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State v. George

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DASHAWN GEORGE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-803.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 6, 2008

Before Judges Stern, Waugh and Newman.

Defendant Dashawn George appeals his conviction, following a guilty plea, for one count of first-degree armed robbery, N.J.S.A. 2C:15-1. He contends that the motor vehicle stop that led to his arrest was illegal and also that the Family Part should not have waived jurisdiction over the charges against him, which were committed when he was seventeen years of age. He also appeals the sentence of ten years incarceration, with eighty-five percent of that term subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, arguing that his sentence was disproportionate to those received by his co-defendants. We affirm.

I.

During the early morning of September 23, 2004, while on patrol, Police Officer Vincent Glenn heard a radio transmission regarding a robbery on Kennedy Boulevard in Jersey City. Three armed black males wearing ski-masks were described as having been involved.

Glenn and his partner, John Entman, drove toward Kennedy Boulevard and observed a blue Ford Explorer at the intersection of State Highway 139 and Collard Street. According to Glenn, the Explorer was traveling at a high rate of speed with its lights off. Glenn and Entman followed the vehicle. Glenn then activated the emergency lights and stopped the Explorer a few blocks later.

Glenn approached the driver's side and Entman approached the passenger's side. Glenn observed five male occupants in the vehicle. He saw a black ski mask on the driver's side dashboard. Entman removed the front-seat passenger, performed a pat down, and found a gun in the passenger's waistband. The other occupants were then removed from the car.

The driver also possessed a handgun. The police officers found three revolvers in the back seat in a makeup bag. The Explorer was impounded and subsequently searched. Purses, wallets, and jewelry were found in the rear "tailgate" area of the Explorer.

Police concluded that the purses found in the Explorer could not have been taken from the male victim who had reported the robbery. The police contacted two women whose identification was found in purses recovered from the Explorer. They learned that a second robbery, involving two women and a male, had taken place that same evening, at approximately 2:30 a.m., near the intersection of Fleet Street and Baldwin Avenue. The two women told the police that their purses and other personal property were taken by three to five masked black males with guns. They identified property found in the Explorer as belonging to them. Further investigation revealed additional criminal activity over the course of three days.

Three juvenile complaints were filed against George. FJ-09-942-05, filed September 24, 2004, charged three armed robberies and weapons offenses, all arising out of the incidents of September 23, 2004. FJ-09-1550-05, filed November 10, 2004, charged two additional armed robberies, conspiracy, and weapons offenses for activities on September 22, 2004. FJ-09-1551-05, also filed on November 10, 2004, charged two armed robberies, conspiracy, and weapons offenses for activities on September 21, 2004.

The State applied to the Chancery Division, Family Part to have all three juvenile complaints against George waived to the Law Division, Criminal Part. The State's applications were granted by Judge Mark A. Baber. George was subsequently indicted and charged with armed robbery, N.J.S.A. 2C:15-1 (counts 1, 3, 5, 7, 9, 11, 13, 15, 17); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts 2, 4, 6, 8, 10, 12, 14, 16, 18); conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (counts 19, 20, 21, 22, 23, 24); possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f) (count 27); theft by receiving stolen property, N.J.S.A. 2C:20-7 (count 28); and possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) and 2C:58-4 (counts 31, 32, 33). Co-defendants James Ensley, Vincent Jenkins, Taurian West, and Rodney Chapple were also charged in the indictment.

George moved to suppress the evidence seized as a result of the September 23, 2004, traffic stop. The motion was denied on December 2, 2005, by Judge Paul M. DePascale. On March 6, 2006, George pled guilty to a single count of first-degree armed robbery. The State agreed to recommend a period of incarceration of twelve years, with an eighty-five percent NERA disqualification period. At the plea hearing, George acknowledged his involvement in the armed robbery that involved Lisa Lugo, the owner of one of the purses found in the Explorer. He testified that, during the theft, he produced a handgun in order to frighten Lugo.

George was sentenced on May 19, 2006. Judge DePascale found aggravating factors three and nine, and no mitigating factors. N.J.S.A. 2C:44-1. Although the State recommended twelve years of incarceration, Judge DePascale imposed a sentence of ten years incarceration with a eighty-five percent NERA disqualifier. This appeal follows.

