SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5023-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMON MARTINEZ,

Defendant-Appellant.

___________________________

Argued October 30, 2019 — Decided

Before Judges Koblitz, Whipple and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-06-0548.

Steven E. Braun argued the cause for appellant. 

Ali Y. Ozbek, Assistant Prosecutor, argued the cause 

for respondent (Camelia M. Valdes, Passaic County 

Prosecutor, attorney; Christopher W. Hsieh, Chief 

Assistant Prosecutor, of counsel and on the 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NOT FOR PUBLICATION WITHOUT THE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.

November 21, 2019
2

A-5023-17T1

Defendant Ramon Martinez appeals from a judgment of conviction for 

two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 

2C:11-3(a); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2); and one count of third-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(d). He also challenges his sentence. We affirm.

The following facts were adduced at trial. Late one evening in September 

2014, Alex Mena decided to shoot pool with Nicholas Garcia, Daniel Aguilar,

and Joel "Aranita" Orton at a liquor store and bar in Paterson. When they 

arrived, Mena sat at the counter and ordered a beer while awaiting his turn to 

play pool. While Mena waited, Aguilar played a game of pool against defendant, 

which led to an argument about the rules of the game. Defendant lost the game. 

Mena and Aguilar did not know defendant prior to playing against him. 

When Mena played defendant, a second argument ensued, also regarding 

the rules. As the argument continued, Mena told defendant he "was there just 

to have fun, to play pool, not to look for any type of problems." The bar owner 

noticed the argument was escalating and stopped the game.

Afterwards, Mena joined Aguilar at the bar. Defendant then approached 

Mena and Aguilar and began insulting Aguilar and challenging him to a fight. 

Aguilar and Mena decided to leave, however, on their way out, Orlando Cordero, 
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one of defendant's friends, punched Aguilar in the back of the head. Aguilar 

went outside to fight Cordero, and defendant also left the bar and ran towards a 

gas station across the street. Defendant returned and approached Aguilar. Mena 

attempted to defend Aguilar. Defendant then approached Mena who testified he 

attempted to "defend[] [him]self with [his foot.]" 

Defendant and Aguilar then fought. As defendant approached, Aguilar 

testified he "grabbed [defendant] and knocked him to the floor." While 

defendant and Aguilar fought, Mena testified he felt his shirt was wet. He lifted 

his shirt, touched his stomach and "[saw] that [his] intestines [were] hanging 

out." He had been stabbed in the torso in three places. Mena ran away from the 

scene. Aguilar also noticed that he "was full of blood" and was stabbed in two 

places in the torso and once in the left leg. 

Garcia drove Mena and Aguilar to St. Joseph's hospital. Garcia testified 

he saw defendant fighting Mena and then Aguilar. He then saw Mena holding 

his stomach as if he was injured. At the hospital, both victims were taken to the 

trauma unit and underwent emergency surgery. Five months later, Aguilar 

underwent a second surgery to resect a portion of his intestine due to the earlier 

injury. He testified he continues to suffer from back pain and "pain in [his]

intestines." 
4

A-5023-17T1

Both victims were shown photo arrays and identified defendant as the 

person who stabbed them. 

On appeal, defendant raises the following arguments:

POINT I – THE TRIAL COURT FAILED TO 

PROVIDE A PASSION/PROVOCATION 

INSTRUCTION IN REGARD TO ATTEMPTED 

MURDER (NOT RAISED BELOW).

POINT II – DEFENDANT WAS NOT PROVIDED 

THE OPTION OF ELECTING WHETHER HE 

WANTED A JURY INSTRUCTION REGARDING 

HIS RIGHT TO REMAIN SILENT (NOT RAISED 

BELOW).

POINT III – THE COURT SHOULD HAVE 

INSTRUCTED AS TO SIMPLE ASSAULT (NOT 

RAISED BELOW).

POINT IV – PROSECUTORIAL MISCONDUCT 

OCCURRED WHEN THE TRIAL PROSECUTOR 

ENGAGED IN DISCOURSE WITH ONE OF THE 

JURORS DURING SUMMATION. 

POINT V – THE TRIAL PROSECUTOR 

COMMITTED PROSECUTORIAL MISCONDUCT 

WHEN HE COMMENTED ON MATTERS NOT IN 

EVIDENCE, AND HIS COMMENTS INFLAMED 

THE JURY. 

