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State v. Washington

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KOMAR WASHINGTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-09-1590.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

Submitted September 22, 2008

Before Judges Carchman, Sabatino and Simonelli.

On June 24, 2003, defendant Komar Washington pled guilty under Accusation No. 811-03 to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The sentencing judge imposed a three-year probationary term with credit for time served.

On February 17, 2004, defendant pled guilty under Accusation No. 179-04 to third-degree possession of CDS, contrary to N.J.S.A. 2C:35-10a(1). The sentencing judge imposed a three-year probationary term with credit for time served.

During his probationary period, on June 25, 2004, defendant was arrested for various drug-related offenses and resisting arrest. On September 25, 2004, a grand jury indicted defendant for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third- degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of CDS with intent to distribute within 500 feet of public housing facilities, parks or buildings, N.J.S.A. 2C:35-7.1a (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).

A jury convicted defendant of possession of CDS (count one) and resisting arrest (count five). Judge Theemling sentenced defendant to a five-year term of imprisonment on count one, and to a concurrent eighteen-month term of imprisonment on count five. For defendant's violation of probation, the judge imposed a concurrent five-year term of imprisonment on each of the Accusations, concurrent to each other.

On appeal, defendant raises the following contentions:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER REFERENCING A PREVIOUS MOTION TO SUPPRESS HEARING.

POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING COUNT [FIVE] FOR RESISTING ARREST.

POINT IV: THE TRIAL COURT FAILED TO ADEQUATELY RESPOND TO A SPECIFIC JURY QUESTION DURING DELIBERATIONS.

POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We reject these contentions and affirm.

The following facts are summarized from the record. The Jersey City Police Department had received numerous complaints about drug activity at the A. Harry Moore Housing Complex on Duncan Avenue, also known as the Duncan Housing Complex (the complex). At approximately 4:50 p.m. on July 25, 2004, Detective Christopher Robateau of the Jersey City Police Department conducted undercover surveillance of the complex.*fn1 He was assisted by perimeter units, which included Officers Carlos Lugo, Michael Burgis, Anthony Goodman, Timothy O'Brien and Gill Vega.

Robateau observed an individual, later identified as defendant, standing in the eastern driveway of the complex adjacent to Duncan Avenue. The officer observed an unidentified male approach defendant. After the two men spoke briefly, defendant reached into his right front pants pocket, removed one or more objects, and handed the objects to the unidentified male in exchange for paper currency. The unidentified male then left the area. Based upon his observation, Robateau believed that a drug transaction had just transpired.

Robateau contacted the perimeter units and gave them defendant's description and location. Lugo then entered the complex and drove past defendant, who was standing by Building 1. Burgis and Goodman also entered the complex. They stopped their vehicle and exited, with their badges exposed. Defendant began running when he saw the officers approaching. Robateau then broadcast defendant's description and advised the dispatcher that officers were in a foot pursuit.

Burgis and Goodman chased defendant, yelling "stop, police." They chased defendant through the courtyard into Building 1, out the back door, down the stairs, then through another part of the courtyard past Building 7. At that point, Lugo joined the chase and yelled to defendant to "stop, police." Defendant continued running through the courtyard toward the rear stairwell of Building 6, with Lugo in pursuit. Before running up the stairs, defendant reached into his front pocket and discarded some objects. Lugo immediately retrieved the objects, which were later determined to be four vials and five jugs of cocaine and crack cocaine.

O'Brien then arrived at the scene, saw defendant enter Building 6, and continued the chase. He and Gill conducted a floor-by-floor search of the building and apprehended defendant on the eighth floor. O'Brien radioed to Robateau in order to confirm defendant's identity. Robateau later positively identified defendant.

Prior to trial, defendant filed a motion to suppress evidence seized during his flight from the police, which Judge Vazquez denied. At trial, Robateau, Lugo, Goodman and O'Brien testified for the State. The State's forensic expert, Linda Hogger, from the Hudson County Prosecutor's Office, and Sergeant Wally Wolfe of the Jersey City Police Department, also testified. Hogger opined that the four vials defendant dropped contained cocaine, that the five jugs contained crack cocaine, and that defendant possessed this amount of drugs for resale. Defendant presented no evidence or testimony at the suppression hearing or at trial.

I.

Defendant first challenges Judge Vazquez's denial of his motion to suppress. He argues that the police lacked authority to stop him, and therefore, his discarding the CDS was not abandonment but rather the result of an improper attempted detention.

In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Ibid. In that instance, "[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. With these standards in mind, we review defendant's contention.

