STATE OF NEW JERSEY VS. RHUDELL C. CRUZ- SNELLING (17-01-0005, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2057-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RHUDELL C. CRUZ-SNELLING,
a/k/a RHUDY CRUZ, RHODELL
SNELLING, RHUDELL CHARLES
CRUZ-SNELLING, RHUDY C.
CRUZ, RHUDELL C. CRUZ, and
RHODELL CRUZ,
Defendant-Appellant.
_________________________________
Submitted December 18, 2019 – Decided April 21, 2020
Before Judges Whipple, Gooden Brown, and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-01-0005.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Alanna M. Jereb, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Rhudell C. Cruz-Snelling appeals from a November 21, 2017
judgment of conviction after a jury found him guilty of second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) and fourth-degree
resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). We affirm.
Defendant raises the following issues on appeal:
POINT I: THE STATE'S FAILURE TO COMPLY
WITH [RULE] 3:13-3(b) REGARDING PRODUCING
TRANSCRIPTS FOR ELECTRONICALLY
RECORDED STATEMENTS WITHIN [THIRTY]
DAYS OF TRIAL MANDATED THE EXCLUSION
OF THE RECORDED JAIL CALLS.
POINT II: THE DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL ON THE CHARGE OF
RESISTING ARREST SHOULD HAVE BEEN
GRANTED.
POINT III: CERTAIN COMMENTS MADE BY THE
PROSECUTOR DURING HIS SUMMATION
[WERE] IMPROPER AND DEPRIVED
DEFENDANT OF A FAIR TRIAL. (Not raised
below).
POINT IV: THE EXTENDED TERM SENTENCE OF
FIFTEEN [] YEARS WITH SEVEN AND A HALF []
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YEARS OF PAROLE INELIGIBILITY WAS
MANIFESTLY EXCESSIVE AND SHOULD BE
MODIFIED AND REDUCED. (Not raised below).
We discern the following facts from the record. In the early hours of
October 2, 2016, Officer Jose Perez of the Jersey City Police Department
received a report of "shots fired" at Sherman Avenue and Franklin Street. Perez
and his partner, Officer Edwin Medina, went to the area where they spoke with
a man who identified a white Mazda that had allegedly sped through a stop sign.
The officers ordered the Mazda driver to shut off the vehicle and show his hands.
Perez and Medina both approached the Mazda. Perez went toward the
passenger's side of the vehicle while Medina went towards the front. Perez,
standing in front of the passenger door with his weapon drawn, said "Stop. Don't
move. Stop. Don't move." Perez looked directly at the front passenger of the
vehicle, who he later identified as defendant. Instead of stopping, the Mazda
drove away. The officers gave chase. Medina radioed identifying information
"over the air." Sergeant Crisant Bereguette observed a white vehicle drive down
the street in the wrong direction and pull into a driveway where a man exited
the vehicle and ran across the street towards the sidewalk. Bereguette used her
flashlight to look inside the vehicle, and noticed a handgun, later identified as a
black semi-automatic Smith & Wesson, on the floorboard of the passenger's
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side. Officer Nancy Rojas heard, over dispatch, the description of a male wanted
in connection with the shots fired call and saw defendant, who matched the
description, walking. Rojas stopped defendant for an investigation and noticed
dirt marks and grass stains on his pants. Perez and Medina responded to Rojas'
location, identified defendant as the man they were looking for and defendant
was then taken into custody.
The police later executed a search warrant for the Mazda, recovering
defendant's wallet from the front passenger's side of the vehicle, as well as a
fully-loaded magazine, which contained nine-millimeter Winchester Luger
rounds, for a Smith & Wesson handgun from the center console. Detective
Joseph Chidichimo recovered two shell casings from the scene, one from a nine-
millimeter Luger and another from a .380 Winchester. He also recovered
surveillance video from buildings in the area showing four people walking south
on Sherman Avenue away from Franklin Street. A silver revolver was recovered
nearby with six spent casings inside its cylinder.
