                                NOT FOR PUBLICATION WITHOUT THE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-1191-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JULIO J. PINA-CATENA, a/k/a
JULIO J. CATENA, JULIO
PINACATENA, and JULIO J.
PINACATENA,

     Defendant-Appellant.
_____________________________

                    Submitted October 30, 2018 – Decided November 30, 2018

                    Before Judges Hoffman and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 11-10-1850.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael J. Confusione, Designated Counsel,
                    on the brief).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (William P. Miller, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).
PER CURIAM

      Defendant Julio J. Pina-Catena appeals from the judgment of conviction,

entered by the trial judge after a jury found defendant guilty of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1), second-degree burglary, N.J.S.A.

2C:18-2, third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), third-degree

computer theft, N.J.S.A. 2C:20-25(a), fourth-degree computer theft, N.J.S.A. 2C:20-

25(f), and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4).          At

sentencing, the trial judge imposed the following prison terms: ten years, with an

eighty-five percent period of parole ineligibility pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree aggravated assault; a

consecutive seven years with an eighty-five percent period of parole ineligibility

pursuant to NERA, for second-degree burglary; a consecutive four years

imprisonment for third-degree hindering; and concurrent sentences for the criminal

mischief, weapon possession, and computer theft convictions.

      Defendant presents the following arguments for our review:

            Point 1      The references to defendant’s practice of
                         Santeria violated N.J.R.E. 404[(]b[)] and
                         infringed defendant’s right to a fair trial on
                         the charges before the jury at trial below.



                                                                           A-1191-16T1
                                        2
             Point 2      The trial court erred in denying defendant’s
                          motion for mistrial because of a Brady
                          violation.

             Point 3      Defendant's sentence is improper and
                          excessive.

      We affirm defendant's conviction and sentence on all counts. We first

generally describe the facts surrounding the crimes, then address each of defendant's

specific arguments, and their attendant facts, in turn.

                                           I.

      On March 4, 2011, after finishing work, Adrian Martin returned to his and his

parents' home in Wallington, where he found his father, Nelson,1 severely beaten,

and the house vandalized and damaged. Nelson suffered fractures to his skull and

vertebrae, and a hemorrhage in his brain, causing memory loss.

      Police investigated defendant and Lance Debler, former boyfriends of Adrian,

as possible suspects. Debler informed an investigator that he had been at work the

entire day of the incident, and police verified his alibi. Defendant claimed he

remained at his apartment in Rutherford the entire day; however, defendant's cell

phone records indicated that at 7:08 a.m., 7:13 a.m., 1:02 p.m., and 2:11 p.m., his



1
  Because the victim, Nelson Martin, and his children share a common surname,
this opinion refers to them by their first names, for ease of reference. We intend
no disrespect by this informality.
                                                                             A-1191-16T1
                                           3
cell phone connected to cellular towers in Wallington, near the crime scene. The

police questioned the residents of nearby households, and one neighbor reported

seeing a red Toyota Camry, with distinctive rain guards, parked in front of the

victim's household between 7:00 and 7:15 a.m., while another neighbor reported

seeing a red Toyota sedan nearby. At the time of the incident, defendant drove a red

2009 Toyota Camry with distinctive rain guards over its windows.

      Evidence collected at the scene of the incident suggested that the perpetrator

practiced Santeria, a religion popular in the Caribbean that includes elements of

Roman Catholicism. Defendant practices Santeria; during their relationship, he

initiated Adrian into Santeria, and also attempted to initiate Adrian's sister, Caridad,

into Santeria. At the crime scene, the perpetrator ransacked Adrian's room and

placed items associated with Santeria on display. Police found a batea, or wooden

bowl, which Adrian kept in a closet, placed in the corner of his room – Adrian

purchased the batea while living with defendant. A candle of Saint Barbara, taken

from Adrian's dresser, was found lit on top of a china cabinet beside religious statues

belonging to the Nelson family. Alongside the candle was a peacock feather.

According to Adrian, defendant kept peacock feathers in their apartment and used

them for religious purposes. Feathers and a hammer were found in defendant's

apartment during the execution of a search warrant.


                                                                               A-1191-16T1
                                           4
      Finally, the perpetrator defaced framed photographs of Caridad throughout

the home, scratching her eyes out of the photographs; in addition, "U R filthy bitch"

was written on her Holy Communion picture. In Adrian's room, "you fuck with my

friend, you die" was scratched into the wall.

