May 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAMENE GOMEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-03-0228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2007
Before Judges Lefelt, Parrillo, and Sapp-Peterson.
Tried by a jury in absentia, defendant Shamene Gomez was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count 1); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and b(3) (Count 2); third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7 and 2C:35-5a (Count 3); and second-degree distribution of cocaine within 500 feet of a public housing project, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a (Count 4). The court merged the first three counts into the fourth, imposing for that crime a seven-year term subject to a three-year parole bar mandated for Count 3. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on October 7, 2000, Paterson Police Detective Thomas Conyers, a fifteen-year veteran of the narcotics bureau, conducted a plain-clothes surveillance in an unmarked car at the Alexander Hamilton housing project, a high-rise apartment complex in Paterson known for drug activity. At 10:15 a.m., at the beginning of surveillance, Conyers noticed three individuals, two black men and a black female later identified as defendant, standing between two buildings. About two minutes later, Conyers observed defendant run over to a black Chevrolet Blazer that had just pulled into the parking area, briefly converse with the driver, and then hand over a small object in exchange for paper money. Afterward, defendant returned to the two males. Because he suspected that the transaction, which only took between ten and fifteen seconds, was a drug sale, Conyers radioed the back-up officers and requested that they respond to the scene. He described defendant as a female with "dark skin, about five seven, five six, approximate weight maybe 160 to 170 pounds wearing a gray gym suit or sweat suit."
Soon after, a blue sports car pulled into the parking lot. This time, the two males standing next to defendant ran to both sides of the blue car, and handed small objects to the individuals inside through both the driver and passenger side windows in exchange for money. The car left the area, and the two males returned to where defendant was standing, between the two buildings. The backup officers attempted without success to locate the blue car.
About a minute or two later, Detective Conyers observed defendant walk up to a Hispanic male, later identified as co-defendant Ariel Ocasio, standing to the rear of the buildings, and make another object-for-paper-money exchange. Actually, Conyers observed defendant "count[ing] out some objects" and handing them to Ocasio in return for money. Ocasio then got into a white Camry parked nearby and drove away. Conyers followed the Camry until his back-up team, consisting of Sergeant Kevin Brady and other officers, were close enough to take over. They then trailed the Camry until it stopped at a dead end street, at which point Brady observed "several small objects go, fly out the window into a little grassy area by the sidewalk." Ocasio was removed from his vehicle. Brady directed another officer to search the area where the small objects were thrown. Two small greenish-colored baggies of suspected cocaine were recovered on the grass approximately three to four feet from the Camry. One of the baggies was "substantially full" and the other baggie had "substantially less." Subsequently, one of the two bags was randomly tested and found to contain .13 grams of cocaine.
Meanwhile, Conyers returned to the surveillance location, where defendant had remained in the same spot between the buildings. Following Conyers' direction to apprehend the trio, several back-up units pulled into the parking lot. When Detective Anthony DeMarco exited and yelled "police" with his police badge exposed on his chest, defendant, who was ten to fifteen feet away, turned around and ran toward the apartment building. The two males also fled. DeMarco and another officer gave chase, but lost sight of defendant for about five to ten seconds before she entered the building. When DeMarco entered, he saw defendant in the hallway by the stairwell. Defendant turned around, emptied her pockets, and without prompting, stated "I have nothing." The officers conducted a brief search of defendant and the hallway and no drugs or money were found.
At trial, both Conyers and Ocasio positively identified defendant from a post-arrest police photograph. Additionally, Ocasio testified he drove to the housing project specifically to purchase cocaine, then exited his car and purchased a small "nickel bag" of cocaine from defendant, who had approached him. He also claimed to have found an identical small bag on the ground that had some residue in it. He acknowledged throwing a small paper bag out the window of his car before the police arrived, but was unsure whether he had placed the two small bags into the paper bag before tossing the paper bag out. Ocasio also acknowledged on cross-examination previously telling defense counsel that defendant "wasn't the one" who sold him drugs that day, but further explained that he had told this lie because he felt bad and "didn't want to hurt her in any way."
