July 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTOINE STEVENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 1, 2009
Before Judges R. B. Coleman, Sabatino and Simonelli.
Following a jury trial, defendant Antoine Stevens was convicted of third-degree possession of a controlled dangerous substance ("CDS"), namely heroin, N.J.S.A. 2C:35-10(a)(i) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count six); and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a) (count seven). Defendant was sentenced to an aggregate prison term of thirteen years, with six-and-a-half years of parole ineligibility.
Defendant appeals his convictions on various substantive and evidentiary grounds. In particular, he argues that the trial court's failure to confirm on the record that his trial counsel had sufficiently advised him about his right not to testify requires reversal. Additionally, defendant maintains that: the trial court erred in denying his motion for judgment notwithstanding the verdict as to the resisting arrest conviction; irrelevant and prejudicial evidence was improperly admitted; and the jury instructions were deficient. Finally, defendant claims errors in his sentence.
For the reasons that follow, we reject defendant's arguments concerning his convictions, which we affirm in their entirety. However, as conceded by the State, the matter must be remanded for resentencing because of the required merger of the park-zone and school-zone drug offenses.
The State's proofs at trial adduced the following salient facts.
As part of a narcotics investigation, Anthony Goodman, a Jersey City police officer, was performing surveillance on September 29, 2006, at the intersection of Stegman Drive and Martin Luther King Drive ("MLK Drive"). That neighborhood contains a mixture of residential and commercial buildings. It was considered by law enforcement to be a high-drug area where narcotics arrests were often made.
Officer Goodman began his surveillance at 10:50 a.m. Shortly thereafter, he began to focus on two black males who were standing and conversing in front of a barbershop on MLK Drive. He identified the two males in court as co-defendants Damian Haynes and Kendall McCord.*fn1 Goodman then noticed Haynes walk into a nearby liquor store with another individual.
Apparently, no drug transaction occurred at that point, and Haynes left the store without purchasing anything. This scenario repeated two more times. Goodman asserted that he had an unobstructed view of the two establishments. He was situated approximately forty feet from the liquor store and 150 to 200 feet from the barbershop.
Following these initial observations, Officer Goodman began to focus on the area with binoculars. He noticed a tall black male, whom he later identified as defendant, approach. Haynes entered the barbershop while defendant and McCord waited outside. According to Goodman, McCord yelled, and at the same time made a hand gesture, asking for "two more." Given the officer's distance from the store, McCord's shout was not "clear as day" to Goodman; however, the officer insisted that he heard what McCord had shouted.
Haynes then left the barbershop and entered the liquor store with defendant. Once they were inside, Officer Goodman saw Haynes give defendant a small object via a "hand-to-hand exchange." Defendant gave Haynes what appeared to be currency in return. According to his testimony, Goodman was able to observe this because the store had large glass windows, which allowed him to see the upper bodies of the persons inside. Although there were promotional advertisements on the windows, Goodman stated that they did not block his view of the interactions between defendant and Haynes.
Based on these observations, Officer Goodman believed that he had witnessed a drug transaction because: (1) Haynes repeatedly left the liquor store without purchasing anything; (2) money had been exchanged between defendant and Haynes for a small package; and (3) defendant and Haynes left a public area and went into the liquor store, apparently desiring to transact their business in a more private setting. Goodman was unable, however, to identify the particular contraband that had been handed to defendant.
After the apparent hand-to-hand drug transaction was completed, defendant and McCord entered a green Chrysler Sebring. McCord drove the car, with defendant accompanying him in the front passenger seat. Haynes remained at the barbershop. Meanwhile, Officer Goodman alerted perimeter police units that were waiting nearby. Goodman gave them a description of the car, the passengers inside, and the direction in which McCord was driving.
Michael Burgess and Alexander Rivera, two of the Jersey City police officers involved in the perimeter duty, received Officer Goodman's call. They followed the Sebring and eventually pulled it over near the intersection of Bidwell Street and MLK Drive. Both Officers Burgess and Rivera were driving unmarked cars. They were wearing civilian clothes, although their police badges were readily viewable hanging from their necks.