      In 2013, defendant was tried jointly with Kenneth Cabrera before a judge and

a jury. The jury returned a partial verdict, finding defendant not guilty of two counts

of hindering, but could not reach a verdict on eight other charges. In June and July

2016, defendant stood trial on the eight remaining charges, but this time without a

co-defendant, and a jury found defendant guilty of all charges.

      Prior to the second trial, defendant sought to prevent State witnesses from

giving testimony, which had been admitted in the first trial, regarding defendant's

practice of Santeria. The State sought to have this evidence admitted under N.J.R.E.

404(b) for the purpose of identification to assist in linking defendant to the evidence

collected at the crime scene. After a Rule 104 hearing, the trial judge ruled the

evidence admissible, subject to a limiting instruction to the jury as to how to consider

the evidence.

      Two weeks into the trial, on July 5, the trial judge learned that on July 1, the

State received access to Adrian's email account, from which it discovered a March

16, 2011 email sent to Adrian from Misty Koons, a friend of Debler, expressing


                                                                               A-1191-16T1
                                           5
disappointment in how Adrian handled his breakup with Debler. Prior to the first

trial, the State discovered from Debler's hard drive what it thought was a March 15,

2011 email from Koons to Adrian, which contained threatening language, but it

actually was only a draft of an email that was never sent. Upon discovering the

March 15 draft, the State sent a printed copy of the draft to defendant's counsel,

along with a duplicate electronic copy of Debler's entire hard drive. In the first trial,

the defense used the March 15 draft in support of its theory that Debler or Koons

committed the crime – defendant also had Adrian testify that he received the March

15 draft. In reality, however, Debler read the draft and suggested that Koons remove

the threatening language – the March 16 email to Adrian did not contain threatening

language. The State sent the March 16 email to defendant's counsel immediately

upon its discovery. The defense then moved for a mistrial, arguing that the new

evidence advanced its theory that Debler or Koons committed the crime – the trial

judge denied the motion.2




2
  The judge explained, "I [am] not going to declare a mistrial. But before I even
consider barring its use I think we need to hear from Misty Koons." The judge
was skeptical of defendant's claim of prejudice since Koons could still testify to
the fact that she prepared the March 15 email, exhibiting an intent to send it to
Adrian. If so, this would "corroborate[] [the defense's] opening argument."
                                                                                A-1191-16T1
                                           6
      Later in the trial, Misty testified that she prepared both versions of the email,

and that Debler found the draft email was "a little threatening." Adrian also testified

that he in fact received the March 16 email from Koons.

      On July 14, defendant made a separate motion for a mistrial. During a Rule

104 hearing that day regarding the cell phone evidence against defendant, Lt. Keith

Delaney of the Bergen County Prosecutor's Office testified regarding a report that

set forth the relevant cellular phone evidence against defendant. Later that day,

during the cross-examination of Lt. Delaney, defense counsel asserted that some of

the cell site numbers referred to in Lt. Delaney's report were not included in the key

provided to defendant – apparently defense counsel was provided with an outdated

key from the telephone company, which did not include all of the cell site numbers

referred to in the State's cell phone report. The judge denied defendant's motion for

a mistrial, but did adjourn the trial to July 19 to allow defense counsel to receive and

review the correct key. On July 19, Lt. Delaney completed his testimony. On July

20, defendant again moved for a mistrial, which the judge again denied.

                                          II.

      Defendant first contends his right to a fair trial was violated when the trial

court admitted testimony and statements by the prosecution regarding defendant's

practice of Santeria. We disagree.


                                                                               A-1191-16T1
                                           7
      Defendant specifically complains of the following statements made by the

prosecutor and evidence admitted at trial:

               1. In her opening statement, the prosecutor stated
                  that defendant introduced Adrian to Santeria, a
                  religion brought to America by "African slaves";
                  that defendant was Adrian's "godfather" in the
                  Santeria religion; and that Nelson and Caridad
                  were "adamantly opposed" to Adrian's
                  involvement with Santeria.

               2. Caridad's testimony that defendant tried to initiate
                  her into Santeria, and said that if she refused then
                  she would not get married and would be "barren."

