April 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON LEE BRIGGS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-09-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
Before Judges Lyons and Waugh.
Defendant Jason Lee Briggs appeals his conviction for distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), as well as the resulting sentence of seven years incarceration with a three-year period of parole ineligibility and related fines and penalties. We affirm the conviction but remand for resentencing.
We glean the following facts from the record. On September 1, 2005, Officers Ordell Taylor and Mark Reiner of the Franklin Township Police Department were on patrol. They were assigned to the "crime suppression unit," which is an "undercover unit" intended to address "quality of life issues." At the time, the officers were in plainclothes and an unmarked car.
At about 7:45 p.m., the officers pulled into the parking lot of a Shop Rite that had been closed down. There were, however, several small stores in the strip mall, including a liquor store and a pizzeria, as well as a pay phone in front of the stores. The officers noticed a green Chevrolet Malibu, with one occupant, parked and idling in an isolated area of the lot.
As the officers entered the parking lot, another car -- a gray Acura -- also pulled into the lot and stopped in front of the liquor store. A man, later identified as Briggs, exited the car and walked into the liquor store. The Acura then left the lot. Five to seven minutes later, Briggs came out of the liquor store carrying a brown paper bag.
At the same time Briggs left the liquor store, the man in the green Malibu, later identified as Lawrence Pfeiffer, got out of his car and walked to the pay phone. Pfeiffer picked up the pay phone and appeared to be having a conversation. Briggs then approached the pay phone and the two men greeted each other with a handshake. The two officers testified that, at the time of the handshake, Pfeiffer took money out of his pocket and handed it to Briggs, who in return placed an item in Pfeiffer's palm. Pfeiffer looked at the item and then put it in his pocket. The officers were unable to see what was passed from Briggs to Pfeiffer. At the close of the exchange, Briggs walked into the pizzeria and Pfeiffer walked towards his car.
The officers got out of their car and approached Pfeiffer, identifying themselves as police officers. Taylor told Pfeiffer what he had observed. Taylor retrieved two small bags of crack cocaine from Pfeiffer, who told Taylor that he received the cocaine from Briggs. Taylor stayed with Pfeiffer while Reiner went to investigate Briggs.
Reiner watched as Briggs went into the pizzeria's bathroom, came back out, and then left the pizzeria. Once outside, Reiner approached Briggs, identified himself, and questioned him about the exchange with Pfeiffer. Briggs, who had already given Reiner his identification, told Reiner that he knew Pfeiffer and had just come over to get a piece of pizza.
Reiner went back to the police car where Taylor was holding Pfeiffer, who was then placed under arrest. Reiner stayed with Pfeiffer while Taylor went to talk to Briggs. Taylor told Briggs what he had seen and what Pfeiffer had told him. Briggs told Taylor that he knew Pfeiffer and that Pfeiffer liked to party, so he got something for him. Briggs was placed under arrest.
Detective Sergeant Darin Russo, who was in charge of the crime suppression unit at the time of the incident, was on the road when he heard a radio transmission concerning the exchange in the parking lot. He went to the parking lot and saw Taylor and Reiner. Russo joined Taylor in questioning Briggs. Russo was responsible for packing up the evidence. He did not see any money that had been taken from Briggs.
After Briggs was arrested, both Taylor and Reiner observed the gray Acura pulling into the parking lot again. The officers attempted to stop the car by flagging it down, but the car did not stop.
Officer Michael Price, who worked with the Organized Crime and Narcotics Task Force, received a call to assist the crime suppression unit. Price, along with a Detective Walsh, proceeded to the Shop Rite parking lot. They observed individuals in handcuffs and were briefed by the officers involved in the arrests. Price and Walsh then went to police headquarters and interviewed Briggs. Briggs was given his Miranda*fn1 rights, which he waived. Price then spoke with Briggs in an off-tape interview.
Price asked about Briggs's interaction with Pfeiffer. Briggs stated that he had known Pfeiffer for about two years and that they had worked together. They were friends and, on that night, they had planned to party together. They had arranged to meet at the pizzeria. Briggs had agreed to pick up some cocaine for Pfeiffer. Briggs told Price that he put the cocaine in Pfeiffer's hand.
