SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4779-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE M. CORTES, a/k/a JOSE

CORTEZ,

Defendant-Appellant.

___________________________

Argued September 16, 2019 – Decided

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 15-05-1578.

Peter T. Blum, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Peter T. Blum, of counsel 

and on the brief).

Maura M. Sullivan, Assistant Prosecutor, argued the 

cause for respondent (Mary Eva Colalillo, Camden 

County Prosecutor, attorney; Maura M. Sullivan, of 

counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

October 1, 2019
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Appellant filed a pro se supplemental brief.

PER CURIAM

After a jury trial, defendant Jose M. Cortes (whose nickname the State 

contends is "Pep") was found guilty of first-degree acting as a leader of a 

narcotics trafficking network, N.J.S.A. 2C:35-3; first-degree conspiracy to 

murder Jose Vega, N.J.S.A. 2C:11-3(a)(1)(2); first-degree conspiracy to murder 

Christopher Humphrey; N.J.S.A. 2C:11-3(a)(1)(2); and various weapons 

offenses, including first-degree unlawful possession of a handgun, N.J.S.A. 

2C:39-5(b) and (j), and a second-degree "certain persons" violation, N.J.S.A. 

2C:39-7(b)(1).

The trial court sentenced defendant to a mandatory extended term of life 

in prison with a thirty-year period of parole ineligibility on the narcotics 

trafficking offense. In total, the aggregate sentence amounted to life in prison 

plus seven years, subject to a thirty-five-year parole disqualifier.

On appeal, defendant argues for a new trial based on the admission of 

inadmissible and harmful hearsay evidence. Defendant also makes a number of 

sentencing related arguments. In a pro se supplemental brief defendant argues 

that the trial court should have granted his motions for acquittal at the close of 
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the State's case. For the reasons that follow, we affirm defendant's convictions 

but remand for his conspiracy offenses.

I.

The State's evidence showed that defendant had co-managed a drug 

distribution enterprise selling cocaine and heroin out of a house on Fourth Street 

in Camden. The State's two key fact witnesses were Jessica Savage, a drug addict 

who frequently bought drugs at the house and sometimes acted as a lookout; and 

Robert Thompson, a cocaine user who also regularly bought drugs at the house. 

Savage and Thompson each observed the drug-related activities in the house. 

They both noticed a gun was kept there, evidently to be used as needed.

As to the murder victims, Humphrey worked as a lookout and Vega 

worked as a dealer for the organization. In late December 2013, Humphrey told 

a friend that he and Vega were going out on their own and starting a drug 

distribution "set." Around that same time, Savage learned that Vega had been 

selling the heroin of another competing supplier out of the house.

In late December 2013, Humphrey and Vega disappeared. Eventually, 

their dead bodies were discovered by a woman walking a dog. They had been 

shot to death, and their bodies had been dropped several feet into the woods 

without any drag marks. Police obtained a search warrant of the house in 
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Camden. As they were conducting the search, people upstairs threw out of the 

second-story window 126 bags of heroin and twenty-nine bags of powder 

cocaine.

The police found DNA from Humphrey's blood on a wall on the right side 

of the front door of the house, and DNA from Vega on swabs from the leg of a 

pool table. In addition, cellphone records show that defendant's phone 

connected to towers near the drug house and where the victims' bodies were 

found on the day of the murders. Further, DNA testing from the tailgate of 

defendant's pickup truck identified Humphrey as the source of DNA from at 

least one of the specimens, and Vega as matching the minor DNA profile of one 

of the other specimens.

Defendant did not testify at trial. He moved for a judgment of acquittal at 

the end of the case and that motion was denied.

In his attorney's brief on appeal, defendant argues:

POINT I

A NEW TRIAL SHOULD BE GRANTED BECAUSE 

OF IMPROPER HEARSAY THAT THE DRUG 

HOUSE WAS KNOWN AS "PEP'S HOUSE," THUS 

SUPPORTING THE PROSECUTOR'S THEORY 

THAT THE DEFENDANT—NICKNAMED "PEP"—

WAS THE BOSS WHO WAS RESPONSIBLE FOR 

THE CHARGED CRIMES. U.S. CONST. AMENDS. 