               3. Adrian's testimony that defendant claimed to have
                  "visions" and that "spirits were talking to him and
                  telling him that" certain things "had to be done."

      Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided by [N.J.R.E.]

608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the

disposition of a person in order to show that such person acted in conformity

therewith." However, "[s]uch evidence may be admitted for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident when such matters are relevant to a material issue in

dispute."   N.J.R.E. 404(b).   "The underlying danger of admitting other-crime

evidence is that the jury may convict the defendant because he is 'a "bad" person in




                                                                            A-1191-16T1
                                         8
general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105

N.J. 67, 77 (1987)).

      In, Cofield, our Supreme Court announced a four-prong test to guide trial

courts in determining the admissibility of evidence of other crimes, wrongs, or acts:

             1. The evidence of the other crime must be admissible
                as relevant to a material issue;

             2. It must be similar in kind and reasonably close in
                time to the offense charged;

             3. The evidence of the other crime must be clear and
                convincing; and

             4. The probative value of the evidence must not be
                outweighed by its apparent prejudice.

                 [Id. at 338 (citation omitted).]

      Determinations on the admissibility of such evidence "are left to the discretion

of the trial court: 'The trial court, because of its intimate knowledge of the case, is in

the best position to engage in this balancing process. Its decisions are entitled to

deference and are to be reviewed under an abuse of discretion standard.'" State v.

Marrero, 148 N.J. 469, 483 (1997) (quoting State v. Ramseur, 106 N.J. 123, 266

(1987)). "Only where there is a 'clear error of judgment' should the 'trial court's

conclusion with respect to that balancing test' be disturbed." Id. at 483-84 (quoting

State v. DiFrisco, 137 N.J. 434, 496-97 (1994)) (other citation omitted).


                                                                                 A-1191-16T1
                                            9
      Before trial, the judge reviewed at length with counsel the admissibility of

defendant's practice of Santeria, and related evidence. The judge applied the Cofield

test and determined that the challenged testimony and evidence was "relevant to

prove identity[,] given what was found at the crime scene[,] . . . particularly[,] the

photographs [of Caridad] that were vandalized . . . ." He found that the events

alleged from the evidence actually occurred by a clear and convincing standard of

proof, and were sufficiently similar to the charged offenses. "Most importantly," he

ruled, "the probative value is not outweighed by the prejudice."

      At trial, after testimony regarding defendant's practice of Santeria was given,

the trial judge instructed that it was offered for the "specific, narrow" purpose of

proof of identity linking defendant to the crime scene, and not for propensity.

Specifically, the jury was instructed to consider whether "the customs and practices

of Santeria utilized by defendant are so similar and so unique to the crime he is

charged with commit[ing] that you may infer the same person committed both of

them." The judge further stated that "the religion of Santeria is not on trial, and you

should not in any way presume, conclude, or infer that the defendant is guilty of any

of these offenses just because of whatever practices . . . that this witness or any other

witnesses says occurs."




                                                                                A-1191-16T1
                                          10
      We find the admitted testimony regarding defendant's practice of Santeria,

and acts therefrom, admissible under N.J.R.E. 404(b) as proof inferring defendant's

identification as the perpetrator. Consideration of the Cofield factors supports

admissibility, as the evidence collected at the crime scene makes defendant's alleged

prior acts relevant to material issues of the case, particularly the identification of the

perpetrator. The evidence is clear and convincing, as multiple witnesses testified to

it and were subject to cross examination. Although the testimony likely had some

prejudicial effect, the trial court did not clearly abuse its discretion in allowing the

testimony.

                                           III.

      Defendant next contends that the prosecutor improperly withheld two pieces

of evidence from defendant: 1) the additional email evidence from Koons to Adrian,

which was admitted in the middle of trial; and 2) the "key code" relied on by the

detective in interpreting defendant's cell phone data, which had not been provided to

the defense in discovery. Defendant argues that these alleged discovery violations

infringed his right to know the State's case against him within a reasonable time to

prepare for his defense, warranting reversal of his convictions and a remand for a

new trial.




                                                                                 A-1191-16T1
                                          11
      The State has a "constitutional obligation to provide criminal defendants with

exculpatory evidence in the State's possession . . . ." State v. Marshall, 148 N.J. 89,

154 (1997). "[T]he suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

State v. Knight, 145 N.J. 233, 245 (1996) (quoting Brady v. Maryland, 373 U.S. 83,

87 (1963)). In order to make a Brady claim, a defendant must show three criteria:

"(1) the prosecution suppressed evidence; (2) the evidence is favorable to the

defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268-69

(1999) (citation omitted).