Co-defendant Jason Smith, the driver, pled guilty to third-degree eluding,
N.J.S.A. 2C:29-2 and agreed to testify against his co-defendants after giving a
statement. He testified that on October 1, 2016, between 11:00 a.m. and 2:00
p.m., defendant and Smith's sister, Holly Wippert, picked him up in the Mazda.
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They drove Wippert to Manchester, where they dropped her off, and Smith then
drove the Mazda, with defendant in the front passenger seat, to Bound B rook
where they picked up co-defendant Saquan S. Peace.
Smith, defendant and Peace drove to Newark, where they drank alcohol.
Then Smith drove to Jersey City with defendant, Peace, and two other
individuals to meet "females . . . and then . . . go get another bottle of liquor.
. . ." He eventually parked and waited as the four other occupants of the Mazda
left to meet up with the women and "to go get the liquor." After five to ten
minutes, the four ran back to the car, got in their original seats and told Smith
to drive off as if they were in a rush. Smith testified that defendant had a black
gun in his hand and he believed Peace had a big silver gun in his hand. Smith
drove away from the scene with the others in the car as defendant told him where
to drive. Eventually, Smith arrived at a stop sign and "a bunch of cops" appeared
"out of nowhere" and a police officer, with his gun drawn, directed him to "turn
off the car." Smith testified that defendant told him to "go." He drove until he
crashed the vehicle, then ran and threw away his gray hoodie while running.
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Peace also gave a video-recorded statement to police. Peace reported he
was in the Mazda with Smith, an individual known to him as "Big Boy," 1 and
someone named Johnny. Peace reported that Big Boy had a black gun in his
hand. Peace explained that Big Boy was "beefing with someone." Peace denied
getting out of the car. He stated the shooting occurred on the first time they
"spun the block" and that on their third time coming around the police spotted
them. He asserted that he told the other passengers he was "not going down for
ya'll straps," the other passengers then threw their guns out the window, and
when the car came to a stop, all the occupants jumped out of the car.
On January 10, 2017, defendant was indicted for second-degree unlawful
possession of a weapon, handgun, without a permit, N.J.S.A. 2C:39-5(b)(1);
second-degree possession of a weapon for an unlawful purpose N.J.S.A. 2C:39-
4(a)(1); third-degree aggravated assault against a law enforcement officer,
N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree resisting arrest by flight, N.J.S.A.
2C:29-2(a)(2); and fourth-degree criminal mischief N.J.S.A. 2C:17-3(a)(1).2
1
The State contends that defendant is Big Boy.
2
The charges for third-degree aggravated assault against a law enforcement
officer and fourth-degree criminal mischief were dismissed prior to trial. Co-
defendants Peace and Smith were charged in the remaining counts of the
indictment. Co-defendant Smith pleaded guilty to eluding N.J.S.A. 2C:29-2(b).
Peace was tried with defendant.
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On August 15, 2017, defendant, while incarcerated at the Hudson County
Correctional Facility, called Wippert. During the call, defendant asked Wippert,
"[w]hy . . . you always lying?" and "where did you get that gun from?"
Defendant told Wippert that he learned the gun was registered to her grandfather
and accused her of lying about her knowledge of the gun.
On September 28, 2017, the court granted the State's motion to admit co-
defendant Peace's statements into evidence, subject to redactions. The trial
began on October 4, and on October 13, 2017, the jury returned a guilty verdict
finding defendant guilty of all counts. On October 19, the State moved for the
imposition of an extended term which the court granted. On November 17,
2017, the trial judge sentenced defendant to an aggregate fifteen-year term of
imprisonment with seven and one-half years of parole ineligibility.
This appeal followed.
On appeal, defendant argues the trial court erred by admitting his phone
call to Wippert and denying his motion for judgment of acquittal. The defendant
also argues comments made by the prosecutor in summation rose to the level of
prosecutorial misconduct and the imposition of an extended sentence was
unduly punitive and shocks the judicial conscience. We reject these arguments
and affirm.
