May 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES ALFORD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM ALFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-06-2272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Axelrad and Messano.
We consider in one opinion these two appeals brought by defendant Kareem Alford and co-defendant Charles Alford who were jointly tried and convicted by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1)(count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3)(count two); third-degree possession of cocaine with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-7(count three); second-degree possession of a weapon during the commission of a drug offense, N.J.S.A. 2C:39-4.1(count four); third-degree possession of a weapon, N.J.S.A. 2C:39-5(b)(count five); third-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35(b)(3)(count six); and second-degree distribution of or possession with intent to distribute cocaine within five hundred feet of public property, N.J.S.A. 2C:35-7.1(count seven). The jury acquitted defendants of fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f)(count eight).
The State moved for an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) as to Kareem.*fn1 After denying defendant's motion for acquittal, the judge granted the State's motion and merged counts one, two, three, and six into count seven, and sentenced Kareem to an eight-year term of imprisonment with a four-year period of parole ineligibility.*fn2 On count five, the judge imposed a concurrent five-year term and on count four a consecutive sentence of seven years imprisonment. The appropriate penalties and license suspension were imposed.
The judge effectuated a similar merger of offenses when he sentenced Charles to a seven-year term of imprisonment with a three-year period of parole ineligibility on count seven, a concurrent four-year sentence on count five, and a consecutive seven-year sentence on count four. Similarly, the appropriate financial penalties and license suspension were imposed.
Kareem raises the following points for our consideration:
THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER AN OPINION ON THE ULTIMATE ISSUE OF DEFENDANT'S GUILT. (Not Raised Below)
THE PROSECUTOR'S INTRODUCTION OF EVIDENCE CONCERNING DEFENDANT'S LACK OF EMPLOYMENT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE ON A PANEL THAT HAD REACHED AN ADVANCED STAGE OF DELIBERATIONS. (Not Raised Below)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPROPERLY FINDING AGGRAVATING FACTORS AND FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS.
Charles raises the following arguments for our consideration:
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO UPHOLD THE POLICE OFFICER'S "PREFERENCE" TO NOT DISCLOSE THE SURVEILLANCE LOCATION AND INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENDANT'S COUNSEL FAILED TO OBJECT . (Not Raised Below)
DEFENDANT IS ENTITLED TO RESENTENCING ON THE COUNTS FOR WHICH HE RECEIVED THE PRESUMPTIVE TERM BECAUSE THE TRIAL COURT MAY HAVE CONSIDERED THE PRESUMPTIVE THE LOWEST POSSIBLE SENTENCE GIVEN ITS FAILURE TO FIND ANY STATUTORY MITIGATING FACTORS. (Not Raised Below)
THE SENTENCES IMPOSED ARE FUNDAMENTALLY UNJUST AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The State's first witness was Camden police officer Dan Pleskonko. On March 22, 2004, at around 8:30 p.m., Pleskonko and his partner Ruben Alicea were conducting surveillance at Seventh and Berkeley Streets, a residential area in Camden. A six-year veteran of his department, Pleskonko stated that he personally made "at least a dozen" drug-related arrests at this particular location, and on the night in question, he was engaged in a "sneak and peak" operation in which he and Alicea were observing narcotics sales and drug transactions from a concealed location.
Pleskonko observed the defendants and their co-defendant Rashon Reese.*fn3 He observed an unidentified female approach the group, observed her and Kareem walk a short distance from the corner, saw the woman hand Kareem money in exchange for what appeared to be a small item, and then walk away. Pleskonko, who was approximately fifty feet from the group, did not have binoculars and had only a partial view of the exchange. Although Pleskonko radioed the woman's description to a backup unit in the area, she was never apprehended.
Pleskonko then saw Charles leave the group, head toward the back of an abandoned building, and remove a brick from the building's foundation. Pleskonko was approximately ten feet from Charles and saw him remove a black handgun and a plastic bag, which the officer suspected contained drugs, from the hiding spot. Pleskonko witnessed Charles conceal the bag in the waistband of his pants and replace the weapon in the wall. The officer testified that Reese then waved to Charles, signaling that it was "clear," and all three men again met at the corner.
Once the stash location*fn4 was identified, Pleskonko radioed the arrest team and instructed them to arrest defendants and Reese. While the arrests were made, the officer kept watch over the stash location to ensure it was not tampered with and then personally retrieved a loaded, black 9 mm. Beretta handgun and a plastic bag containing twenty-nine smaller bags of crack cocaine from behind the removable brick.
