STATE OF NEW JERSEY VS. JERMY B. PORTILLO (13-09-0805, UNION COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0679-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMY B. PORTILLO,
Defendant-Appellant.
___________________________________
Argued May 21, 2018 – Decided June 11, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
13-09-0805.
Margaret McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Margaret McLane, of counsel and on the
briefs).
Lila B. Leonard, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Lila B.
Leonard, of counsel and on the brief).
PER CURIAM
A jury found defendant Jermy B. Portillo guilty of two counts
of first-degree robbery, N.J.S.A. 2C:15-1; one count of second-
degree robbery, ibid.; third-degree receiving stolen property,
N.J.S.A. 2C:20-7; third-degree possession of a weapon, a knife,
for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree
unlawful possession of a weapon, the knife, N.J.S.A. 2C:39-5(d).
The convictions arise out of Portillo's knife-point robbery of two
pedestrians and his robbery of a third victim, as the three stood
outside a friend's house in Elizabeth. Portillo was accompanied
by five others, including one who swung a machete in the air near
the victims. After merger, the court sentenced defendant to two
ten-year prison terms for the first-degree robbery counts, and a
five-year prison term for the second-degree robbery count, to run
consecutively, for an aggregate term of twenty-five years. Under
the No Early Release Act, defendant must serve eighty-five percent
of the sentence before parole eligibility. N.J.S.A. 2C:43-7.2.
Portillo presents three issues in his appeal from his
conviction and sentence. He argues the court erred in denying his
suppression motion, which challenged law enforcement's motor
vehicle stop that led to his identification by the victims, and
the recovery of weapons and stolen items. He also contends it was
plain error to permit the prosecutor to state in summation that
thirty seconds was sufficient for the victims to identify him and
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that this error warrants reversal. Portillo also argues the
consecutive sentences were inappropriate, and the aggregate term
manifestly excessive. We reject defendant's arguments and affirm.
I.
The principal issue on appeal is defendant's challenge to the
police stop. According to the sole witness at the suppression
hearing, Elizabeth patrol officer Michael Nicolas, police received
a dispatch fifteen minutes before midnight on November 15, 2010,
that a group of "six Hispanic males dressed in black sweatshirts
or hooded sweatshirts" had participated in a robbery at Washington
and Grove. At 1:26 a.m., Nicolas and his partner, while in a
marked police car, spied a three-row passenger van parked on the
300-block of High Street. Nicolas saw an Hispanic-looking man
standing outside the van, later identified as D.V., a juvenile.
Nicolas observed multiple people inside the van. Although he did
not initially get a firm count, he could see they all wore dark
clothing, some in dark sweatshirts. The driver – who, he later
learned, was Portillo – appeared to be Hispanic.
They were less than a mile from the robbery scene. There was
no other pedestrian or vehicular traffic. Nicolas said it was
unusual for anyone to be out in the High Street neighborhood at
that hour of the night.
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Nicolas's partner drove slowly as they closely passed the
van, and then executed a U-turn. D.V. starting walking down the
block at a "concerned pace." He seemed nervous. He was carrying
what appeared to be a dark piece of clothing. The officers then
activated their vehicle's overhead lights as they pulled behind
the van.
Nicolas approached the passenger side and his partner
approached the driver's side. At that point, Nicolas counted six
men in the vehicle. All appeared Hispanic, and all wore dark
clothing. D.V. then reappeared and the officers detained him. As
police removed the van's occupants to prepare for the victims'
show-up identification, police noticed a black jacket on the seat.
Later found to belong to a victim, Nicolas removed it, to make
sure it was free of weapons. A victim's debit card fell out.
The victims positively identified Portillo as the knife-
wielding robber, and D.V. as the possessor of the machete. The
victims also testified at trial that they recognized the van as
the vehicle they saw circle before the robbery. Police found a
knife and a machete in the area where D.V. had walked, before he
returned to the van.
In denying defendant's suppression motion, Judge Joseph P.
