April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN E. PENDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-00874-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2008
Before Judges Skillman and LeWinn.
Warren E. Pender (defendant) was indicted on numerous counts of possession and distribution of narcotics. Following a two day trial, a jury convicted the defendant on one count of third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1). Defendant was acquitted on all other counts. At sentencing, defendant received a term of four years imprisonment.
Defendant now appeals, raising the following points:
POINT I: THE PROSECUTOR'S SUMMATION REMARKS DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below)
POINT II: THE TRIAL COURT'S JURY INSTRUCTIONS ON IN-COURT AND OUT-OF-COURT IDENTIFICATION WERE DEFICIENT (Not raised below)
POINT III: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
POINT IV: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
Having thoroughly reviewed the record, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," and, therefore, we summarily affirm both his conviction and his sentence. R. 2:ll-3(e)(2). We add only the following brief comments.
Defendant's first two claims of trial errors are both raised as plain error. Therefore, pursuant to Rule 2:10-2, we disregard such claims unless they are "of such a nature as to have been clearly capable of producing an unjust result . . . ." We find no such capacity in either claim.
The prosecutor's summation comment regarding the State's failure to produce audio tapes or video tapes of the drug transactions at issue, was harmless. Defense counsel had made a speculative comment about the absence of such tapes in her own summation, telling the jury they were not produced because they likely would have been helpful to the defendant. Therefore, the prosecutor's comment was clearly in response to that of the defense. The prosecutor's comments on the evidence were harmless error, particularly in light of the trial judge's charge to the jury that they were the sole judges of the facts and should disregard counsels' comments on the evidence.
The judge's charge on identification was proper and adhered to the Model Jury Charge and the pertinent case law in effect at the time. State v. Romero 191 N.J. 59 (2007), which defendant seeks to superimpose on his jury charge in order to establish error, was decided two years after defendant's trial. In that case the Court proposed language expanding the jury charge on out-of-court identifications, and referred the proposed language to the Model Jury Charge Committee. The Court held that trial courts "should utilize the [proposed] language while the model charge is being reviewed by the Committee." Id. at 76. The court did not render the use of that language retroactive.
Defendant's claim that the verdict was against the weight of the evidence is also raised as plain error. We find it to be without merit. The credibility of the police officers' testimony was for the jury to assess. The fact that the jury did not convict defendant on the drug distribution offenses does not undermine their determination that defendant possessed drugs, as he was found with drugs on his person when searched incident to his arrest.
Finally, defendant's four-year sentence was appropriate and justified by the trial court's findings of fact based on the evidence. State v. Roth, 95 N.J. 334, 363-365 (1984); see also State v. Ghertler, 114 N.J. 383, 388 (1989).
The sentencing judge found the following aggravating factors to exist in defendant's case: risk of recidivism, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors to be present. Nonetheless, the court did acknowledge defendant's progress in a court-ordered drug addiction treatment program, and reduced his sentence term one year below the statutory maximum accordingly.
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