January 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
RASHAWN WHITE, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Yannotti and LeWinn.
Defendant Rashawn White was charged under a Morris County indictment with possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); possession of cocaine with intent to distribute within 500 feet of public housing; N.J.S.A. 2C:35-7.1 (count four); hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4) (count five); and conspiracy to possess cocaine, N.J.S.A. 2C:5-2 (count six). On the State's motion, the court dismissed count six. Defendant moved to suppress two statements that defendant made to the police. Defendant made the first statement when he was questioned by the police at Bennigan's restaurant. Defendant made the second statement after defendant was taken to the police station, and he waived his Miranda rights*fn1 by signing a notification of rights form. The judge granted the motion to suppress the first statement and ruled that the second statement was admissible. Defendant was tried to a jury and found guilty on the five remaining counts of the indictment.
Defendant was sentenced on February 25, 2005. The judge merged count one with counts two, three and four; count two with counts three and four; and count three with count four. On count four, the judge imposed a six-year term of imprisonment, with a three-year period of parole ineligibility, and 400 days of credit for time spent in custody. On count five, the judge sentenced defendant to 393 days of incarceration, with credit for 393 days of time served. Appropriate fees and assessments also were imposed.
Defendant appeals and raises the following contentions:
POINT I: BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART I. PARS. 1, 9 AND 10.) (Not Raised Below).
POINT II: SINCE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION PRIOR TO THE ADMINISTRATION OF MIRANDA WARNINGS, ANYTHING INCRIMINATING HE TOLD THE POLICE WHICH DERIVED THEREFROM SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. U.S. CONST. AMENDS. V, XIV.
POINT III: DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF OFFICER SMITH, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION (Not Raised Below).
POINT IV: THE TRIAL COURT'S FAILURE TO DELIVER A DURESS INSTRUCTION ON THE SECOND, THIRD, AND FOURTH COUNTS OF THE INDICTMENT WAS PLAIN ERROR REQUIRING REVERSAL (Not Raised Below).
We have carefully considered the record in light of the arguments advanced on appeal, and we are convinced that defendant's arguments are entirely without merit. R. 2:11- 3(e)(2).
The State has filed a cross appeal in which it raises the following argument:
DEFENDANT'S SENTENCE FOR THIRD DEGREE HINDERING IS ILLEGAL
The State argues that the trial judge erred by sentencing defendant to a 393-day term of imprisonment, instead of a term of between three and five years, for defendant's conviction of third-degree hindering, as charged in count five. We agree with the State's contention.
A person who is convicted of a crime of the third degree is subject to a term of imprisonment of between three and five years. N.J.S.A. 2C:43-6a(3). Furthermore, N.J.S.A. 2C:44-1f(2) does not permit the imposition of a sentence appropriate for a fourth-degree offense when a person is convicted of a third- degree offense. The statute provides in pertinent part that:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
[Ibid. (emphasis added).]
Accordingly, we conclude that the judge erred by imposing a 393-day term of incarceration for defendant's conviction of third-degree hindering. We therefore vacate the sentence imposed on count five, and remand the matter for imposition of a sentence on that count within the sentencing range prescribed by N.J.S.A. 2C:43-6a(3).
We therefore affirm defendant's conviction and the sentences imposed respecting counts one through four and vacate the sentence imposed on count five. We remand for imposition of a sentence on count five in conformity with this opinion. We do not retain jurisdiction.