During cross-examination, Pleskonko testified that none of the three defendants had any drugs or weapons on him when arrested. The bag Pleskonko saw Charles place in his waistband was never recovered despite a search of the immediate area by the officers. When arrested, Kareem had $134 in paper currency in small denominations and Charles had $25.
Alicea also testified for the State and his testimony corroborated that of his partner. The State also called a number of witnesses who identified a school and a public park that were near the intersection in question, as well as investigators from the prosecutor's office who had measured the distances to each and found them to be within the statutory one thousand feet, and five-hundred feet respectively, from the intersection.
Without objection, the State then called Terry King, an investigator with the Camden County prosecutor's office, as an expert in the field of illegal drug distribution. He was familiar with the area of Seventh and Berkeley Streets because of his participation in several street-level narcotics investigations at that intersection.
King described the typical packaging of crack cocaine and opined that the drugs confiscated during defendants' arrests were consistent with "street level packaging" utilized by dealers. He also testified regarding the drug distribution hierarchy or scheme utilized by drug suppliers and dealers; the signals and hand signs typically used by dealers in communicating with each other; and the utilization of stash locations.
At the conclusion of the State's direct examination of King, the following exchange occurred:
Q: Suppose there are three people standing on the corner. Call those people A, B, and C. And someone walks up to them and engages in a brief conversation with all three, then one of them, let's say A, one of the three, leaves with that person and walks down the block. B and C remain on the corner.
Person A engages in a hand to hand transaction where they exchanged items for money. A then rejoins B and C on the corner. And the person that approached A, B, and C leaves the area after a brief time. After A joins the group, then B walks across the street behind an abandoned building, removes a brick, removes a handgun, gets a plastic bag out, places the handgun back into the abandoned building, replaces the brick in the abandoned building, and then walks back across the street, B does, rejoining A and C.
Suppose further . . . that A, B, and C are all arrested, a black handgun is found in the abandoned building along with 29 bags of crack cocaine. Based on that hypothetical question, is that scenario consistent or inconsistent with drug distribution?
A: That would certainly be consistent with drug distribution. And the roles of A and B . . . [are] consistent with that of a lookout and/or director.
The unidentified individual would certainly fall in lines of activities consistent with a typical drug buyer.
As its final witness, the State called Peter Slusser, another investigator with the prosecutor's office, who testified as to the tests conducted on the handgun recovered from the stash location. These revealed that the weapon was operable and that there were thirteen rounds recovered, including a hollow point bullet. The State also introduced evidence regarding the firearm permit searches conducted by the State Police which indicated that neither defendant had a permit to purchase a handgun.
Following the conclusion of the State's case, Kareem called Reese as the sole defense witness. Reese testified that he was at Seventh and Berkeley on the night in question, but claimed that he was working alone, that the handgun and drugs recovered were his, and that neither Kareem nor Charles knew about them. Reese stated that he pled guilty to the charges and wrote a letter to the court claiming ownership of the gun and drugs. However, during cross-examination, Reese conceded that during his plea allocution, he never told the judge that he had acted alone or that Kareem and Charles were not involved. Reese also claimed that he bought the gun on the street and that its serial number was defaced. However, this testimony directly contradicted Pleskonko's testimony that the gun's serial number was still on its barrel.
After summations and the jury charge, deliberations commenced at 1:30 p.m. At 4:15 p.m., the judge convened the attorneys and indicated on the record that he intended to question the jurors as to how long they wished to continue deliberating that evening. Up to that point, no questions or communications had been received from the jury. The judge reminded the attorneys that juror five had "vacation plans," which she disclosed at the beginning of the trial, and there was a possibility that she might need to be excused. Counsel for Kareem stated,
I would not like the jury to be pressured into making decision [sic]. To prolong [deliberations] tonight . . . would . . . pressur[e] them to make a quick decision right here, right now.
I respectfully request that you deny any application by the prosecutor . . . that they remain somewhat longer. We do have alternates as you mentioned. Maybe we need to utilize one of the alternates. I'm not sure what the court's inclination or whether the court will entertain that. But that's the way we should go. Thank you.
