                        NOT FOR PUBLICATION WITHOUT THE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-2854-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WILLY MINAYA, a/k/a
WILLY R. MINAYA,

     Defendant-Appellant.
_____________________________

              Submitted April 17, 2018 – Decided June 27, 2018

              Before Judges Reisner, Hoffman, and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              13-07-0664.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Rebecca L. Gindi, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Arielle E. Katz, Deputy
              Attorney General, of counsel and on the
              briefs).

              Appellant filed a pro se supplemental brief.

PER CURIAM
    Defendant Willy Minaya appeals from his conviction for first-

degree   robbery,   N.J.S.A.   2C:15-1(a)(2),   fourth-degree    theft,

N.J.S.A. 2C:20-3, and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d). He also appeals from the

sentence of eighteen years in prison, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

    On this appeal, he presents the following points of argument

through counsel:

           I. FAILURE TO INSTRUCT THE JURY ON HOW TO
           EVALUATE MINAYA'S ALLEGED ORAL OUT-OF-COURT
           STATEMENTS AND TO USE CAUTION IN SAID
           EVALUATION DENIED MINAYA DUE PROCESS AND A
           FAIR TRIAL. (NOT RAISED BELOW)

           II. THE TRIAL COURT ERRED BY ALLOWING THE
           INVESTIGATING OFFICER TO TESTIFY TO ISSUES
           SOLELY IN THE PROVINCE OF THE JURY. (NOT
           RAISED BELOW)

           III.   THE   TRIAL   COURT'S   CONFUSING   AND
           UNTAILORED ACCOMPLICE LIABILITY INSTRUCTION
           VIOLATED BIELKIEWICZ AND LEFT THE JURY WITH
           NO UNDERSTANDING OF HOW THE THEORY APPLIED,
           VIOLATING MINAYA'S RIGHT TO A FAIR TRIAL. (NOT
           RAISED BELOW)

           IV. THE CUMULATIVE IMPACT OF THE ERRORS DENIED
           MINAYA A FAIR TRIAL. (NOT RAISED BELOW)

           V. BECAUSE THE JUDGE'S PERSONAL REPUGNANCE
           TOWARD MINAYA GUIDED IMPOSITION OF HIS
           SENTENCE, MINAYA'S SENTENCE WAS NOT IMPOSED
           IN ACCORDANCE WITH THE SENTENCING CODE,
           REQUIRING RESENTENCING.

                A. The Sentencing Judge Improperly
                Considered   Non-Statutory  Aggra-

                                   2                            A-2854-15T3
                  vating Factors When He Made Moral
                  Judgments About Minaya's Parenting
                  Decisions, Immigration Status, And
                  Drug Use, Evidencing His Personal
                  Repugnance   Towards   Minaya   And
                  Denying Minaya His Right To A Fair
                  And Impartial Sentencing Hearing.

                  B. The Trial Court Abused Its
                  Discretion By Failing To Find
                  Mitigating Factor Eleven And By
                  Affording    Undue    Weight    To
                  Aggravating Factors Three, Six And
                  Nine.

He raises the following issues in a supplemental pro se brief:

          I. THE PROSECUTOR COMMITTED MISCONDUCT IN HER
          SUMMATION, THEREBY DEPRIVING MINAYA [OF] A
          FAIR TRIAL

          II. THE TRIAL COURT'S FAILURE TO GIVE A
          CURATIVE INSTRUCTION ON ACCOMPLICE LIABILITY
          DEPRIVED MINAYA [OF] A FAIR TRIAL

          III. TRIAL COUNSEL DEPRIVED MINAYA OF HIS
          RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN
          HE FAILED TO ARGUE MINAYA'S PRO SE MOTION TO
          SUPPRESS EVIDENCE

     After reviewing the record in light of the applicable legal

standards,   we   find   no    plain   error   with    respect   to   any    of

defendant's newly-raised contentions, and we find no abuse of

discretion or other error in the sentence.            Defendant's first two

pro se arguments are without sufficient merit to warrant discussion

in a written opinion.         R. 2:11-3(e)(2).    We decline to consider

defendant's third pro se argument, without prejudice to his right

to file a petition for post-conviction relief.                See State v.

