June 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN D. FITZGERALD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAWSHON T. FITZGERALD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAWUD FITZGERALD, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAWMEEN FITZGERALD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-0819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 7, 2008
Before Judges Stern, Collester and C.S. Fisher.
Defendants Dawmeen Fitzgerald, Dawshon Fitzgerald, Dawud Fitzgerald, and John Fitzgerald, were charged in an indictment, along with thirteen co-defendants, with numerous drug trafficking offenses. The Fitzgeralds were tried together from February 24, 2005 to March 15, 2005. Dawmeen, Dawshon and Dawud were found guilty on all counts; John was found guilty on only some. The State successfully moved for the imposition of an extended term for each defendant, and, on April 22, 2005, Dawmeen, Dawshon and Dawud were each sentenced to an aggregate term of life, plus one-hundred years, with a sixty-five year period of parole ineligibility. John was sentenced to an aggregate term of life, plus forty years, with a fifty-year period of parole ineligibility.
All four defendants appealed. We calendared these appeals together, and now, by way of this single opinion, affirm their convictions and remand for resentencing.
Defendants, Dawmeen, Dawshon and Dawud, are brothers; John is their uncle. Much of the evidence presented by the State at trial against these four defendants was obtained as a result of wiretap applications and search warrants; the State also presented the testimony of police officers and two co-conspirators. This evidence permitted the jury to find that defendants operated a large-scale drug distribution network.
In gathering this evidence, the police applied for and were permitted in November 2002 to intercept calls to phone numbers assigned to Tamisha Fitzgerald, 17 Mravlag Manor, Elizabeth. By way of a 281-page affidavit dated December 16, 2002, the police obtained "no-knock" search warrants for various locations in Elizabeth, Newark and Roselle.
A. The Search Warrants
The warrants were executed at ten different locations in Elizabeth, Newark and Roselle at 6:00 a.m., on December 17, 2002. In considering the weight of the evidence amassed by the State against defendants, it is helpful to review the results obtained from the search warrants.
1. 82 Second Street, Apartment Two, Elizabeth*fn1
The police forced open the doors of this apartment and chased Angel Aviles, Shariek Hiett and Duane Wells, to the third floor. Wells "discarded some narcotics," later confirmed to be twenty bags of heroin, as he ran. All were quickly apprehended. Kiahna Hall, Terry Williams, Sherrod Britt, Cynthia Lewis, Leon Jenkins and Erick Faulk were also found inside the apartment. When the police ordered Aviles, Hiett and Wells to show their hands, Hiett placed six "bricks" of heroin on the step next to him.*fn2
The heroin discarded by Wells was an "open brick."
After the individuals found in the apartment were "transported for processing," thirty-three gold-capped vials*fn3 containing cocaine were found on the floor where Wells was seated; Wells was also found in possession of $79 in cash. Aviles had six bags of heroin in his right pants pocket and $126 in cash. The police found five bricks of heroin wrapped in "lottery paper" in a Knicks jacket, as well as a Nextel cell phone, charger, binoculars, and two Motorola "walk about walkietalkies" in the kitchen. The cell phone recovered was identified as one of the phones subject to the wiretap. Its directory included private service numbers, which allowed the use of the "push-to-talk" or a "direct connect number" for Dawshon and Dawud; both of those phone numbers were also subject to the wiretap. The directory of the seized cell phone included telephone numbers for, among others, co-conspirators Tyshon Jones, Charlotte Hall, Marc Stuckey, Jamarl Maye, and Aviles.
At trial, Aviles and Britt testified for the State that the CDS found in the apartment was "possessed with the intent to distribute." Aviles identified the "Rush" stamp on the heroin envelopes as the "Fitzgerald brand heroin," which was being sold at the apartment that morning. Britt testified that the cocaine belonged to Dawmeen.
In one of the bedrooms, the police found $187 in cash on top of a dresser. On a coat rack in another bedroom, the police found a "Phat Farm brand coat" containing five bricks of heroin and another jacket containing 100 vials of suspected cocaine. In a third bedroom, police found $464 in cash in a dresser and a record book with the words "record holla" on the cover; Aviles testified at trial that this book contained "drug records in terms of how much have [sic] been received and sold and money passed back." A "red talk about radio walkie-talkie" was found in a coat in the front bedroom. Aviles testified that the walkie-talkies were used by the lookouts outside of the building.
2. 84 Second Street, Apartment Four, Elizabeth
The six-unit apartment building at 84 Second Street is "connected physically" to the buildings at 80 and 82 Second Street. Once secured, the police found Amatullah David and Jahmin Muse in the first bedroom and Marc Stuckey in the second bedroom. The police seized $208 from Stuckey and $195 from David.
In the room where Stuckey was found, the police found "items that are consistent with packaging of drugs for distribution" -- namely, two digital scales, two tape dispensers, an empty box of sandwich bags, a box of small wax or glassine envelopes, an ink pad and two boxes of rubber bands.*fn4 A small ceramic saucer and a small "utensil type of tool" with a spoon on one end and point on the other were found in the same location.
In the closet, the police found a pair of black Adidas tennis shoes containing twenty-four wax envelopes of heroin, two pink-capped vials of cocaine and another bag of cocaine. On the floor of the closet were two other bags -- one bag contained fifty vials of cocaine with either pink or blue caps and two wax envelopes of heroin, and the other bag contained twenty bags of vial caps in various colors, twenty boxes of vials, and some wax envelopes. A child's backpack, also found in the closet, contained four boxes of empty wax envelopes (some were stamped "Mo Money" in blue ink), two ink stamps for "Mo Money" and "Da Take Over," three blue ink stamps, a metal strainer, a small glass pestle and a bag with suspected cocaine. According to expert testimony, the stamps are of the type used to designate the dealer's "brand name."
The search also uncovered surveillance equipment, namely, a small camera on the back porch pointed at the stairs and connected to a monitor in the living room of the apartment. In the kitchen, the police found "several hundred very small empty plastic ziploc type bags." Walkie-talkies were found in the first and third bedrooms.
3. 42G Mrvalag Manor, Elizabeth
The police found Dawmeen, Laquanda Boone and a child under the age of one inside this apartment. No drugs were found.
In a basket of papers in one of the bedrooms, the police found Dawmeen's birth certificate and a letter addressed to "Doc" at 651 Elm Street in Roselle. Also found was $39,796 in cash in a dresser drawer and $16,000 in cash in a laundry basket next to the dresser. In the other bedroom, the police found $2,352 in cash in a purple bag stashed between the mattress and springs of a baby crib. In the living room, the police found a bag containing $31,000 in cash that fell out when the couch was flipped over.
The police found a Nextel cell phone that had "connections" to the phones subject to the wiretap used by Dawshon and Dawmeen.
4. 636 Franklin Street, Second Floor, Elizabeth
After forcibly entering this apartment, the police found Dawud, Laverne Graves and Melissa Jeter inside. No drugs or drug paraphernalia were recovered.
Two cell phones were found. One of the phones was subject to the wiretap and contained several "entries," including the push-to-talk numbers for Dawmeen, Dawshon and other co-conspirators.
The police also found mail addressed to Dawud at 636 Franklin Street, second floor, Elizabeth, a letter addressed to "Duke" and "Dukeman," and a New Jersey picture identification of Dawud.*fn5 The police also found a car title in the name of Aviles.
Sergeant John Murphy testified that he found $6,010 in cash in a "red Madeline bag" at the foot of the bed in the front bedroom of the first floor. Although Murphy testified that he searched the first floor, the State sought to prove that Murphy's recollection was incorrect and that he actually searched the second floor, which was covered by the search warrant. Another officer testified that he recalled Murphy searching the second floor apartment with him. And a detective testified that he received the $6,010 in cash from Murphy and, although he did not know which floor it was recovered from, he testified that Murphy searched the second floor of the apartment where he (the detective) had also been searching.
Paperwork, receipts, photographs and a checkbook were found in a shoe box in a closet in the front bedroom. A receipt showing that Dawud, listed as "Duke Fitzgerald," paid $2,000 for the November 2002 rent on 82 Second Street, apartment two, was also found in that box.
In the back bedroom, the police found $437 in cash, and a pair of pants containing Dawud's New Jersey driver's license, which listed 636 Franklin Street as his residence.