Judge Vasquez found the stop and the search lawful and reasonable. Distinguishing State v. Tucker, 136 N.J. 158 (1994), the judge reasoned as follows:

[I]n this case, we have to look at the totality of the circumstances. And the totality of the circumstances are that there is what an experienced narcotics detective believes is a drug transaction in an area where there are complaints of drug transactions, and combined with that, the defendant fleeing at the sight of police officers.

I cannot say that the police officers did not have a reasonably articulable suspicion to investigate the situation based on that. They had that reasonable articulable suspicion, approached defendant, defendant ran and, while running, then abandoned CDS. Obviously he abandoned it in plain sight [] in a public area and it was contraband.

As a preliminary matter, "it is well settled that any warrantless search is prima facie invalid and gains validity only if it comes within one of the specific exceptions created by the Supreme Court." State v. Alston, 88 N.J. 211, 230 (1981) (citing State v. Young, 87 N.J. 132, 141-42 (1981); State v. Welsh, 84 N.J. 346, 352 (1980); and State v. Patino, 83 N.J. 1, 7 (1980)). Further, because the State's obligation to obtain a search warrant prior to seizing evidence "is not lightly to be dispensed with," it is the State's burden to prove that the warrantless search falls within one of the recognized exceptions to the rule. Ibid. (citing Welsh, supra, 84 N.J. at 352; Patino, supra, 83 N.J. at 7; and State v. Sims, 75 N.J. 337, 352 (1978)).

Because of the interests at stake, it becomes necessary "'to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed. 2d 889, 905-06 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-37, 87 S.Ct. 1727, 1734-35, 18 L.Ed. 2d 930, 939-40 (1967)). The State must, therefore, "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Therefore, under certain circumstances, it is appropriate under the exception carved out in Terry to conduct an investigatory stop, which includes a limited, protective search for weapons on an individual and a temporary detention of that person for that purpose. Id. at 27. The propriety of the investigatory stop implicates the community caretaking function and the common law right of police to inquire based upon the belief that criminal activity may be involved. State v. Matthews, 398 N.J. Super. 551, 558 (App. Div. 2008), certif. denied, 196 N.J. 344 (2008). What is necessary is not probable cause, but a reasonable and articulable suspicion of unlawful conduct.

It is equally well-established that "[o]ne seeking to invoke the protection of the [F]ourth [A]mendment must establish that a reasonable or legitimate expectation of privacy was invaded by government action." State v. Marshall, 123 N.J. 1, 66 (1991), cert. denied 507, U.S. 929, 112 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). If either element is lacking, there can be no "search" within the meaning of the Fourth Amendment, and thus, no violation of a defendant's rights thereunder. Ibid.; see also State v. Lee, 245 N.J. Super. 441, 450 (App. Div. 1991). Determining whether a defendant had a reasonable expectation of privacy in an item of property "depends on whether the person 'exhibited an actual (subjective) expectation of privacy,' and whether the expectation of privacy is 'one that society is prepared to recognize as reasonable.'" Marshall, supra, 123 N.J. at 66-67 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed. 2d 576, 588 (1967) (Harlan, J., concurring)).

It is also well-settled that a defendant has no expectation of privacy in property that he or she has abandoned. State v. Burgos, 185 N.J. Super. 424, 428 (App. Div. 1982). "For purposes of search-and-seizure analysis," a defendant who abandons property "no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search." State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (citations omitted). "In the context of the Fourth Amendment a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]" State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff'd o.b., 89 N.J. 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).

Relying on Tucker, supra, defendant posits that the police had no reasonable and articulable suspicion to believe he had engaged in criminal activity to justify an investigatory stop and detention. Defendant concludes, therefore, that the dropping of the CDS could not be characterized as abandonment. We disagree.

In Tucker, supra, 136 N.J. at 162, the defendant was sitting with a companion on the curb at the rear of a private residence when he saw a marked police car approach. He immediately got up and ran. A chase ensued. The defendant ran past a house and threw a clear plastic bag under its back porch. An officer stopped the defendant and retrieved the plastic bag from under the porch. The bag contained crack cocaine. Ibid.

The defendant moved to suppress evidence. The trial court found the stop and arrest unjustified because the officers had neither probable cause nor a reasonable, articulable suspicion to believe the defendant had committed a crime. Ibid. However, the trial court denied the motion, finding that the defendant had abandoned the contraband by throwing it under the porch, thereby relinquishing any reasonable expectation of privacy. Ibid.

