SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2057-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RHUDELL C. CRUZ-SNELLING,

a/k/a RHUDY CRUZ, RHODELL

SNELLING, RHUDELL CHARLES

CRUZ-SNELLING, RHUDY C.

CRUZ, RHUDELL C. CRUZ, and

RHODELL CRUZ,

Defendant-Appellant.

_________________________________

Submitted December 18, 2019 – Decided

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 17-01-0005.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michele A. Adubato, Designated Counsel, 

on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

April 21, 2020
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Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Alanna M. Jereb, Assistant Prosecutor, on 

the brief).

PER CURIAM

Defendant Rhudell C. Cruz-Snelling appeals from a November 21, 2017

judgment of conviction after a jury found him guilty of second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) and fourth-degree 

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). We affirm.

Defendant raises the following issues on appeal:

POINT I: THE STATE'S FAILURE TO COMPLY 

WITH [RULE] 3:13-3(b) REGARDING PRODUCING 

TRANSCRIPTS FOR ELECTRONICALLY 

RECORDED STATEMENTS WITHIN [THIRTY] 

DAYS OF TRIAL MANDATED THE EXCLUSION 

OF THE RECORDED JAIL CALLS. 

POINT II: THE DEFENDANT'S MOTION FOR 

JUDGMENT OF ACQUITTAL ON THE CHARGE OF 

RESISTING ARREST SHOULD HAVE BEEN 

GRANTED. 

POINT III: CERTAIN COMMENTS MADE BY THE 

PROSECUTOR DURING HIS SUMMATION 

[WERE] IMPROPER AND DEPRIVED

DEFENDANT OF A FAIR TRIAL. (Not raised 

below).

POINT IV: THE EXTENDED TERM SENTENCE OF 

FIFTEEN [] YEARS WITH SEVEN AND A HALF []
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YEARS OF PAROLE INELIGIBILITY WAS 

MANIFESTLY EXCESSIVE AND SHOULD BE 

MODIFIED AND REDUCED. (Not raised below). 

We discern the following facts from the record. In the early hours of 

October 2, 2016, Officer Jose Perez of the Jersey City Police Department 

received a report of "shots fired" at Sherman Avenue and Franklin Street. Perez 

and his partner, Officer Edwin Medina, went to the area where they spoke with

a man who identified a white Mazda that had allegedly sped through a stop sign. 

The officers ordered the Mazda driver to shut off the vehicle and show his hands. 

Perez and Medina both approached the Mazda. Perez went toward the 

passenger's side of the vehicle while Medina went towards the front. Perez, 

standing in front of the passenger door with his weapon drawn, said "Stop. Don't 

move. Stop. Don't move." Perez looked directly at the front passenger of the 

vehicle, who he later identified as defendant. Instead of stopping, the Mazda

drove away. The officers gave chase. Medina radioed identifying information 

"over the air." Sergeant Crisant Bereguette observed a white vehicle drive down 

the street in the wrong direction and pull into a driveway where a man exited

the vehicle and ran across the street towards the sidewalk. Bereguette used her 

flashlight to look inside the vehicle, and noticed a handgun, later identified as a 

black semi-automatic Smith & Wesson, on the floorboard of the passenger's 
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side. Officer Nancy Rojas heard, over dispatch, the description of a male wanted 

in connection with the shots fired call and saw defendant, who matched the

description, walking. Rojas stopped defendant for an investigation and noticed 

dirt marks and grass stains on his pants. Perez and Medina responded to Rojas' 

location, identified defendant as the man they were looking for and defendant

was then taken into custody. 

The police later executed a search warrant for the Mazda, recovering 

defendant's wallet from the front passenger's side of the vehicle, as well as a

fully-loaded magazine, which contained nine-millimeter Winchester Luger 

rounds, for a Smith & Wesson handgun from the center console. Detective 

Joseph Chidichimo recovered two shell casings from the scene, one from a ninemillimeter Luger and another from a .380 Winchester. He also recovered 

surveillance video from buildings in the area showing four people walking south 

on Sherman Avenue away from Franklin Street. A silver revolver was recovered 

nearby with six spent casings inside its cylinder. 

Co-defendant Jason Smith, the driver, pled guilty to third-degree eluding, 

N.J.S.A. 2C:29-2 and agreed to testify against his co-defendants after giving a 

statement. He testified that on October 1, 2016, between 11:00 a.m. and 2:00 

p.m., defendant and Smith's sister, Holly Wippert, picked him up in the Mazda.
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They drove Wippert to Manchester, where they dropped her off, and Smith then 

drove the Mazda, with defendant in the front passenger seat, to Bound Brook 

where they picked up co-defendant Saquan S. Peace.