Officer Burgess and another police officer approached the driver's side of the Sebring. Simultaneously, Officer Rivera approached the passenger side and identified himself to defendant. Both McCord and defendant were advised that they had been stopped as part of a narcotics investigation. They were asked to step out of the car.
According to Officer Rivera, defendant became "very belligerent" when he was asked to leave the car. Officer Burgess similarly recalled that by the time defendant got out and stood in the car's doorway, he was "real verbally confrontational." He asked the officers why the car had been stopped, and he started to flail his arms about. He also refused to stand still. Noting the disturbance, Officer Burgess came around the car to assist Officer Rivera. As he did so, defendant, according to Rivera, "made a move to take off" and he elbowed Burgess.
At that point, the police decided to handcuff and arrest defendant. Defendant resisted that effort, and, in doing so, kicked Officer Rivera in the shin. Both Rivera and Burgess testified that defendant's actions caused them pain.
Officer Burgess then searched defendant and McCord. From defendant's front pants pocket, Burgess recovered a Newport cigarette box. The box held fifty-four glassine bags containing what laboratory testing later confirmed to be heroin. The logo "Black Flag" was printed on the bags, indicating the identity of the distributor of the CDS. Burgess also uncovered from defendant a bag of suspected marijuana as well as $63 in cash. Officer Goodman then called the arresting officers to notify them that Haynes was walking towards the arrest scene. Haynes was subsequently arrested and marijuana was likewise found on his person.
Defendant was indicted and charged with various crimes, including the possession of heroin with the intent to distribute it generally, to distribute it within a school zone, and to distribute it within a park zone. The indictment did not, however, charge defendant with any offenses relating to the marijuana. Additionally, the indictment charged defendant with two counts of aggravated assault of a police officer (count five as to Officer Burgess and count six as to Officer Rivera), and also contained a count for resisting arrest.
At trial, Officer Goodman testified that the apparent drug transactions had occurred within 1000 feet of a school zone, as demarcated by an official map of Jersey City. Subsequently, defense counsel and the State stipulated that the transaction occurred within 1000 feet of a school. Goodman further contended that the drug transaction occurred within 500 feet of a public park, known as Audubon Park. This was based on a certified 500-foot City map.*fn2
The State produced two expert witnesses. First, it called William Goebel, a municipal engineer for Jersey City, as an expert in engineering and planning. Goebel testified that the 500-foot map depicted all areas within the City limits that were within 500 feet of a public park. Although that particular map had not been adopted by a City ordinance, Goebel testified that it was based on, or "scaled" from, an "official" City map.
Using the map as a reference, the State contended that the area where the heroin transaction took place was within 500 feet of Audubon Park. Goebel described how the map was made, using a scale that was adopted and certified by the State. He noted that as the supervisor in charge of the map, he had spot-checked the work done by his subordinates in preparing the map. Goebel also referred to an aerial map of Jersey City to demonstrate for the jury that the transaction occurred within 500 feet of Audubon Park.
The State also presented expert testimony from Wally Wolfe, a sergeant with the Jersey City Police Department. Sergeant Wolfe was admitted as an expert in illegal narcotic packaging and distribution. He opined that heroin was commonly sold in small glassine bags that usually contained a logo of the drug's producer. Wolfe concluded that the packaging used to contain the heroin found on defendant was of a type typically used in street sales. Over defendant's objection, Wolfe claimed that, in general, the heroin found in the area of the City where the transaction occurred was "very potent." He acknowledged, however, that the CDS involved here was not tested for its specific potency.
Defendant testified in his own behalf. He admitted that he was present with McCord and Haynes, as described, on September 29, 2006. However, he claimed that no CDS was on his person after he was stopped by the police. Defendant conceded that he asked the police several times why he was being stopped, and was told that the stop was part of an investigation. At the police station following the arrest, defendant was shown the heroin and marijuana the police claimed to have found on his person. However, he denied that the drugs were his own. Defendant conceded that he had been convicted of unlawful possession of a weapon in 1999, a fact which the prosecution used in summations to impeach his credibility.