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Defendant argues his jail call to Wippert should be excluded because of
the State's failure to comply with its obligation to provide discovery within the
thirty-day timeframe of Rule 3:13-3(b)(1)(B). The State filed its notice of
motion on September 15, and the defendant's trial commenced on October 3,
2017.
The trial court relaxed Rule 3:13-3, pursuant to Rule 1:1-2, because
defense counsel was aware of the subject call as early as August 29, and the
defense listened to the call on September 11, 2017. Moreover, defendant did
not object to the State's motion to admit the call.
We "review . . . a trial court's discovery order [under] the abuse of
discretion standard." State in Interest of A.B., 219 N.J. 542, 554 (2014) (citation
omitted). "Thus, [we] should generally defer to a trial court's resolution of a
discovery matter, provided its determination is not so wide of the mark or is not
'based on a mistaken understanding of the applicable law.'" Ibid. (quoting
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).
However, "[i]n construing the meaning of a statute, court rule, or case law, 'our
review is de novo,'" and we owe no deference to the trial court's legal
conclusions. Id. at 554-55.
Rule 3:13-3(b)(1)(B) provides, in pertinent part, that discovery includes:
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[R]ecords of statements or confessions, signed or
unsigned, by the defendant or copies thereof, and a
summary of any admissions or declarations against
penal interest made by the defendant that are known to
the prosecution but not recorded. The prosecutor also
shall provide the defendant with transcripts of all
electronically recorded statements or confessions by a
date to be determined by the trial judge, except in no
event later than [thirty] days before the trial date set at
the pretrial conference.
The State has a "continuing duty to provide discovery pursuant to this rule." R.
3:13(f). Rule 3:13(f) vest in courts the ability to take remedial action when a
party fails to comply with the rule. "A court's failure to take appropriate action
to remedy a discovery violation can implicate the defendant's right to a fair
trial." State v. Smith, 224 N.J. 36, 48 (2016) (citation omitted). That right to a
fair trial requires a "'meaningful opportunity to present a complete defense.'"
Ibid. (citation omitted).
Rule 1:1-2 allows that the rules "shall be construed to secure a just
determination, simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay." Nonetheless, our Supreme
Court has warned that the relaxation provision of Rule 1:1-2 should be sparingly
resorted to as the rule is the exception rather than the norm. Ramagnola v.
Gillespie, Inc., 194 N.J. 596, 604 (2008) (citations omitted).
A-2057-17T2
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Here, we discern no abuse of discretion in the relaxation of Rule 3:13-3(b)
because defendant was not prejudiced by the State's technical noncompliance
with this rule. The defendant was aware of the substance of the evidence and
has not illustrated how the purported error prejudiced his "opportunity to present
a complete defense."
We also reject defendant's argument the trial court erroneously denied his
motion for a judgment of acquittal on the charge of resisting arrest. He asserts
that when Perez approached and confronted the stopped Mazda none of the
occupants of the vehicle were under arrest, and thus the State failed to prove all
the essential elements of the resisting arrest offense beyond a reasonable doubt.
The judge correctly denied the motion stating:
[Regarding] [t]he issue of resisting[,] the [i]ndictment
reads, preventing a law enforcement [officer] from
making lawful arrests.
I saw the video, I heard the testimony. Clearly
there was an order to stop with the gun drawn, the car
sped away. At that point in time, prior to the flight,
there may not have been an attempt to arrest, but when
they refused to obey the policeman's order and fled
certainly they prevented a lawful arrest.
In order to be found guilty of fourth-degree resisting arrest, defendant
must have "by flight, purposefully prevent[ed] or attempt[ed] to prevent a law
enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a). "[A]
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citizen's duty to submit [to an arrest] obtains when the restraint by the police
officer is for any lawful purpose even if it does not amount to an arrest." State
v. Brennan, 344 N.J. Super. 136, 145 (App. Div. 2001) (citations omitted).
Based on the evidence presented at trial, a jury could have found defendant
violated N.J.S.A. 2C:29-2(a)(2).