5. 307 Clinton Place, first floor front apartment, Newark
This location is within 100 feet of an elementary school. The police found the first-floor front left apartment empty; it did not appear to be lived in "on a regular basis." In the bedroom night stand, the police found two handguns: an Intratec 9 (Tec-9) and a Glock .40 along with an extended clip. The police also found a loaded .32 caliber handgun with four extra rounds in a dresser, and a digital scale still in its original packaging in a hall closet.
The Tec-9 was found to be operable, with a capacity of over fifteen rounds. Aviles testified that both the .32 and .40 caliber weapons were kept at 82 Second Street, and at times he carried the Tec-9 for protection. Britt testified that he also carried the Tec-9 when he left the building, and the .40 caliber gun belonged to Muse.
6. 651 Elm Street, Roselle
When the warrant was executed, Laverne Jackson, Jameica Jackson, and three children, between the ages of six and twelve years old, were found inside. Franklin Jackson, Sr. was stopped by the police outside of this single-family residence.
In the first floor bedroom where Jameica was sleeping, police found $431 in cash. In the same room, they found a plastic bag containing $6,001 in cash, and two Gucci bags, each containing $2,400 and $2,000 in cash. The police also found a small unlocked safe containing $93,515 in cash and a plastic bag with $1,810 in cash. The parties stipulated that the police found several bags containing paperwork in a bedroom closet, including letters and bills addressed to Dawmeen at 651 Elm Street.
A green container, found in the master bedroom, contained various bills in the name of Jackson, Sr., and a May 28, 2002 bail receipt signed by Jackson, Sr., for Britt. A large locked safe was found in the master bedroom containing $445,450.
7. 414 Franklin Street, Elizabeth
The police forcibly entered this single-family house. In a bedroom where Theodore Wayne Patterson was located, the police found a grinder with a "yellowish white" residue, a scale, "a jar containing a white powdery substance," which was later determined to be baking soda, thirty-eight bags of 100 gold caps each, and twenty-eight boxes each of which contained 100 clear vials, which are typically used to hold cocaine and heroin.
8. 271B Third Street, Elizabeth
In the rear bedroom, the police found a shoe box on top of a pile of clothes behind the door. Inside the box were various items, including stamp pads, tooth brushes, loose rubber bands, a phone card, soap with a white powdery substance on it, and a box of glassine envelopes. In the same pile, the police found a plastic bag with nineteen more boxes of glassine envelopes and a bag with "a brown substance in it."
9. 307 Clinton Avenue, first floor rear apartment, Newark
Tyshon Jones was found inside this apartment. In a hall closet, police found a "Papaya bag" containing rubber stamps, stamp ink pads, dust masks, a small digital scale, and a ziploc bag containing smaller ziploc bags. Other similar materials were found in other locations in the apartment.
In the pantry, the police found three plastic bags that contained smaller bags with "a white rock-like substance" in one bag, a brownish powder in two others, and two dinner plates holding suspected drug residue. A "Sprint phone document" bearing the name Tyshon Jones was found in the kitchen hutch along with a black plastic bag filled with "a powder." On the table, police found a white plastic bag with four razor knives. Two Western Union receipts in Jones's name were found above the refrigerator.
In a dresser in the master bedroom, the police found nineteen rubber stamps, several plastic spoons, ink pads, a bottle of ink, playing cards, and a card bearing the name Angel Aviles. Aviles testified that he left his plastic identification card there "so we could use it to chop up the dope." A Sprint cell phone was found on the floor near the window. Also found was a cable television bill in name of Jones and a Nextel cell phone bill in the name of Tamisha Fitzgerald.
In the second bedroom, police found sixty cardboard boxes containing approximately 36,000 glassine bags; some were marked with a stamp and others were new and unused. The closet also held boxes of scotch tape, tape dispensers and "thousands" of rubber bands in boxes. A box with 162 glassine envelopes were stamped and contained a white powdery substance. The closet also contained a folded white paper with white powder in it, a bottle of quinine, and a black "Dr. Jay's bag" containing various packaging material and an identification card for Aviles.
In a hall closet, police found eight electric coffee grinders, some of which appeared to have been used for "grinding some type of white powder."
10. 607 South Park Street, second floor, Elizabeth
After forcibly entering this single-family residence, the police found Dawshon and Jewel Jones in one bedroom; Jewel Jones's adult brother and two small children were found in other bedrooms.
The police found two digital scales and seven boxes of ammunition for .40, .45 and .38 caliber weapons in a utility closet. In the master bedroom, police found Verizon cellular telephone bills in Dawshon's name, utility bills in Dawshon and Jewel Jones's name showing an address of 607 South Park Street, a $1,698.16 Nextel phone bill in the name of "Tamisha Fitzgeral[d]," a gas bill addressed to Jewel Jones at 311 Franklin Street, a gas bill addressed to Dawshon at 607-609 South Park Street, a December 1, 2002 rent receipt with the name Terry Williams and an address of 82 Second Street, apartment two, Elizabeth, a money counting machine, a letter from Tyshon Jones addressed to Dawud and Dawshon, a bank card and a New Jersey identification card in Dawshon's name in the dresser, a "drug record" notebook with dates and numbers, a bag of cash in the dresser, a bag of cash in the entertainment center, and two Nextel phones. The police also discovered "thousands of dollars in cash" in plastic bags, a shoe box and dresser drawers. In total, the apartment search uncovered $90,728 in cash.
One of the phones that was seized there was subject to the wiretap. The "address portion of the phone" had three "entries" for Dawmeen, including his home and push-to-talk number. There were also entries for other co-conspirators. A second phone that was found belonged to Jewel Jones and had listings for Dawshon and Dawud at numbers that were subject to the wiretap.
B. Aviles's Testimony
Along with the considerable evidence obtained through the execution of search warrants and wiretaps, the State presented at trial the testimony of Aviles, who testified that he was "engaged in the active distribution of narcotics" during the time of the investigation, i.e., November 19 to December 17, 2002.*fn6 Aviles testified that he and other "workers" were paid each week by Dawshon, Dawud, or someone else on their behalf, from "a bundle of cash."
Tapes of intercepted calls were played for the jury, and Aviles testified as to the individuals involved and interpreted the content of the conversation for the jury.
In the first conversation played for the jury, Dawud told Aviles that a "narco" or police car with a specific license plate was in the area and directed the workers selling drugs at 82 Second Street to be careful. Using walkie-talkies, Aviles then warned the lookouts. In other calls, Dawud gave Hiett approval to sell a whole brick of heroin for $300, rather than the normal price of $350, checked on the supply of drugs, and whether they "opened" for business on time. In one call, Dawud checked with Tyshon Jones to make sure they had enough heroin to package.
In another conversation, Dawmeen called to warn about police in the area and to determine whether Aviles either had "locked down" or already "closed down the house," meaning a cessation in the selling of drugs. Almost one-half hour after one call, Dawmeen called back to report that "everything's clear," and Aviles "[r]eopened" for business. Aviles testified that he spoke to defendants about police activity in the area "[a]lmost on an everyday basis." In another conversation, Dawmeen called Aviles to complain that the lookouts were just sitting on the porch and instructed Aviles to get them to their "post[s]." Dawmeen also called to check on the supply of cocaine.
In several conversations played for the jury, Aviles called Dawshon and said "[n]eed you," or "down to our last ten," meaning he was running low on drugs. In another call, Hiett told Dawshon to bring more heroin. Dawshon also called Aviles to check on how many bricks of heroin Aviles had left.
There were other conversations in which Dawshon called about a shortage of money or about keeping the money for the cocaine and heroin separate. For example, Dawshon called Aviles to report that he got only $136 for a brick of heroin, when the normal price was $350. They then argued about someone named April who "took a hundred," meaning $100, and "two wake-ups," meaning two bags of dope.*fn7
Dawshon placed another of these calls because Aviles had paid Dawud for fourteen bricks, instead of fifteen bricks, and Aviles had to go outside to bring Dawshon the rest of the money.
Dawshon also spoke to Aviles when the $350 bricks were "coming up 300" instead. On several occasions, Dawshon told Aviles that he would be held responsible for the difference in price if bricks were sold for $300 without prior approval or if the money collected was short.*fn8
Aviles testified that he sold drugs, specifically heroin and cocaine, under Dawshon's "direction" and that he also took "directions and orders" from Dawud and Dawmeen, but not John. Aviles testified he was "hired" in 2000 to drive Dawmeen around but then later went to work with Dawshon and Dawud selling heroin. Aviles called John "one of the workers," and he testified that he also sometimes gave John instructions; he did not view John as a "leader" in the organization.