After the unrecorded statement, Briggs agreed to give an audiotaped statement. In the taped statement, Briggs reiterated that he and Pfeiffer had known each other for about two years and that they were friends. Pfeiffer called Briggs that night and asked if he wanted to party with him and Briggs indicated that he did. Briggs told Pfeiffer to meet him at the pizzeria and Briggs went to the liquor store. Briggs came out of the liquor store, met Pfeiffer, and then went into the pizzeria. At some point, Briggs handed Pfeiffer two bags of cocaine. Pfeiffer never gave Briggs any money. Pfeiffer put the cocaine in his pocket because he was waiting for Briggs. The two were going to go to a party at a friend's house.
Pfeiffer, who testified on Briggs's behalf, had driven to the mall in his Malibu with his dogs in the car. Pfeiffer testified that he and Briggs intended to use the cocaine together. Pfeiffer knew where to pick Briggs up because he had called him prior to leaving home.
On appeal, Briggs raises the following points:
POINT I: THE TRIAL COURT IMPROPERLY REFUSED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE POSSESSION, AS REQUESTED BY DEFENDANT, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL.
POINT II: DEFENDANT'S SENTENCE IS EXCESSIVE.
Having reviewed defendant's arguments as to the conviction, the State's responses, and the record on appeal, we find Briggs's arguments to be without merit and not warranting an extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We add only the following.
Briggs argues that, because he and Pfeiffer intended to use the cocaine together, the trial judge should have charged the lesser included offence of possession, on the theory that he and Pfeiffer jointly possessed the cocaine. We disagree.
Even crediting Pfeiffer's testimony,*fn2 the facts demonstrate that Briggs arrived at the parking lot with the cocaine and transferred it to Pfeiffer. That is distribution within the meaning of N.J.S.A. 2C:35-5(a)(1). See In re G.R., 395 N.J. Super. 428, 433 (App. Div.), certif. denied, 193 N.J. 275 (2007); State v. P.L., 369 N.J. Super. 291, 293-94 (App. Div. 2004); State v. Roach, 222 N.J. Super. 122, 127 (App. Div. 1987), certif. denied, 110 N.J. 317 (1988) (applying the prior distribution statute, N.J.S.A. 24:21-19(a)(1)). There was absolutely no basis for a jury to find that they obtained the cocaine jointly. State v. Lopez, 359 N.J. Super. 222, 233 (App. Div.), certif. granted sub nom. State v. Garcia, 177 N.J. 576, appeal dismissed per stipulation, 178 N.J. 372 (2003) ("[W]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse simple joint possession, without any intent to distribute the drug further.") (quoting United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977)). That they may both have intended to use the cocaine later that evening, if true, does not satisfy the requirements for joint possession.
With respect to the sentence, our role in reviewing sentences imposed by the trial courts 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. [State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).]
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)).
Briggs was clearly eligible for the mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), as he concedes on appeal. However, the trial judge misinterpreted one of the mitigating factors, hardship pursuant to N.J.S.A. 2C:44-1(b)(11), that may have been applicable to Briggs.
The pre-sentence report reflects that Briggs was gainfully employed prior to his arrest and that he has two children, who were living with their mother, to whom he is apparently still married. It is clear from the sentencing transcript that the trial judge was aware of a potential hardship to Briggs's family from a loss of financial support, but that he interpreted the "hardship" mitigating factor as being applicable solely to the defendant. The trial judge stated:
Hardship, yes, it is going to be a hardship on family because he is sitting in prison instead of taking care of his family, and they are going to lose that economic input, but that's not what the factor is about. It talks about hardship to an individual. There is the generalized hardship that is involved with a regular defendant. There is nothing undue or specific with regard to hardship as to this defendant.
In actuality, N.J.S.A. 2C:44-1(b)(11) (emphasis added) provides that the sentencing court may consider as a mitigating factor that "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents."
Because the trial judge misapplied N.J.S.A. 2C:44-1(b)(11), we remand to the trial court so that the trial judge can reconsider the sentence and apply the provisions of N.J.S.A. 2C:44-1(b)(11) as he deems appropriate.
In summary, we affirm Briggs's conviction and remand to the trial court for reconsideration of the sentence in light of the applicability of N.J.S.A. 2C:44-1(b)(11).
Affirmed in part and remanded for resentencing.