Smith, defendant and Peace drove to Newark, where they drank alcohol. 

Then Smith drove to Jersey City with defendant, Peace, and two other 

individuals to meet "females . . . and then . . . go get another bottle of liquor. 

. . ." He eventually parked and waited as the four other occupants of the Mazda 

left to meet up with the women and "to go get the liquor." After five to ten 

minutes, the four ran back to the car, got in their original seats and told Smith

to drive off as if they were in a rush. Smith testified that defendant had a black 

gun in his hand and he believed Peace had a big silver gun in his hand. Smith 

drove away from the scene with the others in the car as defendant told him where 

to drive. Eventually, Smith arrived at a stop sign and "a bunch of cops" appeared 

"out of nowhere" and a police officer, with his gun drawn, directed him to "turn 

off the car." Smith testified that defendant told him to "go." He drove until he 

crashed the vehicle, then ran and threw away his gray hoodie while running. 
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Peace also gave a video-recorded statement to police. Peace reported he 

was in the Mazda with Smith, an individual known to him as "Big Boy," 1and 

someone named Johnny. Peace reported that Big Boy had a black gun in his 

hand. Peace explained that Big Boy was "beefing with someone." Peace denied 

getting out of the car. He stated the shooting occurred on the first time they 

"spun the block" and that on their third time coming around the police spotted 

them. He asserted that he told the other passengers he was "not going down for 

ya'll straps," the other passengers then threw their guns out the window, and 

when the car came to a stop, all the occupants jumped out of the car.

On January 10, 2017, defendant was indicted for second-degree unlawful 

possession of a weapon, handgun, without a permit, N.J.S.A. 2C:39-5(b)(1); 

second-degree possession of a weapon for an unlawful purpose N.J.S.A. 2C:39-

4(a)(1); third-degree aggravated assault against a law enforcement officer, 

N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree resisting arrest by flight, N.J.S.A. 

2C:29-2(a)(2); and fourth-degree criminal mischief N.J.S.A. 2C:17-3(a)(1).2 

 

1

 The State contends that defendant is Big Boy. 

2

 The charges for third-degree aggravated assault against a law enforcement 

officer and fourth-degree criminal mischief were dismissed prior to trial. Codefendants Peace and Smith were charged in the remaining counts of the 

indictment. Co-defendant Smith pleaded guilty to eluding N.J.S.A. 2C:29-2(b). 

Peace was tried with defendant. 
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On August 15, 2017, defendant, while incarcerated at the Hudson County 

Correctional Facility, called Wippert. During the call, defendant asked Wippert, 

"[w]hy . . . you always lying?" and "where did you get that gun from?" 

Defendant told Wippert that he learned the gun was registered to her grandfather 

and accused her of lying about her knowledge of the gun. 

On September 28, 2017, the court granted the State's motion to admit codefendant Peace's statements into evidence, subject to redactions. The trial 

began on October 4, and on October 13, 2017, the jury returned a guilty verdict 

finding defendant guilty of all counts. On October 19, the State moved for the 

imposition of an extended term which the court granted. On November 17, 

2017, the trial judge sentenced defendant to an aggregate fifteen-year term of 

imprisonment with seven and one-half years of parole ineligibility.

This appeal followed. 

On appeal, defendant argues the trial court erred by admitting his phone 

call to Wippert and denying his motion for judgment of acquittal. The defendant 

also argues comments made by the prosecutor in summation rose to the level of 

prosecutorial misconduct and the imposition of an extended sentence was 

unduly punitive and shocks the judicial conscience. We reject these arguments 

and affirm.
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Defendant argues his jail call to Wippert should be excluded because of

the State's failure to comply with its obligation to provide discovery within the

thirty-day timeframe of Rule 3:13-3(b)(1)(B). The State filed its notice of 

motion on September 15, and the defendant's trial commenced on October 3, 

2017. 

The trial court relaxed Rule 3:13-3, pursuant to Rule 1:1-2, because 

defense counsel was aware of the subject call as early as August 29, and the 

defense listened to the call on September 11, 2017. Moreover, defendant did 

not object to the State's motion to admit the call. 

