SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1882-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM TORRES a/k/a 

WILLIAM TORRES JR.,

Defendant-Appellant.

_______________________

Submitted December 16, 2019 – Decided 

Before Judges Sabatino and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment Nos. 16-03-0321, 

17-01-0025, and 17-02-0098.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Louis H. Miron, Designated Counsel, on the 

brief). 

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Alanna M. Jereb, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

January 21, 2020
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Defendant was tried before a jury and found guilty of third-degree 

aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7). He appeals from the 

judgment of conviction (JOC) and sentence, and raises the following issues:

POINT I

THE TRIAL COURT ERRED IN CHARGING THE 

JURY CONCERNING ACCOMPLICE LIABILITY 

WHERE THE CO-DEFENDANTS DID NOT 

TESTIFY AT TRIAL, DID NOT HAVE ANY LEGAL 

OR OTHER CONNECTION WITH DEFENDANT, 

AND HAD EACH ENTERED PLEAS TO SIMPLE 

ASSAULT.

POINT II

THE TRIAL COURT ERRED IN FAILING TO 

CHARGE SELF-DEFENSE WHEN THE DEFENSE 

WAS WARRANTED AND SUPPORTED BY THE

FACTS.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN 

SENTENCING DEFENDANT TO A MANIFESTLY 

EXCESSIVE AND UNJUST SENTENCE BASED 

UPON THE RECORD AND, THEREFORE, 

DEFENDANT'S SENTENCE SHOULD BE 

VACATED.

After considering these arguments against the record and applicable legal 

principles, we affirm both defendant's conviction and sentence.
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I.

The trial record reveals the following relevant facts. In November 2016, 

at approximately 6:40 p.m., an unidentified man approached Antonio Portillo

and asked him for $2. After Portillo gave him the money, Portillo kept walking 

and was then approached by a second man, the defendant, who asked him for a 

cigarette. Portillo had seen defendant "hanging out on [the street] on many 

occasions," and told him "that if he wanted, he could go out and get a job."

Defendant responded by calling Portillo a "motherfucker," and Portillo replied 

with similar vituperative epithets. Portillo and defendant continued to argue, 

and Portillo "thr[ew] [a] punch" at defendant which did not strike him. Portillo

testified that at the time of the altercation he was drunk.

Portillo then walked away from defendant towards his home. At some 

point later, and after the initial interaction between defendant and Portillo was 

over, defendant and two other men approached Portillo. Portillo testified that 

three or four people attacked him and that one of the men hit him near his ear, 

causing him to fall to the ground. While on the ground, defendant kicked him 

in the face. Portillo was unsure how many times he was hit thereafter as he 

testified that he fainted.
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At approximately 7:00 p.m., the police initially received a report regarding 

a sexual assault on Bergenline Avenue. Officer Lazarel Alvarez arrived at the 

scene and was approached by Alberto Jimenez who advised that he was "the one 

that called the police . . . about the man who had been beat up." Jimenez 

informed Officer Alvarez that the incident involved approximately five to seven 

men, that he witnessed one of the men strike defendant who then "went down,"

and pointed him to where Portillo was "slouched in a kneeling position."

Officer Alvarez observed that Portillo had "one eye semi-closed,"

"injuries to his hands," and "blood in his mouth, his hands, [and] his clothing." 

Additionally, Portillo had "multiple lacerations to the . . . face . . . [and] lower 

lip." Portillo was "semi-conscious" and unable to speak coherently.

An emergency medical technician (EMT) arrived to assist Portillo and 

smelled an odor of alcohol on Portillo as he attended to his injuries. Portillo 

attempted to "flee," but was advised that he needed medical treatment because 

he had been drinking and because of the "significant trauma" to his face.

Detective Michael Musa also responded to the scene and secured a 

surveillance tape from a nearby restaurant that depicted portions of the initial 

interaction between Portillo and defendant. After the EMTs transported Portillo 

to the hospital, an individual approached Detective Musa and informed him that 
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one of the "guys involved [was] a few blocks south with two females" and 

wearing black. Detective Musa then stopped a man, Raymond Nieves, who was 

with two women. Nieves was later arrested and charged along with defendant 

and two other individuals with the assault.