When asked to describe the division of labor among the defendants, Aviles testified that Dawshon "did the dope," Dawmeen "did the coke," and Dawud "just made sure everything ran, ran right." When asked if John had "a role in supervising any of the other lookouts," Aviles responded "[y]ou could say in a way." Aviles also said that John was supposed to be a lookout, but he "didn't do anything"; John "just hung out outside, drank beer and got high." However, when the other defendants were around, John would do "what he was supposed to do" and make sure "his face was seen."
John was only involved in a couple of the intercepted phone calls. In one, John and Dawud discussed starting a "war" with other drug dealers; in another, John is overheard telling Williams to open the door to 82 Second Street and talking about needles used to "shoot dope."
Aviles testified that he starting "serving people" just before 5:30 a.m. each morning. Based on one conversation between Dawud and Aviles, Aviles once had 100 people waiting in line to buy drugs and sold twenty-one bricks of heroin before 3:00 p.m. that day. Aviles also testified that statements made during a conversation between Hiett and Dawud demonstrated that they had sold eight bricks by 9:17 a.m. that morning. Aviles testified that he could "go through" or sell more than thirty-seven bricks of heroin in the course of a day.
Aviles identified the individuals involved in the drug trafficking. Dawud usually brought the drugs to 82 Second Street, apartment two, where Aviles lived, but Dawmeen and Dawshon "usually had somebody do it for them," like Wayne Patterson. Muse lived upstairs from that apartment and sometimes assisted defendants in transporting drugs until he was forcibly "kicked out of the organization" for "putting his own product in the building." Britt worked as a lookout and "inside sometimes." Hiett, a juvenile at the time, "played a role in picking up money and transporting money." Maye would drive people from the "lab" in Newark, where drugs were "mixed" or "cut" and packaged, to the apartment at 82 Second Street. Tyshon Jones also made "runs" between Newark and Elizabeth. Marc Stuckey sometimes assisted Aviles in selling and storing drugs at 84 Second Street, apartment four. Charlotte Hall, one of Dawshon's girlfriends, used to drop off drugs after they had been packaged.
Aviles also testified that he worked "out there" -- meaning Newark -- on occasion. The drugs were mixed in Newark using dinner plates, like the ones found during the search of 307 Clinton Avenue. Dawshon had several people who worked for him in Newark to "help bag up" the drugs; one lengthy intercepted conversation referred to delays in "bagging up" and problems with those doing the packaging. Fifty-five bricks of heroin, or normally a "plate and a half," could be prepared at the Newark lab in a day. There were several intercepted conversations during which Dawshon checked on how many bricks had been prepared.
Aviles also described how the operations at 82 Second Street, apartment two, were conducted. He testified that drugs were brought in the front door and customers -- approximately a "couple hundred" per day -- were served at the back door. "Anywhere from 50 to 70" bricks of heroin were sold each day, and "[a]nywhere from five to ten" packs or bags of cocaine were sold each day.*fn9 At 10:00 p.m. each day, Aviles would hide the remaining drugs and write down a record of the drugs he sold and the money he collected.
Aviles testified that Dawshon was primarily responsible for picking up the heroin, usually in quantities of a half or whole kilogram, which cost approximately $60,000. The heroin would be packaged into small ziploc bags first and then repackaged into even smaller quantities.
In an intercepted conversation between Dawud and Dawshon, Dawud stated that he was bringing money for ten bricks of heroin to Dawshon's house on South Park. Dawmeen collected the money for the cocaine and thereafter threatened harm when he thought Aviles or Hiett were selling their own drugs instead of his.
C. Britt's Testimony
The State also relied upon the testimony of Sherrod Britt, who was then serving a sentence of eighteen years with eight years of parole ineligibility.*fn10 At the time of the investigation, Britt acknowledged that, with Aviles and Hiett, he was "selling drugs on a daily basis" for Dawshon at 82 Second Street in Elizabeth. Britt testified that he was paid by Dawshon, but the money was delivered by Tyshon Jones. On cross-examination, Britt agreed that he and Aviles "were actually running 82 Second."
Britt identified the roles of others in the organization. Tyshon Jones "did all the bagging up" of the heroin at 307 Clinton Place in Newark, Muse and Maye dropped off heroin and collected money, Patterson dropped off cocaine, Terry Williams opened the door for customers at 82 Second Street in order to manage the "heavy traffic flow," Leon Jenkins built places to stash money and reinforced the door at 82 Second Street, Al Raheem Campbell was "more or less a supervisor" and "basically watch[ed] over" the apartment to "make sure everybody was doing what they supposed to be doing," Stuckey "help[ed] out" if they were "shorthanded," Eric Fault and John Fitzgerald served as lookouts, Hiett "played like several different roles" including counting money, Charlotte Hall, who was identified as Dawshon's "mistress," stamped the bags of heroin at 307 Clinton Place, and Jewel Jones collected money a few times.
According to Britt, John Fitzgerald was "in charge of the lookouts" and "made sure all the lookouts [were] at the locations they were supposed to be at." John's main "post" was the back porch, and he stayed in touch using the walkie-talkies. "[W]hen there was heavy police activity," John would supervise up to five or six lookouts. On cross-examination, Britt admitted that John "would often be out there drinking," and often, as a result of being either high or drunk, John did not show up for work. Britt also acknowledged that John "was put to menial tasks" since "he wasn't competent enough because he was high or drunk most of the time" and that he (Britt) or Aviles actually hired and paid the lookouts.
Britt echoed Aviles's testimony regarding the business at 82 Second Street. He testified that drugs were dropped off through the front of the building and customers were served at the back door. It was "Dawshon's rule" that no customers were allowed in the apartment when drugs were being dropped off. If police were in the area, customers were allowed to use the drugs in the bathroom or in Williams's room. In order to avoid problems with neighbors, the lookouts outside the apartment were supposed to make sure no one used drugs outside the building.
Like Aviles, Britt testified that Dawmeen was "in charge of the coke." Britt identified his own voice in several of the intercepted calls, including one where he told Dawmeen that he needed "more dog food," which meant he was "running low" on cocaine. In another call, Dawmeen told Britt to get money from Aviles and bring it to him on Elizabeth Avenue.
Britt called Dawshon if he ran low on heroin and Dawmeen if he ran low on cocaine. The supply of heroin was "refilled" two or three times a day. Britt testified that he would normally sell about sixty-eight bricks of heroin in a day and "pushing on 80" on some Saturdays. The money collected would be given to the person who brought the next supply of heroin to the apartment. Dawshon collected money from the drug proceeds "maybe four times, five times out of the week during the nighttime."
"About $2500 worth" of cocaine was sold in a day at 82 Second Street and "a little more on the weekend." Cocaine was packaged in $500 bags containing 100 bottles, each worth $5. On an average day, between 500 and 600 customers purchased heroin and cocaine at 82 Second Street.
Britt testified that Dawud's "role" in the organization was "like the enforcer," that Dawud "made sure everything overall, the coke and dope, all the money was correct." Dawud also "made sure we was up on time, he made sure that nobody came late," and he appeared at 82 Second Street "on a daily basis" to watch over things. If the workers did not do what they were supposed to do, Dawud docked their pay. Dawud also informed Britt to make sure customers were not police officers by checking for needle marks, "mak[ing] them sniff in front of me [to] make sure they got high" or patting them down to check for a "wire." Britt testified that Campbell also performed that function, but Britt would not agree that Campbell was "more of a supervisor than Dawud."