After considering these proofs, the jury found defendant guilty on all counts charged in the indictment except for count five, aggravated assault of Officer Burgess. Although defendant was found guilty on count seven, resisting arrest, the jury concluded that defendant did not resist through the "use or [threat of] physical force or violence," thereby reducing its severity from a third-degree crime to a disorderly persons offense.
At sentencing, the trial judge merged counts one and two into count three. On count three, defendant was given a five-year term of incarceration, three years to be served without parole. Defendant received a concurrent nine-year term, four-and-one-half years without parole, on count four. A term of four years, two years without parole, was imposed on count six, to be served consecutively to count four. Finally, defendant received a six-month concurrent term on count seven. Appropriate fines and penalties were imposed. In sum, defendant's aggregate sentence was thirteen years, with six-andone-half years to be served without parole.
Defendant thereafter appealed. In his brief on appeal, defendant argues:
FAILURE TO CONFIRM THAT DEFENSE COUNSEL EXPLAINED TO DEFENDANT THE EFFECT OF HIS WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION, SUCH AS DISCLOSURE OF HIS PRIOR RECORD TO THE JURY OR THE OPTIONAL "NO-ADVERSE-INFERENCE" CHARGE, WAS A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS. N.J. CONST. ART. I, PARAS. 1, 10; U.S. CONST. FIFTH AMEND
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE RESISTING ARREST CHARGE BECAUSE DEFENDANT WAS NEVER TOLD HE WAS BEING ARRESTED
THE TRIAL WAS TAINTED WITH IRRELEVANT AND PREJUDICIAL EVIDENCE THAT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. U.S. CONST. AMEND. V, VI AND XIV, N.J. CONST. ART I, PARA. 10
A. Since defendant was not charged with marijuana offenses, the bulk of the state's evidence was irrelevant and prejudicial
B. The admission of the 500 foot map without proper foundation, authentication and qualified witness testimony and Officer Goodman's reference to the maps as "1000 Foot" and "500 Foot" violated defendant's right to confrontation, contrary to Crawford v. Washington, 541 U.S. 35, 124 S.Ct. 1354 (2004)
C. The admission of the 500 foot map violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004)
D. The State's expert, and the trial judge, improperly testified as to the alleged purity of the heroin, denying defendant's right to a fair trial, due process and an impartial jury
E. Officer Goodman's testimony about his experience was irrelevant and prejudicial; he was a fact witness, not an expert witness opining based on his experience; his testimony as to what was in the minds of defendant and/or Damien Haynes was irrelevant, prejudicial and not a subject on which he would possess personal knowledge. Furthermore, the prosecutor's attempt to bolster the officers' testimony simply by virtue of their being police officers was inappropriate
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCES TO THE FACTS OF THE CASE OR THE DEFENSE THEORY OF THE CASE, AND WHICH INCLUDED EXTRANEOUS PORTIONS OF STATUTES NOT CHARGED, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT OF A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 10
THE DEFENDANT'S CONVICTIONS UNDER N.J.S.A. 2C:35-7 AND 2C:35-7.1 MUST MERGE
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE. FURTHERMORE, CONSECUTIVE TERMS WERE UNWARRANTED
A. Computation of sentence
B. Consecutive Sentences were not Warranted We now consider those arguments, seriatim.
Defendant first contends that because the trial court did not directly confirm that his counsel had spoken to him regarding his waiver of the right against self-incrimination, his convictions must be reversed. We disagree.
Here is the pertinent background. After the State rested, the trial judge asked defense counsel if he planned to call any witnesses. Counsel responded that he needed "some time just to speak with [defendant]." Defense counsel sought a break of ten minutes, which the judge granted. When defendant and his attorney returned, counsel informed the court that he would not be calling any witnesses. He then noted that "specifically with regard to my client's taking the stand . . . [defendant] has indicated that, in fact, he wishes to take the stand in his own defense." Defendant then testified.