POINT VI – ADMITTING THE PHOTOGRAPH OF 

AGUILAR'S INFECTION WAS INFLAMMATORY 

AND PREJUDICIAL TO DEFENDANT, THEREBY 

REQUIRING REVERSAL OF THE CONVICTION.
5

A-5023-17T1

POINT VII – THE TRIAL COURT SHOULD HAVE 

GRANTED THE DEFENSE MOTION AND 

ORDERED A NEW TRIAL BECAUSE THE 

VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE AND DUE TO THE PREJUDICE TO 

DEFENDANT CAUSED BY THE USE OF THE 

TERMS "STABBING" AND "VICTIMS."

POINT VIII – DEFENDANT WAS DENIED 

EFFECTIVE ASSISTANCE OF COUNSEL IN 

VIOLATION OF THE SIXTH AND FOURTEENTH 

AMENDMENTS OF THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF 

THE NEW JERSEY CONSTITUTION.

POINT IX – THE CUMULATIVE EFFECT OF THE 

ERRORS COMMITTED AT TRIAL REQUIRE 

REVERSAL OF THE CONVICTION. 

POINT X – THE SENTENCE IMPOSED WAS 

MANIFESTLY EXCESSIVE. 

I.

Defendant argues the trial judge failed to sua sponte instruct the jury 

regarding passion provocation on the attempted murder counts, or the lesserincluded charge of simple assault. He also argues the judge erred by charging 

the jury regarding his right to remain silent without giving him the option to 

waive the charge. 

"[T]he court has an 'independent duty . . . to ensure that the jurors receive 

accurate instructions on the law as it pertains to the facts and issues of each case, 
6

A-5023-17T1

irrespective of the particular language suggested by either party.'" State v. 

Baum, 224 N.J. 147, 159 (2016) (alteration in original) (quoting State v. 

Reddish, 181 N.J. 553, 613 (2004)). When a defendant fails to object to an error 

regarding jury charges, we review for plain error. State v. Funderburg, 225 N.J. 

66, 79 (2016). "Under that standard, we disregard any alleged error 'unless it is 

of such a nature as to have been clearly capable of producing an unjust result.'" 

Ibid. (quoting R. 2:10-2). "The mere possibility of an unjust result is not enough. 

To warrant reversal . . . an error at trial must be sufficient to raise 'a reasonable 

doubt . . . as to whether the error led the jury to a result it otherwise might not 

have reached.'" Ibid. (citation omitted) (quoting State v. Jenkins, 178 N.J. 347, 

361 (2004)).

N.J.S.A. 2C:1-8(e) states "[t]he court shall not charge the jury with respect 

to an included offense unless there is a rational basis for a verdict convicting the 

defendant of the included offense." "Thus, 'to justify a lesser included offense 

instruction, a rational basis must exist in the evidence for a jury to acquit the 

defendant of the greater offense as well as to convict the defendant of the lesser, 

unindicted offense.'" Funderburg, 225 N.J. at 81 (quoting State v. Savage, 172 

N.J. 374, 396 (2002)). However, "[w]hen the parties to a criminal proceeding 

do not request that a lesser-included offense . . . be charged, the charge should 
7

A-5023-17T1

be delivered to the jury only when there is 'obvious record support for such [a] 

charge. . . .'" Ibid. (second alteration in original) (quoting State v. Powell, 84 

N.J. 305, 319 (1980)). 

"A trial court should deliver the instruction sua sponte 'only where the 

facts in evidence "clearly indicate" the appropriateness of that charge.'" Ibid.

(quoting Savage, 172 N.J. at 397). The trial court "need not 'scour the statutes 

to determine if there are some uncharged offenses of which the defendant may 

be guilty.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 118 (1994)). 

Our Supreme Court held "passion/provocation manslaughter is considered 

a lesser-included offense of murder: the offense contains all the elements of 

murder except that the presence of reasonable provocation, coupled with 

defendant's impassioned actions, establish a lesser culpability." State v. 

Robinson, 136 N.J. 476, 482 (1994). Attempted passion/provocation 

manslaughter consists of four elements: "the provocation must be adequate; the 

defendant must not have had time to cool off between the provocation and the 

slaying; the provocation must have actually impassioned the defendant; and the 

defendant must not have actually cooled off before the slaying." Funderburg, 

225 N.J. at 80 (alterations in original) (quoting State v. Mauricio, 117 N.J. 402, 
8

A-5023-17T1

411 (1990)). "The first two criteria are objective, and the latter two are 

subjective." Ibid. (citing Mauricio, 117 N.J. at 411).

Thus, "[f]or a trial court to be required to charge a jury sua sponte on 

attempted passion/provocation manslaughter, the court 'must find first that the 

two objective elements of [the offense] are clearly indicated by the evidence.'" 