Based on this and other evidence, the jury convicted Dawmeen, Dawud and Dawshon on all charges, namely: the first- degree offense of being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; second-degree conspiracy to distribute heroin or cocaine, in a quantity of five ounces or greater, N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(1); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6; first-degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35-4; third-degree possession of heroin in Newark, N.J.S.A. 2C:35-10(a)(1); first-degree possession of heroin in Newark with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(1); third-degree possession of heroin in Newark with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree possession of cocaine in Newark, N.J.S.A. 2C:35-10(a)(1); second-degree possession of cocaine in Newark with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(2); third-degree possession of cocaine in Newark with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree possession of heroin in Elizabeth, N.J.S.A. 2C:35-10(a)(1); second-degree of possession of heroin in Elizabeth with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(2); third-degree possession of heroin in Elizabeth with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of heroin in Elizabeth with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine in Elizabeth, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine in Elizabeth with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3); third-degree possession of cocaine in Elizabeth with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of cocaine in Elizabeth with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1; first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(a); third-degree unlawful possession of a weapon in Newark, N.J.S.A. 2C:58-5; N.J.S.A. 2C:39-5(f); and second-degree possession of a firearm in Newark during the commission of the crime of possession of CDS with the intent to distribute, N.J.S.A. 2C:39-4.1(a). After merging some of these convictions for sentencing purposes, Dawmeen, Dawud, and Dawshon each received an aggregate term of life in prison plus one-hundred years with a sixty-five-year period of parole ineligibility.
John was acquitted of all the drug and weapon offenses that were alleged to have occurred in Newark. He was convicted of those CDS offenses that occurred in Elizabeth, as well as first-degree being a leader of a narcotics trafficking network, second-degree conspiracy to distribute heroin or cocaine in a quantity of five ounces or greater, and second-degree employing a juvenile in a drug distribution scheme. He was not charged with first-degree financial facilitation of criminal activity. After the merger of some of the convictions for sentencing purposes, John received an aggregate sentence of life in prison plus forty years, with a fifty-year period of parole ineligibility.
Defendants each appealed. They have raised many of the same arguments. We have combined and restated the issues they have raised, with footnotes that indicate those issues that are raised by less than all the defendants,*fn11 in the following way:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE. THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS AND RELATED EVIDENCE AS WELL AS ALL EVIDENCE OBTAINED THROUGH THE VARIOUS SEARCH WARRANTS ISSUED.
A. THE EVIDENCE OBTAINED FROM THE EXECUTION OF THE VARIOUS SEARCH WARRANTS AND THE SUPPORTING AFFIDAVIT'S FAILURE TO ESTABLISH A SUFFICIENT BASIS TO AUTHORIZE THE ISSUANCE OF "NO KNOCK" SEARCH WARRANTS.
B. THE EVIDENCE OBTAINED FROM THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS.
II. THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE, INSUFFICIENT, AND FATALLY DEFECTIVE IN NATURE.
A. THE TRIAL COURT ERRED BY REPEATEDLY INSTRUCTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).*fn12
B. THE TRIAL COURT FAILED TO PROVIDE THE JURY ADEQUATE GUIDANCE ON HOW THEY SHOULD ASSESS THE CREDIBILITY OF CO-DEFENDANTS ANGEL AVILES AND SHERROD BRITT IN LIGHT OF THE PLEA AGREEMENTS THEY ENTERED INTO WITH THE STATE (NOT RAISED BELOW).*fn13
C. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ACCOMPLICE LIABILITY WAS INADEQUATE, INSUFFICIENT AND FATALLY DEFECTIVE IN NATURE (NOT RAISED BELOW).*fn14
D. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON "EMPLOYING A JUVENILE" (NOT RAISED BELOW).*fn15
E. THE TRIAL COURT'S INSTRUCTION ON THE "FINANCIAL FACILITATION" COUNT WAS PATENTLY INSUFFICIENT, UNCLEAR, AND CONFUSING.*fn16
F. WHEN CHARGING THE "LEADER" COUNT, THE TRIAL COURT ERRONEOUSLY EMPHASIZED THAT DEFENDANT NEED ONLY HAVE UPPER-ECHELON STATUS IN RELATION TO "ONE OTHER" PERSON IN THE ENTERPRISE.*fn17
III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY SURRENDERING CONTROL OF THE COURTROOM TO THE SHERIFF WITHOUT ADEQUATE INQUIRY (NOT RAISED BELOW).*fn18
IV. THE TRIAL JUDGE ERRED BY ADMITTING CERTAIN EVIDENCE.
A. THE TRIAL COURT ERRED IN ADMITTING A BAIL RECEIPT, WHICH WAS AN UNAUTHENTICATED HEARSAY DOCUMENT, WHICH THE STATE RELIED UPON TO PROVE A LINK BETWEEN DAWUD AND THE $500,000 IN CASH THAT WAS FOUND AT ANOTHER RESIDENCE, IN ORDER TO CONVICT DAWUD OF "FINANCIAL FACILITATION."*fn19
B. VIDEOTAPE OF A MEETING BETWEEN JOHN AND AN UNDERCOVER OFFICER.*fn20
1. THE TRIAL COURT ERRED BY ADMITTING THE VIDEOTAPE OF THE DEFENDANT MEETING WITH AN UNDERCOVER OFFICER AND A CONFIDENTIAL INFORMANT TWO WEEKS PRIOR TO THE BEGINNING OF THE CONSPIRACY CONTAINED IN THE INDICTMENT.
2. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF THE VIDEOTAPE (NOT RAISED BELOW).
C. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY BY AVILES AS TO WHAT DEFENDANT AND OTHER ALLEGED CO-CONSPIRATORS "MEANT" IN CONVERSATIONS TO WHICH AVILES HIMSELF WAS NOT A PARTY.*fn21
V. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION TO SEVER AND LIMITING CROSS-EXAMINATION OF WITNESSES REGARDING THE LEADER OF A DRUG TRAFFICKING NETWORK CHARGE.*fn22
VI. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION FOR ACQUITTAL ON THE FINANCIAL FACILITATION CHARGE.*fn23
VII. THE TRIAL JUDGE ERRED IN DENYING JOHN'S MOTION FOR ACQUITTAL ON THE LEADER OF A DRUG TRAFFICKING NETWORK CHARGE.*fn24
VIII. THE TRIAL JUDGE ERRED IN PASSING SENTENCE ON THESE DEFENDANTS.
A. THE BASE SENTENCES AND BLAKELY AND NATALE CONSIDERATIONS.
B. THE IMPOSITION OF EXTENDED TERMS.
C. THE DETERMINATION OF PAROLE INELIGIBILITY PERIODS.*fn25
D. THE IMPOSITION OF CONSECUTIVE TERMS.
E. MERGER ISSUES.*fn26
With the exception of Points IIB, V, and VII, which we nevertheless reject, and those arguments contained in Point VIII regarding sentencing, which require a remand, we find insufficient merit in the remainder of defendants' arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). The proofs were simply too strong to suggest that any technical error warrants reversal.
By way of Point IIB, Dawmeen argues that the trial judge did not instruct the jury "to look carefully into the secret motives" of the accomplice testimony given by Aviles and Britt, citing in support, State v. Spruill, 16 N.J. 73, 78 (1954). Dawmeen claims that the trial judge should have instructed the jury that Aviles and Britt "had a strong motivation to inculpate the defendant" because of their plea agreements with the State and that the trial judge's failure to so instruct the jury on the accomplice testimony was plain error.
The State responds that the trial judge's charge followed verbatim the model jury charge on the testimony of a cooperating witness and also generally instructed the jury about how to adjudge the credibility of witnesses. In addition, the record reveals that both Aviles and Britt were questioned on the plea agreements and, during opening and closing arguments, defense counsel "focused on the careful scrutiny the jury should give to the State's witnesses, which included Aviles and Britt."
At the beginning of the charge, the judge instructed the jury that one of their jobs was to determine the credibility of witnesses, and further instructed the jury as follows:
There is testimony in the case from Aviles and Sherrod Britt and they testified to facts which showed some involvement, on their part, in the criminal situation out of which the indictments arose. The law requires that the testimony of such a witness be given careful scrutiny. In weighing their testimony, therefore, you may consider whether each had a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal.
If you believe the witness to be credible and worthy of belief you have a right to convict any defendant on their testimony alone provided, of course, that upon consideration of the whole case you are satisfied beyond a reasonable doubt of the defendant's guilt.
This charge is fully in accord with Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006).
Dawmeen does not appear to challenge the use of the model charge but contends that the charge given was inadequate because it failed to include language suggested by State v. Spruill. In that case, the defendant had unsuccessfully sought an instruction that the jury carefully scrutinize accomplice testimony for evidence that it was influenced by a strong hope of favor or pardon. 16 N.J. at 76-77. On appeal, the Court reversed and stated:
It is settled law in New Jersey that a jury may convict a prisoner upon the testimony of an accomplice alone, if, in their judgment, it is entirely credible and worthy of belief. But the testimony of an accomplice is given close scrutiny. Accomplices, tainted as they are with confessed criminality, are often influenced in their testimony by the strong motive of hope of favor or pardon; and so it is incumbent upon the courts to "look carefully into the secret motives that might actuate bad minds to draw in and victimize the innocent." [Id. at 78 (quoting State v. Hogan, 13 N.J. Misc. 117 (Sup. Ct. 1935), aff'd, 115 N.J.L. 531 (E. & A. 1935)).]