Donohue found Nicolas to be credible and believable. After
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recounting the facts as generally set forth above, Judge Donohue
stated:
I'm satisfied that the officers had a
reasonable, articulable suspicion. The timing
of this event 40 minutes after the robbery,
the fact that six individuals, that there were
multiple individuals, that they . . . appeared
to be Hispanic, that they were in the general
location in which this occurred, the officer's
testimony was that there [were] not too many
people out that night . . . the location and
the descriptions were close enough that they
believed that they may have taken part in the
robbery.
The judge found the police were entitled to clear the vehicle, and
to detain the suspects for identification.
II.
As point I in his appeal, defendant argues:
SEEING SOME HISPANIC MEN ABOUT A MILE FROM THE
SCENE OF A ROBBERY IS NOT REASONABLE SUSPICION
TO CONDUCT AN INVESTIGATORY STOP.
Noting that the Census identified roughly sixty percent of
Elizabeth's residents as Hispanic or Latino, defendant contends
the police lacked a sufficiently detailed description of the
robbers to justify stopping the van and its occupants.
On a motion to suppress, we deferentially review the trial
court's fact-findings. State v. Elders, 192 N.J. 224, 243-44
(2007). Yet, defendant does not challenge the trial court's fact-
finding. Also, the State concedes that the police stopped
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defendant once they activated their overhead lights. The issue
is whether the facts, such as they are, justified the stop. We
review that legal issue de novo. State v. Watts, 223 N.J. 503,
516 (2015).
Police may conduct a warrantless, investigatory stop of a
vehicle and its occupants if they have an objectively reasonable,
particularized, and articulable suspicion of criminal activity.
See, e.g., State v. Davis, 104 N.J. 490, 505 (1986). "Common
sense and good judgment . . . require that police officers be
allowed to engage in some investigative street encounters without
probable cause." Ibid. Yet, the stop must be based on more than
a "police officer's subjective hunch." Ibid. We consider the
"totality of the circumstances," ibid., including inferences that
a trained law enforcement officer makes, which may elude others.
Id. at 501. "Facts that might seem innocent when viewed in
isolation can sustain a finding of reasonable suspicion when
considered in the aggregate . . . ." State v. Nishina, 175 N.J.
502, 511 (2003). The court "balanc[es] the State's interest in
effective law enforcement against the individual's right to be
free from unwarranted and/or overbearing police intrusions."
Davis, 104 N.J. at 504.
"No mathematical formula exists" for determining reasonable
suspicion. Id. at 505. However, certain principles are evident
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from our caselaw. A "non-particularized racial description of the
person sought" is not enough to justify a stop. State v. Shaw,
213 N.J. 398, 411, 421 (2012) (stating police lacked requisite
level of suspicion to detain man based on "the most generic
description . . . [of] a black male"); State v. Maryland, 167 N.J.
471, 485 (2001) (stating that "an investigatory stop predicated
solely on race would be . . . defective"); State v. Caldwell, 158
N.J. 452, 460 (1999) (suppressing evidence from a stop based on
tip from informant that an individual described merely as "'black
male in front of 86 Butler Street'" was engaged in criminal
activity).
Yet, a racial description, coupled with other particularized
facts, may suffice. In State v. Coles, 218 N.J. 322, 328 (2014),
a robber was described as a black male wearing black pants and a
gray hooded sweatshirt who used a weapon. The Supreme Court upheld
the initial stop of a man who met that description two blocks from
the crime scene within minutes of the robbery. Id. at 329, 345.
Police were also justified in prolonging the stop to ascertain the
suspect's identity after he appeared nervous and gave implausible
answers to questions. Id. at 329, 345-46. Notably, the Court
found it reasonable to detain the individual for a show-up, by
which he would be on his way if exonerated. Id. at 345. Similarly,
in State v. Todd, 355 N.J. Super. 132, 136-38 (App. Div. 2002),
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we sustained a stop of a burglary suspect who matched the general
description of a man of average height and weight in light-colored
clothing. The man was reported running from the scene and the
suspect was found within a few blocks, soon after the crime. Id.
at 138. He was visibly nervous and sweating, and he gave
implausible answers to an officer's questions. Id. at 136, 138.