Counsel for Charles and the prosecutor agreed; noting the unanimity of all parties, the judge brought the jury out and inquired whether juror five intended to travel the next day as originally planned. The juror was concerned that the jury would have to "start all over again" if an alternate replaced her and told the judge that the jury was "getting close," asking whether "any more time [was] possible" that day. The jury foreperson told the judge that the jury had not discussed the possibility of continuing deliberations that evening. Juror five said she was "torn" between being excused and voluntarily missing her trip to remain on the jury. The judge then excused her from further service and dismissed the other jurors for the day.
The next morning, after placing his reasons for excusing juror five upon the record, the judge asked whether any of the attorneys objected to an alternate being substituted and none did. The judge then replaced the departed juror with an alternate, charged the jury appropriately to begin their deliberations anew, and the jury rendered a verdict at approximately 1:35 p.m.
We turn our consideration first to the points raised by Kareem on appeal.
Defendant argues that the judge erred by permitting King to testify about methods of operation utilized in street-level drug sales; erred by permitting the State to use a hypothetical question that assumed detailed facts corresponding to the facts adduced at trial; and erred by permitting King to express an opinion as to the ultimate issue of defendant's guilt. We disagree.
The proper role of expert opinion testimony in drug prosecutions has spawned much analysis by our Supreme Court and by us. Most recently, the Court re-affirmed the propriety of expert testimony offered by the State in such instances. "Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006). However, the Court also reaffirmed the limits upon such testimony, citing the "guidelines" provided in State v. Odom, 116 N.J. 65 (1989). Nesbitt, supra, 185 N.J. at 512.
Once an expert is properly qualified, he "should then be presented with a hypothetical question through which he or she can advise the jury of the significance of the facts" at issue. Odom, supra, 116 N.J. at 82. Even if the hypothetical facts mirror the testimony already presented with specificity, the Court has held the evidence is admissible if "the hypothetical d[oes] not refer to defendant by name and d[oes] not ask [for an] opinion on defendant's guilt." State v. Summers, 176 N.J. 306, 315 (2003). "[T]he opinion is not objectionable even though it embraces ultimate issues that the jury must decide." Odom, supra, 116 N.J. at 79.
However, the Court has held, "Odom does not license the use of a narcotics expert to tell a jury that which is obvious." Nesbitt, supra, 185 N.J. 514. In a series of cases, we have reversed defendants' convictions because the proffered expert testimony was unnecessary and was simply an attempt by the State to bolster a weak case. State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999); and see State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999)(noting that the State "was not entitled . . . to an enhanced proof opportunity, through expert opinion on the ultimate question, to salvage a potentially insufficient case"), certif. denied, 163 N.J. 10 (2000).
Since there was no objection to King's testimony, we must determine whether its admission was plain error, that is "error clearly capable of producing an unjust result." R. 2:10-2; Nesbitt, supra, 185 N.J. at 514. We conclude that the admission of King's testimony was not error in the first instance and therefore provides no basis for reversing defendant's conviction.
Although the hypothetical utilized by the State closely resembled the factual testimony and King's response may have addressed ultimate issues, no error occurred because the Odom guidelines were followed. The opinion was within the witness's specialized knowledge, it assisted the jury in understanding the functioning of a drug distribution scheme which the average person would not know, it did not refer to defendants by name, and it did not express whether defendant was guilty. Nesbitt, supra, 185 N.J. at 514; Summers, supra, 176 N.J. at 315-17; Odom, supra, 116 N.J. at 79.
Furthermore, given the substantial nature of the State's proofs, the admission of King's testimony could not have brought about an unjust result. Nesbitt, supra, 185 N.J. at 514-15; Summers, supra, 176 N.J. at 316-17. In addition to the eyewitness testimony of the police officers, the drugs and gun were recovered from the nearby stash location. Finally, the judge clearly instructed the jurors that the expert's opinion did not bind them and that they were free to reject it. Thus, the jury was aware that it was the ultimate finder of fact and it should accord whatever weight it deemed appropriate to King's testimony. Ibid.
For all these reasons, the admission of King's testimony did not constitute plain error and does not warrant reversal.
Kareem next argues that the State improperly introduced evidence of his unemployed status as motive for the commission of the crimes alleged and unfairly shifted the burden of proof onto him. Defendant asserts that the admission of this testimony was improper because its probative value was outweighed by the risk of undue prejudice.