Although there may be times when the language of the model jury charge ought to be enhanced by particular reference to this dictum in State v. Spruill, we are satisfied that the charge given here was sufficient.
No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. Largey v. Rothman, 110 N.J. 204, 206 (1988). The trial judge in this case appropriately used the model charge on cooperating witness testimony and further advised the jury on credibility in general as follows:
Now, one of your jobs, as the judges of the facts, is to determine the believability, the credibility of each of the witnesses and in going about that task, in addition to using whatever life skills you use on a daily basis to determine whether you believe somebody who is speaking to you or not, you may wish to take into account such other things as the appearance and demeanor of the witness; the manner in which the witness may have testified; their interest in the outcome of the trial, if any; their means of obtaining knowledge of the facts; their power of judgment, discernment or understanding; their ability to reason and observe; the possible bias in favor of the side for whom the witness testified, if any; the extent to which the witness has been supported or contradicted by other evidence; whether the witness testified with an intent to deceive you; reasonableness or unreasonableness of the story the witness has related; and any and all other matters in evidence which serve to highlight their testimony to you.
As already noted, only Dawmeen challenges the sufficiency of this charge, but he did not request at trial that the judge instruct the jury as to the impact of the plea agreements of Aviles and Britt on their credibility or request stronger language than that given by the judge through his utilization of the model charge. It also bears noting that both Aviles and Britt were extensively examined and cross-examined about their plea agreements and their own involvement in the Fitzgerald organization. In addition, in their closing arguments, several of the defense attorneys highlighted the criminal backgrounds of Aviles and Britt, their lack of credibility, inconsistencies in their testimony, and their motivation to fabricate in order to obtain favorable treatment on their own charges. In fact, when discussing the State's evidence in his summation, counsel for Dawud mentioned "a couple snitches who allege to be telling the truth" and referred to Aviles a "liar"; counsel for Dawmeen argued that Aviles was actually the "leader" but lied to make defendants look like they were in charge; and counsel for Dawshon advised the jury to take the testimony of Aviles and Britt with a "grain of salt" because they pled guilty and received lighter sentences.
In light of all this, we are abundantly satisfied that the trial judge's decision not to enhance the model jury charge regarding the plea agreements or the witnesses' alleged motivation to inculpate defendants was not clearly capable of producing an unjust result. R. 2:10-2.
Dawud contends that his conviction as a leader of a drug trafficking network must be reversed, asserting that the trial judge erred in denying his motion to sever his trial from the "higher-up 'leaders,'" namely, Dawshon and Dawmeen. Asserting that he "did not play as high-level a role in the alleged enterprise" as his brothers and citing the great potential for "guilt by association" based on the "sibling relationship," Dawud argued that Dawmeen and Dawshon should have been tried together first, followed by a joint trial of the charges brought against him and John. He claims that the trial judge abused his discretion with his "conclusory ruling" that accepted the State's suggested groupings for trial.
The State has argued that the trial judge properly exercised his discretion by trying all the Fitzgeralds together, and that the evidence does not support Dawud's claim that he played a limited role compared to his brothers. The State claims the groupings were appropriate "in the interest of judicial efficiency" since "[t]he same evidence was necessary to prosecute all of them," and that any potential prejudice was eliminated by the judge's instructions to the jurors that they deliberate separately as to each defendant.
"Two or more defendants may be tried jointly 'if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (quoting R. 3:7-7). The decision to grant or deny severance lies "within the trial court's sound discretion." State v. Sanchez, 143 N.J. 273, 283 (1996) (quoting State v. Brown, 118 N.J. 595, 603 (1990)). The preference is for joint trials, especially when the evidence to be presented at trial would be largely the same. State v. Brown, supra, 170 N.J. at 160. Adherence to that preference must be "guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability." Ibid.
Judicial economy alone cannot override a defendant's right to a fair trial. State v. Sanchez, supra, 143 N.J. at 282. Rule 3:15-2(b) provides for relief from prejudicial joinder:
If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
When considering a motion to sever, the trial judge "must balance the potential prejudice to a defendant against the interest in judicial economy." State v. Brown, supra, 170 N.J. at 160.
The test for determining whether to grant severance "is a rigorous one." State v. Brown, supra, 118 N.J. at 605-06. And separate trials are necessary when co-defendants' positions are "antagonistic and mutually exclusive or irreconcilable." Id. at 605. However, the danger of guilt by association -- the main thrust of Dawud's contention -- "inheres in all joint trials" and "is not in itself sufficient to justify a severance, provided that by proper instructions to the jury, the separate status of co-defendants can be preserved." Ibid. A court may infer that the jury followed those instructions when each defendant is convicted of different crimes. State v. Brown, supra, 170 N.J. at 162.
Dawud challenges the trial judge's decision to group the four Fitzgerald defendants for a single trial, asserting that "guilt by association" led to his conviction as a leader of a drug trafficking organization because the evidence demonstrated that Dawud "did not play as high-level a role in the alleged enterprise as his two brothers." Of course, a defendant may be a "leader" even when there are others above him in a criminal organization. Moreover, the evidence on this point was not as one-sided as Dawud claims. Aviles and Britt testified that Dawud: (1) called Aviles to warn about police presence in the area; (2) gave approval to sell bricks of heroin for less than the going price; (3) often checked on the supply of drugs and went to 82 Second Street daily; (4) checked on whether 82 Second Street "opened for business" on time and that "nobody came late"; (5) gave "directions and orders" to Aviles; (6) acted as "the enforcer" and "just made sure everything ran, ran right"; (7) delivered drugs to 82 Second Street; (8) docked workers' salaries if they did not perform as required; and (9) told Britt how to make sure customers were not police officers.
As a result, we conclude that the trial judge did not abuse his discretion in grouping Dawud with his brothers and uncle for a joint trial. The evidence against all four defendants was largely the same, principally consisting of the intercepted phone calls, results of the search warrants, and the testimony of Aviles and Britt. Defendants' positions were not antagonistic, mutually exclusive, or irreconcilable. All four defendants denied guilt and attacked the credibility of the testifying witnesses. And the jury was appropriately instructed to consider each defendant and charge separately. The jury's acquittal of John on several charges generates a legitimate inference that the jury followed the judge's instructions to consider each defendant separately.
John argues that the trial judge erred in denying his motion to dismiss the count that charged him with being the leader of a drug trafficking network. Specifically, John contends that the intercepted phone calls and police observations "might have provided a nexus between [John] and the use or sale of drugs or that he was a possible lookout, [but] they offered no basis for concluding that he even remotely qualified as a leader of a narcotic trafficking network." John further relies in this regard upon the testimony of both Aviles and Britt, who indicated that John was often drunk or high and frequently failed to show up for work. As such, John maintains that the State failed to prove he was a "high-level" or "upper-echelon leader," and the State, at most, proved only that he was a "street-level individual associated with the network" who was paid because he was the uncle of the other defendants, "who actually controlled the operation."
The State responds that "[v]iewing the evidence most favorably to the State, a reasonable jury could find defendant guilty of this charge beyond a reasonable doubt," and argues that there was sufficient evidence to support the contention that John occupied a high position because he supervised lookouts and handled proceeds from drug sales. Further, there was evidence in the record, which the jury was entitled to credit, that when John met with an undercover officer "to arrange a sale of raw, uncut heroin," John indicated a willingness and authority to negotiate the price. The jury could find from this evidence that John was highly placed in the organization.
John pressed this argument in a motion to dismiss following the State's opening statement, and in a motion for acquittal at the trial's conclusion. The judge denied the motions, stating on the latter occasion that although "I don't think Johnny was a leader in the true essence of the word but in the legal sense I think a jury -- the fact that I feel that way doesn't mean that a jury can't conclude that."