Id. at 82 (second alteration in original) (quoting Robinson, 136 N.J. at 491). "If 

they are, the two subjective elements should 'almost always be left for the jury.'" 

Ibid. (quoting Robinson, 136 N.J. at 490). 

"To satisfy the first element of attempted passion/provocation 

manslaughter, a jury must conclude that a reasonable person in the defendant's 

position would have been provoked sufficiently to 'arouse the passions of an

ordinary man beyond the power of his control.'" Id. at 80 (quoting State v. King, 

37 N.J. 285, 301-02 (1962)). Thus, "the judge must determine whether a 

reasonable fact-finder could conclude that the loss of self-control was a 

reasonable reaction." State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001). 

Defendant argues he was entitled to a passion/provocation jury instruction 

because the trial testimony revealed Mena tried to kick defendant and Aguilar,

"grabbed defendant, lifted him up, and threw him onto the ground." We 

disagree. 
9

A-5023-17T1

Mena testified that when everyone exited the bar, defendant ran to a gas 

station across the street before returning to the fight. Mena told defendant not 

to hit Aguilar, at which point, defendant began approaching Mena instead. After 

reviewing video footage of the fight, Mena testified as follows: 

Q. Now having seen that, . . . did you attempt to 

strike [defendant]?

A. When I told him not to hit [Aguilar] . . . [h]e came 

towards me, I defended myself with my foot. We . . . 

started to have a struggle, we started to fight.

Q. Okay, . . . when you came at [defendant] . . . did 

you actually hit him with your foot?

A. I don't think so. I really don't.

[(emphasis added).]

Mena's testimony demonstrated the attempt to kick defendant was an act of selfdefense. 

Similarly, the testimony that Aguilar picked defendant up and threw him 

to the ground demonstrates an act of self-defense because defendant was

approaching Aguilar to fight him. Both Mena and Aguilar testified Aguilar 

grabbed defendant's foot to "protect[] himself" after defendant began to 

approach him, and Aguilar testified specifically that he "reacted in order to 
10 A-5023-17T1

defend [him]self." Even defendant's friend, Cordero, testified defendant ended 

up on the ground after defendant "came in to kick one of [the victims.]" 

As a general proposition, "[i]f the defendant creates the situation that 

causes the passion/provocation it will not reduce murder to manslaughter." 

Cannel, New Jersey Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:11-4 

(2019). Furthermore, "the passion of an assailant aroused as the result of injuries 

inflicted by his victim attempting to defend himself is, as a matter of law, 

insufficient to mitigate the assailant's culpability for the resulting [attempted] 

homicide." State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995). The 

credible evidence proved defendant was the provocateur and the victims'

reactions were in self-defense. A lesser-included offense charge on attempted 

passion/provocation manslaughter was not "clearly indicated." 

There was also no basis for the trial judge to sua sponte charge the jury on 

simple assault, under N.J.S.A. 2C:12-1(a)(1) and N.J.S.A. 2C:12-1(a)(2), as a 

lesser-included offense of aggravated assault. "Simple assault is the least 

serious of the [N.J.S.A.] 2C:12-1 offenses." Cannel, New Jersey Criminal Code 

Annotated, cmt. 5 on N.J.S.A. 2C:12-1 (2019). Simple assault occurs when a 

person "[n]egligently," rather than purposely or knowingly, "causes bodily 
11 A-5023-17T1

injury to another with a deadly weapon." N.J.S.A. 2C:12-1(a)(2). Aggravated 

assault under N.J.S.A. 2C:12-1(b)(2) excludes negligent acts.

Defense counsel expressly advised the judge he did not seek the 

instruction for simple assault. Moreover, the State called Dr. Mark Ingram, who 

treated Mena and Aguilar on the night of the incident. Dr. Ingram testified Mena 

had "[l]ow blood pressure, lack of blood flow to the brain and organs, [and was] 

losing consciousness" when he arrived at the hospital. He stated Mena was 

diagnosed with "multiple stab wounds to the abdomen and was in hemorrhagic 

shock [and required emergency surgery] [t]o stop the bleeding and save his life." 

During the surgery, Dr. Ingram observed a large quantity of blood in Mena's 

abdominal cavity and noticed his "small intestine was lacerated and the blood 

supply to the small intestine was also lacerated." Dr. Ingram also observed 

extensive injury to several of Mena's organs caused by the stab wounds. 

