February 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARSHON STEVENS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 04-03-524 and 04-06-1008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Baxter and King.
Defendant Marshon Stevens appeals from his November 18, 2005 convictions on two indictments, one the result of a trial and one the result of a plea. The first conviction resulted from a trial by jury on Indictment No. 04-03-524, in which he was found guilty of possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).
Defendant was acquitted of counts five through seven, which charged him with distribution of cocaine (count five); distribution of cocaine within 1,000 feet of a school (count six); and distribution of cocaine within 500 feet of a public housing facility (count seven). The trial concluded on September 29, 2004. For a reason that is not explained in the record, sentencing did not occur until November 18, 2005. After merging counts one and two with count three, the court sentenced defendant on count three to a ten-year term of imprisonment, with five years of parole ineligibility. The judge sentenced defendant to the same term of imprisonment on count four, to run concurrent with the sentence imposed on count three.
On July 22, 2005, four months before sentence was imposed on Indictment 04-03-524, defendant pled guilty to one count of an unrelated indictment, Indictment No. 04-06-1008.
Specifically, defendant entered a negotiated plea of guilty to count three, possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. He was sentenced to a ten-year term of imprisonment, with five years of parole ineligibility, concurrent to the sentence on Indictment No. 04-03-524 that was imposed the same day by a different judge. Appropriate fines and penalties were also imposed on each indictment.
On appeal, defendant raises the following claims:
I. THE TRIAL JUDGE ERRED IN HIGHLIGHTING ONLY THE INCONSISTENCIES IN THE DEFENSE WITNESS'S [TESTIMONY] WHEN INCONSISTENCIES IN THE TESTIMONY OF THE STATE'S WITNESS WERE ALSO ELICITED. (Not Raised Below)
II. THE DEFENDANT'S SENTENCES MUST BE REMANDED AS THEY ARE ILLEGAL AND EXCESSIVE. In a supplemental pro se brief, defendant argues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AND SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE.
II. [THE] PROSECUTOR'S COMMENT[S] DURING TRIAL CLOSING ARGUMENTS DENIED DEFENDANT OF A FAIR TRIAL.
We begin by setting forth the facts concerning the evidence adduced at trial on Indictment No. 04-03-524. On December 12, 2003, Jersey City police officer Timothy O'Brien was on routine patrol in an unmarked police car observing the parking lot of a strip mall on Montgomery Avenue. During a ten-minute period, O'Brien observed a black male repeatedly cross Montgomery Avenue as he went back and forth between the strip mall and the Montgomery Gardens Housing Complex. While that individual was standing outside the housing complex, O'Brien saw a male and a female approach him, after which all three immediately crossed back over the four lanes of Montgomery Avenue toward the strip mall. Once they reached the other side of the street, the female handed currency to the black male, who looked around briefly and then exchanged the currency for a small object. Believing he had just witnessed a drug transaction, O'Brien radioed a description of all three individuals and their direction of travel. Based on the description O'Brien had broadcast, Officer James Wilde apprehended the two buyers, Michelle Pallandino and Kevin Maneri, a few blocks away and recovered from Pallandino a vial of cocaine with a yellow cap.
Officer Wilde heard on his police radio O'Brien's description of the black male whom O'Brien had seen selling cocaine. O'Brien described him as six feet tall with a stocky build and wearing a black jacket with white shirttails hanging out beneath the jacket, dark pants and a knit cap. Upon his arrival at the housing complex, Wilde observed a man matching the description O'Brien had broadcast. The suspect was standing in a group of four or five other men. When he saw Wilde approaching him, the suspect reached into his jacket and threw something to the ground. Wilde searched the area where the man was standing and recovered four vials of cocaine with yellow caps. Wilde placed the man under arrest and recovered $540 during a search incident to arrest. O'Brien arrived shortly thereafter and identified the man who had been arrested, defendant Marshon Stevens, as the man he had just observed in a drug transaction with Pallandino and Maneri.
Defendant did not testify, but presented his friend Dwayne Mason as a witness. Mason had known defendant for ten years. On the night in question, both were working in New York City as janitors. After they finished work, they took a bus to the Montgomery Gardens Housing Complex. Shortly after they arrived, defendant saw his sister with her baby. According to Mason's testimony, defendant went upstairs to help his sister and was gone for between five and ten minutes. On cross-examination, the assistant prosecutor asked Mason if he recalled giving a statement to police in which he stated that defendant was gone for only five seconds, not five to ten minutes. When Mason insisted that he had said five or ten minutes, the prosecutor played a tape of that interview for the jury in which Mason had said defendant was gone for five seconds.