The defense at trial claimed mistaken identity, noting that defendant was not in possession of drugs or money at the time of her arrest. Evidently crediting the State's version, the jury convicted defendant on all counts.
On appeal, defendant raises the following issues:
I. DEFENDANT'S CONVICTION IN ABSENTIA MUST BE REVERSED WHERE IT IS INDISPUTABLE THAT DEFENDANT DID NOT RECEIVE NOTICE OF HER TRIAL DATE; AND WHERE, IN ANY EVENT, THE TRIAL COURT FAILED TO MAKE SUFFICIENT INQUIRY INTO DEFENDANT'S WHEREABOUTS AND WHETHER SHE HAD RECEIVED NOTICE OF THE TRIAL DATE, PRIOR TO COMMENCING THE TRIAL IN HER ABSENCE. (NOT RAISED BELOW).
A. THERE WAS NO KNOWING, VOLUNTARY WAIVER BY DEFENDANT OF HER RIGHT TO BE PRESENT AT TRIAL, WHERE SHE DID NOT RECEIVE ACTUAL NOTICE OF HER TRIAL DATE. B. THE TRIAL COURT FAILED TO MAKE SUFFICIENT INQUIRY INTO DEFENDANT'S WHEREABOUTS AND WHETHER SHE HAD RECEIVED NOTICE; AND OTHERWISE FAILED TO MAKE THE REQUIRED FINDINGS OF FACT PRIOR TO COMMENCING THE TRIAL IN DEFENDANT'S ABSENCE.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE AN INFLAMMATORY PHOTOGRAPH OF DEFENDANT THAT DEPICTED HER CHAINED TO A WALL WHILE IN POLICE CUSTODY.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING THE JURY A "FLIGHT" CHARGE, WHERE THE EVIDENCE DID NOT SUPPORT SUCH A CHARGE.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ACQUITTING DEFENDANT AT THE CLOSE OF THE STATE'S CASE, OR ALTERNATIVELY THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHERE THERE WAS NO EVIDENCE THAT THE SUBSTANCE ALLEGEDLY POSSESSED BY DEFENDANT WAS CDS. (NOT RAISED BELOW).
V. THE TRIAL COURT ERRONEOUSLY ADMITTED THE STATE'S LABORATORY REPORT INTO EVIDENCE, WHERE (A) THE REPORT REFERRED TO DEFENDANT AS HAVING CDS IN HER POSSESSION (WHICH WAS THE PROVINCE OF THE JURY TO DETERMINE), AND (B) THE REPORT DID NOT ESTABLISH THAT THE SUBSTANCE WHICH DEFENDANT ALLEGEDLY SOLD WAS CDS. (PARTIALLY RAISED BELOW).
VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN SENTENCING DEFENDANT, BY FAILING TO FIND SEVERAL MITIGATING FACTORS, WHICH CLEARLY EXISTED AND THUS OUTWEIGHED THE ONE AGGRAVATING FACTOR, THEREBY WARRANTING EITHER (A) THE IMPOSITION OF A LESSER BASE SENTENCE UNDER N.J.S.A. 2C:44-1(f)(1), OR (B) SENTENCING DEFENDANT AS A THIRD-DEGREE RATHER THAN A SECOND-DEGREE OFFENDER PURSUANT TO N.J.S.A. 2C:44-1(f)(2). (NOT RAISED BELOW).
VII. DEFENDANT IS ENTITLED TO A REMAND ON SENTENCING, WHERE THE STATE DID NOT ARTICULATE ITS REASONS FOR REFUSING TO WAIVE THE PERIOD OF PAROLE INELIGIBILITY. (NOT RAISED BELOW).