Defendant contends that the trial court did not adequately confirm that his counsel had explained to him the consequences of exercising the right to testify. In particular, defendant alleges that his counsel failed to tell him that by testifying, his prior criminal record would be made known to the jury. He argues that absent an on-the-record questioning of him by the trial judge, his waiver is uneffective. The arguments are unavailing under the applicable case law.
Our Supreme Court has held that:
Defense counsel, rather than the court, plays the preeminent role in protecting these intermediate-level [constitutional] rights, which are often component elements of fundamental rights. Effective waivers in those cases require defense counsel to explain the ramifications of waiver to the client before acting on the waiver in court. However, an on-the-record waiver is not required. [State v. Buonadonna, 122 N.J. 22, 35 (1991) (emphasis added).]
The underscored portion of Buonadonna plainly defeats defendant's complaint about the absence of an on-the-record waiver.
The Court in Buonadonna cited with approval its earlier decision in State v. Savage, 120 N.J. 594 (1990). Id. at 36-37. In Savage, supra, 120 N.J. at 628, the Court recognized that a defendant's right to testify was essential to his or her guarantee of a fair and impartial trial. However, the Court further held that "when a defendant is represented by counsel, the trial court is not required to inform defendant of his right to testify or explain the consequences of that choice." Id. at 630 (emphasis added). Rather, it is defendant's attorney who is responsible to advise the client of his right to testify and of the consequences of doing so. Ibid. "To ensure that counsel meets that obligation, it may be the better practice for a trial court to inquire of counsel whether he or she had advised a defendant . . . of his or her right to testify. This will ensure that defendant's constitutional rights are fully protected." Id. at 631 (emphasis added). See also State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005); State v. Bogus, 223 N.J. Super. 409, 423-26 (App. Div.), certif. denied, 111 N.J. 567 (1988). As Buonadonna subsequently confirmed, the "better practice" of confirming a waiver on the record is not mandatory. Buonadonna, supra, 122 N.J. at 35.
Here, trial counsel and defendant clearly had the opportunity to discuss defendant's desire to testify during a court recess. Following that private consultation, defendant elected to testify. Defense counsel confirmed his client's decision to waive his rights, on the record in open court. Thus, defense counsel met his obligation pursuant to the case law. Defendant cites to no authority that requires a court to do more than what the trial judge did here. Nor has he presented us with a persuasive reasons to recommend to the Supreme Court reexamination of this well-settled point of law. His claims of error therefore are rejected on this direct appeal.*fn3
Defendant next asserts that because the police who arrested him did not announce their intent to do so, the trial court should have granted his motion for judgment of acquittal as to the resisting arrest count. His argument is unpersuasive.
After the State rested, defendant moved for an acquittal as to all charges. The trial court rejected the motion, finding that the State had produced "sufficient evidence to go forward with each and every count in the indictment."
N.J.S.A. 2C:29-2(a) provides that:
[A] person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest . . . . (3) An offense under paragraph (1) and (2) of subsection a. is a crime of the third degree if the person:
(a) Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b) Uses any other means to create a substantial risk of causing physical injury to the pubic servant or another.
Because the jury here concluded that defendant did not use or threaten to use force while resisting arrest, he was convicted under N.J.S.A. 2C:29-2(a) of only a disorderly person offense for his acts of resistance.
In State v. Branch, 301 N.J. Super. 307, 320 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998), the defendant similarly argued, unsuccessfully, that his resisting arrest conviction should be reversed because, among other things, the arresting officer "did not announce his intention to arrest" him. We found that, from the evidence produced by the State in Branch, the jury could have reasonably concluded that:
(1) [the arresting officer] identified himself as a police officer and told the defendant to stop; (2) that the defendant heard this identification and proceeded to run; and (3) that the defendant was subsequently tackled and being placed under arrest when the defendant again resisted by getting to his feet and pulling a gun on the detective. These facts are sufficient to convict under the statute. [N.J.S.A. 2C:29-2(a).] [Id. at 321.]