VI, XIV; N.J. CONST. ART. I, PARA. 10.
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POINT II

THE TWO CONSPIRACY COUNTS SHOULD HAVE 

MERGED. U.S. CONST. AMENDS. V, XIV; N.J. 

CONST. ART. I, PARA. 1.

POINT III

ALL OF THE GUN POSSESSION COUNTS 

SHOULD HAVE MERGED. U.S. CONST. AMENDS. 

V, XIV; N.J. CONST. ART. I, PARA. 1.

POINT IV

THE EXTENDED TERM FOR LEADER OF A 

NARCOTICS NETWORK SHOULD BE REDUCED 

TO THE REGULAR TERM BECAUSE THE 

PROSECUTOR'S MOTION TO IMPOSE AN 

EXTENDED TERM WAS INEXPLICABLY LATE.

Additionally, defendant raises these points in a pro se supplemental brief:

THE TRIAL COURT ERRED IN DENYING THE 

DEFENSE'S MOTION FOR A JUDGMENT OF 

ACQUITTAL (Raised Below).

A. CONSPIRACY TO COMMIT MURDER.

B. LEADING A NARCOTICS TRAFFICKING 

NETWORK.

C. POSSESSING A HANDGUN.

II.
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The main issue defendant raises on appeal is his contention that 

Thompson's testimony for the State implied that non-testifying persons referred 

to the premises of the drug dealing as "Pep's house." According to defendant, 

Thompson's testimony prejudicially conveyed to the jury hearsay assertions 

from those other unnamed persons, and their belief that "Pep" ran the drug 

house.

The disputed testimony occurred in the course of Thompson's direct 

examination by the prosecutor. The following exchange transpired, interrupted 

by an objection by defendant's trial counsel that the trial judge sustained:

[THE PROSECUTOR]: Mr. Thompson, you 

were saying a moment ago that you didn't really hang 

out with the guy [who appeared to be in charge of the 

drug house]. Did you see him at the house?

A. A few times, yeah.

Q. What was his relation to the house, if you 

know, based on you observations?

A. For the most part, you know, when I heard about 

the house or anybody would talk about the house –

[DEFENSE COUNSEL]: Objection, Judge. This 

is going to be calling for hearsay.

THE COURT: Counsel, rephrase.

[THE PROSECUTOR]: I'll rephrase – I'll 

rephrase the question.
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Q. Mr. Thompson, what would – I think you 

were starting to talk about what people – what other 

people would say about the house?

A. What it was called, yeah, it was –

Q. What would you call the house?

A. Pep's house is –

Q. Did you make any observations – and 

leaving to one side for a second what other people said, 

okay?

A Okay.

Q. I just want to talk about what you yourself 

observed. Did you ever observe the defendant at this 

house that you pointed out in the photo and you referred 

to as Pep's house?

A Yes.

[(Emphasis added)].

This was not the only trial testimony stating that the premises were known 

as "Pep's house." Before Thompson took the stand, Savage testified that "[t]he 

bags [of drugs] that came out of Pep's house always said [']kiss['] on them." 

(emphasis added).

During closing argument, the prosecutor made multiple references to the 

drug dealing premises being known as "Pep's house."
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Now here – here's a picture of the State's Exhibit 

163, this is what the witnesses referred to as Pep's 

house, the address is [number omitted] South 4th Street.

. . . . 

So Chris Humphrey and Jose Vega, they start 

selling their drugs out of Pep's house. . . .

And the tie into that, the fact that their ultimate 

goal is to set up shop around the corner, or somewhere 

else in Camden, tells you why they would start selling 

out of Pep's house, because it's easier that way, right?

. . . . 

Chris and Jose Vega's ultimate plan is to lure customers 

from Pep's house to their own location. 

. . . . 

And you have Robert Thompson who buys drugs 

from Pep's house. Sometimes he has to wait for the 

defendant to re-up when he goes in there.

[(Emphasis added).]

Notably, defense counsel did not object to these portions of the State's 

summation.