VIII. DEFENDANT'S CONVICTION SHOULD BE REVERSED WHERE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT HER TRIAL, AS DEMONSTRATED BY, INTER ALIA (A) THE FAILURE OF COUNSEL TO OBJECT TO DEFENDANT BEING TRIED IN ABSENTIA, OR AT LEAST TO MOVE FOR A NEW TRIAL ONCE DEFENDANT WAS LOCATED; AND (B) THE FAILURE TO OBJECT TO THE ADMISSION OF THE PHOTOGRAPH OF DEFENDANT IN CHAINS. (NOT RAISED BELOW).
Defendant contends for the first time that she was denied her constitutional right to be present at her trial because she did not receive "in court" notice of the rescheduled trial date or acknowledge notice in writing. We disagree.
At the status conference on December 3, 2001, defendant received actual notice in court of her original trial date, April 15, 2001. She was also given Hudson*fn1 warnings that same date. The trial judge specifically advised defendant:
Miss Gomez and Mr. Ocasio, your case is listed for April 15th. There's a possibility that it may not be heard on the 15th, and there may be an older case that will be tried that week and you may receive another date.
It is very important that both of you appear for your trial dates. I'm not saying you are not going to be here, but I tell this to all of the defendants. Unless you have a good reason why you are not in court, such as somebody being hospitalized or something like that, the State is in a position where they could try the case without your presence. In other words, if you are not here, they are trying the case.
That could impact on you and it could hurt your defense.
Thereafter, it appears that the trial was adjourned five times, on April 15, April 22, May 6, June 24, and December 3, 2002. Defendant appeared on the first two adjourned trial dates, and on April 22, 2002, the court advised defendant on the record that the trial would be rescheduled for May 6:
I'm going to adjourn it to -- I cannot try it this week -- May 6th, all right? So I'll see you on May 6th for the trial. We'll give you notification, and we'll notify [defense counsel].
Defendant did not appear on the May 6 trial date, although co-defendant Ocasio did appear, and the matter was given a June 24 date. Defendant appeared on June 24, at which time the court indicated:
We have to give that another date. Remain for a little while. Just remain for a little while.
Defendant was not present at the last adjourned trial date, which apparently was December 3, 2002. On that date, defendant's attorney requested that the trial be scheduled for January 27, 2003:
[DEFENSE COUNSEL]: 27th. I think we ought to put it on the 27th, Judge. If there's a change, then I would let you know. But I -- I -- leave it on for the 27th of January.
The judge ordered counsel to have their clients fill out pretrial forms and written Hudson warnings, and to return them to the court prior to the trial date.
On January 27, 2003, defendant did not appear for trial. Trial was then adjourned for one day. On January 28, defendant's attorney advised the trial judge that his office had mailed notice of the trial date to defendant, which was returned "unclaimed," and that the phone number given to him by defendant was "not working." As a result of its inquiry the evening before, the court noted that although defendant had been arrested on other narcotics charges in November 2002, there was no record of her being incarcerated in either state prison or the county jail. Noting as well that defendant had already received her Hudson warning on December 3, 2002, the judge allowed trial to proceed in defendant's absence.
Defendant was also absent on January 29, 2003, the second and last day of trial. During that morning, the trial court revisited the issue of defendant's absence:
THE COURT: I just note for the record that [defendant] is not here and [defense counsel] has she contacted you yet?
[DEFENSE COUNSEL]: No, not at all, Judge, in fact, in fact, I see a note on my file that we tried to call again and the note I have, Judge, is the number we have is not in service, it's not in service, period.
THE COURT: And again, I reviewed yesterday the [defense counsel] did send her certified mail which came back unclaimed at the proper address notifying her of the date and I understand she has subsequent charges and I'm satisfied she's absconded.
[DEFENSE COUNSEL]: That's correct, Judge.
THE COURT: She was actually, if she did move she had the obligation to advise the Court, you know, of the new address and I'm satisfied that proper -- all right, let's bring the jurors out . . . .