Aguilar was diagnosed with a stab wound to the abdomen. Dr. Ingram 

testified he observed nearly a pint of blood inside Aguilar's abdomen during the 

surgery, a perforation of Aguilar's stomach and diaphragm, and a laceration of 

the fatty tissue covering the peritoneal cavity. According to Dr. Ingram, the 

stabbing also caused Aguilar's injuries and, if not treated for his injuries, "[h]e 

would have bled to death and . . . died." 
12 A-5023-17T1

The evidence clearly proved Mena and Aguilar's injuries were the result 

of a stabbing caused by a deadly weapon. No evidence was presented to 

establish defendant acted negligently. The record does not support defendant's 

argument the jury would acquit him of the aggravated assault charge. The 

evidence did not support charging "the least serious offense" under N.J.S.A. 

2C:12-1(a) or (2).

Although defendant did not object at trial, he now argues the judge erred 

by instructing the jury on defendant's right to remain silent. He argues defense 

counsel should have had the opportunity to request the jury instruction or to ask 

it not be provided. 

"The no-adverse-inference jury instruction, or Carter1charge, is grounded 

on the Fifth Amendment privilege against self-incrimination." State v. 

Camacho, 218 N.J. 533, 542 (2014). Accordingly, our Supreme Court 

"consistently mandated the trial court's use of the Carter instruction when it is 

requested by a defendant." Id. at 546. We review errors relating to the charge 

as "a type of error that concerns the evidentiary value the jury may give to a 

defendant's election not to testify on his or her own behalf." Id. at 551.

1

 Carter v. Kentucky, 450 U.S. 288 (1981).
13 A-5023-17T1

Here, defendant elected not to testify. The judge advised him on three 

occasions that if he decided not to testify, he would give the jury a no-adverseinference charge. Defendant acknowledged he understood his right to remain 

silent and the instructions the judge would give to the jury if he exercised that 

right. 

The trial judge instructed the jury as follows: 

As you know, [defendant] elected not to testify at 

trial. . . . You must not consider for any purpose or in 

any manner in arriving at your verdict the fact that 

[defendant] did not testify. The fact should not enter 

into your deliberations or discussions in any manner at 

any time. The defendant is entitled to have the jury 

consider all of the evidence presented at trial. He is 

presumed innocent whether or not he chooses to testify. 

Defendant did not object to the charge. 

We reject defendant's argument that the judge was required to obtain his 

consent to charge the jury regarding defendant's right not to testify. "Generally, 

a defendant waives the right to contest an instruction on appeal if he does not 

object to the instructions as required by Rule 1:7-2." State v. Adams, 194 N.J. 

186, 206-07 (2008). "Where there is a failure to object, it may be presumed that 

the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 

(App. Div. 2003); see also State v. White, 326 N.J. Super. 304, 315 (App. Div. 

1999).
14 A-5023-17T1

In State v. McNeil, we held a defendant "ha[s] no constitutional right to 

resist the [no-adverse-inference] instruction." 164 N.J. Super. 27, 31 (App. Div. 

1978); see also State v. Lynch, 177 N.J. Super. 107, 115 (App. Div. 1981) 

(concluding when a defendant did not have the opportunity to consent to the 

instruction, "inclusion of the charge does not violate [the] defendant's 

constitutional rights."). For these reasons, the jury instructions were not a basis 

for reversal. 

II.

Defendant argues the prosecutor engaged in misconduct when he spoke 

directly with a juror and argued facts not in evidence during summation, by 

referencing the victims' families, who did not testify at trial. The prosecutor's 

improper comments did not constitute reversible error.

"'[P]rosecutorial misconduct is not grounds for reversal of a criminal 

conviction unless the conduct was so egregious as to deprive defendant of a fair 

trial.'" State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. 

Papasavvas (I), 163 N.J. 565, 625 (2000)). "Thus, '[t]o justify reversal, the 

prosecutor's conduct must have been "clearly and unmistakably improper," and 

must have substantially prejudiced defendant's fundamental right to have a jury 
15 A-5023-17T1

fairly evaluate the merits of his defense.'" Id. at 438 (alteration in original) 

(quoting Papasavvas, 163 N.J. at 625). 

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)).]

Here, the prosecutor played the video of the fight for the jury during his 

summation, when the following colloquy ensued: 

[PROSECUTOR:] Watch where [defendant] is 

swinging the knife or swinging whatever he has right 

there. Pay attention. Where is he swinging? Where is 

he swinging, ladies and gentlemen? You saw that? 

You see it again? You saw it? Did you catch it? 