We reversed, finding that the police illegally seized the defendant, and that the act of discarding the contraband was the product of an illegal seizure rather than an abandonment. Ibid. Our Supreme Court affirmed the reversal, finding that defendant's flight alone, without some evidence of criminality or particularized suspicion that he was engaged in criminal activity, was insufficient to justify seizure. Id. at 169. However, the Court also reaffirmed the principle that "a police officer on patrol, [] having an articulable suspicion that citizens are engaged in illegal activity, has the right to question the suspects." Id. at 167. The Court further reaffirmed that reason and common sense dictate that the officer should clearly "'have the right to stop persons on the street for summary inquiry where [] the circumstances are so highly suspicious as to call for such inquiry.'" Id. at 168 (quoting State v. Dilley, 49 N.J. 460, 464 (1967)).

Unlike the defendant in Tucker, supra, who was doing nothing more than sitting on a curb before he ran, Robateau observed defendant engage in a drug transaction in an area under surveillance due to complaints about drug activity. The officer also observed defendant flee as other officers approached him. Based on those observations, there was a reasonable and articulable suspicion that defendant had engaged in criminal activity. Thus, the police had every right, and in fact had a duty, to stop defendant and question him. We are satisfied that there was sufficient credible evidence supporting the legality of the stop and seizure.

We are also satisfied that there was sufficient credible evidence that defendant abandoned the contraband before the search and, thus, relinquished any expectation of privacy in it. See Carroll, supra, 386 N.J. Super. at 160-61 (finding abandonment of defendant's vehicle and the plastic bag left in it where defendant, after crashing the vehicle into a parked vehicle, left the vehicle's doors open and fled); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (finding abandonment of a container filled with bags of cocaine where defendant, who was riding a bicycle, threw the container against a curb when he noticed police were approaching and continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410 (1997); Gibson, supra, 318 N.J. Super. at 5, 11 (finding abandonment of contraband where defendant, after seeing an unmarked police car approaching him, dropped contraband onto a driveway); Farinich, supra, 179 N.J. Super. at 6-7 (finding abandonment of a suitcase where defendant, after being approached by the police in an airport, dropped it and started to flee).

II.

Defendant contends that Judge Theemling improperly denied his motion for a mistrial based on Lugo's mention of the suppression hearing during his trial testimony. The decision to grant a mistrial is within "the sound discretion of the [trial] court." State v. Allah, 170 N.J. 269, 280 (2002). We should give substantial deference to the trial judge in this regard. State v. Winter, 96 N.J. 640, 646-47 (1984). Absent an abuse of discretion, reversal is rare, as the threshold level of error necessary to support a decision to grant a mistrial is that of constitutional error clearly capable of producing an unjust result. R. 2:10-2; Winter, supra, 96 N.J. at 647; State v. LaPorte, 62 N.J. 312, 318 (1973).

The testimony defendant challenges is as follows:

[THE PROSECUTOR:] Have you testified in any prior proceeding before this one?

[LUGO:] Yes, I did.

[THE PROSECUTOR:] In what prior proceeding did you testify to?

[LUGO:] At the pretrial suppression hearing.

Defense counsel immediately objected and requested a mistrial. Judge Theemling denied a mistrial, finding that the testimony was an "inadvertent error." Defendant claims prejudice, arguing:

[T]he jury undoubtedly knew such a hearing involved a motion by defense counsel to suppress evidence seized by the police[,] . . . the jury became aware that the trial court had denied such a motion, since, had it been granted, [the] trial would never have taken place[,] . . . [and] the resulting impact was that the jury was aware the trial court had concluded the police had acted properly with respect to the search and seizure which had occurred.

Relying on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), defendant posits that Lugo's reference to the pretrial suppression hearing was the equivalent of mentioning a search warrant for his person. We disagree.

In Milton, 255 N.J. Super. at 519, the defendant was charged with drug offenses based on evidence obtained in a search of his home. We found nothing objectionable about the prosecutor's reference to a warrant to search the defendant's home. Id. at 520. However, we reversed because the State also elicited testimony about an unexecuted warrant to search defendant's person. We found that this testimony was unnecessary to the State's case and that it implied that "sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs." Ibid. We concluded as follows:

[T]he defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. [Ibid.]

Contrary to defendant's argument, there is nothing inherently improper about either referring to a properly issued search warrant or eliciting trial testimony about it. State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001). As our Supreme Court explained in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), "[w]e are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." Id. at 240. Thus, as long as the existence of the warrant does not have the capacity to mislead the jury, it is not improper to refer to it. Ibid.