Were the stop in this case based solely on a crime victim's
non-particularized description of an Hispanic male in an Hispanic-
Latino majority city, the stop unquestionably would have been
defective. However, in stopping to investigate, the police relied
on much more in forming a reasonable, particularized and
articulable suspicion that Portillo and his cohorts had engaged
in criminal activity.
The police did not stop a single man matching a racial or
ethnic description. They were looking for a group of six persons,
all male, all of the same ethnic group, all wearing the same dark
clothing. Statistically speaking, coming across such a grouping,
even where the majority of the community is Hispanic-Latino, is
much less likely than finding a single person matching that
description. Although Nicolas did not specifically count six such
individuals before executing the stop, he identified a group of
men, all with matching clothing, two matching the specified ethnic
group, and none of a non-matching group. See United States v.
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Arthur, 764 F.3d 92, 98 (1st Cir. 2014) (noting that the number
of suspects was an acceptable factor in finding reasonable
suspicion).
Furthermore, police came upon the van within forty-five
minutes of the robbery, within a relatively short distance from
the crime scene. See Coles, 218 N.J. at 329, 345; Todd, 355 N.J.
Super. at 138 (stating that proximity in time and distance to
crime are factors in forming reasonable suspicion). The van was
also conspicuously out of place. Nicolas testified that pedestrian
and vehicular traffic on High Street was unusual in the early
morning hour when the stop occurred. See State v. Valentine, 134
N.J. 536, 547 (1994) (noting significance of a defendant's activity
that was "entirely inconsistent with time of day"). D.V. also
acted nervously, walking off at a "concerned pace" while carrying
clothing that matched the victims' description. See Elders, 192
N.J. at 250 (stating that nervousness may be considered in
determining whether reasonable suspicion exists); State v.
Pineiro, 181 N.J. 13, 26 (2004) (stating that flight "in
combination with other circumstances . . . may support reasonable
and articulable suspicion").
Notably, the initial investigation – to ascertain the precise
number of occupants, and whether they all matched the description
the victims provided – was destined to be exceedingly brief. It
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required a stop only long enough to enable the officers to approach
the vehicle, and identify the occupants' gender, number, clothing,
and ethnic background. Balancing the needs of law enforcement
against the nature of the intrusion, the initial stop was
reasonable. And when the police confirmed a match with the
victims' description, along with the other circumstances, they
were justified in prolonging the stop, and removing the occupants
to await a show-up identification.
In sum, we discern no error in the trial court's order denying
the motion to suppress.
III.
As his second point, defendant contends:
THE PROSECUTOR'S MISSTATEMENT OF THE LAW
SURROUNDING EYEWITNESS IDENTIFICATIONS
CONFUSED THE JURY AND REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION. (Not raised below).
Defendant takes issue with the prosecutor's argument that
thirty seconds was sufficient time to enable the victims to
identify Portillo. We are unpersuaded.
The prosecutor responded to the defense argument that the
victims lacked sufficient time to make the show up identification.
Defense counsel argued: "Thirty to 60 seconds to view each
individual, ten to 15 feet away. Thirty to 60 seconds to view
each individual that – who were ten to 15 feet away. At night
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with spotlights, 30 to 60 seconds." In her summation, the
prosecutor stood silent while she allowed thirty seconds to elapse
and then argued, "The 30 seconds is up. Ladies and gentlemen, 30
seconds is more than enough time to be able to look at somebody,
stare at them . . . remember their face an hour later, remember
their face five years later. It's more than enough time."
The prosecutor did not mislead the jury, nor did the
prosecutor purport to instruct the jury, as to the relevant and
appropriate factors in assessing an identification. The court
correctly instructed the jury in that regard, adhering to the
post-Henderson model instruction. See State v. Henderson, 208
N.J. 208 (2011); Model Jury Charge (Criminal), "Out-of-Court
Identification Only" (2012). The prosecutor appropriately
responded to defense counsel's arguments. State v. Bradshaw, 392
N.J. Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195
N.J. 493 (2008); State v. Hawk, 327 N.J. Super. 276, 284 (App.