As a result of the incident, Portillo suffered bilateral, lower jaw mandible 

fractures. Three days after he was admitted to the hospital, Portillo underwent 

surgery and his jaw was wired shut. At trial, almost a year later, Portillo testified 

that he still felt pain and was unable to eat anything hard.

The court sentenced defendant with respect to the aggravated assault 

conviction as well as two prior guilty pleas stemming from separate indictments 

that charged defendant with possession and distribution of controlled dangerous 

substances (CDS). With respect to the aggravated assault conviction, the court 

"expressly reject[ed]" defendant's request to apply mitigating factors three and 

four. The court explained that "[t]here was nothing that . . . amounted to strong 

provocation," and, given defendant's drug history, "[t]here [was] nothing . . . 

that would tend to excuse or justify his conduct for which he was convicted." 

The court applied aggravating factors two, three, six, and nine, and sentenced 

defendant to a five-year-term of imprisonment to run consecutive to his sentence 

on the CDS charges.
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II.

In defendant's first point, he asserts that the court improperly charged the 

jury on accomplice liability, claiming there was a dearth of evidence supporting 

the charge. Further, defendant contends that "this error was compounded by the 

trial court's den[ial] [of] [defendant's] application to take judicial notice of the 

co-defendants' pleas to simple assault . . . ." Defendant adds that "none of the 

co-defendants [were] identified as having been involved with, or legally 

connected to, [defendant]." According to defendant, the "effect of the 

instructions . . . was to obfuscate the possibility that the co-defendants were the 

ones who purposely committed the assault, and that [defendant], although at the 

scene . . . did not intend the victim to suffer serious bodily harm." We disagree.

"Appropriate and proper charges to a jury are essential for a fair trial." 

State v. Jordan, 147 N.J. 409, 421 (1997) (quoting State v. Green, 86 N.J. 281, 

287 (1981)). Because an individual's liberty is at stake, "[e]rroneous 

instructions on matters or issues that are material to the jury's deliberations are 

presumed to be reversible error in criminal prosecutions." Id. at 422 (citing 

State v. Warren, 104 N.J. 571, 579 (1986)). "In determining whether a charge 

was erroneous, the charge must be read as a whole." Ibid. (citing State v. 

Wilbely, 63 N.J. 420, 422 (1973)). Essentially, if the charge adequately covers 
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the matter requested, there is no error. State v. Thompson, 59 N.J. 396, 411 

(1971). Therefore, "[t]here is no reversible error where the charge, considered 

as a whole, adequately conveys the law and is unlikely to confuse or mislead the 

jury." State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002) (internal 

quotation marks omitted).

N.J.S.A. 2C:2-6(c) provides in relevant part that an individual is an 

accomplice of another if "[w]ith the purpose of promoting or facilitating the 

commission of the offense[,] he . . . [s]olicits such other person to commit it, 

[or] [a]ids or agrees or attempts to aid such other person in planning or 

committing it." For accomplice liability to attach, the jury "must find that [the 

defendant] 'shared in the intent which is the crime's basic element, and at least 

indirectly participated in the commission of the criminal act.'" State v. 

Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 

45 N.J. 77, 95 (1965)); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An 

accomplice is only guilty of the same crime committed by the principal if he 

shares the same criminal state of mind as the principal."). Additionally, "where 

the evidence indicates a rational basis for accomplice liability, [a] judge can 

charge the jury on that basis even though the indictment does not expressly 
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allege a violation of N.J.S.A. 2C:2-6." State v. Hakim, 205 N.J. Super. 385, 388 

(App. Div. 1985).

Here, it is not disputed that the court's charge mirrored the postBielkiewicz Model Jury Charge, see Model Jury Charge (Criminal), "Liability 

for Another's Conduct/Complicity," (2018). State v. Whitaker, 402 N.J. Super. 

495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J. Super. 79, 84 

(App. Div. 2000)) ("When a jury instruction follows the model jury charge, 

although not determinative, 'it is a persuasive argument in favor of the charge as 

delivered.'"). And, there was ample evidence elicited at trial to support the 

accomplice liability charge. For example, Portillo stated at trial, which was in 

part corroborated by Jimenez's testimony and the surveillance tape, that after the 

initial argument with defendant, he was approached by a group of men, including

defendant. Portillo stated that one of the men, who he was unable to identify, 

struck him in the ear. He explicitly stated that defendant then kicked him in the 

face and was uncertain how many times he was hit afterwards.