Here, a search warrant was not at issue. Rather, at issue was Lugo's one passing mention of a pretrial suppression hearing without any indication whatsoever of its outcome. This passing comment did not imply that the State had presented evidence at the hearing that was not presented at trial. It was a far cry from mentioning an event where a neutral judge decided that there was sufficient probable cause to believe a defendant had drugs on his or her person prior to his or her arrest.

III.

Defendant next contends that Judge Theemling erroneously denied his motion for a judgment of acquittal on the resisting arrest charge. He argued that no probable cause existed for his arrest at the time police chased him. The judge denied the motion, finding as follows:

Once [] you have a police officer approach somebody and say stop and they flee, then that's, in effect, a flight. I think sufficient grounds [] whether or not the jury believes it or not, there's a sufficient factual basis to make the determination that the flight was to avoid arrest.

Where a defendant makes a motion for a judgment of acquittal,

The test to be applied in determining the sufficiency of the proof on a motion to acquit is whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. This test governs not only the trial judge's consideration of the motion, but also appellate review of his ruling.

[State v. Moffa, 42 N.J. 258, 263 (1964) (internal citations omitted); see also R. 3:18-1.]

When reviewing such a motion, we must "consider the State's proofs in the light of the foregoing standard and [] determine therefrom how the motion should have been decided." State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977).

In order to be found guilty of fourth-degree resisting arrest, the defendant must have "by flight, purposely prevent[ed] or attempt[ed] to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(2); see also Model Jury Charge (Criminal), "Resisting Arrest - Flight Alleged" (2004). It is no defense that the arrest may have been unlawful. As our Supreme Court held in State v. Crawley, 187 N.J. 440, cert. denied, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006):

[A] defendant has no right to commit the crime of resisting arrest, eluding, or escape in response to an unconstitutional stop or detention. For compelling public safety reasons, the resisting arrest, eluding, and escape statutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court. [Id. at 455.]

See also State v. Williams, 192 N.J. 1, 21 (2007).

Thus, when a police officer acts in good faith and under the color of his authority, the defendant must obey the officer's order to stop and may not take flight. Id. at 451-52. If the defendant flees, he has violated N.J.S.A. 2C:29-2a(2).

Here, the evidence shows that the police, with their badges exposed, yelled to defendant as he fled to "stop, police." We are satisfied that this evidence was sufficient for the State to withstand a motion for judgment of acquittal on the resisting arrest charge.

IV.

Defendant next challenges Judge Theemling's response to the jury's questions. During deliberations, the jury asked the following question: "If a police officer stops a person to say they want to speak with them and don't tell them they're under arrest and they run, is that resisting arrest?" Defendant wanted the judge to answer the question, "no." The judge determined that he could not answer the question at all, and he so advised the jury. He also instructed the jury to continue deliberating and "make a decision as to what you want."

The jury then asked if they could have a copy of the resisting arrest statute. The judge advised the jury that he could not give them a copy of the statute. Instead, he re-read the specific portions of the resisting arrest charge, which included the language of the resisting arrest statute and the elements of the offense.*fn2 The jury had no further questions.

"It is firmly established that '[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). The trial judge is likewise obligated to clarify the jury's question if it seems ambiguous in order to ascertain its request. Ibid. "A trial court must not only respond substantively to questions asked by the jury during deliberations, but it must assure itself that it understands the import of the questions." State v. Lopez, 378 N.J. Super. 521, 533 (App. Div. 2005), aff'd in part, rev'd in part, 187 N.J. 91 (2006). Therefore, on direct review, when "determining the propriety of a response to a jury question, the supplemental charge must be considered with the main charge in its entirety to ascertain whether the jury was misinformed as to the applicable law." Ibid.

Our review of the jury's question convinces us that it improperly required the judge to make a factual determination. Because fact-finding is solely within the jury's province, it would have been inappropriate for the judge to answer the question. State v. Carbone, 180 N.J. Super. 95, 98 (Law Div. 1981). We are satisfied that the judge's re-reading of the resisting arrest charge was an appropriate response to the jury's inquiry.

V.

We now address defendant's sentence, which defendant claims is manifestly excessive. Finding aggravating factors N.J.S.A. 2C:44-1a(3), (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted) and (9), and no mitigating factors, Judge Theemling sentenced defendant to a flat five-year term of imprisonment on count one and a concurrent eighteen-months on count five. On the two violations of probation, the judge found no mitigating factors, and sentenced defendant to a concurrent flat five-year term of imprisonment on each violation.