Defendant also asserts that certain comments made by the prosecutor
during his summation deprived defendant of his right to a fair trial. Defendant
did not object at trial to the following statements made by the prosecutor:
As I said in the beginning of - - in my opening, [Smith
is] not without sin. Right? He's not a saint here. He
made a very stupid mistake by running from the police.
But [Smith] took responsibility. He plead guilty. It's
your turn to hold these people responsible for what they
did.
Defendant argues the prosecutor's statement that "[i]t's your turn to hold these
people responsible" impermissibly conveyed to the jury that it was their
responsibility to find the defendant guilty.
"When a defendant fails to object to an error or raise an issue before the
trial court, we review for plain error." State v. Ross, 229 N.J. 389, 407 (2017)
(citing R. 2:10-2). "We may reverse on the basis of unchallenged error only if
the error was 'clearly capable of producing an unjust result.'" Ibid. (quoting R.
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2:10-2). Our Supreme Court has articulated the standard for review of alleged
prosecutorial misconduct with respect to remarks in summation:
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)).]
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." Frost, 158 N.J. at 82. However, they may not issue a "call to arms,"
asking the jury to "send a message" to the defendant and the public, since such
statements could "mislead a jury as to its role and duty," State v. Hawk, 327 N.J.
Super. 276, 282-83 (App. Div. 2000), and "improperly divert jurors' attention
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from the facts of the case and intend to promote a sense of partnership with the
jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super.
522, 537 (App. Div. 2003) (citations omitted).
The prosecutor's statement here was not an inappropriate call to arms. The
prosecutor did not imply the jurors would violate their oaths if they failed to
convict, see State v. Pennington, 119 N.J. 547, 576 (1990), nor did he suggest
the jury had a societal duty to convict, Hawk, 327 N.J. Super. at 282. Considered
in context, the prosecutor's comment did not cross the line and it did not amount
to plain error in light of the substantial evidence of guilt. See State v. Feal, 194
N.J. 293, 312-13 (2008) (finding an improper prosecutorial statement was not
plain error based on the evidence of guilt).
Finally, defendant argues the trial court's imposition of an extended term
was unduly punitive. We review a judge's sentencing decision under an abuse
of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v.
Roth, 95 N.J. 334, 363-64 (1984). When reviewing a judge's sentencing
decision, we "may not substitute [our] judgment for that of the trial court . . . ."
State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210,
215 (1989)). However, we may review and modify a sentence when the judge's
determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990)
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(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). However, in determining
the propriety of a sentence, we must make sure that the sentencing guidelines
have been met, that the findings on aggravating and mitigating factors are based
upon "competent credible evidence in the record," and that the sentence is not
"clearly unreasonable so as to shock the judicial conscience." State v. Dalziel,
182 N.J. 494, 501(2005) (citing Roth, 95 N.J. at 364-65).
"New Jersey's Code of Criminal Justice . . . provides for ordinary
sentences . . . as well as extended-term sentences that carry greater punishment
for the same crime." Pierce, 188 N.J. at 161 (citations omitted). "The persistent
offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to
impose an extended sentence when the statutory prerequisites for an extended-
term sentence are present." Ibid.
We reject defendant's argument. The trial court found, and defendant
conceded, that he met the statutory pre-requisites of a persistent offender. The
court then found that aggravating factors three, risk of committing another
offense; six, the nature and extent of defendant's criminal record; and nine, the
need to deter defendant as well as others from violating the law, applied and the
court also determined, and defendant conceded, that no mitigating factors were
present in this case.
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Addressing the extended term, the court again considered the aggravating
and mitigating factors and noted defendant's criminal history included four
indictable convictions, including unlawful possession of a firearm and another
weapon. The court found defendant demonstrated a "flagrant disregard for the
law and a clear indication that he will commit a future offense." In light of the
weight afforded to the applied aggravating and the absence of any mitigating
factors, we discern no abuse of the court's discretion.
Affirmed.
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