The right of an accused to be present at every stage of the trial against her is protected under the constitutions of the United States and New Jersey. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed. 2d 353, 356 (1970) (U.S. Const. amend. VI); Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679 (1934) (U.S. Const. amend. XIV); Hudson, supra, 119 N.J. at 171 (N.J. Const. art. I, ¶ 10). This right, however, is not absolute and may be knowingly and voluntarily waived by a defendant. Hudson, supra, 119 N.J. at 183. A knowing waiver of the right to be present at trial requires adequate notice of the trial date. Id. at 182. Adequate notice is provided when a court directly communicates the trial date to defendant while in court, Id. at 182-84 (noting that "[t]he best opportunity to provide such notice is at the arraignment"); see also Rule 3:9-1(e), or where the defendant agrees to "remain available for an attorney's communication concerning the scheduling of trial." State v. Whaley, 168 N.J. 94, 102, 106 (2001); see also State v. Ellis, 299 N.J. Super. 440, 449 (App. Div.), certif. denied, 151 N.J. 74 (1997). Thus, Rule 3:16(b) provides in part:
Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.
It is within the court's discretion to try defendant in absentia where defendant has actual notice of his trial date, and there is no information to suggest that his failure to appear was not voluntary and unjustified. State v. Givens, 353 N.J. Super. 280, 285 (App. Div. 2002) (citing State v. Finklea, 147 N.J. 211, 218-19 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed. 2d 63 (1997)). "We cannot allow crowded court calendars to be disrupted by defendants who knowingly and voluntarily absent themselves from trial, and then seek reversal of their convictions on the ground that the trial date could conveniently have been rescheduled." State v. Hudson, supra, 119 N.J. at 183 (conviction in absentia upheld where trial had been adjourned once and defendants had actual notice of the trial date).
By the same token, "once a defendant has been given actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver of the right to be present during the trial absent a showing of justification by the defendant." Finklea, supra, 147 N.J. at 213. In other words, where actual notice is given, failure to appear on that date, or for any adjournment date, is regarded as a waiver unless some justification is provided. Ibid.
Here, on April 22, 2002, defendant received actual notice in court that the trial would be adjourned to May 6, 2002.
Defendant chose not to appear on the scheduled trial date and thus her absence, unexplained to date, and therefore unjustifiable, constituted a knowing and voluntary waiver of her right to be present at trial. Moreover, her subsequent conduct in failing to advise either court or counsel of her address or a contact telephone number further evidences a waiver of her right. On this score, it may reasonably be inferred that by remaining incommunicado after receiving the Hudson warning, defendant was aware of the strong likelihood that trial would proceed in her absence, given the impossibility of notification of the new trial date. To posit otherwise would allow an accused to delay the proceedings indefinitely by simply failing to appear. And finally, the fact that defendant did not pursue a motion for a new trial under Rule 3:20-2 after trial and prior to her sentencing also supports a "finding of waiver under Rule 3:16(b)." See State v. Mahone, 297 N.J. Super. 524, 529-30 (App. Div.), aff'd o.b, 152 N.J. 44 (1997); see also Whaley, supra, 168 N.J. at 105. Indeed, at sentencing, defendant offered no explanation for her absence at trial or for making herself unavailable before then.
Defendant also contends the court failed to make sufficient inquiry into her whereabouts. To be sure, the right to be present at trial "cannot cursorily, and without inquiry, be considered waived by the trial judge simply because the accused does not appear on the date set for trial." State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996). Instead, "[t]he trial judge should attempt to learn where the defendant is and why he is absent and make appropriate factual findings." Ibid. That, in our view, was accomplished in this case. Defense counsel represented that defendant could not be located and the court, through staff, determined that defendant was not otherwise incarcerated. In any event, defendant has a responsibility to notify the court if she is unable to make a scheduled court date, see Givens, supra, 353 N.J. Super. at 288-89, which she failed to do here. Under the circumstances, and in view of the fact that the record is devoid of any satisfactory explanation for defendant's non-appearance, we are satisfied there was no abuse of discretion in trying defendant in absentia.
Defendant contends, again for the first time on appeal, that the trial court's admission of a post-arrest photograph showing defendant handcuffed and chained while in police custody was highly prejudicial and constitutes plain error. We find the photograph's relevance far outweighed any prejudicial effect and therefore its admission was not error, much less plain error.