[JUROR:] Can you do it again? I didn't see it. 
16 A-5023-17T1

[PROSECUTOR:] I'll back it up, I'll back it up a little 

bit. You know what? I'll do you one better. There's 

one, there it is again. Did you catch it?

[JUROR:] No.

[PROSECUTOR:] I'll back it up again. 

Immediately afterwards, defense counsel objected, and during a sidebar

conversation argued the prosecutor was "engaging the jury [in] questioning and 

answering." The following exchange occurred during sidebar: 

THE COURT: I think it's inappropriate. You should 

simply go right through without any comment because 

my instructions will be to them you can't rely on 

anything more, this is just not evidence, so they should 

not be focusing on this . . .

[PROSECUTOR:] Yes. 

[DEFENSE COUNSEL:] Now I want to reserve my 

time for surrebuttal because of what occurred. 

[PROSECUTOR:] Surrebuttal?

THE COURT: No, I think that the jurors don't even 

know that there was an objection.

Later in his summation the prosecutor challenged the character witnesses 

who testified on defendant's behalf as follows: 

Now, there's a couple of things that came up in 

terms of – in terms of the people that talked about 

[defendant]. . . . 
17 A-5023-17T1

Listen, we all grab [twenty] of our best friends, 

[twenty] of your cousins and relatives, I guarantee you 

they're all going to say the same thing about you, that 

you're one great guy, that you're one great lady, that 

you're a hell of a person. Why? Because that's how 

they know you because when you're with your friends 

and your family you're going to be good to them. 

You're not going to treat your friends and family wrong, 

so of course they're going to be here and every one of 

their experiences they've ever had with [defendant] is 

going to be great because that's all they ever see from 

him because he's their friend . . . but you know who

would come in here and not have similar sentiments 

about [defendant]? Alex Mena's family, Alex Mena's 

wife and kids. They'll come in here and tell you a 

different story. They'll tell you — they'll paint a 

different picture about [defendant]. They'll tell you 

about how this person almost took the life of their loved 

one. That's what they'll tell you. Same thing for Danny 

Aguilar. His friends and family will come in and tell 

you the same thing, that they almost lost their friend.

[(emphasis added).]

Following these comments, defense counsel objected and at sidebar stated

"you can't argue to a jury speculative or conjectural testimony." The trial judge 

agreed and gave the jury the following curative instruction: 

Ladies and gentlemen, with regard to [the 

prosecutor's] comment as to what a family member of 

the victims would feel about a defendant, that I have 

stricken from the record. That should not go into, in 

any shape or form, . . . your discussions and I'm going 

to also remind you in my general instructions . . . that 

any comments by either [c]ounsel during openings or 
18 A-5023-17T1

closings are not evidence, they are simply arguments, 

all right? 

Our Supreme Court has held "[t]o address jurors individually or by name 

is generally disapproved and correctly so." Aponte v. State, 30 N.J. 441, 448 

(1959); see also Morais, 359 N.J. Super. at 131 (finding reference to a "juror 

individually by name, experience[,] or background" improper). However, "a 

'fleeting and isolated' remark is not grounds for reversal." State v. Gorthy, 226 

N.J. 516, 540 (2016) (quoting State v. Watson, 224 N.J. Super. 354, 362 (App. 

Div. 1988)). 

Here, we note it was not the prosecutor who commenced the interaction 

with the juror, but the juror who made a statement, which prompted the 

prosecutor's improper response. Regardless, the record does not reveal how the 

prosecutor's fleeting comment that he would "back . . . up" the video prejudiced 

or deprived defendant of a fair trial. 

Courts consistently recognize "prosecutors are afforded considerable 

leeway in their closing arguments," however "prosecutors should not make 

inaccurate legal or factual assertions during a trial and . . . they must confine 

their comments to evidence revealed during the trial and reasonable inferences 

to be drawn from that evidence." Smith, 167 N.J. at 177-78. 
19 A-5023-17T1

Here, the prosecutor undisputedly erred when he commented on facts not 

in evidence. However, defense counsel promptly objected to the prosecutor's 

comments, and the trial judge struck the prosecutor's comments and issued a 

curative instruction to the jury, advising it could not consider the prosecutor's 

comments regarding the victims' families. The timely objection and curative 

instruction "cured any potential harm caused by [the] speculative remarks." 

State v. McGuire, 419 N.J. Super. 88, 149 (App. Div. 2011). 

III.