      As to the first factor, the "disclosure rule applies to information of which the

prosecution is actually or constructively aware." State v. Nelson, 330 N.J. Super.

206, 213 (App. Div. 1998) (citing Kyles v. Whitley, 514 U.S. 419, 437-38 (1995)).

The lack of actual awareness does not relieve the State of its Brady obligations

because the prosecutor has a duty to learn of any favorable evidence known to others

acting on the government's behalf. Kyles, 514 U.S. at 437-38.

      The second Brady factor is often presumed and few courts have considered

exactly what must be shown in order to establish that withheld evidence is favorable

to the defendant. Evidence found to be favorable has generally involved information


                                                                               A-1191-16T1
                                         12
that impeaches the testimony of a government witness. See State v. Henries, 306

N.J. Super. 512, 533 (App. Div. 1997). Favorability is not limited to impeachment,

however, and it has been recognized in cases where evidence simply bolsters a

defendant's claims. See State v. Nelson, 155 N.J. 487, 497 (1998).

      The third Brady factor involves the materiality of the evidence that was

withheld. "[E]vidence is material for Brady purposes 'if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.'" Marshall, 148 N.J. at 156 (quoting United

States v. Bagley, 473 U.S. 667, 682 (1985)). "A 'reasonable probability' is a

probability sufficient to undermine confidence in the outcome." Nelson, 155 N.J. at

500 (quoting Bagley, 473 U.S. at 682). As our Supreme Court has stated:

             "[A] showing of materiality does not require
             demonstration by a preponderance that disclosure of the
             suppressed evidence would have resulted ultimately in
             the defendant's acquittal." Rather, the question is
             whether in the absence of the undisclosed evidence the
             defendant received a fair trial, "understood as a trial
             resulting in a verdict worthy of confidence."

             [Ibid. (alteration in original) (citation omitted) (quoting
             Kyles, 514 U.S. at 434).]

      In applying the materiality test "where a conviction has followed a full trial,

we assess the strength of the State's case, and determine whether introduction of the



                                                                             A-1191-16T1
                                        13
suppressed evidence would probably have changed the jury's verdict." State v.

Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (citation omitted).

      After careful review, we conclude that defendant cannot satisfy the test set

forth in Brady for any of the discovery items purportedly withheld by the prosecutor.

Specifically, we hold that even if the prosecutor did withhold discovery that would

have benefited defendant at trial, everything alleged to have been suppressed was

ultimately admitted into evidence and used – with ample time to prepare – by

defendant's counsel; as a result, we conclude the delayed discovery was not material

to the outcome of the case. Koons did not testify until two weeks after defendant's

counsel was given the additional information regarding the emails, and at trial Koons

testified that she wrote both the March 15 and March 16 emails, and only sent the

March 16 email. After it was discovered that defense counsel received an outdated

key, the judge adjourned the trial for four days, and then provided defense counsel

the opportunity to continue cross-examination of Lt. Delaney.          Regarding the

materiality or prejudice, defendant only asserts that the additional evidence "includes

impeachment material," without any explanation of how he was denied the

opportunity to use the material. We therefore find no basis to overturn defendant's

convictions based on any alleged discovery violations.




                                                                               A-1191-16T1
                                         14
                                         IV.

      Defendant asserts two arguments in support of his claim that he received an

improper and excessive sentence. As our Supreme Court has reaffirmed, sentencing

determinations are reviewed on appeal with a highly deferential standard. State v.

Fuentes, 217 N.J. 57, 70 (2014).

             The appellate court must affirm the sentence unless (1)
             the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [Ibid. (alteration in original) (quoting State v. Roth, 95
             N.J. 334, 364-65 (1984)).]