In general, mug shots may be admissible where identification is an issue, State v. Cribb, 281 N.J. Super. 156, 161 (App. Div. 1995); State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988), otherwise, such evidence is generally inadmissible due to the inference of prior criminal conduct it creates. Taplin, supra, 230 N.J. Super. at 99 ("The photograph of defendant objected to was and could reasonably be inferred by a jury to be a mug shot suggestive of a prior criminal record, and we perceive no purpose for its admission other than unfairly to permit the jury to draw the inference that defendant had a prior criminal record."); but see United States v. Gimelstob, 475 F.2d 157, 162 (3d Cir.) (where jury was already aware of defendant's prior record, introduction of photograph not considered prejudicial), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed. 2d 62 (1973); State v. Burton, 309 N.J. Super. 280, 289 (App. Div.) (finding admission of photo array showing defendant and others in orange uniforms harmless error where the picture was used only to enhance the reliability of a witnesses identification, and other "overwhelming evidence of guilt"), certif. denied, 156 N.J. 407 (1998).
Here, however, the photo in issue was post-arrest and not a mug shot from a prior arrest. Therefore, there was no danger that the jury could draw any inflammatory inferences of the accused's prior criminal history. On the contrary, presentation of the photo to the jury was necessary. Identification was a contested issue at trial inasmuch as the defense claimed that the police had misidentified defendant as the female they observed selling drugs. Indeed, defense counsel questioned the credibility of Conyers' identification of defendant, specifically his recollection of the color sweatpants defendant was wearing at the time in question. Since defendant absented herself from trial, the post-arrest photo had substantial probative value to assist the jury in evaluating not only Conyers' and Ocasio's identification of defendant, but as well Conyers' verbal description of defendant radioed to his back-up team during the surveillance.
As to its prejudicial effect, it is neither shocking nor inflammatory to suggest that someone placed under arrest would be restrained. In any event, the court gave a plain and clear cautionary instruction directing the jury not to consider such restraints in their deliberations:
S-9 is a photograph which has been marked into evidence and you will have it in the jury room during deliberations. The State contends it is a photograph of [defendant] taken after her arrest. The photograph depicts a woman secured by a handcuff and chain. It is normal police procedure to secure a suspect after arrest. The fact that she is secured by handcuffs and chain in no way infers she might be a violent person. The fact that she was secured should not enter into your discussions or deliberations in any manner or at any time.
As further proof the photo was not unduly harmful, defense counsel did not object to its admission and in fact used it to challenge Conyers' clothing description. Clearly, the relevance of the photo far outweighed any potential for prejudice, see N.J.R.E. 403, and was therefore admissible.
Defendant also challenges the court's flight instruction as unwarranted by the evidence. We disagree since there was ample proof from which to infer defendant fled to avoid apprehension.
Evidence of a defendant's flight is admissible as "demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). This does not extend to "mere departure," and "[f]or departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966); see also State v. Tucker, 136 N.J. 158, 169 (1994) (noting that departure must be inspired by criminality to constitute flight).
There are no quantitative minimums on flight, and it may be manifested by as little as the taking of a few steps, State v. Garcia, 83 N.J. Super. 345, 350 (App. Div. 1964) ("Although defendant stopped after taking a few steps, the circumstance was some evidence, however slim, tending to prove a consciousness of guilt."), and the defendant need not be found fleeing from custody or hiding from the authorities. State v. Wilson, 57 N.J. 39, 49 (1970).
Where a trial court finds evidence of flight to be admissible, it must carefully instruct the jury as to what inferences may be drawn from that evidence. Mann, supra, 132 N.J. at 420. "An adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Id. at 421. Where an explanation for the departure is offered by the defendant, the trial court should "instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Ibid.