Defendant argues the State admitted a photograph of Aguilar's injuries, 

which also showed the wound was infected. He argues the image of the infection 

was irrelevant and inflamed the jury. Defendant argues his motion for a new 

trial should have been granted because (1) the verdict was against the weight of 

the evidence and (2) the terms "stabbing" and "victims" were used, implying his

guilt and depriving him of a fair trial. He asserts he is entitled to a new trial 

because Dr. Ingram had no personal knowledge of how the victims were injured, 

yet the State improperly used his testimony to establish "an evidentiary nexus 

between the issue of causation and whether defendant caused the medical 

injuries [Dr. Ingram] observed." 
20 A-5023-17T1

"[I]n reviewing a trial court's evidential ruling, an appellate court is 

limited to examining the decision for abuse of discretion." State v. Kuropchak, 

221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). 

Under that standard, "[c]onsiderable latitude is afforded a trial court in 

determining whether to admit evidence," and "an appellate court should not 

substitute its own judgment for that of the trial court, unless 'the trial court's 

ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid.

(alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998); State v. 

Marrero, 148 N.J. 469, 484 (1997)). To exclude photographic evidence on 

grounds of prejudice, "the danger of undue prejudice must outweigh probative 

value so as to divert jurors 'from a reasonable and fair evaluation of the basic 

issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting 

State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div. 1988)). 

Over defendant's objection, the trial judge concluded the photographic

evidence was probative because it showed the extent of Aguilar's injuries and 

was relevant to determining whether he suffered bodily injury by a deadly 

weapon, an element of aggravated assault, N.J.S.A. 2C:12-1(b)(2). The trial 

judge did not abuse his discretion.

Rule 3:20-1, states:
21 A-5023-17T1

The trial judge on defendant's motion may grant the 

defendant a new trial if required in the interest of 

justice. . . . . The trial judge shall not, however, set 

aside the verdict of the jury as against the weight of the 

evidence unless, having given due regard to the 

opportunity of the jury to pass upon the credibility of 

the witnesses, it clearly and convincingly appears that 

there was a manifest denial of justice under the law.

"[A] motion for a new trial is addressed to the sound discretion of the trial 

judge, and the exercise of that discretion will not be interfered with on appeal 

unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 

(App. Div. 2000). Our review "is limited to a determination of 'whether the 

findings made by the trial court could reasonably have been reached on 

sufficient credible evidence in the record.'" State v. Brooks, 366 N.J. Super. 

447, 454 (App. Div. 2004) (quoting Russo, 333 N.J. Super. at 137). 

Defendant argues the trial judge committed reversible error in allowing 

the prosecutor and witnesses to use the terms "victims" and "stabbing" when 

describing the incident. He argues these terms were highly prejudicial and 

tainted the presumption of innocence by placing an "unfair suggestion of guilt 

. . . into the minds of the jurors." 

The trial judge addressed this argument in evaluating defendant's motion 

for a new trial and concluded as follows: 
22 A-5023-17T1

The State submits and the [c]ourt concurs that 

such an argument has no merit. . . . . There is no basis 

to suggest that the wounds that both victims suffered 

were self-inflicted. On the contrary, it is undisputed 

that both . . . Aguilar and Mena were stabbed. As such, 

referring to Aguilar and Mena as victims and referring 

to the incident as stabbing was appropriate and in no 

way contaminated the jury from the presumption of 

innocence. Throughout the trial it was known and 

undisputed that Aguilar and Mena were stabbed. 

The issue which needed to be addressed was 

whether the person who stabbed them was the 

defendant. At no point during the trial [was there] a 

deviation from the fundamental principle of the 

criminal justice system that the State needs to prove and 

has the ultimate burden to prove beyond a reasonable 

doubt that the victims were stabbed and that the 

defendant was the one that did the stabbing. Referring 

to Mena and Aguilar as victims did not change the 

burden that was placed on the State nor did referring 

[to] the incident as a stabbing shift that burden. 

. . . . 

In short, the [c]ourt is clearly convinced that any 

reference during the trial to either Aguilar or Mena or 

both as victim or victims or the injuries they suffered 

as a result of stabbing was appropriate and not 

prejudicial at all. It neither contaminated the jury in 

any manner nor shifted the burden from the State to the 

defendant. Furthermore, its use did not result in 

defendant suffering a manifest denial of justice by the 

jury's verdict. 

The trial judge also rejected defendant's argument regarding Dr. Ingram's 

testimony. The judge stated: 
23 A-5023-17T1

The [c]ourt finds this argument is without merit. The 

defense incorrectly defines the testimony presented by 

Dr. Ingram in this matter and the manner in which it 

was used by the State. 