We "review . . . a trial court's discovery order [under] the abuse of 

discretion standard." State in Interest of A.B., 219 N.J. 542, 554 (2014) (citation 

omitted). "Thus, [we] should generally defer to a trial court's resolution of a 

discovery matter, provided its determination is not so wide of the mark or is not 

'based on a mistaken understanding of the applicable law.'" Ibid. (quoting 

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). 

However, "[i]n construing the meaning of a statute, court rule, or case law, 'our 

review is de novo,'" and we owe no deference to the trial court's legal 

conclusions. Id. at 554-55.

Rule 3:13-3(b)(1)(B) provides, in pertinent part, that discovery includes:
9

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[R]ecords of statements or confessions, signed or 

unsigned, by the defendant or copies thereof, and a 

summary of any admissions or declarations against 

penal interest made by the defendant that are known to 

the prosecution but not recorded. The prosecutor also

shall provide the defendant with transcripts of all 

electronically recorded statements or confessions by a 

date to be determined by the trial judge, except in no 

event later than [thirty] days before the trial date set at 

the pretrial conference.

The State has a "continuing duty to provide discovery pursuant to this rule." R.

3:13(f). Rule 3:13(f) vest in courts the ability to take remedial action when a 

party fails to comply with the rule. "A court's failure to take appropriate action 

to remedy a discovery violation can implicate the defendant's right to a fair 

trial." State v. Smith, 224 N.J. 36, 48 (2016) (citation omitted). That right to a 

fair trial requires a "'meaningful opportunity to present a complete defense.'" 

Ibid. (citation omitted). 

Rule 1:1-2 allows that the rules "shall be construed to secure a just 

determination, simplicity in procedure, fairness in administration, and the 

elimination of unjustifiable expense and delay." Nonetheless, our Supreme 

Court has warned that the relaxation provision of Rule 1:1-2 should be sparingly 

resorted to as the rule is the exception rather than the norm. Ramagnola v. 

Gillespie, Inc., 194 N.J. 596, 604 (2008) (citations omitted). 
10 A-2057-17T2

Here, we discern no abuse of discretion in the relaxation of Rule 3:13-3(b) 

because defendant was not prejudiced by the State's technical noncompliance 

with this rule. The defendant was aware of the substance of the evidence and

has not illustrated how the purported error prejudiced his "opportunity to present 

a complete defense."

We also reject defendant's argument the trial court erroneously denied his 

motion for a judgment of acquittal on the charge of resisting arrest. He asserts 

that when Perez approached and confronted the stopped Mazda none of the 

occupants of the vehicle were under arrest, and thus the State failed to prove all 

the essential elements of the resisting arrest offense beyond a reasonable doubt. 

The judge correctly denied the motion stating:

[Regarding] [t]he issue of resisting[,] the [i]ndictment

reads, preventing a law enforcement [officer] from 

making lawful arrests. 

I saw the video, I heard the testimony. Clearly 

there was an order to stop with the gun drawn, the car 

sped away. At that point in time, prior to the flight, 

there may not have been an attempt to arrest, but when 

they refused to obey the policeman's order and fled 

certainly they prevented a lawful arrest. 

In order to be found guilty of fourth-degree resisting arrest, defendant 

must have "by flight, purposefully prevent[ed] or attempt[ed] to prevent a law 

enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a). "[A] 
11 A-2057-17T2

citizen's duty to submit [to an arrest] obtains when the restraint by the police 

officer is for any lawful purpose even if it does not amount to an arrest." State 

v. Brennan, 344 N.J. Super. 136, 145 (App. Div. 2001) (citations omitted). 

Based on the evidence presented at trial, a jury could have found defendant 

violated N.J.S.A. 2C:29-2(a)(2).

Defendant also asserts that certain comments made by the prosecutor 

during his summation deprived defendant of his right to a fair trial. Defendant 

did not object at trial to the following statements made by the prosecutor:

As I said in the beginning of - - in my opening, [Smith 

is] not without sin. Right? He's not a saint here. He 

made a very stupid mistake by running from the police.

But [Smith] took responsibility. He plead guilty. It's 

your turn to hold these people responsible for what they 

did. 

Defendant argues the prosecutor's statement that "[i]t's your turn to hold these 

people responsible" impermissibly conveyed to the jury that it was their 

responsibility to find the defendant guilty. 

