On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Ind. No. 05-08-2992.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Coburn and Chambers.
After a jury trial, defendant, Terrell Evans, was found guilty of third-degree possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a) (count three). Count one was merged into count two; on count two, defendant was sentenced to an extended term of eight years with four years to be served without parole; and defendant was given a concurrent sentence of eighteen months on count three. Defendant also received the requisite loss of driving privileges, mandatory DNA testing, fines and penalties, and sixty-two dollars was forfeited.
The charges arise out of events that took place on June 6, 2005. Defendant, who testified at his trial, stated that he was on Decatur Street in Camden that evening, offering condolences to a friend whose daughter had passed away, when a limousine pulled up to a screeching halt. He and others at the scene fled. The occupants of the vehicle turned out to be State Troopers working in an unmarked vehicle. Defendant was pursued down an alleyway, where he fell to the ground and was then arrested. Defendant stated that he had not been selling CDS at the time nor did he have any CDS in his possession.
The testimony of State Trooper Timothy Steinmetz, who apprehended defendant, presented a different version of these events. Steinmetz testified that at the time in question other troopers and he were in an unmarked minivan patrolling for a shooter when Steinmetz saw defendant hand a bag of crack cocaine to another person. When the van stopped, Steinmetz, who was in uniform, immediately got out and shouted to defendant, "Don't move. You are under arrest." Defendant fled on foot, and the Trooper pursued him. According to the Trooper, when defendant was apprehended and fell to the ground, twenty-nine bags of cocaine were found on the ground beneath his body.
The jury found defendant guilty of third-degree possession of a CDS in violation of N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a). The defendant moved for a new trial on the basis that the verdict was against the weight of the evidence. The trial judge, in a comprehensive decision placed on the record, denied the motion. In doing so, the trial judge discussed the relevant law as applied to the case and reviewed in detail the record, finding sufficient evidence in the record to support the jury's verdict on each count and found that the verdict was not against the weight of the evidence. This court will only overturn that decision if the verdict represents a clear miscarriage of justice. R. 2:10-1.
On appeal, defendant again argues that the verdict should have been set aside because it was against the weight of the evidence. A verdict will be set aside as against the weight of the evidence if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. After a careful review of the record and the briefs submitted by counsel, we are satisfied that this argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in the complete and sound decision he placed on the record on May 22, 2006.
With respect to the sentence, defendant argues that the sentence was manifestly excessive and was not supported by the record, that the prosecutor failed to set forth on the record the reasons for seeking an extended sentence and that the case should be remanded for resentencing.
While our review of a sentence must be "careful and vigorous," we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). However, we must make sure that the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "competent credible evidence in the record," and that the sentence is not "clearly unreasonable so as to shock the judicial conscience." Id. at 501 (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).
All of these criteria have been met here. The sentence imposed was well within the statutory guidelines and the trial court's discretion. The State applied for an extended term under N.J.S.A. 2C:43-6(f), which provides for an extended term upon application of the State where the defendant has had a prior conviction for certain specified drug offenses, including a prior conviction for possession with intent to distribute a CDS. It is undisputed that defendant here had a prior conviction for possession of a CDS with intent to distribute. As a result, defendant's permissible enhanced sentencing range on count two, a third-degree crime, increased to ten years. N.J.S.A. 2C:43-7(a)(4).
In determining the length of the sentence, the court found three aggravating factors: the risk that defendant will commit another offense, the extent of his prior criminal record, and the need for deterrence. Defendant was also given the benefit of a mitigating factor; namely, that he did not contemplate serious harm. Finding that the aggravating factors substantially outweighed the mitigating factors, both quantitatively and qualitatively, the court imposed a sentence of eight years which fell within the permissible range. Once the term was fixed, the court was then required to fix a period of parole ineligibility between the range of one-third to one-half of the sentence. N.J.S.A. 2C:43-6(f). The court set four years as the ...