Defendant cites the following exchange in the re-direct examination of Pleskonko by the prosecutor:
Q: [W]hen you approached defendant, Kareem Alford, and there was $134 found on him, did you ask him if he was employed?
Q: Did he respond to you?
A: He had no job.
Defendant also points to these comments made by the prosecutor during his summation:
I also want to talk to you briefly about the money that was found on Kareem Alford. It was $135 was (sic) found on Kareem. Okay.
You heard the Officer ask him well Kareem, are you employed? Where do you work? And Kareem said I'm unemployed. Couldn't tell him that he had any job of any kind any where. But he had $134 on him.
First, we note that the testimony of Pleskonko immediately followed this exchange on cross-examination by defense counsel:
Q: If I tell you I have $134 in my pocket, would I be considered a drug dealer?
A: No, you would not.
Q: . . . Correct [sic] if I'm wrong . . . you said earlier he had twenties, and tens, and fives, and ones . . . . And that's . . . synonymous for drug activity?
A: Yes, in a documented drug area, with no job, yes.
Counsel moved to strike the last answer as unresponsive, but the request was denied by the judge. Thereafter, during the prosecutor's redirect, there was no objection to the testimony.
Similarly, the prosecutor's comments need to be placed in proper context. Immediately after making the comments defendant cites, the prosecutor continued,
The money found on Kareem were (sic) in small denominations. There was only one $20 bill, six $10 bills, four $5 bills, and thirty-four ones. Okay. That was the money found on Kareem. And that by itself of course finding $134 on someone is not by itself obviously indicative of guilt of selling drugs. But based on the totality of the circumstances that we find here, the officers testified that that is indicative of drug distribution because the denominations of the money are small.
There was no objection to the summation.
We must consider whether the testimony and the prosecutorial comments in summation amount to plain error. With respect to Pleskonko's testimony, the question is whether "its admission 'is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Frisby, 174 N.J. 583, 591 (2002) (quoting R. 2:10-2). The possibility of such an effect "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Where the alleged error involves prosecutorial misconduct in summation, reversal is only warranted if the error "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In determining whether defendant's right to a fair trial was denied, we examine whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84.
Evidence of a defendant's impecuniosity is generally inadmissible to prove that defendant committed a crime for financial gain. See State v. Mathis, 47 N.J. 455, 471-72 (1966)(granting the defendant a new trial because of the prosecutor's improper inference that the defendant's unemployment status meant he was more likely to commit a criminal offense for monetary gain), rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed. 2d 855 (1971). In State v. Terrell, 359 N.J. Super. 241, 247-48 (App. Div.), certif. denied, 177 N.J. 577 (2003), we reversed the defendant's conviction for possession of CDS with intent to distribute because of the improper question posed by the prosecutor to a defense witness regarding the defendant's lack of employment, the court's failure to sustain the defendant's timely objection to the question, and the prosecutor's subsequent use in summation of the fact that the defendant had $965 on his person when arrested, yet was unemployed.
We concede some similarity between the facts in Terrell and those in this case, but we are convinced that in light of the entirety of the State's evidence, and the lack of any objection by defense counsel, the testimony of Pleskonko and the prosecutor's comment in summation did not amount to plain error.
First, the summation comment about defendant's lack of employment was fleeting and was made in the broader context of the prosecutor's recitation of the small denominations of money defendant possessed when arrested and the meaning of that evidence. This was, of course, relevant evidence in light of King's expert testimony regarding the drug distribution scheme and need for street-level narcotics dealers to have small denominations of money in their possession. While the prosecutor could have, and should have, made this point without reference to defendant's employment status, there was no objection. We gather, therefore, that judged against the totality of the circumstances, defense counsel did not view the comment as particularly prejudicial to defendant. Frost, supra, 158 N.J. at 84.
We assess the testimony of Pleskonko in the same way. When the issue first arose during cross-examination, defense counsel objected to the answer as being unresponsive. The judge took note of the rather open-ended manner in which the question was posed and found it to be responsive. The transcript reveals that defense counsel then again immediately posed almost the identical question to Pleskonko regarding the denominations of the bills recovered, and Pleskonko answered the question without reference to defendant's employment status.