Div. 2000). We discern nothing improper in the prosecutor's
argument. As a result, it fell far short of the egregious
prosecutorial misconduct that deprives a defendant of a fair trial.
See State v. Frost, 158 N.J. 76, 83-84 (1999).
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IV.
Lastly, defendant challenges his twenty-five-year aggregate
sentence, consisting of three consecutive terms for each of the
three robbery counts, involving three separate victims. He argues:
CONSECUTIVE SENTENCES WERE INAPPROPRIATE FOR
THIS SINGLE ROBBERY INCIDENT, AND THE TWENTY-
FIVE YEAR SENTENCE IS MANIFESTLY EXCESSIVE.
(Not Raised Below).
Although the robberies occurred during one episode, they
involved discrete threats. According to the evidence at trial,
Portillo pressed a knife against the ribcage of one victim, as he
demanded that he empty his pockets. When another victim took back
his property from one of Portillo's cohorts, who was unarmed,
Portillo went over to that victim, placed the knife against his
ribcage, and demanded that he surrender his belongings. The jury
found that Portillo did not threaten the third victim with the
knife.
Noting that this was Portillo's first conviction, the court
found that aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he
need for deterring the defendant and others from violating the
law"), was in equipoise with mitigating factor seven, N.J.S.A.
2C:44-1(b)(7) ("[t]he defendant has no history of prior
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delinquency or criminal activity").1 The court imposed sentences
at the bottom of the range for each robbery count. However, the
court ordered that the terms be served consecutively.
We are satisfied that the court correctly applied the
guidelines for imposing consecutive terms under State v. Yarbough,
100 N.J. 627 (1985), as amended by N.J.S.A. 2C:44-5(a). See State
v. Cassady, 198 N.J. 165, 182 (2009). The court implicitly
recognized that the robberies were related and close in time. See
Yarbough, 100 N.J. at 644 (citing as factors in considering
consecutive terms whether the "crimes and their objectives were
predominantly independent of each other" and whether "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"). In imposing consecutive
terms, the court principally relied on the fact that the crimes
involved three separate victims. Ibid. (citing as a factor in
considering consecutive sentences whether "any of the crimes
involved multiple victims"). Furthermore, as to two victims,
Portillo engaged in separate and discrete criminal acts. Ibid.1
At one point, the judge misspoke and referred to aggravating
factor seven and mitigating factor nine. That mistake was repeated
in the judgment of conviction.
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(citing as a factor whether "the crime involved separate acts of
violence or threats of violence").
Consecutive sentences for multiple victims in multiple counts
are consistent with the oft-stated principle that "there can be
no free crimes in a system for which the punishment shall fit the
crime." Id. at 643; see also State v. Carey, 168 N.J. 413, 429-
30 (2001) (stating, in context of vehicular homicide cases, "the
multiple-victims factor is entitled to great weight and should
ordinarily result in the imposition of at least two consecutive
terms when multiple deaths or serious bodily injuries have been
inflicted upon multiple victims"); State v. Molina, 168 N.J. 436,
442 (2001) (approving consecutive sentences in vehicular homicide
case where the only Yarbough factor supporting consecutive
sentences is the presence of multiple victims, stating "crimes
involving multiple victims represent an especially suitable
circumstance for the imposition of consecutive sentences").
We also discern no merit to defendant's reliance on Miller
v. Alabama, 567 U.S. 460 (2012) and State v. Zuber, 227 N.J. 422(2017), addressing considerations applicable to sentencing
juveniles. Portillo was not a juvenile. He committed the
robberies when he was eighteen years old.
Given our deferential standard of review, see Cassady, 198
N.J. at 180, we discern no abuse of discretion, departure from
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sentencing guidelines, or sentence that shocks the judicial
conscience and warrants correction.
We therefore affirm the conviction and sentence, but remand
for correction of the judgment of conviction to reflect the
aggravating and mitigating factors as found by the court. We do
not retain jurisdiction.
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