Defendant argues that Thompson's testimony prejudicially conveyed 

hearsay to the jurors about his alleged connection as "Pep" to the house where 

the drug sales occurred, and that the prosecutor unfairly punctuated those 
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references during the closing arguments. He contends this had a clear capacity 

to produce an unjust verdict, and that he is thereby entitled to a new trial.

For starters, we are unpersuaded that Thompson conveyed inadmissible 

hearsay to the jury. Hearsay consists of "a statement, other than one made by 

the declarant while testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted." N.J.R.E. 801(c). Hearsay evidence is 

inadmissible unless a relevant exception applies. N.J.R.E. 802.

A close inspection of the Thompson colloquy shows that he seemed to be 

on the verge of telling the jurors what other people called the premises when 

defendant's trial attorney interjected an objection. The transcript reflects that 

Thompson did not finish that answer. The objection appears to have been made 

in time. The trial judge sustained it, by directing the prosecutor to rephrase the 

question. The prosecutor complied, by asking Thompson what would "you" 

(meaning Thompson) call the house? Thompson then uttered "Pep's house."

Defendant contends the prosecutor and Thompson were talking over one 

another, and the jury might have construed his words "Pep's house" to relate 

back to the earlier disallowed question about what "others" said, rather than

relating the ensuing query about what Thompson called it personally. Although 

this interpretation is plausible, we are unpersuaded the exchange produced a 
10 A-4779-16T3

clear instance of error. Moreover, defense counsel made no effort to have the 

judge strike the "Pep's house" response, or instruct the jury to disregard it.

Even assuming, for the sake of discussion, we adopt defendant's claim that 

the jurors construed Thompson's reference to "Pep's house" to encompass 

hearsay assertions by other people, that hypothetical construct was merely 

cumulative. First of all, Thompson himself testified that he knew the premises 

as "Pep's house." His expression of that belief is an appropriate lay opinion, 

based upon his on personal knowledge. See N.J.R.E. 701 (allowing lay opinions 

that are "rationally based on the perception of the witness," and which will assist 

the trier of fact); N.J.R.E. 602 (the personal knowledge requirement). This is 

not a situation of a police officer witness implying to jurors that he "possesses 

superior knowledge, outside the record, that incriminate the defendant." State 

v. Branch, 182 N.J. 338, 351 (2005). Thompson, a lay witness, told the jurors 

what he personally knew, which is allowable under both Evidence Rules 602 

and 701. The restricting principles of Branch were not violated here.

Further, the alleged implication that Thompson conveyed to the jury that 

other people also called the premises Pep's house actually was corroborated in 

the State's favor by Savage's testimony. As we have already noted, Savage 

likewise called the premises "Pep's house." Her testimony on this point was not 
11 A-4779-16T3

objected to by defense counsel. In addition, as we have noted, defense counsel 

did not object to the prosecutor's references to "Pep's house" in summations. 

When defense counsel fails to object to a prosecutor's remarks at trial, a 

"reviewing court may infer that counsel did not consider the remarks to be 

inappropriate." State v. Vazquez, 265 N.J. Super. 528, 560 (App. Div. 1993); 

see also State v. Nelson, 173 N.J. 417, 471 (2002) (same).

We reject defendant's argument that the trial court, sua sponte, should 

have instructed the jury pursuant to N.J.R.E. 403 to ignore any suggestion that 

"other people" called the premises "Pep's house." N.J.R.E. 403 is a discretionary 

rule, providing that a trial judge "may" exclude unduly prejudicial proof only if 

its harmful characteristics "substantially outweigh" its probative value. We are 

unconvinced the court was obligated to take such a discretionary measure here.

In light of our analysis, we discern no harmful error rising to a level 

indicative of a mistake "clearly capable of producing an unjust result." R. 2:10-

2. There was other circumstantial proof of defendant's role in the drug activities 

at the premises and, moreover, of his involvement in a conspiracy to take the 

lives of two disloyal people (Humphrey and Vega) who were attempting to 

undermine his drug network. The brief portion of Thompson's testimony 

focused upon by defendant did not manifestly deprive him of a fair trial.
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III.