II.

In this appeal, George raises the following issues:

POINT I: THE STOP OF THE VEHICLE CONTAINING GEORGE AND HIS CO-DEFENDANTS WAS ILLEGAL. POINT II: THE FAMILY COURT ERRED IN WAIVING THE JURISDICTION OF THE JUVENILE COURT ON EACH COMPLAINT, AS THE COURT'S FINDING THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT THE JUVENILE-DEFENDANT HAD COMMITTED THE OFFENSES IN QUESTION WAS ERRONEOUS.

POINT III: DEFENDANT'S SENTENCE IS DISPROPORTIONATE TO THAT OF TWO OF HIS CO-DEFENDANTS, AND HE IS ENTITLED TO A REMAND SO THAT THE JUDGE MAY ASSESS HIS SENTENCING-DISPARITY CLAIM.

Having reviewed the record and considered the points raised on appeal, we conclude that they are without merit and do not require extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

With respect to the waivers from the Family Part, N.J.S.A. 2A:4A-26(a) provides for waiver of jurisdiction by the Family Part to "the appropriate court and prosecuting authority" upon a finding that "(1) [t]he juvenile was 14 years of age or older at the time of the charged delinquent act; and (2) [t]here is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute," among other options, "(a)... robbery which would constitute a crime of the first degree." See also R. 5:22-2. There can be no doubt that the allegations against George included allegations that would constitute first-degree robbery under N.J.S.A. 2C:15-1(b).

We are satisfied that Judge Baber's decision finding probable cause following each waiver hearing satisfied the standard of "a well-grounded suspicion or belief that the juvenile committed the alleged crime." State v. J.M., 182 N.J. 402, 417 (2005). We find no abuse of discretion. State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003) ("Waiver of a juvenile offender for trial as an adult in the Law Division pursuant to N.J.S.A. 2A:4A-26 is highly discretionary and will not be disturbed unless it is shown that the discretion has been misapplied.").

With respect to the motor vehicle stop that resulted in George's arrest and the seizure of the weapons and other evidence, George argues that we should reject the credibility findings made by Judge DePascale and determine that the stop was illegal because Glenn's testimony about the speed limit on Highway 139 was, according to George, "evasive." The standard of review of a motion judge's factual findings in the context of a motion to suppress is limited to a determination of "whether the judge's findings are supported by credible evidence." State v. Marolda, 394 N.J. Super. 430, 442 (App. Div.), certif. denied, 192 N.J. 482 (2007). As George himself acknowledges, "we are duty-bound to give deference to those findings which are substantially influenced by the judge's opportunity to hear and see the witnesses and to have the'feel' of the case." State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (citing State v. Johnson, 42 N.J. 146, 161 (1964)).

In making his argument, George seeks to rely on information about the speed limits on Highway 139, taken from a State of New Jersey website, that was not before Judge DePascale. In addition, the information is imprecise because it does not identify which sections of Highway 139 had the 35 mile-per-hour speed limit and which sections had the 45 mile-per-hour speed limit. That information is not properly before us. R. 2:5-4. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).

George's credibility argument with respect to Glenn is not, in any event, supported by the transcript of the motion to suppress. Glenn testified as follows:

Q: And what, if anything, did you observe on your way to responding to the armed robbery?

A: I was traveling west on State Highway 139 proceeding toward Kennedy Boulevard [on] 139, when at that intersection of Collard Street, I observed a vehicle without its headlights on traveling at a high rate of speed which drew my attention.

Q: And can you describe what sort of vehicle that was?

A: It was a blue Ford Explorer.

Q: Now you said traveling at a high rate of speed, what's the speed limit in that area?

A: 25 miles on Collard Street and 25 miles on Kennedy Boulevard.

Q: Can you approximate the speed of the vehicle that you observed?

A: Approximately 45 miles an hour.

Q: And what did you do after you observed this vehicle?

A: We followed behind the vehicle, and a few blocks later, at the intersection of Kennedy Boulevard and St. Paul's Avenue, we activated our emergency lights to pull the vehicle over.

