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

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

NOT FOR PUBLICATION WITHOUT THE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.

June 27, 2018
2 A-2854-15T3

Defendant Willy Minaya appeals from his conviction for firstdegree 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-
3 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. 
4 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 
5 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. 
6 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). 
7 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 
8 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 
9 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 crossexamination. 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).
10 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.