When the prosecutor posed the question regarding defendant's employment status on re-direct, there was no objection. The prosecutor then immediately moved on to have the officer recount the various denominations of the currency seized from defendant by reference to his property and evidence report. Once again, this evidence was clearly admissible and supported the other substantial evidence adduced by the State, including the expert testimony. And, while the prosecutor could have, and should have, elicited testimony regarding the denominations of the currency from Pleskonko without re-hoeing the dangerous ground of defendant's lack of employment, we cannot conclude that the questions and answers cited amounted to plain error.
Defendant argues that the judge erred when he substituted an alternate juror at the end of the first day of deliberations. Relying heavily upon the juror's characterization that the jury "was getting close," defendant argues the judge should have declared a mistrial rather than dismissing the juror and substituting an alternate juror in her place. Since defendant did not raise this issue below, the alleged error must be reviewed under the plain error standard.
The declaration of a mistrial upon the discharge of a sitting juror is within the discretionary authority of the trial judge. R. 1:8-2(d); State v. Valenzuela, 136 N.J. 458, 476 (1994). The judge may also choose to impanel an alternate. Ibid. However, the improper substitution of a juror can be plain error since it has the clear capacity to affect the jury's deliberations. R. 1:8-2(d); Macon, supra, 57 N.J. at 338. Thus, prior to impaneling a substitute juror, the trial judge must address two questions: 1) whether there are grounds for removal of the deliberating juror; and 2) whether the substitution of an alternate or, alternatively, the grant of a mistrial is the appropriate relief. State v. Banks, 395 N.J. Super. 205, 215 (App. Div.), certif. denied, 192 N.J. 598 (2007); State v. Jenkins, 182 N.J. 112 (2004). In making these inquiries, the judge must evaluate the totality of the circumstances and determine whether the jury is well-entrenched in its deliberations thus unable to heed instructions to begin deliberations anew. R. 1:8-2(d); State v. Corsaro, 107 N.J. 339, 349 (1987). If the extent of prior deliberations has made recommencement "unreasonable," a mistrial may be a more appropriate exercise of the trial judge's discretionary authority. Macon, supra, 57 N.J. at 338. The trial judge must also determine whether the cause for the juror's removal was likely to influence the remaining jurors. Banks, supra, 396 N.J. Super. at 216.
Here, the judge exercised his discretion by fully conforming to the dictates of Banks and Jenkins. First, he noted on the record that the reason for the juror's dismissal was her previously disclosed travel commitment. He concluded that having the juror forgo her travel plans to stay on the jury would result in having a distracted juror who may not be able to continue deliberating in a fair, impartial, and focused fashion.
Second, the judge thoroughly instructed the jury that it must begin its deliberations anew and provided the jury with new verdict sheets. Third, it was defendant who suggested the judge should "utilize one of the alternates."
Lastly, in light of the actual course of deliberations, defendant's reliance on the juror's comment that the jury was "getting close" is not persuasive evidence that the jurors were entrenched in their positions prior to the substitution of the alternate. After the new juror was seated and the charge given, the jury posed questions and made requests to review various items in evidence.*fn5 Following these requests, the jury continued deliberations for several more hours until 1:35 p.m., at which time it indicated that it had reached a verdict. Thus, it is unlikely that the jury failed to follow the judge's instructions to begin deliberation anew, and we find no basis to reverse defendant's conviction on this ground either.
Given all we have discussed above, we find defendant's last argument, that the conviction should be set aside because of the accumulation of errors by the trial judge, to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).
We next consider the argument raised by Charles regarding the trial error that he contends requires reversal of his conviction.
Defendant argues that the judge committed error when he permitted Pleskonko not to disclose his surveillance location simply because the officer expressed a "preference" not to do so. He claims this was plain error, or, alternatively, that it was prima facie evidence of the ineffective assistance of his counsel such that a new trial is required.
The issue arose in the context of this exchange between the prosecutor and Pleskonko on direct examination:
Q: And with respect to where you were . . . how were [defendants] walking with respect to where you were looking?
A: I would rather not say . . . because it is the spot that we still use till the day, and because of officer's safety . . . . If I say away, closer, or side-to-side, it might give up that location.
When defense counsel began his cross-examination, the prosecutor objected, and at sidebar noted,
[I]s [defense counsel] asking the officer questions about exactly what he was observing and where he was observing it from[?] . . . [T]here was no motion in this case to disclose the surveillance location.
Therefore, I'm leaning to restrict the questioning to general questions . . . like how far way were you, what the lighting [was], whether they were elevated . . . . There's no motion filed, and therefore, the officer testified on direct that he can't give the specific location.