At a minimum, this testimony supports not only the jury's verdict that 

defendant committed an aggravated assault, but also that he had a "shared intent"

with the co-defendants to purposely commit, and participate in the commission 

of, the aggravated assault. The evidence presented at trial therefore provided a 
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rational basis for accomplice liability and we discern no error in the court's 

charge on the issue as it "adequately convey[ed] the law and [was] unlikely to 

confuse or mislead the jury." Gaikwad, 349 N.J. Super. at 75.

Finally, we deem defendant's argument that the court erred in failing to 

advise the jury, or take judicial notice, of the fact that Nieves and the other codefendants pled guilty to simple assault without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). The fact that co-defendants 

pled guilty to simple assault has no bearing on the appropriateness of the court's 

accomplice liability jury charge, as there was a rational basis to support the

instruction.

III.

Defendant next asserts that the court erred in denying his request for a 

self-defense jury charge, "as it was a theory of defendant's defense throughout 

the trial." Again, we disagree.

Pursuant to N.J.S.A. 2C:3-4(a), "the use of force upon or toward another 

person is justifiable when the actor reasonably believes that such force is 

immediately necessary for the purpose of protecting himself against the use of 

unlawful force by such other person . . . ." "The defendant must harbor an actual 

reasonable belief that his use of force is necessary to prevent the imminent 
10 A-1882-17T3

application of unlawful force by the assailant." State v. Villanueva, 373 N.J. 

Super. 588, 597 n.1 (2004) (citing State v. Kelly, 97 N.J. 178, 199 (1984)).

"In considering whether to charge the jury on self-defense, a court should 

consider the circumstances that might give rise to that defense, including the 

defendant's and alleged aggressor's conduct . . . ." State v. Rodriguez, 195 N.J. 

165, 174 (2008). "[I]f there exists evidence in either the State's or the 

defendant's case sufficient to provide a 'rational basis' for [its] applicability,"

"the trial court must charge the jury on self-defense." State v. Bryant, 288 N.J. 

Super. 27, 35 (App. Div. 1996).

In this case, the evidence demonstrates that the parties engaged in a verbal 

dispute that culminated with Portillo unsuccessfully attempting to strike

defendant. Significantly, the initial altercation ended, and Portillo walked away 

from defendant. At that point, any threat of unlawful force by Portillo ceased. 

The trial proofs further established that defendant later approached Portillo with 

a group of men and struck him without warning or provocation. On these facts, 

the trial evidence did not support a self-defense charge as defendant did not have 

a reasonable belief that use of force was necessary to prevent the imminent 

application of unlawful force by Portillo. The court properly denied defendant's

request for a self-defense charge.
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IV.

Finally, defendant asserts that the court abused its discretion by ordering 

his sentence on his aggravated assault conviction to run consecutive to his 

sentences on the unrelated CDS convictions, resulting in an aggregate sentence 

of ten years of incarceration with three years of parole ineligibility. He further 

argues that the court failed to consider mitigating factors three, four and five. 

We reject defendant's arguments as we are satisfied that the court properly 

considered the aggravating and mitigating factors and sentenced defendant to a 

five-year consecutive term, which was within the appropriate sentencing range. 

See N.J.S.A. 2C:43-6(a)(3).

"Appellate review of sentencing is deferential, and appellate courts are 

cautioned not to substitute their judgment for those of our sentencing courts."

State v. Case, 220 N.J. 49, 65 (2014). An appellate court must affirm a sentence 

unless (1) the sentencing guidelines were violated; (2) the aggravating and 

mitigating factors found by the sentencing court were not based upon competent 

and credible evidence in the record; or (3) "the application of the guidelines to 

the facts of [this] case makes the sentence clearly unreasonable so as to shock 

the judicial conscience." State v. Fuentes, 217 N.J. 57, 70 (2014) (citation 

omitted).
12 A-1882-17T3

Further, we are "'bound to affirm a sentence, even if [the reviewing court] 

would have arrived at a different result, as long as the trial court properly 

identifies and balances aggravating and mitigating factors that are supported by 

competent credible evidence in the record.'" State v. Grate, 220 N.J. 317, 337 

(2015) (citation omitted). To be accorded such deference, the sentencing court 

is required to "identify the relevant aggravating and mitigating factors, 

determine which factors are supported by a preponderance of evidence, balance 

the relevant factors, and explain how it arrives at the appropriate sentence."