The standard for a motion for acquittal outlined in State v. Perez, 177 N.J. 540, 549 (2003), is "[w]hether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crime or crimes charged." N.J.S.A. 2C:35-3 provides that a person is a leader of a drug trafficking network if the person conspires to distribute CDS "as a financier, or as an organizer, supervisor or manager of at least one other person," and declares that "[i]t shall not be a defense that the defendant was subject to the supervision or management of another, nor that another person or persons were also leaders of the narcotics trafficking network." Ibid.
Without question, the evidence against John was not as strong as the evidence against his nephews. For example, Aviles referred to John as "one of the workers," that he sometimes gave John instructions, and that he did not consider John a "leader" in the organization. When asked if John had "a role in supervising any of the other lookouts," Aviles responded "[y]ou could say in a way" but he largely "didn't do anything"; Aviles testified that John "just hung out outside, drank beer and got high." Only when the other defendants were around would John do "what he was supposed to do" and make sure "his face was seen." On the other hand, Britt testified that John was "in charge of the lookouts" and "made sure all the lookouts [were] at the locations they were supposed to be at." Britt stated that John's main "post" was the back porch; he stayed in touch using the walkie-talkies, and "when there was heavy police activity," John would supervise up to five or six lookouts. Britt, however, also acknowledged that John "would often be out there drinking," "was also getting high a lot" and did not show up for work on "many days" "because he was either drunk or high."
Britt also agreed that John "was put to menial tasks" since "he wasn't competent enough because he was high or drunk most of the time." Britt confirmed that he or Aviles actually hired and paid the lookouts.
There was other evidence about the significance of John's role in the organization. In one of the intercepted calls, John and Dawud discussed starting a "war" with other drug dealers. Detective Julian Hilongos, who had testified about police surveillance of defendants, stated on cross-examination that he saw John about twenty or thirty times during the investigation "[j]ust hanging out" on Second Street but that John was observed drinking on only one or two occasions.
In a meeting with an undercover officer, John arranged for the sale of raw, uncut heroin to the undercover officer. During the meeting, John stated: (1) "I'll have my man . . . meet you here tomorrow"; (2) "we willing to sell the grams at a nice price cause we doing good right now we 70 to 80 bricks a day now"; (3) "[i]f I don't answer[,] my man that will be there will answer"; (4) "[y]ou ain't satisfied with the price there's always something that can always be worked out"; and (5) "I get my boys walkie talkies[,] [t]hat's how we be doing things[,] [a]nd it's been working for us for 4 years straight."
Although there was evidence that supported John's contention that he was not a leader of the organization, there was more than sufficient evidence from which a reasonable jury could conclude that John supervised the lookouts, of which there were as many as five or six, and that he occupied a high-level position within the organization. John was authorized to coordinate larger sales and negotiate prices. He also discussed starting a war with another drug dealer, which would strongly suggest his involvement in the management of the organization. In considering all this evidence in ruling upon John's motion for acquittal, the State was entitled to an assumption of the truth of the evidence favorable to its position as well as the benefit of all reasonable inferences. Since there was evidence to suggest that John was a leader as defined by N.J.S.A. 2C:35-3, we conclude that the trial judge did not abuse his discretion in denying John's motion for acquittal.
Defendants were sentenced on April 22, 2005 -- three months before the Court's watershed decision regarding our sentencing laws in State v. Natale, 184 N.J. 458 (2005). Numerous issues have been raised regarding the sentences imposed.
The State concedes the correctness of some of defendants' contentions, and the State also contends, without having filed a cross-appeal, that the judge erred with regard to the merging of some of the convictions for sentencing purposes. We agree that defendants should be resentenced, and offer the following guidance regarding: (a) the impact of Natale; (b) the finding of aggravating and mitigating factors; (c) the judge's determination of parole ineligibility periods; (d) the imposition of consecutive terms; and (e) merger. We also refer the trial judge to State v. Thomas, 188 N.J. 137 (2006) with regard to the imposition of extended terms in the wake of Natale.
A. Natale's Impact
All defendants challenge their sentences as being above the presumptive term based on factors other than their prior convictions.
The State concedes that, in light of State v. Natale, Dawmeen, Dawshon and Dawud are entitled to a remand for reconsideration of their sentences on the conviction for employing a juvenile in a CDS distribution scheme (count three), the three convictions for possession of CDS with the intent to distribute (counts six, nine and twelve), the conviction for the financial facilitation of criminal activity (count nineteen), and the unlawful possession of a firearm during the commssion of the offense of possessing CDS with the intent to distribute (count twenty-one), but contends that the trial court's findings on the aggravating and mitigating factors "were proper in all respects." The State also concedes that Dawmeen, Dawshon and Dawud should be resentenced on the offense of possession of CDS with the intent to distribute (count sixteen) because the judge imposed a term above the maximum of five years for a third-degree offense. The State maintains that Dawmeen, Dawshon and Dawud already received the minimum sentence for maintaining or operating a CDS production facility (count four) and that the life sentence on the leader of a narcotics trafficking network conviction (count one) was also proper as "a determinative sentence" with no presumptive term. As for John, the State concedes he is entitled to a remand for resentencing on the employing a juvenile conviction (count three), and the two convictions for CDS possession with the intent to distribute (counts twelve and sixteen).
Because of these conceded errors and also because defendants were sentenced prior to Natale, we will vacate the sentences imposed and remand for resentencing in all respects.
B. Aggravating and Mitigating Factors
Defendants also assert that the trial judge made insufficient findings with regard to the application of aggravating factors.
"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Appellate review requires that we engage in a three-step process, which includes a determination of:
(1) whether the legislatively fixed sentencing guidelines were followed, (2) whether the aggravating factors and mitigating factors found by the trial court were based upon competent, credible evidence in the record and (3) whether application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience. [State v. Burton, 309 N.J. Super. 280, 290 (App. Div.), certif. denied, 156 N.J. 407 (1998).]
Accord State v. Megargel, 143 N.J. 484, 493-94 (1996); State v. Roth, 95 N.J. 334, 365-66 (1984). "On review, an appellate court should not substitute its judgment for that of the trial court." State v. Burton, supra, 309 N.J. Super. at 290. The question is not whether we "would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." Ibid.
A sentencing judge must always state on the record how the sentencing decision was formed, including the factual basis for all of the aggravating and mitigating factors. State v. Kruse, 105 N.J. 354, 359-60, 363 (1987). Accord N.J.S.A. 2C:43-2(e); R. 3:21-4(g). And, a sentencing judge "must describe the balancing process leading to the sentence." State v. Kruse, supra, 105 N.J. at 360. Accord State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985) (holding that a court must indicate the factors it considered and how it weighed those factors). "Without such a statement, appellate review becomes difficult, if not futile. To provide an intelligible record for review, the trial court should identify the aggravating and mitigating factors, describe the balance of those factors, and explain how it determined defendant's sentence." State v. Kruse, supra, 105 N.J. at 360.
After commenting on the evidence and defendants' criminal backgrounds using a prepared statement applicable to all four defendants, the trial judge merely listed the aggravating factors that were applied. The court mentioned: (1) the "number and rapidity of [Dawmeen's] offenses and his penchant for criminality"; (2) that Dawshon "made bail on these charges, but sadly was arrested on other leader charges, thereafter"; (3) Dawud's record, including convictions for resisting arrest, aggravated assault and weapons possessions that "confirm[ed]" his role as "the enforcer of the Fitzgerald drug enterprise"; and (4) that John has been in and out of prison since 1986. We agree that the trial judge mistakenly failed to relate these findings to the aggravating factors applied or otherwise provide the factual basis for the application of aggravating factors three, five, six, and nine to all four defendants.
In resentencing defendants, the trial judge should discuss each defendant separately and fully describe the factual basis for each aggravating factor found applicable.
C. Parole Ineligibility
Dawmeen contends that the trial judge abused his discretion by failing to articulate the reasons for imposing a sentence in excess of the mandatory minimum periods of parole ineligibility on the convictions for being a leader of a drug trafficking network (count one), for employing a juvenile in a drug distribution scheme (count three), for maintaining a CDS production facility (count four), for possessing CDS with the intent to distribute (count six), for the financial facilitation of criminal activity (count nineteen), and for unlawful possession of a weapon (count twenty-one). Dawud argues that the aggregate sentence was "manifestly excessive" because the trial judge imposed "the maximum possible term with the maximum possible parole disqualifier" and that the trial judge did not sufficiently detail his findings as to the aggravating and mitigating factors.