Thus, it is clear that Glenn followed the Ford Explorer onto Kennedy Boulevard, from its intersection with Highway 139 to its intersection with St. Paul's Avenue, during which time it was exceeding the 25 mile-per-hour speed limit on Kennedy Boulevard. Consequently, the speed limits on Highway 139 are not decisive.

George also ignores the testimony that the Ford Explorer was being driven 45 miles-per-hour without its headlights on at approximately 2:30 a.m. Even if it had not been exceeding the speed limit, driving without headlights at that time of night would have been a sufficient basis for the stop. Judge DePascale correctly determined that Glenn had "reasonable and articulable suspicion" that one or more traffic offenses had taken place to warrant the stop. State v. Amelio, ___ N.J. ___, (2008) (setting forth the requirements for an investigatory stop). We see no error in Judge DePascale's further determinations with respect to the searches of the vehicle, about which George makes no specific arguments on appeal.

Finally, George argues that his ten-year sentence, although shorter than the twelve-year negotiated maximum sentence requested by the State at sentencing, was disproportionate to those of his co-defendants Chapple and Ensley, who received seven years and five years, respectively. While George was sentenced as a first-degree offender, the other two were sentenced as second-degree offenders as part of their plea bargains, although each of the three had pled guilty to one count of armed robbery. George argues that, under the principles set forth in State v. Roach, 146 N.J. 208, 233-34, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996), a remand is necessary so that Judge DePascale can assess his sentencing disparity claim.

As the Supreme Court held in Roach, supra, "[d]isparity may invalidate an otherwise sound and lawful sentence." 146 N.J. at 232.

We acknowledge that "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." [State v.] Hicks, 54 N.J. [390,] 391 [(1969)]. However, although the sentence imposed on defendant falls within the statutory limits mandated for the offense, "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980) (citing State v. Whitehead, 159 N.J. Super. 433 (Law Div. 1978), aff'd, 80 N.J. 343 (1979)). The purpose of the guidelines is to promote fairness and public confidence in the "even handed justice of our system." Hicks, supra, 54 N.J. at 391. The question therefore is whether the disparity is justifiable or unjustifiable. [Id. at 232-33.]

One of the Supreme Court's concerns in Roach was the size of the disparity between the sentence then under review and that of the co-defendant-a difference of thirty years. Id. at 233. In this case, the disparities are not nearly as lengthy, although George's sentence was twice as long as Ensley's, ten years as opposed to five years, respectively.

George, Chapple, and Ensley were all sentenced by Judge DePascale on the same day. With respect to George, Judge DePascale found two aggravating factors and no mitigating factors. As noted, his sentence was two years less than that requested by the State. Chapple, who was approximately the same age as George, received a seven-year sentence, subject to NERA. Chapple's presentence report had recommended an even lower sentence. Judge DePascale found one or two aggravating factors in his case, and no mitigating factors.*fn1 He specifically noted that Chapple was less culpable with respect to his involvement in the criminal activity than some of the other defendants.

Ensley, who was an adult at the time of the offenses, received a five-year sentence, also subject to NERA. Judge DePascale found one aggravating factor and three mitigating factors. Unlike George and Chapple, Ensley had cooperated with the State during the investigation of the crimes and had been willing to testify at trial.

Based upon our review of the record, we are satisfied that Judge DePascale had appropriate reasons for imposing different sentences on those three defendants. Indeed, it is clear from the transcript of Chapple's sentencing that Judge DePascale was conscious of the dictates of Roach, inasmuch as he told Chapple's attorney that there were co-defendants "who [were] somewhat more culpable than [his] client on the morality scale, not legal[ly]," who were to be sentenced "in the first degree range with a minimum of ten years," so that "it would be inappropriate to reduce [Chapple's] sentence to five years."

In reviewing a sentence, even for Roach purposes, our role is limited.

An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64. [Roach, supra, 146 N.J. at 230.]

We do not consider whether we would have reached a different sentence, but whether "'on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)). We see no basis to overturn the sentence imposed by Judge DePascale or to remand for a Roach analysis. The propriety of the sentence is evident on the record before us.

III

Consequently, we affirm as to all issues and find no need for a remand to the trial court for reconsideration of the sentence through a Roach hearing.

Affirmed.


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