Mason also testified about the clothing defendant wore that night. According to Mason, defendant was wearing a blue shirt and defendant's shirt was not hanging out of his jacket. Mason also testified that at the time police arrested defendant, defendant did not throw any objects to the ground.
Defendant also called his mother, Debra Stevens, as a witness. She lived at Montgomery Gardens and testified that on the night in question when her son visited her at her apartment, he was wearing a navy blue shirt. The defense then rested.
The court did not conduct a charge conference on the record. The record contains only the judge's brief comment that he intended to instruct the jury on prior inconsistent statements of a witness. The judge remarked that he had made handwritten notations on his copy of the transcript of Mason's statement to police so that he could use it during his jury charge on prior inconsistent statements. Defendant did not ask the judge to give the jury an example of a prior inconsistent statement made by one of the State's witnesses, nor did defendant voice any objection to the judge's plan to refer to inconsistencies between Mason's prior statements to police and Mason's testimony at trial.
During the jury charge, the judge used the model charge to instruct the jury on prior inconsistent statements by a witness. At the beginning of the judge's instruction on prior inconsistent statements, the judge stated that "[i]n this case, the alleged inconsistency, one of the alleged inconsistencies deals with Mr. Mason . . . ." The judge instructed the jury that Mason's prior inconsistent statement that defendant was only gone for five seconds could be accepted by the jury as substantive evidence. The judge also referred to a second inconsistency in Mason's testimony, by commenting that in Mason's statement to police Mason said that he and defendant were standing in front of building 4, whereas at trial he testified that they were standing in front of building 2.
After providing those two examples of Mason's prior inconsistent statements, the judge stated, "so those are the two that I recall. You may recall more, you may recall less. It's your recollection that controls here. I'm just citing those that I recollect for the purpose of example. . . . Whatever you find to be true, you find to be true." Defendant did not object to any portion of the judge's charge on prior inconsistent statements.
The jury returned a verdict finding defendant guilty only of the four counts that pertained to Officer Wilde's observation of defendant dropping vials of cocaine to the ground as Wilde approached him in the courtyard, as set forth in counts one through four of Indictment 04-03-524. The jury acquitted defendant of counts five through seven, which alleged that defendant sold cocaine to Pallandino.
On July 22, 2005, prior to sentencing on Indictment 04-03-524, defendant appeared before Judge Kenny and entered the negotiated plea of guilty to one count of third-degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. The State explained that in exchange for defendant's plea of guilty to that charge, the State would recommend at the time of sentencing that defendant be sentenced to a ten-year term of imprisonment, five years without parole eligibility, to run concurrent to the sentence that Judge DePascale would be imposing on the charges that resulted from defendant's conviction at trial under Indictment No. 04-03-524. The defense attorney made some additional statements about the factors that entered into that plea agreement. He explained:
The State's position [is] that if [defendant] would enter a plea today, they would cap the offer at 10 with five because there are second-degree charges in this indictment and there's also a second-degree charge that my client was convicted of. . . . I don't want the court to think that I'm asking for too much time on behalf of my client. I know it's discretionary with the court as to what the extended term sentence is, but [the assistant prosecutor] was quite emp[h]atic that his supervisors have indicated that, if Judge DePascale were to exercise some discretion and give [defendant] less than 10 with five, then this offer would be off the table and it would be a consecutive sentence because [this indictment] happened while he was pending disposition of that charge.
So we are all in agreement, both my client, myself, and the prosecutor, that we anticipate Judge DePascale sentencing my client to a 10 with five and that Your Honor would do the same so that there's consistency within the sentencing of [defendant]. It is my understanding that in return for that, [the assistant prosecutor], on behalf of the State, would not argue for an extended term on the 500 foot charge that my client was convicted of next door because he is discretionary extended term on that charge.
So I just want Your Honor to understand that I know that in other situations it's a discretionary call on your part as to what the maximum sentence is.
THE COURT: You will not ask me to exercise my discretion.
[DEFENSE ATTORNEY]: No, Judge, because it would severely impact my client because . . . [the assistant prosecutor] would probably want to sentence him here first and then be sentenced by Judge DePascale because this wasn't a trial. This is a plea.