Defense counsel did not object and agreed not to ask any further questions. The judge then continued [S]ince there was no motion to disclose the surveillance point, and . . . it's obviously something that is a used surveillance point at this time base upon the officer's testimony thus far, I'm going to instruct you to limit your questioning to that.
You can ask about elevation. You can ask about other issues concerning the ability to make observations.
Once again, there was no objection to the judge's ruling.
While the procedure employed by the trial judge did not comply with that outlined by the Supreme Court in State v. Garcia, 131 N.J. 67 (1993), we cannot conclude that plain error occurred. In Garcia, the Court recognized that "in certain circumstances the 'official information privilege' permits the State to conceal the exact location of police surveillance." Id. at 73; N.J.R.E. 515. The procedure the Court adopted required the State to "first convince a court that disclosure would compromise an important public interest." Garcia, supra, 131 N.J. at 77. Thereafter, "[i]f the State meets its preliminary burden for application of the privilege, the court should permit disclosure if the information sought is relevant and helpful to the defense or essential to a fair determination of the case." Id. at 80. "Absent some showing of need by a defendant for the exact surveillance location, the trial court should deny its disclosure." Ibid.
We concede that in this case the issue came up rather spontaneously when the prosecutor began to ask Pleskonko about the location; however, defendant never requested the judge to engage in balancing the competing interests of maintaining the secrecy of the surveillance location and the need for disclosure as required by Garcia. Ibid. Defense counsel opted not to pursue the issue of the officer's exact location, instead deciding to cross-examine Pleskonko about his testimony and the inconsistencies it posed in relation to his police report. Defense counsel also extensively questioned Pleskonko about the observations he made of the street corner and the actions of the various defendants. Absent defense counsel's request to have the officer divulge his exact location, we cannot conclude that the procedure employed by the judge was plain error.
We decline the opportunity to address Charles's corollary claim that his attorney provided ineffective assistance because he failed to demand disclosure of the surveillance location. This implicates the potential for testimony outside of the trial record, and it is better preserved for consideration in any petition for post-conviction relief that may be filed. State v. Preciose, 129 N.J. 451, 460 (1992).
Both defendants raise various issues regarding the sentences that were imposed. We find none of them persuasive and we affirm both defendants' sentences.
Kareem argues that the trial judge improperly found aggravating factors and failed to find an appropriate mitigating factor in reaching his sentencing decision and that a remand is warranted. We disagree.
In sentencing defendant, the judge found aggravating factors three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the judge noted defendant's three prior municipal court convictions, three prior drug-related indictable convictions, previous incarcerations, fines, probationary sentences, a prior probation violation, and his three pending probation violations. These findings amply support the aggravated factors noted. The judge also noted defendant's relative youth, though he did not explicitly find mitigating factor thirteen. N.J.S.A. 2C:44-1(b)(13). We find no basis to conclude that the failure to explicitly find this mitigating factor was a mistaken exercise of discretion because there was no evidence that defendant's conduct was "substantially influenced by another person more mature than" he was. In short, there is no basis to disturb the sentence imposed.
Charles first argues that we should remand the matter so that he may be re-sentenced in accordance with the Supreme Court's holding in State v. Natale, 184 N.J. 458 (2005). He contends that the trial judge may have inappropriately considered the "presumptive term" as the "lowest possible sentence given [his] failure to find any mitigating factors." We disagree.
First, the sentences imposed did not exceed the "presumptive terms" for the crimes, and thus we conclude that Natale is inapplicable. Id. at 494-96. Second, the judge did not utilize the "presumptive term" as a starting point in determining the proper sentence, nor does the record disclose that it even entered into his consideration. We find no merit to the argument.
Defendant next argues that the sentences imposed were "fundamentally unjust and should shock the judicial conscience." We disagree. The judge found aggravating factors three and nine were present; he found no mitigating factors, and defendant has not suggested that any exist. In support of the aggravating factors, the judge noted that defendant had prior adjudications as a juvenile that resulted in a Jamesburg sentence, had repeated violations of probation as a juvenile, had been arrested for four indictable offenses in less than two years since his release from Jamesburg, and had demonstrated a "consistent pattern of criminal activity." Applying the standards of review cited above, we find no mistaken exercise of the trial judge's discretion in imposing the sentence he did.