As to Dawmeen, the State responds that the thirty-year period of parole ineligibility imposed on the leader conviction (count one) was mandated by N.J.S.A. 2C:43-7(c), and the five-year term imposed on maintaining a CDS production facility (count four) was properly set at one-half of the sentence imposed under N.J.S.A. 2C:43-6(a). As we have already observed, the State conceded that the sentence imposed on the convictions for employing a juvenile (count three), possession with the intent to distribute (count six), financial facilitation (count nineteen) and unlawful possession of a weapon (count twenty-one) should be remanded for reconsideration in light of Natale. As a result, the period of parole ineligibility may need to be recalculated. As to Dawud's arguments, the State responds only that "the aggravating factors found by the court below supported defendant's sentence."
The State concedes that Dawmeen must be resentenced on counts three, six, nineteen and twenty-one, and that Dawud must be resentenced on counts three, six, nine, twelve, nineteen, and twenty-one. As a result, we need only address the parole ineligibility periods for the leader conviction (count one) and the maintaining of a CDS production facility (count four), the remaining counts challenged by Dawmeen on appeal.
On the leader conviction, Dawmeen was sentenced to life imprisonment with a thirty-year period of parole ineligibility. This was a first-degree offense under N.J.S.A. 2C:35-3, with an ordinary term of life imprisonment and a twenty-five year period of parole ineligibility. However, Dawmeen was also sentenced to an extended term on this conviction, and, pursuant to N.J.S.A. 2C:43-7(c), when a defendant is sentenced to life as an extended term under N.J.S.A. 2C:43-6(f), "the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted for [being a leader of a drug trafficking network] the term of parole ineligibility shall be 30 years." As such, if an extended term is deemed appropriate on remand, after consideration of the parties' arguments and the principles announced in State v. Thomas, supra, 188 N.J. at 149-50, the trial judge is not foreclosed from sentencing Dawmeen to the extended term sentence of life imprisonment with a thirty-year period of parole ineligibility on count one.
On the production facility conviction, Dawmeen was given a ten-year term with a five-year period of parole ineligibility. This constituted a first-degree offense under N.J.S.A. 2C:35-4. Pursuant to N.J.S.A. 2C:43-6(a)(1), the sentence for a crime of the first-degree is between ten and twenty years; therefore Dawmeen received the minimum sentence on that count. In addition, as required by N.J.S.A. 2C:35-4, the sentence "shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(b) also provides for a minimum term of parole ineligibility "not to exceed one-half" of the term set "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors."
In this case, the judge found that the aggravating factors "clearly, convincingly and substantially outweigh[ed] the nonexistent mitigating factors." Again, however, the judge did not provide a thorough factual basis for the aggravating factors applied. Therefore, although Dawmeen was sentenced to the minimum term on the production facility conviction, we deem it appropriate that the judge on remand provide the factual basis for the balancing of aggravating and mitigating factors and for his decision to impose a one-half, rather than one-third, period of parole ineligibility under N.J.S.A. 2C:35-4.
D. Consecutive Terms
Dawmeen, Dawshon and Dawud argue that the trial judge abused his discretion by imposing consecutive terms on the convictions for being a leader of a drug trafficking network, employing a juvenile, maintaining a CDS production facility, CDS possession with intent to distribute, financial facilitation, and unlawful possession of a firearm during the commission of the crime of possession. Similarly, John, who was acquitted of several charges, argues that the trial judge abused his discretion in imposing consecutive terms on his convictions for employing a juvenile and CDS possession with intent to distribute within 500 feet of a school.
Dawmeen maintains that the convictions on those counts "all relate to the defendant's conviction on count one as being a leader of a drug trafficking network." He claims that these convictions consist of "one continuous act" and the terms should have been ordered to run concurrently. Dawshon and John argue that the sentences were "the functional equivalent of a death sentence" and that "these crimes, although facially separate, were interdependent and arose from a continuous course of conduct, indicating a single period of aberrant behavior." Dawud similarly argues that the other terms should have been ordered to run concurrently to the life sentence imposed on the leader conviction; he also contends that the trial judge failed to set forth any reason for the imposition of consecutive terms and that the Yarbough*fn27 factors were not properly considered. In addition, Dawud contends that N.J.S.A. 2C:21-27(c) is unconstitutional because it mandated a consecutive sentence for financial facilitation "based on nothing more than a finding that defendant had 'possessed' cash proceeds from the drug enterprise, violated defendant's right of due process and protection from double jeopardy where he had already received a life term for being a 'drug kingpin.'"
The State responds that the consecutive terms were proper because "the crimes and their objectives were predominately independent of each other," the "crimes involved separate acts," and "involved different 'victims.'" The State also argues that the consecutive term imposed on count twenty-one (a weapons conviction) was made mandatory by N.J.S.A. 2C:39-4.1. The State further contends that the trial judge had "no other choice but to enforce the plain meaning of the statute" as to the non- merger provision of N.J.S.A. 2C:21-27(c) and that its application is constitutional because the financial facilitation and leader statutes are "different, not only with respect to their purpose, but the facts necessary to prove the elements supporting each conviction."
First, we conclude that the consecutive sentence imposed on the conviction of unlawful possession of a firearm during the crime of possession of a CDS with intent to distribute (count twenty-one), was mandatory. N.J.S.A. 2C:39-4.1(d) provides in pertinent part:
Notwithstanding the provisions of N.J.S. 2C:44-5 or any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section or a conviction for conspiracy or attempt to violate any of those sections.
Similarly, the imposition of a consecutive sentence was mandated for the financial facilitation of criminal activity conviction. N.J.S.A. 2C:21-27(c) requires that a sentence imposed for that conviction "shall be ordered to be served consecutively to that imposed for a conviction of any offense constituting the criminal activity involved or from which the property was derived." Thus, there was no error in the imposition of consecutive sentences on counts nineteen and twenty-one, although, at resentencing, the trial judge should consider the Yarbough factors in determining whether it was necessary to impose consecutive terms where not statutorily mandated.
We also find no merit in Dawud's argument that the anti-merger provision in N.J.S.A. 2C:21-27(c) is unconstitutional when combined with the life sentence "for being a 'drug kingpin,'" because it mandates a separate sentence for financial facilitation based only on possession of cash proceeds from drug sales. Through N.J.S.A. 2C:21-25 and N.J.S.A. 2C:21-27(c), the Legislature criminalized possession of property, such as currency, derived from criminal activity and mandated the imposition of a separate sentence. As such, the possession of drug proceeds is a separate and distinct crime from that of being a leader of a drug trafficking network and we do not agree that, in these circumstances, it twice imposes punishment for the same offense. See State v. Martinez, 387 N.J. Super. 129, 143 (App. Div.) (where the legislature specifically authorizes cumulative punishment under two statutes, the principles of double jeopardy are not applicable), certif. denied, 188 N.J. 579 (2006). See also Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed. 2d 535, 544 (1983).
As for the remaining counts, although N.J.S.A. 2C:44-5(a) provides in general terms for consecutive and concurrent sentences of imprisonment for offenders convicted of more than one offense, the Code does not specifically provide guidance for the exercise of sentencing discretion. As a result, the Court in State v. Yarbough, supra, 100 N.J. at 643-44, set forth the following standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
Normally, the reasons for imposing consecutive sentences must be expressly stated by the trial judge, and the failure to do so may compel a remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). However, where the circumstances of the crimes leave little doubt about the propriety of the sentences, and where there is no showing that the sentences are clearly mistaken, we need not remand for further development of the record. State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003).
In this case, during Dawud's sentencing, the court made the following comments:
Count three was made consecutive because it is a separate and distinct offense from Count one. One could be a leader of a narcotics network without employing a juvenile.
Count four was made consecutive because one could be a leader and employ a juvenile without actually maintaining a drug production facility.
. . . [T]he other Counts were made consecutive because -- strike that. The other Counts of the zones were merged into other Counts.
. . . Furthermore, there was an ongoing criminal enterprise with the victims, the addicts to whom the operation pandered, on an hourly, and daily, and weekly basis. The crimes were committed in Elizabeth and Newark. In order for the punishment to fit these crimes this Court merged some counts, made others concurrent, and made some consecutive with the thought that these consecutive sentences stand for the proposition that these Counts not be "free crimes."