Here, defendant argues that because everyone in the parking lot was running, and because residents of housing projects "often mistrust the police," her departure from the scene cannot constitute flight. The argument is specious. The evidence indicates that defendant was observed dealing drugs and when an undercover officer approached, displayed his badge, and yelled "police," she looked at him and immediately ran away. Clearly the evidence reasonably suggests that defendant's departure was for the purpose of avoiding apprehension or arrest, and as such fully supports the flight charge.
Defendant contends the court erred in denying her motion for judgment on acquittal because there was no evidence that the item "allegedly possessed and distributed was [a] CDS." Specifically, she argues for the first time now that Ocasio testified that defendant sold him only one of the two bags ultimately recovered from the ground and that only one of these two bags was tested and proved positive for cocaine. This argument fails as well. Although Ocasio testified to purchasing only one bag from defendant, Detective Conyers testified to observing defendant sell several objects to Ocasio. Thus, there was ample evidence from which the jury could have reasonably inferred that although only one of two identical, greenish- colored baggies found in close proximity to each other was tested, they both contained cocaine. See, e.g., State v. Gosa, 263 N.J. Super. 527, 534-37 (App. Div.) (denying motion for acquittal where random drug tests indicated 15 of 180 vials contained cocaine, and such supported a reasonable inference that the other 165 vials contained the same), cert. denied, 134 N.J. 477 (1993); State v. Maure, 240 N.J. Super. 269 (App. Div. 1990) (random testing of breathalyzer test ampoules), aff'd o.b., 123 N.J. 45 (1991). As the trial judge concluded in denying defendant's motion for judgment of acquittal under Rule 3:18-1:
The test at this stage is to view the State's evidence in its entirety and give the State the benefit of all favorable testimony as well as all favorable inferences that can be drawn from that testimony. And Detective Conyers did testify he was on surveillance at approximately 10:15 a.m. October 7th, 2000 in the area of the Alexander Hamilton Projects. He indicated there was a lot of activity that morning. He also testified that he observed what he thought to be a narcotics transaction between the then suspect, [defendant] and suspect Ariel Ocasio.
He then called his back-up units and both were eventually arrested. Also, Mr. Ocasio did testify that, you know, he did purchase the drugs from [defendant]. There may be a discrepancy with respect to the amount of bags, the lack of a paper bag, but again, that's a credibility issue for the, for the jury to determine. I'm satisfied at this juncture the State has met its burden and I'm going to deny the application. We agree.
Alternatively, defendant argues that the jury's verdict was against the weight of the evidence, an argument precluded by defendant's failure to move for new trial below. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). In any event, the argument lacks merit as there was ample evidence of defendant's guilt. Thus, the jury's verdict did not constitute "a miscarriage of justice under the law." R. 2:10-1; State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Defendant contends the trial court erred when it refused to redact the portions of a two-page laboratory report that referred to the defendant's C.D.S. possession charge and to the substance sold by defendant to Ocasio as a C.D.S. We disagree. The lab report's recitation of the criminal charge was not hearsay, as it was not admitted to "prove the truth of the matter asserted," N.J.R.E. 801(c). Moreover, it merely restated the charges, which were known to the jury by the time it was admitted into evidence. As to defendant's other argument concerning the lab report's identification of the substance sold as C.D.S., the issue was not raised below and therefore need not be considered on appeal. See R. 1:7-2; State v. Birkenmeier, 185 N.J. 552, 563 n.2 (2006) (noting that "[b]ecause the issues were not raised below, we could conclude our analysis at this point"). In any event, the report simply identifies one of the two bags recovered by the police as containing cocaine. Significantly, the lab report itself clearly indicated that one specimen was analyzed to be cocaine, while the other specimen was "Not Analyzed." We conclude therefore that defendant's claim that the report was misleading is without merit.
In challenging her seven-year "presumptive" term, defendant contends that the court ignored several mitigating factors that would have compelled sentencing her as a third-degree offender. Specifically, she argues that the court erred in failing to consider: (1) that "imprisonment . . . would entail excessive hardship to [defendant] or [her] dependents"; (2) that "defendant's conduct neither caused nor threatened serious harm"; and (3) that "defendant did not contemplate that [her] conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b). We find no warrant to interfere with the sentence imposed.