I would rather be at the top of the third-degree range than the top of the second- degree range and extend[ed term] . . . on a consecutive.
Judge Kenny then asked defendant if he understood those considerations, and he answered yes. A few moments later, the judge explained to defendant that: the real benefit that you are getting here is the concurrency because [the assistant prosecutor] having tried the case and been successful across the way and having a separate case over here if you were convicted here, he would be well within his rights and, in fact, the law would tell me that absent the plea agreement, I should be giving you a consecutive sentence. Do you understand that?
On November 18, 2005, before Judge Kenny imposed the sentence on the negotiated plea under Indictment 04-06-1008, the prosecutor described the plea agreement as "a 1,000 foot contract plea." For his part, defense counsel, in keeping with the binding terms of the plea agreement, did not ask Judge Kenny to undercut the plea agreement. Indeed, he urged her to accept the plea agreement and to sentence defendant to the agreed-upon concurrent sentence. Judge Kenny imposed the ten-year term of imprisonment, with a five-year period of parole ineligibility, that had been discussed during the plea colloquy on July 22, 2005. Judge DePascale imposed the identical sentence as a result of the trial, and both sentences were ordered to be served concurrent to each other.
We turn first to defendant's argument concerning Judge DePascale's charge on prior inconsistent statements of a witness. As we have observed, defendant raised no objection to that charge. Accordingly, we evaluate his contentions under the plain error standard, Rule 2:10-2, and will not reverse unless the error is "clearly capable of reducing an unjust result." Ibid. Not any possibility of an unjust result will suffice. State v. Macon, 57 N.J. 325, 336 (1971). The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.
Defendant argues that the judge erred when he provided examples of inconsistencies in Mason's testimony, but then failed to include an example of a prior inconsistent statement made by one of the State's witnesses. Specifically, he points to the inconsistency between Officer Wilde's testimony that defendant wore a white shirt and defendant's arrest photograph that showed him wearing a white shirt under a blue shirt. We agree with the State's argument that the jury charge on prior inconsistent statements of witnesses does not encompass a discrepancy between witness testimony and a photograph. Accordingly, defendant was not entitled to an instruction that would have focused on the discrepancy between Wilde's testimony and the photograph.
Moreover, if there was error, which there was not, it clearly did not produce an unjust result. Defendant contends that the judge should not have provided the jury with the example of the discrepancy between Mason's trial testimony that defendant was with his sister for five to ten minutes and his statement to police that defendant was gone for only five seconds. We note that defendant argued to the jury that he could not have been the person who sold cocaine to Pallandino and Maneri because he was with his sister during the time O'Brien claims that he observed defendant selling cocaine to the two buyers. The jury likely accepted that argument because it acquitted defendant of counts five through seven that pertained to the observations that O'Brien made of defendant selling cocaine to Pallandino and Maneri in front of the Montgomery Gardens Housing Complex. Thus, even if there had been error in the charge, it did not produce an unjust result in light of the jury's acquittal of defendant on counts five through seven.
In Point II, defendant argues that the sentences imposed by both judges were excessive and illegal. We disagree. In support of that argument, defendant relies upon our opinion in State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002). There, we held that "a defense attorney must have an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement." Id. at 501. The sentence in Briggs barred defense counsel from "request[ing] a sentence of less than twenty years." Id. at 502. Although defense counsel did argue some mitigating factors, and the judge ultimately imposed a base term of eighteen years, two years less than the term called for under the plea agreement, ibid., we nonetheless reversed the sentence because we could not "say with confidence that the restriction upon defense counsel did not affect her ability to present a cogent and meaningful argument at sentencing." Id. at 503. Defendant's reliance upon Briggs is misplaced because the facts of Briggs make its holding inapposite.
There, the defendant entered a plea of guilty to first-degree aggravated manslaughter as a lesser-included offense of the murder charge for which defendant had been indicted. Id. at 499. Nothing in the record explained why the parties included in the plea form a prohibition on the defendant's ability to request a sentence of less than twenty years. Ibid.
Here, in contrast, the record fully explains why defendant was precluded from asking the court to undercut the plea agreement. As his attorney explained, defendant received an enormous benefit when he surrendered his right to request Judge Kenny to undercut the plea agreement. In particular, as the record reflects, the State agreed to forego its right to seek a discretionary extended term sentence on the indictment that was the subject of the trial. Additionally, by surrendering the right to ask either judge to impose a sentence of less than ten years, defendant was guaranteed a concurrent sentence on the two indictments.