Dr. Ingram was called in as an expert witness in 

this trial to identify whether the injuries suffered by the 

victims could rise to the level of being serious bodily 

injury. Dr. Ingram's testimony cannot be characterized 

as expert testimony establishing the identity of an 

individual who had committed the stabbing upon 

Aguilar and Mena. Instead, Dr. Ingram's testimony 

focused on the injuries suffered by the victims. 

. . . . 

The [c]ourt finds that the testimony provided by 

Dr. Ingram was utilized by the State to satisfy the injury 

element of the charges against the defendant. . . . There 

is nothing in the evidence to suggest that Dr. Ingram's 

testimony was used to identify the actor who caused 

these injuries. In fact, during cross-examination when 

defendant's former counsel asked Dr. Ingram whether 

he knew who caused the injuries Dr. Ingram responded 

that he did not. 

The trial judge did not abuse his discretion in denying the motion for a 

new trial. We affirm for the reasons expressed in the judge's comprehensive and 

well-reasoned decision. 

IV.

Defendant argues he was denied effective assistance of trial counsel 

because counsel: (1) failed to request the lesser-included simple assault charge; 
24 A-5023-17T1

(2) failed to file a motion in limine to prevent the prosecution from using the 

words "stabbing," "knife," and "victims;" (3) wanted to withdraw because he 

was not being paid; and (4) failed to bar Dr. Ingram's testimony. Defendant 

asserts these cumulative errors justify reversal.

"'Our courts have expressed a general policy against entertaining 

ineffective-assistance of counsel claims on direct appeal because such claims 

involve allegations and evidence that lie outside the trial record.'" State v. 

Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 

(1992)). "However, when the trial itself provides an adequately developed 

record upon which to evaluate defendant's claims, appellate courts may consider 

the issue on direct appeal." Ibid. 

A defendant seeking to vacate a conviction on the grounds of ineffective 

assistance of counsel must show that: (1) counsel's performance was deficient; 

and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 

(2013). "A deficient performance means that 'counsel made errors so serious 

that counsel was not functioning as the "counsel" guaranteed the defendant by 

the Sixth Amendment.'" Ibid. (quoting Strickland v. Washington, 466 U.S. 668, 

687 (1984)). Moreover, proof of prejudice must create "a reasonable probability 
25 A-5023-17T1

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Strickland, 466 U.S. at 694.

Judicial scrutiny of counsel's performance is highly deferential. 

"[C]ounsel is strongly presumed to have rendered adequate assistance and made 

all significant decisions in the exercise of reasonable professional judgment." 

Id. at 690. The strong presumption counsel exercised sound trial strategy is 

grounded in "the inherent difficulties in evaluating a defense counsel's tactical 

decisions from his or her perspective during trial. . . ." State v. Arthur, 184 N.J. 

307, 319 (2005).

We do not address defendant's claim defense counsel and defendant's 

family were at odds because of defense counsel's desire to withdraw from the 

case due to lack of payment. There is no evidence in the record to enable us to 

effectively evaluate this claim and it is better presented on a petition for postconviction relief. 

We reject defendant's claim that the use of the terms "knife," "victim," 

and "stabbing" during the trial was evidence of ineffective assistance of counsel. 

The credible evidence presented at trial demonstrated Mena and Aguilar were 

the victims of a stabbing. Moreover, defense counsel did object to the use of 
26 A-5023-17T1

the words "victim" and "stabbing" at trial, his objection was overruled, and as 

we noted, the trial judge's decision was not an abuse of discretion. 

Defense counsel was not ineffective for failing to exclude Dr. Ingram's 

testimony. Although counsel initially objected, but then withdrew the objection, 

the doctor's testimony was entirely appropriate expert testimony explaining the 

nature of the victims' injuries. Moreover, the trial judge explained why the 

failure to move to exclude the doctor's testimony prior to trial did not constitute 

ineffective assistance of counsel. He stated: 

The [c]ourt . . . characterizes defense counsel's 

decision to bring up the substance of these motions 

during trial rather than pre-trial as merely trial strategy. 

Even if these motions were successful[,] such limiting 

of testimony or the use of the phrase would not have 

changed the ultimate outcome of the trial based on the 

other evidence that was provided in this case. 

The jury would still have been able to see both 

videos . . . [showing] the defendant walking to his car

and returning. What the State would have been 

permitted to argue was the knife that was used in this 

case. [The jury] would have seen the defendant thrust 

at both victims in the area where they were found to 

have been stabbed. 

. . . . 

Also, the jury would have heard the testimony of 

Dr. Ingram describing the steps he took to repair the 

damage that was caused. Lastly, they would have heard 
27 A-5023-17T1

Dr. Ingram opine that but for his intervention both 

victims would have died. 

