April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCISCO MOJICA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-04-0438.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges Lintner and Alvarez.
Defendant Franciso Mojica appeals from his conviction by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count five); and third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count six).
The trial judge granted the State's motion to impose a mandatory extended term, N.J.S.A. 2C:43-6(f), on defendant as he had a prior conviction for drug distribution. He also merged counts one and two into count three, and merged counts four and five into count six. Accordingly, defendant was sentenced to a ten-year term with a five-year period of parole ineligibility on count three, and a five-year term with three years of parole ineligibility, concurrent, on count six. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm the judgment of conviction, except that we remand for resentencing, as the trial judge did not explain his reasons for sentence in accordance with N.J.S.A. 2C:43-2(e) and R. 3:21-4(g).
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF LOITERING FOR THE PURPOSE OF ILLEGALLY USING, POSSESSING OR SELLING A CONTROLLED SUBSTANCE AS REQUESTED BY DEFENSE COUNSEL.
THE TRIAL COURT'S FAILURE TO ADVISE DEFENDANT OF HIS RIGHT TO CHALLENGE THE VALIDITY OF THE ALLEGED PREDICATE FELONIES MANDATING THE EXTENDED TERM VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE TRIAL COURT'S BALANCING OF AGGRAVATING AND MITIGATING FACTORS CONSTITUTED [JUDICIAL] FACT FINDING BEYOND THAT CONSTITUTIONALLY PERMITTED.
Defendant was observed engaging in two hand-to-hand transfers of packages for money by Paterson Police Detective Ronald Altman and Sergeant Troy Bailey. When defendant was arrested shortly after the second transaction, the officers removed a large plastic bag, containing fifty glassine envelopes and thirteen glass vials, from the back of his waistband. The glassine envelopes were found to contain heroin and the vials contained cocaine. Defendant also had $57 on his person. These transactions occurred within 1000 feet of Paterson Public School Number 11.
First, defendant contends that the trial judge erred in refusing to charge the offense of wandering, remaining or prowling in public places with the purpose of obtaining or selling controlled dangerous substances, N.J.S.A. 2C:33-2.1, as a lesser-included offense to the counts charging possession with intent to distribute. The trial judge reasoned that no lesser-included charge should be given as it would be "inconceivable" that the jury would "disbelieve" the officers' testimony that they observed defendant engaging in drug distributions, but then believe that defendant was loitering in an attempt to obtain or sell drugs. He found it to be particularly "inconceivable" in light of the substantial quantities of both heroin and cocaine found on defendant's person after arrest. Lesser-included offenses are only to be charged when there is "not only a rational basis in the evidence for a jury to convict the defendant of the included offense but . . . also a rational basis in the evidence for a jury to acquit the defendant of the charged offense." State v. Brent, 137 N.J. 107, 113-14 (1994). Because the trial judge found no rational basis for the jury to acquit on the greater charge of possession with intent, but to convict on the lesser charge of wandering, there was no rational basis for him to instruct the jury as to the wandering offense, and he properly declined to do so.
Although not entirely clear, in his second point defendant seems to be challenging the imposition of a mandatory extended term because at sentencing he was not advised of an asserted "right" to contest the validity of the prior convictions on which the sentence was premised. N.J.S.A. 2C: 43-6(f) states that a person convicted of a drug distribution "who has been previously convicted of . . . distributing . . . or possessing with intent to distribute . . . shall upon application of the prosecuting authority be sentenced by the court to an extended term." The State's formal notice of motion for mandatory extended term sentencing was received by the trial court on October 17, 2005. Three judgments of convictions for drug distribution offenses were attached to the moving papers; only one was required for defendant to be eligible for sentencing to a mandatory extended term as a prior drug distributor. N.J.S.A. 2C:43-6(f). The sentence hearing was conducted on February 24, 2006. Certainly, in the four intervening months between the filing of the motion and the sentence, the validity of the prior convictions could have been challenged by counsel. No objection was made.
All the cases cited by defendant, which impose an obligation on a sentencing court to explicitly obtain a waiver of the right to challenge prior convictions, are from other jurisdictions. The cases all relate to situations in which a defendant is actually giving up a right to a jury trial, or other entirely separate proceeding, on the issue of enhanced sentencing. Our statute does require a judicial proceeding in which the sentencing judge must find at least one predicate offense before the mandatory sentence can be imposed, but the proceeding, and the necessary finding, are part and parcel of the sentence hearing. That statutory procedure was followed here.
Once the extended term application was filed defense counsel had the opportunity to challenge the judgments. He had a further opportunity to oppose the State's motion and challenge the prior convictions orally, immediately prior to the imposition of sentence. No explicit waiver was required from defendant because he actually was afforded a judicial hearing and therefore did not waive his right to object. We can only assume from his silence that the prior criminal history was accurate, and that there would not have been a basis to challenge it. That silence is different from a waiver.
A sentencing judge must explain the factual and legal basis which lead him or her to find aggravating and mitigating factors. State v. Kruse, 105 N.J. 354, 359 (1987) (citing N.J.S.A. 2C:43-2(e)); R. 3:21-4(g). Merely enumerating aggravating and mitigating factors does not give sufficient insight into the sentencing decision, and the necessary qualitative analysis. Kruse, supra, 105 N.J. at 363 (citing State v. Morgan, 196 N.J. Super. 1, 5 (App. Div.), certif. denied, 99 N.J. 175 (1984)).
No aggravating factors were enumerated by the trial judge other than N.J.S.A. 2C:44-1(a)(6), defendant's prior criminal history and N.J.S.A. 2C:44-1(a)(9), the need to deter. The trial judge's discussion of the facts and circumstances which caused him to select those two aggravating factors was perfunctory at best. He did not explain why these two factors alone justified imposition of the maximum term. Giving detailed reasons in this case is of particular importance where the sentence imposed is at the highest end of the range. See Kruse, supra, 105 N.J. at 363. It is similarly important for him to explain why the need to deter is of more than general applicability in this case where it is one of only two aggravating factors employed to justify a maximum sentence. Accordingly, the sentence is hereby vacated and the matter remanded for sentencing. On remand, the judge shall follow the dictates of State v. Natale (Natale II), 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006), decided while the matter was pending appeal. Defendant's conviction is affirmed; his sentence is reversed, and the matter is remanded for resentencing.
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