The trial court properly found aggravating factor (9), the need to deter defendant and others, and mitigating factor (7), that defendant had no prior criminal history. These findings were amply supported by the record, and justified the seven-year sentence on defendant's second-degree drug crime. See State v. Roth, 95 N.J. 334, 364-65 (1984). No other mitigating factors were warranted on this record. As for not contemplating serious harm, on the contrary, "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994) (rejecting appellant's argument that the sentencing courts improperly failed to apply mitigating factors (1) and (2)). As for substantial hardship on the children, defendant simply relies on a letter from the father of two of her children claiming he's "having a tough time with the boys . . . ." This circumstance, however, does not fall within the contemplation of the claimed mitigating factor and in any event is far too insubstantial to merit leniency. Simply put, a blanket allegation with no additional proofs will not suffice. See, e.g., State v. Dalziel, 182 N.J. 494, 505 (2005). As for defendant's personal circumstances, although she is a 25-year old mother of three children, ages eight, five and one, defendant also stated she has abused marijuana and crack cocaine on a daily basis from age 23; consumes alcohol; had never been employed; and had been living with her mother, who is the primary caregiver of the children. Under the circumstances, defendant has not produced evidence to support consideration of mitigating factor (11).
Defendant also challenges the mandatory three-year parole ineligibility feature of her sentence, arguing that the State failed to give reasons for not waiving the bar. We disagree.
In prescribing a mandatory three-year parole disqualifier for school zone offenses, the Legislature sought to more aggressively combat "the scourge of drug criminality, particularly as it threatens children." State v. Vasquez, 129 N.J. 189, 204 (1992). At the same time, the Legislature recognized the importance of facilitating and encouraging "offenders to cooperate with law enforcement efforts to detect, apprehend and successfully prosecute otherwise well-insulated drug traffickers." Ibid. Thus, pursuant to N.J.S.A. 2C:35-12, the prosecutor is vested with limited discretion to waive the otherwise mandatory disqualifier. The waiver may occur as the result of a Brimage*fn2 plea agreement or, in cases resulting in a trial, as the result of a post-conviction cooperation agreement. N.J.S.A. 2C:35-12.
Where the mandatory parole ineligibility period of N.J.S.A. 2C:35-7 is applied, "a prosecutor must state on the record the reasons for the decision to waive or the refusal to waive all or a portion [of] the mandatory period." State v. Murray, 338 N.J. Super. 80, 90 (App. Div.), certif. denied, 169 N.J. 608 (2001). The rule cures the constitutional defect in the statute, which delegates a certain amount of sentencing discretion to the prosecution, who has the power to determine whether the offense will be charged. Vasquez, supra, 129 N.J. at 195-96.
Here, defendant does not complain that the State improperly refused to offer a plea bargain prior to trial, State v. Perez, 304 N.J. Super. 609, 615 (App. Div. 1997), nor does she claim she was denied the opportunity to cooperate. In fact, she asserted no unfairness below in the State's recommendation for sentence. Quite the contrary, at time of sentencing defense counsel acknowledged the propriety of the parole ineligibility period, and also knew that defendant faced another indictment on drug charges which carried potential mandatory parole ineligibility as well. In fact, defendant accepted the imposition of the three-year parole ineligibility period:
[Defense counsel]: Thank you, Your Honor. [defendant] is 25 years old, she does have three children. I would point out to the Court that there are no prior convictions prior to this transaction for which we stand here . . . .
We would simply ask Your Honor that in light of the three year parole ineligibility, we'd just ask that the Court impose the, albeit mandatory minimum sentences.
Under the circumstances, we see no necessity for a remand to determine the State's reason for not waiving the period of parole ineligibility.
Lastly, defendant complains of ineffective assistance of counsel based on, among other things, counsel's failure to object to her being tried in absentia or move for a new trial once she had been located. This claim, largely dependent on facts outside the record, is more properly the subject of a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992).