Although, when sentencing the other three defendants, the judge incorporated by reference its statement with regard to aggravating and mitigating factors, no such incorporation was expressed in connection with the imposition of consecutive terms.
In remanding for further findings and consideration of the consecutive terms that were imposed, we do not mean to suggest that consecutive terms were not appropriate here. As noted in the next section of this opinion, some mistakes were made with regard to the merging of some offenses. And since resentencing is required in other regards, we remand for reconsideration of the consecutive terms so that a fuller discussion of the reasons for their imposition may be provided.
John argues that the trial judge erred in failing to merge his conviction for third-degree possession of cocaine with intent to distribute (count sixteen) with the conviction for second-degree possession of cocaine with intent to distribute within 500 feet of a public school (count eighteen). The State concedes that count sixteen should have been merged along with counts fifteen and seventeen into count eighteen.
The State did not cross-appeal but nonetheless argues there were other merger problems. Specifically, the State contends that the trial judge erred in merging the following for all four defendants: (1) count two into counts six, nine, and twelve; (2) count fourteen into count twelve; and (3) counts seventeen and eighteen into count sixteen. The State alleges that count two should have been merged into counts fourteen and eighteen, count twelve should have been merged into count fourteen, and counts fifteen, sixteen and seventeen should have been merged into count eighteen. Further, the State maintains that in merging counts seven, ten and thirteen, the trial judge "did not specify that the mandatory minimum period of parole ineligibility on these convictions under N.J.S.A. 2C:35-7 survived the merger" and that this should be clarified on remand.
Initially, we generally observe that merger is rooted in the principle that an accused who has committed only one offense cannot be punished as for two, and that courts must pursue a flexible approach to merger by focusing on the elements of the crime, the Legislature's intent in enacting the relevant statutes, and the facts of each case. State v. Dillihay, 127 N.J. 42, 46-47 (1992). Here, the trial judge merged count two (second-degree conspiracy to distribute heroin or cocaine, or both, in a quantity of five ounces of more) with count six (first-degree possession of heroin in Newark with intent to distribute), count nine (second-degree possession of cocaine in Newark with intent to distribute), and count twelve (second degree possession of heroin in Elizabeth with intent to distribute). The State contends that count two should instead have been merged into count fourteen (second-degree possession of heroin within 500 feet of a public park) and count eighteen (second-degree possession of cocaine with 500 feet of a public park).
"The Code takes the view that . . . conspiracy is similar to attempt, which is a lesser-included offense of the completed offense." State v. Hardison, 99 N.J. 379, 386 (1985). "A conviction of the completed offense will adequately deal with the conduct[,]" unless "the objective of the conspiracy was the commission of additional offenses." Id. at 386-87 (internal quotes omitted). In light of these principles, we conclude that the State's argument that the trial judge erred in merging the conspiracy charge with the possessory offenses is without merit. However, counts six, nine and twelve are not mere possessory offenses but possession with intent to distribute offenses. Thus, the judge did not err in merging the conspiracy to distribute count with the possession with intent to distribute counts. Further, since the State does not argue that the object of the conspiracy was the commission of some offense other than those charged, there is no dispute that the conspiracy conviction was appropriately merged with at least one count and that, in these circumstances, unlike other situations where merger is not necessarily required, as more thoroughly discussed elsewhere, see, e.g., State v. Hill, 182 N.J. 532 (2005); State v. Diaz, 144 N.J. 628 (1996); State v. Lado, 275 N.J. Super. 140 (App. Div.), certif. denied, 138 N.J. 271 (1994), no separate sentence should have been imposed thereon.
The State also raises issues regarding counts five through eighteen; these counts can be split into four groups:
(1) heroin in Newark (counts five through seven); (2) cocaine in Newark (counts eight through ten); (3) heroin in Elizabeth (counts eleven through fourteen); and (4) cocaine in Elizabeth (counts fifteen through eighteen). Within the counts, defendants are charged with possession, possession with intent to distribute, possession with intent to distribute within 1000 feet of a school and, in Elizabeth but not Newark, possession with intent to distribute within 500 feet of a public park.
Pursuant to N.J.S.A. 2C:1-8(a)(1), a defendant may not be convicted of more than one offense if "[o]ne offense is included in the other." An offense is included in the other if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). Possession of CDS under N.J.S.A. 2C:35-10 is established by proof of less than all the facts required to establish possession of a CDS with intent to distribute under N.J.S.A. 2C:35-5. As such, the simple possession charges --counts five, eight, eleven and fifteen -- should merge for sentencing purposes with counts six, nine, twelve, and sixteen, respectively, so long as there is adherence to the principles outlined in State v. Strecko, 244 N.J. Super. 463, 465 (App. Div. 1990). See also State v. Gibson, 318 N.J. Super. 1, 12 (App. Div. 1999).
In State v. Dillihay, supra, 127 N.J. at 51, the Court concluded that "federal double-jeopardy principles lead inevitably to the conclusion that to allow multiple punishments for related convictions under Section 5 and Section 7 of the Act is constitutionally impermissible." Accordingly, the Court held that "the school-zone statute must be construed to allow merger of school-zone offenses into first- and second-degree Section 5 offenses provided that a defendant convicted of a drug offense in a school zone is sentenced to no less than the mandatory minimum sentence provided in the school-zone statute." Id. at 55. See also State v. Gonzalez, 123 N.J. 462, 464 (1991) (third- and fourth-degree Section 5 offenses merge into Section 7 offenses). The Court "acknowledge[d] an apparent inconsistency in preserving the mandatory minimum sentence authorized by Section 7 in the context of our holding that the Section 7 conviction must merge into the Section 5 conviction," but found "[t]hat result, however, reflects the Legislature's clear intent to impose an enhanced punishment for those who violate Section 5 while in a school zone." State v. Dillihay, supra, 127 N.J. at 55. Thus, as noted, even though the offenses merge, the mandatory minimum period of parole ineligibility from the school-zone conviction that was imposed need not be altered on the merged offense. Ibid.
As a result, the possession and possession with intent to distribute within 1,000 feet of school property convictions should merge with the higher or same degree possession-with- intent-to-distribute charges. Thus, counts seven, ten, thirteen, and seventeen should merge with counts six, nine, twelve, sixteen, respectively. Again, the State is correct that when a school-zone conviction under N.J.S.A. 2C:35-7 is merged into a public-park conviction under N.J.S.A. 2C:35-7.1, the mandatory parole-ineligibility term of N.J.S.A. 2C:35-7 should survive the merger. See State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). As such, after the merger errors are corrected in the new sentencing hearings to follow our remand, the trial judge must specify that the mandatory parole-ineligibility periods on counts seven, ten, thirteen and seventeen survive the merger.
Finally, the convictions for possession with the intent to distribute within 1,000 feet of school property under N.J.S.A. 2C:35-7 should merge into the convictions for possession with intent to distribute within 500 feet of a public park under N.J.S.A. 2C:35-7.1. In State v. Parker, supra, 335 N.J. Super. at 424, we concluded that despite the fact that "each offense requires proof of an additional element or fact[,] the other does not" and "the interests protected by sections 7 and 7.1 are, in fact, the same interests." As such, when the facts are examined under the Dillihay principles and "in light of the 'flexible' analysis permitted by State v. Davis, 68 N.J. 69, 81 (1975)," the two convictions should merge. State v. Parker, supra, 335 N.J. Super. at 424. In this case, then, counts thirteen and seventeen should have merged into counts fourteen and eighteen with the mandatory minimum period of parole ineligibility surviving the merger.
As for the Newark CDS charges, the trial judge appropriately merged counts five and seven with count six, and he appropriately merged counts eight and ten with count nine, in sentencing Dawshon, Dawmeen and Dawud.*fn28 As for the Elizabeth CDS charges, the trial judge sentenced all four defendants on count twelve into which merged counts eleven, thirteen and fourteen.*fn29 Since counts twelve and fourteen are both second-degree offenses, the judge did not err in sentencing defendants on one conviction and merging the others. However, the trial judge erred by sentencing defendants on the third-degree conviction on count sixteen, rather than the second-degree conviction on count eighteen.*fn30 Upon remand, defendants should be sentenced on count eighteen with counts fifteen, sixteen and seventeen merging therewith.
We affirm all the convictions in each of these appeals and remand for the resentencing of all defendants in conformity with this opinion. We do not retain jurisdiction.