                                       3                              A-2854-15T3
Preciose, 129 N.J. 451, 460 (1992).    We affirm the conviction and

the sentence.

                               I

      The following summary of the trial record will suffice to

illustrate our decision of the legal issues.    The Paterson police

apprehended defendant and a co-defendant, Emmanuel Rodriguez,

shortly after the two men robbed the victim by threatening him

with a sharp object.   At around 1:00 a.m., Officer Campos and his

partner, Officer Hernandez, were cruising the Union Avenue area

in a patrol vehicle.   From a few yards away, Campos and Hernandez

saw two men crouching over a third man (the victim), but at first

they were not sure what was happening.     When the patrol car came

closer, the two crouching men got up and started walking away.

Campos asked one of the men, later identified as defendant, what

was going on. When defendant replied that "nothing" was happening,

Campos let defendant and his companion get into a green Honda and

drive away.     However, suspecting that something might be awry,

Campos checked the Honda's license plate number in his computer.

     As defendant and his companion were driving away, the victim

shouted in Spanish that they had taken his cell phone.     At that

point, Campos, who spoke Spanish, realized that he had witnessed

a robbery.    According to Campos, he and Hernandez began chasing

the green Honda, and called for back-up.     A back-up unit quickly

                                   4                        A-2854-15T3
stopped the fleeing car and detained the two occupants, defendant

and Rodriguez.         The police found the victim's cell phone and a

screwdriver in defendant's pocket.             At the trial, Campos and

Hernandez both identified defendant as the man who they saw at the

robbery scene, and who told them that "nothing" was going on.1

      The    defense    called   Rodriguez    as   a   witness.    Initially,

Rodriguez testified that the robbery was entirely his idea.                  He

testified that he and defendant were at a bar, and Rodriguez saw

the victim waving cash around.         Rodriguez told defendant that he

was going to rob the victim, and told defendant to go get his car,

which was parked some distance away.           When the victim came out of

the   bar,   Rodriguez     followed   him    and   robbed   him.    Rodriguez

indicated that defendant arrived with the car after the robbery

was over.     However, on cross-examination Rodriguez recanted that

testimony, which was contrary to prior sworn statements he had

made.   Rodriguez admitted that defendant had contacted him before

the trial and urged him to give exculpatory testimony.              Rodriguez

then admitted that defendant fully participated in the robbery and

threatened the victim with the screwdriver.




1
  The victim, who was grabbed from behind and was lying face down
on the ground during the robbery, did not identify defendant at
the trial.


                                      5                               A-2854-15T3
                                II

      Addressing defendant's first point, we find no plain error

in the court's failure to sua sponte give a Hampton2 or a Kociolek3

charge.   A Hampton charge instructs the jury to decide whether a

defendant's confession to the police is credible and to disregard

the statement if it is not credible.     See State v. Baldwin, 296

N.J. Super. 391, 401 (App. Div. 1997).   A Kociolek charge is given

where a defendant has made an allegedly inculpatory oral statement

to a witness, and there is a genuine issue regarding precisely

what the defendant said.     Baldwin, 296 N.J. Super. at 401.       In

that situation, the jury must be instructed "with respect to the

risk that the hearer misunderstood or inaccurately recalled the

statement."   Ibid.   Defendant did not request either charge at the

trial, and thus we review for plain error.    R. 1:7-2; R. 2:10-2.

      The argument here concerns defendant's threat to "go through"

or cut the victim with the screwdriver, defendant's instruction

to Rodriguez to search the victim's pockets, and defendant's

instruction to Rodriguez to throw some incriminating evidence out

the car window.




2
    State v. Hampton, 61 N.J. 250 (1972).
3
    State v. Kociolek, 23 N.J. 400 (1957).

                                  6                          A-2854-15T3
     The statements were not made during police questioning, and

none of them constituted an admission of guilt.          Rather, they were

either threats or instructions.        Further, there was no issue in

this case as to whether the witnesses misheard the statements or

recounted   them   inaccurately.       The   only    issues   were   whether

defendant – as opposed to Rodriguez — made the statements the

victim heard, and whether defendant made the statements to which

Rodriguez testified or whether Rodriguez was lying. In the context

of this record, the Hampton and Kociolek charges were not required.

