January 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEONARD ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Payne and Waugh.
Defendant Leonard Robinson was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count I); first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5(b)(1) (count II); and second-degree possession of a controlled dangerous substance with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count III). The sentencing judge merged count I into count II and sentenced Robinson to incarceration for twenty-two years, with eleven years of parole ineligibility, for count II, and a concurrent ten-year sentence, with five years of parole ineligibility, for count III. Robinson appeals both the conviction and the resulting sentence. We affirm.
At approximately 2:00 p.m. on March 9, 2006, members of the Asbury Park Police Department and the Monmouth County Prosecutor's Office attempted to effectuate the arrest of Robinson pursuant to an active warrant. Officer Eddie Raisin testified at trial that he, along with other law enforcement officers including Detective Todd Rue, went to an apartment complex at 410 Deal Lake Drive, but Robinson was not there when they arrived. Raisin and the other officers positioned themselves inside an apartment in the complex and waited for Robinson's return. Eventually, Robinson returned and, after he entered the foyer, Raisin opened the apartment door and confronted him. Robinson dropped a clear plastic bag that contained suspect cocaine. Raisin retrieved the bag and placed Robinson under arrest.
Raisin searched Robinson's person and found another plastic bag containing suspect cocaine. Following the search, Robinson was advised of his Miranda*fn1 rights. Robinson waived his Miranda rights and agreed to cooperate in the investigation. He filled out consent forms for the search of an apartment on Grand Avenue and his Chevy Tahoe. Robinson directed Raisin to a closet in the Grand Avenue apartment that contained cocaine.
After Robinson had been transported to the prosecutor's office, he again waived his Miranda rights and made a formal statement to Rue in the presence of other officers. Robinson stated that he had received a phone call to deliver twenty-one grams of cocaine to the apartment complex on Deal Lake Drive. He maintained that he acted alone and was in the process of delivering the cocaine when he was arrested. Robinson acknowledged that he acquired, on average, five to seven ounces of cocaine once every three weeks. Robinson refused to name his supplier.
Following a three-day jury trial in January 2007, Robinson was convicted. He was sentenced on April 5, 2007. The State successfully moved for an extended sentence pursuant to N.J.S.A. 2C:43-6(f). After finding four aggravating factors, N.J.S.A. 2C:44-1(a)(2), (3), (6), and (9), and no mitigating factors, N.J.S.A. 2C:44-(1)(b), the trial judge sentenced Robinson to twenty-two years of incarceration, with ten years of parole ineligibility, for count II, and a concurrent ten-year sentence, with five years of parole ineligibility, for count III.
Robinson raises the following issues on appeal:
Point I: The defendant was denied his right to a fair trial as a result of testimony gratuitously volunteered by a police officer constituting inadmissible hearsay which connected the defendant with prior criminal conduct of the same nature as the charges for which he was on trial. (Not raised below).
Point II: The defendant was denied his right to a fair trial as a result of a reference by a police officer to the defendant's alias. (Not raised below).
Point III: The trial court erred in ruling that all of the defendant's prior convictions were admissible to attack credibility.
Point IV: The defendant is entitled to a remand for a determination as to the reasons for the State's decision to seek an extended term and whether such a decision was arbitrary and capricious. (Not raised below).
Point V: The sentence imposed was manifestly excessive.
We find defendant's arguments to be without sufficient merit to warrant extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We add only the following.
We review the issues raised in points I and II under the plain error standard. State v. Ingram, 196 N.J. 23, 42-43 (2008). "Because defense counsel did not object" contemporaneously to the statements during trial, "defendant must demonstrate plain error to prevail. Plain error is 'error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense.'" State v. Papasavvas, 163 N.J. 565, 626 (2000) (quoting State v. Timmendequas, 161 N.J. 515, 576-77 (1999)).
Robinson argues in point I that he was prejudiced by Rue's testimony about his prior criminal conduct. The following exchange took place between Robinson's counsel and Rue on cross-examination:
Q: Now, we are talking about the conversation you had with Mr. Robinson . . . . So first you advised him -- this was a lengthy investigation, correct? . . . .
A: [H]e wasn't completely sure that he wanted to cooperate at that time and I continued to talk to him and had to tell him that we watched him come from that apartment where he bought the drugs from. We obtained drugs from him and that is when he realized that we had been watching him. I don't think he believed that I had been watching him.
Q: So you are saying that you told him you had been watching him for several months and you knew that drugs were coming from that apartment?
A: No, I said I was watching him for several months. I didn't say I knew drugs were coming from the apartment for several months. He knew the drugs came from that apartment that day. "[E]xcept in the most extreme cases trial errors originating with defense counsel will not present grounds for reversal on appeal." State v. Berry, 140 N.J. 280, 303-04 (1995). Based on the record before us, we do not see Rue's testimony as constituting one of the "most extreme cases" justifying the disturbance of the defendant's conviction.