We agree with the State's argument that if defendant had not entered into the "contract plea," he would have faced the strong likelihood of consecutive sentences. N.J.S.A. 2C:44-5(h) provides that:
When a defendant is sentenced to imprisonment for an offense committed while released with or without bail, pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the court, in consideration of the character and condition of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others.
The charges underlying Indictment No. 03-04-524 were committed on December 10, 2003. Defendant was out on bail and indicted on those charges when he was arrested on April 13, 2004 on the charges that resulted in Indictment No. 04-06-1008. Pursuant to N.J.S.A. 2C:44-5(h), defendant would have received consecutive sentences for the convictions unless the exception contained in 2C:44-5(h), avoiding a serious injustice, was satisfied.
Moreover, defendant also faced the possibility of a consecutive sentence on the second-degree disarming a law enforcement officer charge that was embodied in count twelve of Indictment No. 04-06-1008. See State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). A conviction on that count would have exposed defendant to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(5), in which case he would have faced a ten-year term of imprisonment, subject to eight and one-half years without parole eligibility.
Not only did the "contract plea" that defendant now attacks secure all of these benefits, but it also resulted in the dismissal of the other fourteen counts of Indictment No. 04-06-1008. Under these circumstances, we conclude that the doctrinal underpinning of Briggs is simply not present here. Unlike in Briggs, where for no apparent reason the defendant forfeited the right to ask the judge to undercut the plea agreement, here, the reasons for the "contract plea" are amply explained in the record and the benefits defendant received from that arrangement are enormous. Thus, Briggs is inapposite. For that reason, we conclude that even though defendant's sentences were the result of a "contract plea," his sentences were not illegal.
We turn now to defendant's contention that his sentences were excessive because each one was at the top of the sentencing range for the offense in question. An appellate court should not modify a sentence unless the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Where there is a claim that a trial court abused its sentencing discretion, an appellate court "must undertake a careful and vigorous review," and must not "simply substitute its own judgment for that of the sentencing court when disagreeing with the sentence imposed." State v. Kirk, 145 N.J. 159, 175 (1996).
Both judges found the existence of the following aggravating factors: number three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); number six, the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and number nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). In light of defendant's record, which includes three indictable convictions for crimes committed on three separate dates,*fn1 we find no error in the judge's reliance on these three aggravating factors.
Defendant does not argue on appeal that any mitigating factors were present that either of the judges ignored. Under all of these circumstances, we conclude that the sentences imposed were well within each judge's sentencing discretion in light of defendant's prior record and in light of the considerable benefit defendant received from the "contract plea." We accordingly reject the argument he raises in Point
Defendant also argues that counsel's performance at sentencing constituted ineffective assistance of counsel. Although such claims are generally best addressed in the context of a post-conviction review proceeding, State v. Preciose, 129 N.J. 451 (1992), here the record is sufficient to enable us to fully review defendant's claim of ineffective assistance of counsel. As we have discussed, counsel's performance was far from deficient. Indeed, counsel successfully negotiated an extremely beneficial plea agreement that avoided the virtual certainty of consecutive sentences on the two indictments, as well as the risk of an extended term sentence on the indictment that was the subject of the trial. Defendant's arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We next address the arguments defendant raises in his supplemental pro se brief. In Point I, defendant argues that the trial court erred in denying his motion for a new trial. The record demonstrates that defendant never filed a motion for a new trial or a motion to set aside the verdict as against the weight of the evidence. Therefore, we reject the argument defendant raises in Point I of his supplemental brief.
In Point II of his supplemental brief, defendant argues that the prosecutor's comments during his closing arguments were improper and deprived him of his right to a fair trial. He maintains that the prosecutor stated in his closing argument "is it possible that [defendant] could have went and changed his shirt after making the deal," and that by such comment the prosecutor improperly personally vouched for the credibility of the State's witness. By so doing, defendant argues that the prosecutor improperly attempted to shift the burden of proof onto defendant. We disagree. Defendant's mother, Debra Stevens, testified that on the night in question, defendant came to her apartment to join in her birthday celebration and was wearing a navy blue shirt, not the white shirt that Officer O'Brien had described. We do not view the prosecutor's comment that defendant might have changed his shirt at his mother's apartment after she saw him as an instance of vouching for the credibility of the State's witnesses. Accordingly, we reject the argument defendant raises in Point II of his supplemental brief.