See Baldwin, 296 N.J. Super. at 401-02.             However, even if they

should have been given, any error in failing to sua sponte instruct

the jury with those charges was harmless.           See R. 2:10-2.

     Defendant's second point, also raised for the first time on

appeal, is equally unconvincing.       Relying on State v. McLean, 205

N.J. 438, 460 (2011), defendant argues that it was error to allow

Officer Campos to testify that a robbery had occurred.                Campos

gave that brief testimony in the context of explaining that, once

he heard the victim cry out that the two men had taken his phone,

the officer realized that he made a mistake in initially letting

the two other men leave the scene.           We find no plain error in

allowing that testimony.    There was no genuine issue in this case

as to whether a robbery occurred.      The issue was who committed the

crime.   In this context, the officer's testimony about witnessing

                                   7                                 A-2854-15T3
a robbery did not have a clear capacity to produce an unjust

result.      See R. 2:10-2.

     For the first time, defendant next argues that the judge

erred   in    responding     to    the   jury's     question   about   accomplice

liability.      In their summations, both sides thoroughly explained

to the jury the theory of accomplice liability in the context of

this case, and the judge instructed them with the Model Charge.

After     beginning     deliberations,        the    jury   asked:     "How   does

accomplice liability apply to this defendant, if it does, and does

[sic] the verdict sheet charges reflect this option?" Both counsel

agreed that the judge should explain to the jury that the theory

of accomplice liability could only apply to the robbery and theft

counts; it was up to the jury to decide if accomplice liability

applied to those counts; and the accomplice issue did not appear

on the verdict sheet because it was not a separate charge but

rather was a theory by which the State could prove particular

charges.      The judge also told the jury to re-read the accomplice

liability sections of the written charge, which he had given them.

     In the context of this case, we find no plain error in the

judge's      response   to   the    jury's    question.        The   evidence    of

defendant's guilt on the first-degree robbery and theft charges,

either as a principal or an accomplice, was overwhelming.                       The

police officers saw two assailants crouching over the victim.                   The

                                          8                               A-2854-15T3
victim testified that there were at least two men involved in

robbing him, and one of the robbers pressed a sharp object into

his back and threatened to cut him.                On this record, the jury

could not find defendant guilty only of theft, unless they believed

Rodriguez's initial testimony, which was contrary to his prior

sworn   statements   and    which    he       thoroughly     recanted    on    cross-

examination.     Defendant's        argument      on   this   point     is    without

sufficient merit to warrant further discussion.                 R. 2:11-3(e)(2).

     Since we find no plain error in any of defendant's first

three arguments, we also find no cumulative error.

     We find no merit in defendant's sentencing arguments.                         The

trial judge scrupulously and thoroughly considered all of the

proposed aggravating and mitigating factors, explaining in detail

why he found that each factor applied or did not apply.                  See State

v. Case, 220 N.J. 49, 65 (2014).

     We find no abuse of discretion in the judge's conclusion that

mitigating     factor      eleven     (hardship         to     dependents)         was

inapplicable.    See N.J.S.A. 2C:44-1(b)(11).                 The judge did not

consider non-statutory aggravating factors, and we do not perceive

anything improper in his explanation for rejecting mitigating

factor eight or for applying aggravating factor three.                       N.J.S.A.

2C:44-1(b)(8) (defendant's conduct was the result of circumstances

unlikely to recur); N.J.S.A. 2C:44-1(a)(3) (risk of re-offense).

                                          9                                   A-2854-15T3
Nothing   in   the   judge's   sentencing   opinion   indicated     bias.

Defendant's sentencing arguments are without sufficient merit to

warrant further discussion.     R. 2:11-3(e)(2).

    Affirmed.




                                  10                              A-2854-15T3