In point II, defendant argues it was plain error for Raisin to mention Robinson's alias, Lenwood Robinson. We are satisfied that mention of that alias was harmless. Reversal would only be warranted if defendant could demonstrate some form of prejudice from the admission of the alias. State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied 111 N.J. 609 (1998). We find that the "overwhelming evidence of defendant's involvement" in the charged crimes and "the absence of any reference to the alias as an indication of guilt negated any potential prejudice." Id. at 75.
In reviewing defendant's point III, we must determine whether the trial judge abused her discretion in allowing Robinson's past convictions to be used for impeachment purposes. In State v. Sands, 76 N.J. 127, 144 (1979), the Supreme Court addressed the discretionary character of that decision.
We hold that whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one which should be guided by the considerations which follow. Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.
The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. . . . A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Id. at 144-45 (emphasis added).]
Following a Sands hearing, Robinson testified on his own behalf. On cross-examination, the prosecutor introduced three of Robinson's past convictions for impeachment purposes. Because the prior convictions were similar in nature to the charges for which Robinson was on trial, the trial judge properly required that a "sanitized" version of the crimes be admitted. State v. Hamilton, 193 N.J. 255, 257 (1993).*fn2
Robinson argues that his prior convictions were so temporally remote that to allow their admission denied him a fair trial. We do not believe that the trial judge abused her discretion in allowing the admission of Robinson's past convictions for impeachment purposes, inasmuch as they portrayed an individual "who repeatedly refuses to comply with society's rules" and is possibly "more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." Sands, supra, 76 N.J. at 145.
In challenging the sentence imposed, Robinson argues that the State failed to state adequately its reasons for seeking an extended term as required by State v. Lagares, 127 N.J. 20, 32 (1992). See also State v. Kirk, 145 N.J. 159, 168 (1996).
In seeking an extended term, the State must not only prove that the defendant's record justifies the extended term, but must also explain why it is not seeking a waiver of the extended term. Id. at 169. The Attorney General has promulgated guidelines outlining four possible instances in which a prosecutor may properly seek a waiver of a mandatory extended term under N.J.S.A. 2C:43-6(f). Attorney General Directive 1998-1, 3-4. None of the four possible scenarios were applicable to Robinson.
If the State fails to outline adequately its reasons for not seeking a waiver, the omission is not necessarily grounds for remand.
[A] defendant challenging a prosecutor's application for an extended term must establish that the decision constituted an abuse of prosecutorial discretion. The Lagares Court made clear the substantial burden that a defendant has in establishing arbitrariness:
We emphasize that the burden on defendant to prove that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion is heavy. Defendants will have to do more than merely make general conclusory statements that a prosecutorial determination was abusive. Instead, they must show clearly and convincingly their entitlement to relief under the standard established herein. Application of that standard is consistent with the legislative determination to make an extended sentence for repeat offenders the norm.
[Kirk, supra, 145 N.J. at 169-70 (quoting Lagares, supra, 127 N.J. at 33).]
We find that, because defendant was not eligible for a waiver of the extended term, the prosecutor's failure to seek such a waiver was not an abuse of discretion. In addition, because Robinson was ineligible for the waiver, the prosecutor's failure to articulate reasons for not seeking a waiver was not an "error possessing a clear capacity to bring about an unjust result." Timmendequas, supra, 161 N.J. at 576.
Finally, Robinson argues in point V that the aggregate twenty-two-year sentence with eleven years of parole ineligibility was excessive. Although, N.J.S.A. 2C:43-7(a)(2) provides for an extended term from twenty years to life, the trial judge imposed only a twenty-two year sentence.*fn3 "[W]e will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). We find nothing in the record to suggest that the sentence imposed rises to the level of "shock[ing] the judicial conscience." The trial judge properly found four aggravating factors, N.J.S.A. 2C:44-1(a)(2), (3), (6), and (9), and no mitigating factors, N.J.S.A. 2C:44-(1)(b). She did not "double count" Robinson's prior convictions because there were more of them than required for the extended term. Nor did she abuse her discretion in finding that Robinson was not entitled to mitigating factors (11) and (12). N.J.S.A. 2C:44-1(b)(11), (12). Despite finding the four aggravating factors, the trial judge only sentenced Robinson to two years more than the bottom of the extended range. Because the sentence imposed is well within the statutory framework, we see no reason to overturn it. Dalziel, supra, 182 N.J. at 500.
Consequently, we affirm as to all issues and find no need for a remand to the trial court for reconsideration of the sentence.