      When determining a sentencing term, a trial court must identify whether any

of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) or the mitigating

factors in N.J.S.A. 2C:44-1(b) apply, and then balance the applicable factors. Id. at

72.   The relevant factors must then be "qualitatively addressed and assigned

appropriate weight in a case-specific balancing process." Id. at 72-73 (citing State

v. Kruse, 105 N.J. 354, 359 (1987)). The court must also "state reasons for imposing

such sentence including . . . the factual basis supporting a finding of particular

aggravating or mitigating factors affecting sentence[.]" R. 3:21-4(g). It is especially


                                                                               A-1191-16T1
                                         15
important that the court provide a "clear explanation 'of the balancing of aggravating

and mitigating factors with regard to imposition of sentences and periods of parole

ineligibility . . . .'" Fuentes, 217 N.J. at 73 (quoting State v. Pillot, 115 N.J. 558,

565-66 (1989)).

      In sentencing defendant, the trial court found significant the following

aggravating factors: (1) the nature of the offense (factor one), N.J.S.A. 2C:44-

1(a)(1); (2) the seriousness of harm inflicted in the victim (factor two), N.J.S.A.

2C:44-1(a)(2); (3) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3); and

(4) the need to deter defendant and others from violating the law (factor nine),

N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating factor seven, that defendant

had led a law-abiding life for a substantial period leading up to the incident, N.J.S.A.

2C:44-1(b)(7).

      On appeal, defendant first contends that aggravating factors one and two

"were part and parcel of the primary aggravated assault crime of which defendant

was found guilty." We first note that aggravating factor one was applied only to the

criminal mischief charge. As to aggravating factor two, our Supreme Court has held

that the factor can be applied to crimes that require "serious bodily injury," such as

aggravated assault, as the aggravating factor is a "broader and less precise concept"




                                                                               A-1191-16T1
                                         16
than serious bodily injury. State v. Kromphold, 162 N.J. 345, 358 (2000). The trial

judge applied these principles, finding:

                     The seriousness of the harm is not just physical,
             the seriousness of the harm again it's emotional to
             [Nelson], it's clearly mental in the sense that he no
             longer has his family . . . the relationships that he had,
             . . . the ability to live the life that he had.

                   [E]ach one of these family members are haunted
             for the rest of their life because of the actions of
             [defendant]. So I weigh heavily the seriousness of the
             harm caused.

The trial judge made an appropriate finding based on the competent and credible

evidence in the record, which fully supports his finding that aggravating factor two

applies.

      Second, defendant contends the trial court should not have imposed

consecutive sentences for aggravated assault, second-degree burglary, and

third-degree hindering. Our Supreme Court adopted the following criteria as general

sentencing guidelines for concurrent or consecutive-sentencing decisions:

             (1) there can be no free crimes in a system for which
                 the punishment shall fit the crime;

             (2) the reasons for imposing either a consecutive or
                 concurrent sentence shall be separately stated in the
                 sentencing decision;




                                                                            A-1191-16T1
                                           17
            (3) some reasons to be considered by the sentencing
                court should include facts relating to the crimes,
                including whether or not:

                   (a) the crimes and their objectives were
                       predominately independent of each other;

                   (b) the crimes involved separate acts of
                       violence or threats of violence;

                   (c) 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;

                   (d) any of the crimes involved multiple victims;

                   (e) the convictions for which the sentences are
                       to be imposed are numerous;

            (4) there should be no double counting of aggravating
                factors;

            (5) successive terms for the same offense should not
                ordinarily be equal to the punishment for the first
                offense . . . .

                [State v. Yarbough, 100 N.J. 627, 643-44 (1985)
                (footnote omitted).]

Concurrent or consecutive sentences are at the discretion of the sentencing judge.

State v. Carey, 168 N.J. 413, 422 (2001) (citing N.J.S.A. 2C:44-5(a)). "When a

sentencing court properly evaluates the Yarbough factors in light of the record, the



                                                                            A-1191-16T1
                                        18
court's decision will not normally be disturbed on appeal." State v. Miller, 205 N.J.

109, 129 (2011).

       Addressing the factors identified under the third criterion in Yarbough, the

judge found the crimes of aggravated assault and second-degree burglary separate

from each other, as defendant did not expect Nelson to be present at the home, and

rather approached the home only with the intent to vandalize and damage it. As for

the hindering offense, the court found an independent objective that was committed

at a different time and place – the first offense occurred hours after the incident and

at defendant's apartment, and then more hindering offenses were committed days

later. Because the trial court "evaluate[d] the Yarbough factors in light of the

record," we will not disturb its ruling. See Miller, 205 N.J. at 129.

      Affirmed.




                                                                               A-1191-16T1
                                         19