Defendant contends that the judge abused his discretion by imposing the maximum five-year term of imprisonment on count one and on each violation of probation. He also contends that the judge improperly relied on aggravating factor N.J.S.A. 2C:44-1a(6), and improperly ignored mitigating factors N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm), and N.J.S.A. 2C:44-1b(11) (his imprisonment would entail excessive hardship to himself or his dependents).

In matters of sentencing, we should not substitute our judgment for that of the sentencing judge. State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We should affirm a sentence unless we find that the sentencing judge somehow violated the legislative policies behind the aggravating and mitigating factors, that the factors were not supported by substantial credible evidence in the record, or that the sentence imposed, while within the guidelines set forth by the legislature, is so unreasonable "as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Dalziel, 182 N.J. 494, 501 (2005).

We first emphasize that a presumption exists for imposition of a consecutive sentence for a violation of probation. State v. Sutton, 132 N.J. 471, 484 (1993). Also, defendant qualified for a discretionary extended term sentence because of his prior drug-related convictions. In the exercise of his discretion, the judge did not impose consecutive sentences or an extended term sentence, both of which would have incarcerated defendant for much longer than five years. Instead, the judge found the previously mentioned aggravating factors and no mitigating factors.

It is well-established "that aggravating and mitigating factors must be supported by credible evidence. A corollary of that rule is that where they are so supported, they must be part of the deliberative process." Dalziel, supra, 182 N.J. at 505 (internal citation omitted). Further, "where mitigating factors are amply based in the record before the sentencing judge, they must be found. To be sure, they may be accorded such weight as the judge determines is appropriate." Id. at 504-05. "[A] judge may [not] simply decline to take into account a mitigating factor that is fully supported by the evidence." Id. at 505.

Based upon our review of the record, we are satisfied no abuse of discretion occurred. The aggravating factors are clearly supported by the record. Defendant has three prior indictable convictions: (1) a 2000 conviction for possession of CDS with intent to distribute within 1000 feet of a school, which resulted in a custodial sentence of three years with nine months of parole ineligibility; (2) a 2003 conviction for possession of CDS, which resulted in three years probation; and (3) a 2004 conviction for possession of CDS which resulted in three years probation. The record does not support any mitigating factors. To be sure, although defendant has two sons, he pays no child support and has little contact with one son, who lives in Florida. The sentencing judge need not invent mitigating factors where there is no clear evidence of them in the record. Dalziel, supra, 182 N.J. at 505.

Also, in cases where a violation of probation has resulted in the imposition of a sentence, it is important to focus on the reasons for imposing the term of imprisonment. "The custodial term allowed by the statute is imposed because of the defendant's failure to abide by the conditions of his probation but is not for the violation of those conditions." State v. Ryan, 86 N.J. 1, 8 (emphasis original), cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed. 2d 190 (1981). "Imposing the maximum sentence for the original offense after revocation of probation without a grand jury indictment or trial by jury is not unconstitutional, since the new sentence is only a sanction for defendant's original offense for which he had been properly tried." Ibid. (internal quotation marks omitted). However, in making its determination for the purposes of sentencing on probation violations, the sentencing "court should consider the aggravating factors found to exist at the original hearing and the mitigating factors as affected by the probation violations." State v. Baylass, 114 N.J. 169, 178 (1989). While it may "be a rare case in which the balance of the original aggravating factors and surviving mitigating factors weigh in favor of a term of imprisonment greater than the presumptive sentence or of a period of parole ineligibility[,]" it is not impossible for such a sentence to be passed, should the aggravating factors outweigh the mitigating factors. Ibid.

At his sentencing for the 2003 conviction, the sentencing judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (the need for to deterring defendant and others from violating the law). The judge also found mitigating factors N.J.S.A. 2C:44-1b(1) and (2), and N.J.S.A. 2C:44-1b(10) (defendant is particularly likely to respond affirmatively to probationary treatment). In addition, the judge warned defendant that if he violated probation he could receive a five-year term of imprisonment.

At his sentencing for the 2004 conviction, the sentencing judge court found aggravating factors N.J.S.A. 2C:44-1a(3) and (9), and mitigating factor N.J.S.A. 2C:44-1b(10). The judge again warned defendant that he could receive a five-year term of imprisonment if he violated probation.

At sentencing on the violations of probation, Judge Theemling found no mitigating factors. This was certainly within the judge's discretion based upon defendant's conduct and the evidence in the record. Defendant had two chances to respond positively to probationary treatment and failed to do so.

Affirmed.


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