State v. O'Donnell, 117 N.J. 210, 215 (1989) (citation omitted); State v. M.A., 

402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

Although the judge has discretion as to the weight to be given to each 

factor, the judge lacks discretion to decline to "take into account a mitigating 

factor that is fully supported by the evidence," but "must [include such factor 

as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 505 (2005). 

In addressing the aggravating and mitigating factors, the court must engage in a 

qualitative weighing process, evaluating each of the aggravating and mitigating 

factors and explaining that evaluation on the record in sufficient detail to permit 

appellate review. State v. Towey, 114 N.J. 69, 84 (1989); State v. Roth, 95 N.J. 

334, 368 (1984). A court, however, need not "explicitly reject each and every 
13 A-1882-17T3

mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 

(2010). Rather, "[i]t is sufficient that the trial court provides reasons for 

imposing its sentence that reveal the court's consideration of all applicable 

mitigating factors in reaching its sentencing decision." Ibid.

The court explained that it found aggravating factors two ("[t]he gravity 

and seriousness of harm inflicted on the victim, including whether or not the 

defendant knew or reasonably should have known that the victim of the offense 

was particularly vulnerable or incapable of resistance . . . "), three ("[t]he risk 

that the defendant will commit another offense"), six ("[t]he extent of the 

defendant's prior criminal record and the seriousness of the offenses of which 

he has been convicted"), and nine ("[t]he need for deterring the defendant and 

others from violating the law"). N.J.S.A. 2C:44-1.

Additionally, contrary to defendant's assertion, the court considered and 

rejected the applicability of mitigating factors three, four and five. As noted, in 

considering mitigating factor three ("[t]he defendant acted under a strong 

provocation"), the sentencing judge stated, "I saw the videotape [and] . . . [t]here 

was nothing that . . . amounted to strong provocation." With respect to 

mitigating factor four ("[t]here were substantial grounds tending to excuse or 

justify the defendant's conduct, though failing to establish a defense"), the judge 
14 A-1882-17T3

found "[t]here is nothing that I saw, even given defendant's drug abuse history, 

that would tend to excuse or justify his conduct for which he was convicted."

As to mitigating factor five ("[t]he victim of the defendant's conduct 

induced or facilitated its commission"), defendant relies on State v. Robinson, 

266 N.J. Super. 268, 283 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476 

(1994), and claims "the fact that the trial court denied [defendant's] self-defense 

argument and concluded that Portillo's own conduct did not excuse [defendant's] 

actions should not render factor [five] inapplicable." Defendant further asserts 

that in State v. Robinson, the court concluded that factor [five] applied, "where 

the defendant engaged in a far more serios encounter with the victim." First, 

we note that contrary to defendant's claims, the court in State v. Robinson did 

not address or conclude that mitigating factor five applied in that case. Second, 

and more importantly, we are satisfied from our review of the record, and the 

JOC, that the court considered all of the aggravating and mitigating factors. We 

glean from that record that although the court did not specifically cite to 

mitigating factor five, the sentencing judge clearly considered its applicability 

as he dismissed defendant's reliance on State v. Robinson, but nevertheless 

concluded that nothing in the record would support the conclusion that the 
15 A-1882-17T3

victim provoked defendant and "[t]here [was] nothing . . . that would tend to 

excuse or justify his conduct for which he was convicted."

Finally, defendant's contention that his sentence was excessive because it 

ran consecutive to his sentences for his CDS convictions is without merit. In 

imposing a consecutive sentence, courts should consider "facts relating to the 

crimes," including whether "the crimes and their objectives were predominantly 

independent of each other," or whether "the crimes were committed at different 

times or separate places." State v. Yarbough, 100 N.J. 627, 644 (1985); see also

State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) (affirming the court's 

imposition of a consecutive sentence where there were "separate crimes 

committed on separate occasions"). Here, the underlying CDS convictions were 

materially different factually and legally than defendant's aggravated assault 

conviction. The crimes were independent, with different objectives, and took 

place at different times and locations. The court did not abuse its discretion in 

imposing a consecutive sentence and the court's overall sentence does not shock 

our judicial conscience.

Affirmed.