

for correction of the judgment of conviction to reflect the

aggravating and mitigating factors as found by the court.           We do

not retain jurisdiction.




                                  15                              A-0679-16T3