Except for a discrete sentencing merger on the conspiracy counts, none of 

the other issues presented by defendant and his appellate counsel have any merit. 

R. 2:11-3(e)(2). Only a few comments are in order.

A.

We reject defendant's pro se contention the verdict was against the weight 

of the evidence and that the trial court should have granted his counsel's motion 

for a judgment of acquittal. There was ample evidence, viewed in a light most 

favorable to the State, from which "a reasonable jury could find guilty of the 

[various] charge[s] beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 

459 (1967); see also R. 3:18-1.

With respect to the two conspiracy-to-murder convictions, Savage's 

testimony that defendant was one of the bosses of the drug house, and that Vega 

was selling someone else's drugs at the location, provided a clear motive for 

defendant to have wanted the victims killed. Furthermore, Savage's testimony 

that defendant and Jorge Lopez, another drug dealer at the house, were both in 

defendant's truck when she returned with the bags that Vega was selling 

provided a basis for a jury to find that they could have discussed killing the 

victims.
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Further, the victims' blood was found in the house, forensic proof which

could support a rational inference that they were killed there after Savage told 

defendant and Lopez about Vega's transgression. In addition, some of the 

victims' blood was found in defendant's truck, providing a reasonable basis for 

an inference that defendant participated in transporting the bodies, or at least 

lent the use of his vehicle for purposes their transport.

The police testimony that there were no drag marks by the bodies helped

support an inference that multiple people must have been involved in disposing 

of the bodies. Furthermore, cellphone evidence showed that defendant's phone 

was near where the victims' bodies were found on the night of December 21. 

Taken together, this evidence provided a reasonable basis for a jury to conclude

that defendant conspired with other individuals to murder the victims.

As to defendant's drug trafficking conviction under N.J.S.A. 2C:35-3, the 

State's evidence provided sufficient details about the operation of the Fourth 

Street drug house and defendant's role in it. Savage testified that defendant was 

one of two "bosses" of the drug house on Fourth Street. Testimony from her 

and Thompson showed that both heroin and cocaine were sold from this 

location. Thompson testified that defendant would resupply the location when 

it ran out of drugs. When police raided the home, they found 126 bags of heroin 
14 A-4779-16T3

and 29 bags of powder cocaine as well as $3,096 in cash. This was hardly a 

small scale operation, but instead one that satisfied the narcotics trafficking 

network element of N.J.S.A. 2C:35-3.

This case is unlike State v. Ellis, 424 N.J. Super. 267 (App. Div. 2012), in 

which we concluded the State had failed to prove the requisite "connectiveness"

between the people involved in selling drugs. In Ellis, there was limited proof 

about the number of drug transactions and the quantities involved. The State's 

evidence in that case showed only two "runners" had provided drugs on one 

occasion to an undercover officer, and each transaction averaged less than five 

grams of cocaine. Id. at 276.

Here, Savage and Thompson provided ample testimony establishing the 

characteristics of a narcotics trafficking network led, or co-led, by defendant. 

Savage identified multiple drug dealers working at the house. Those sellers may 

have been responsible for obtaining and paying their own lookouts, but Savage 

explained that the dealers gave their customers' money to either defendant or the 

other alleged leader known as "Big Andy." The uniformity in narcotics products 

was shown by Savage's testimony that the bags sold at the house "always said 

'kiss' on them." Savage explained that selling drugs without this label "messed 

with Lopez" and defendant's money. This reasonably establishes there was 
15 A-4779-16T3

control over what was sold in the house, and that the people selling drugs there 

were working together as part of a drug trafficking network.

The "certain persons" weapons conviction was likewise adequately 

supported by the proofs. Savage testified that a gun at the Franklin Street 

premises "was available in case anybody needed it." Thompson, moreover,

testified that he had seen a gun on and in the pool table in the house and on a 

worker. In addition, Savage testified she looked for the gun after Vega's and 

Humphrey's murders because she "wanted to hide [the gun] for [defendant]." 

(emphasis added).