"When a defendant fails to object to an error or raise an issue before the 

trial court, we review for plain error." State v. Ross, 229 N.J. 389, 407 (2017) 

(citing R. 2:10-2). "We may reverse on the basis of unchallenged error only if 

the error was 'clearly capable of producing an unjust result.'" Ibid. (quoting R.
12 A-2057-17T2

2:10-2). Our Supreme Court has articulated the standard for review of alleged 

prosecutorial misconduct with respect to remarks in summation:

An appellate court, in reviewing the trial record 

to determine whether the conduct of the prosecutor 

exceeded these bounds, must consider several factors, 

including whether "timely and proper objections" were 

raised, whether the offending remarks "were withdrawn 

promptly," and whether the trial court struck the 

remarks and provided appropriate instructions to the 

jury. Additionally, an appellate court will consider 

whether the offending remarks were prompted by 

comments in the summation of defense counsel. If, 

after completing such a review, it is apparent to the 

appellate court that the remarks were sufficiently 

egregious, a new trial is appropriate, even in the face of 

overwhelming evidence that a defendant may, in fact, 

be guilty. In contrast, if the prosecutorial remarks were 

not "so egregious that [they] deprived the defendant of 

a fair trial[,]" reversal is inappropriate.

[State v. Smith, 212 N.J. 365, 403-04 (2012) 

(alterations in original) (citations omitted) (quoting 

State v. Frost, 158 N.J. 76, 83 (1999)).]

"Prosecutors are afforded considerable leeway in closing arguments as 

long as their comments are reasonably related to the scope of the evidence 

presented." Frost, 158 N.J. at 82. However, they may not issue a "call to arms," 

asking the jury to "send a message" to the defendant and the public, since such 

statements could "mislead a jury as to its role and duty," State v. Hawk, 327 N.J. 

Super. 276, 282-83 (App. Div. 2000), and "improperly divert jurors' attention 
13 A-2057-17T2

from the facts of the case and intend to promote a sense of partnership with the 

jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super. 

522, 537 (App. Div. 2003) (citations omitted).

The prosecutor's statement here was not an inappropriate call to arms. The 

prosecutor did not imply the jurors would violate their oaths if they failed to 

convict, see State v. Pennington, 119 N.J. 547, 576 (1990), nor did he suggest 

the jury had a societal duty to convict, Hawk, 327 N.J. Super. at 282. Considered 

in context, the prosecutor's comment did not cross the line and it did not amount 

to plain error in light of the substantial evidence of guilt. See State v. Feal, 194 

N.J. 293, 312-13 (2008) (finding an improper prosecutorial statement was not 

plain error based on the evidence of guilt).

Finally, defendant argues the trial court's imposition of an extended term 

was unduly punitive. We review a judge's sentencing decision under an abuse 

of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. 

Roth, 95 N.J. 334, 363-64 (1984). When reviewing a judge's sentencing 

decision, we "may not substitute [our] judgment for that of the trial court. . . ." 

State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 

215 (1989)). However, we may review and modify a sentence when the judge's 

determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) 
14 A-2057-17T2

(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). However, in determining 

the propriety of a sentence, we must make sure that the sentencing guidelines 

have been met, that the findings on aggravating and mitigating factors are based 

upon "competent credible evidence in the record," and that the sentence is not 

"clearly unreasonable so as to shock the judicial conscience." State v. Dalziel, 

182 N.J. 494, 501(2005) (citing Roth, 95 N.J. at 364-65).

"New Jersey's Code of Criminal Justice . . . provides for ordinary 

sentences . . . as well as extended-term sentences that carry greater punishment 

for the same crime." Pierce, 188 N.J. at 161 (citations omitted). "The persistent 

offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to 

impose an extended sentence when the statutory prerequisites for an extendedterm sentence are present." Ibid. 

We reject defendant's argument. The trial court found, and defendant 

conceded, that he met the statutory pre-requisites of a persistent offender. The 

court then found that aggravating factors three, risk of committing another 

offense; six, the nature and extent of defendant's criminal record; and nine, the 

need to deter defendant as well as others from violating the law, applied and the 

court also determined, and defendant conceded, that no mitigating factors were 

present in this case. 
15 A-2057-17T2

Addressing the extended term, the court again considered the aggravating 

and mitigating factors and noted defendant's criminal history included four 

indictable convictions, including unlawful possession of a firearm and another 

weapon. The court found defendant demonstrated a "flagrant disregard for the 

law and a clear indication that he will commit a future offense." In light of the 

weight afforded to the applied aggravating and the absence of any mitigating 

factors, we discern no abuse of the court's discretion.

Affirmed.