With the totality of the evidence presented at 

trial, even with the motion to limit certain testimony, 

the [c]ourt finds the outcome of this trial would not 

have changed. As such, the second prong of the 

Strickland test[,] that is but for the counsel's 

unprofessional errors the result would have been 

different[,] cannot be met. 

We affirm for the reasons the trial judge expressed. Defendant's claim of 

cumulative error fails because we found error only in the prosecutor's 

summation, and that error is insufficient to reverse.

V.

Finally, defendant argues his sentence was excessive because the judge

misapplied the aggravating and mitigating factors by counting factor two twice. 

He asserts the court should not have found aggravating factors three or nine. 

Defendant contends the court failed to find mitigating factors two, three, five, 

and eight. He argues he should have been sentenced one degree lower and his 

sentences should have run concurrently.

We review a judge's sentencing decision under an abuse of discretion 

standard. State v. Pierce, 188 N.J. 155, 169-70 (2006). We "may not substitute 

[our] judgment for that of the trial court, but [we] may review a sentence to 

determine if the trial court violated the sentencing guidelines." State v. Johnson, 
28 A-5023-17T1

118 N.J. 10, 15 (1990) (citations omitted). We may review and modify a 

sentence "only when the court's determination was 'clearly mistaken.'" State v. 

Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 

(1989)). A trial judge is given "wide discretion" to impose a sentence, provided 

it is within the statutory framework, and we must give that decision "great 

deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Our role is to assure 

the sentencing guidelines were met, the findings on aggravating and mitigating 

factors are based upon "competent credible evidence in the record," and the 

sentence is not "clearly unreasonable so as to shock the judicial conscience." Id.

at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). 

The trial judge sentenced defendant to two consecutive ten-year terms of 

incarceration on each count of attempted murder, subject to the No Early Release 

Act, N.J.S.A. 2C:43-7.2. Applying the statutory factors set forth in N.J.S.A. 

2C:44-1(a) and (b), the judge found aggravating factors one, two, three, and 

nine, and mitigating factors seven, nine, and ten. Defendant did not present 

compelling reasons to downgrade the first-degree charges. See State v. 

Megargel, 143 N.J. 484, 502 (1996). Because the judge imposed the minimum 

legal term on each first-degree attempted murder charge, we need not scrutinize 

the individual sentencing factors. 
29 A-5023-17T1

In State v. Yarbough, our Supreme Court identified the criteria for 

determining when consecutive, as opposed to concurrent, sentences should be 

imposed, namely: 

(a) the crimes and their objectives were predominantly 

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; [and] 

(e) the convictions for which the sentences were 

imposed are numerous.

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

These factors "should be applied qualitatively, not quantitatively." State v. 

Liepe, 453 N.J. Super. 126, 137 (App. Div. 2018) (quoting State v. Carey, 168 

N.J. 413, 427 (2001)). A consecutive sentence may be imposed, even if a 

majority of the Yarbough factors support concurrent sentences. Carey, 168 N.J. 

at 427-28. The fairness of the overall sentence should be considered in 

reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 

471, 485 (1993).
30 A-5023-17T1

Here, the trial judge imposed consecutive sentences, 

[b]ecause these crimes involved two separate acts of 

violence involving two separate victims, both of whom 

were stabbed by this defendant during that September 

13[], 2014 incident, both victims suffered serious injury 

as a result of defendant's conduct and if it wasn't for the 

medical intervention both would have bled to death. 

So, the [c]ourt finds for those reasons . . . that running 

this consecutive as to factor number one, there shall be 

no crimes which means if the count one and count three 

were to run concurrent it essentially translates to the 

sentence is only for one victim, not the other and, as 

such, the other crime will be what is considered as a 

free crime in the system.

The judge evaluated the remaining Yarbough factors, and concluded "under the 

circumstances[,] defendant's application for concurrent [sentences] is hereby 

denied" and ordered the minimum consecutive sentences for each of defendant's 

offenses. 

The judge did not err. "[C]rimes involving multiple victims represent an 

especially suitable circumstance for the imposition of consecutive sentences 

because the 'total impact of singular offenses against different victims will 

generally exceed the total impact on a single individual who is victimized 

multiple times.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, 168 

N.J. at 428). "[T]he multiple-victims factor is entitled to great weight and 
31 A-5023-17T1

should ordinarily result in the imposition of at least two consecutive terms." 

Ibid. (quoting Carey, 168 N.J. at 429-30). 

Affirmed.