Although no gun was recovered by police and he was not seen by a State's 

witness carrying one, there is sufficient evidence of defendant's constructive 

possession of a gun, as a person who was in charge of the drug house. See

N.J.S.A. 2C:2-1(c) (defining possession under the Criminal Code); State v. 

Schmidt, 110 N.J. 258, 270-71 (1988) (explaining the concept of constructive 

possession to encompass a person's capacity, by direct or indirect means, to gain 

almost immediate physical control and an ability to affect the item). Viewing 

the record, as we must, in a light most favorable to the State, we conclude the 

trial court did not err in denying defendant's motion for acquittal on the "certain 

persons" count.
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B.

We now turn to the sentencing points. Through his counsel, defendant 

argues the two conspiracy counts relating to the respective murders of 

Humphrey and Vega had to merge. The trial judge at sentencing found no such 

merger was required "because they involve different victims." We respectfully 

disagree with that reasoning.

In essence, the State's theory at trial was that defendant conspired to 

murder Humphrey and Vega because they were selling their own drugs for the 

drug house. The conspiracy-to-murder had a manifestly common objective: to

kill both Humphrey and Vega because they were each attempting to divert 

proceeds from defendant's operation. The two victims were apparently killed 

on the same night and their bodies were disposed of in the same location.

The "totality of circumstances" reflects a single conspiracy to murder the 

two men who had betrayed the drug operation. State v. Kamienski, 254 N.J. 

Super. 75, 114-15 (App. Div. 1992) (applying a "totality of circumstances" 

analysis to determine if multiple conspiracies or a single conspiracy existed). 
17 A-4779-16T3

The matter is remanded for correction of the judgment of conviction to merge 

the two conspiracy counts.1

We are unpersuaded, however, that defendant's conviction on the "certain 

persons" count, N.J.S.A. 2C:39-7(b)(1), must merge with his conviction under 

N.J.S.A. 2C:39-5(b) and (j) of the unlawful possession of a firearm by a person 

previously convicted of an offense subject to the No Early Release Act 

("NERA"), N.J.S.A. 2C:43-7.

Defendant's prior convictions included a "school zone" drug offense, in 

violation of N.J.S.A. 2C:35-7, and a conviction for aggravated manslaughter, in 

violation of N.J.S.A. 2C:11-4(a). Both of these crimes are eligible to qualify 

defendant as predicate offenses for the "certain persons" weapons conviction 

pursuant to N.J.S.A. 2C:39-7(b)(1). However, only the aggravated 

manslaughter conviction is a crime "subject to NERA" under N.J.S.A. 2C:39-

5(j). Therefore, only that specific predicate crime formed a basis for the firstdegree unlawful weapons possession. N.J.S.A. 2C:43-7.2(d)(2). Thus, since 

defendant has an independent conviction for distribution of a controlled 

dangerous substance near a school property, which by itself can support the 

 

1 The practical effect of such a merger is limited, since the sentences imposed 

on these two counts appear to have been imposed concurrently, not 

consecutively, with one another.
18 A-4779-16T3

"certain persons" offense, the two convictions should not have merged for 

sentencing.

Lastly, we are not persuaded the trial court incorrectly or unfairly imposed 

the extended term on defendant for his offense as the leader of a narcotics 

trafficking network. The effect of this extended term increased his parole 

ineligibility period on that count from twenty-five years to thirty-five years. See

N.J.S.A. 2C:35-3 and N.J.S.A. 2C:43-7(c). Although the prosecutor filed her 

motion for the extended term a few weeks beyond the fourteen-day deadline 

provided by Rule 3:21-4(e), the State indisputably established the statutory 

requirements for a mandatory extended term under N.J.S.A. 2C:43-7(c). 

Defendant had ample fair notice of the prosecutor's request before sentencing, 

and sufficient time to respond. We discern no basis to set this aspect of the 

sentence aside.

III.

Affirmed as to defendant's convictions. Affirmed as to his sentence, 

except the matter is remanded for the limited purpose to revise the judgment of 

conviction to merge the conspiracy-to-murder offenses in counts three and four.