Consequently, we affirmed the resisting arrest conviction in Branch, an analysis which the Supreme Court's ensuing opinion left unaltered when it reversed Branch's separate conviction for felony murder. 155 N.J. at 323-30.
Similarly here, the police officers told defendant that he had been stopped as part of an investigation. They asked him to exit the vehicle. According to both officers, defendant immediately became belligerent. After stepping out of the car he began to flail his arms, refused to stand still, and eventually "made a move to take off." In doing so, he elbowed Officer Burgess. Then, while the police were attempting to handcuff and arrest defendant, he kicked Officer Rivera. In light of Branch, these facts are sufficient to support defendant's conviction for resisting.
N.J.S.A. 2C:29-2 states that it is not a defense to resisting arrest that the arrest was unlawful, so long as the officer "announces his intention to arrest prior to the resistance." See State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997) (holding that, if an arrest is unlawful, the failure to announce an intent to arrest precludes a conviction for resisting arrest). Defendant does not claim that his arrest was unlawful. Thus, there was no need for the arresting officers to have announced their intentions, and the trial court's jury instruction explaining this aspect of the statute was correct.
Defendant further asserts that his trial was so tainted with inadmissible prejudicial evidence that a new trial is warranted. We reject his various contentions on this score.
Defendant first claims that because he was not charged with any crimes involving the possession or distribution of marijuana, a reversal is required because prejudicial evidence regarding a possible marijuana transaction was admitted at trial. Defendant specifically objects to Officer Goodman's testimony regarding his observations of what he believed was a hand-to-hand transaction between defendant and co-defendant Haynes in the liquor store. He further objects to the testimony that marijuana was recovered from him and from Haynes following the search after his arrest. Defense counsel did not object to any of this testimony at trial. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 333; R. 2:10-2.
Defendant argues that the evidence about the apparent sale of marijuana in the liquor store comprised impermissible "other-crimes" evidence that should have been precluded pursuant to N.J.R.E. 404(b). However, as the State points out, the officer's observations were not offered as other-crimes evidence under Evidence Rule 404(b). Rather, it was offered for different purposes. In particular, Officer Goodman's observations of the apparent drug transaction in the liquor store, and the ensuing seizure of marijuana in proximity to that exchange, was offered as relevant contextual proof of the events that transpired in the very short period of time leading to defendant's arrest.
Evidence Rule 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts "to prove the disposition of a person in order to show that such person acted in conformity therewith." Here, the State did not offer the evidence at issue to prove defendant's "disposition" to engage in drug transactions. Nor did the prosecutor, in his summation, specifically argue that these particular proofs established such a disposition. Instead, the State presented the evidence as relevant proof of the immediate chronology that ended with defendant's apprehension by the police, which was close in time and in proximity to the liquor store.
In classifying its reasons for presenting these proofs, the State invokes the common-law doctrine of "res gestae." If an "alleged bad act is part of the full picture of the crime charged it has sometimes been considered res gestae evidence to which N.J.R.E. 404(b) is not applicable." State v. Burden, 393 N.J. Super. 159, 169 (App. Div. 2007), certif. denied, 196 N.J. 344 (2008). Traditionally, such evidence has been deemed admissible if it "serves to paint a complete picture of the relevant criminal transaction," describes part of the context of the case, or is otherwise needed to fully present the case. State v. Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995). See also State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995) ("Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents a full picture of the crime to the jury."); State v. Byard, 328 N.J. Super. 106, 144 (App. Div.) (holding that evidence that paints a complete picture of events is admissible res gestae evidence, rather than N.J.R.E. 404(b) evidence), certif. denied, 165 N.J. 490 (2000).
We are cognizant that some members of our Supreme Court have questioned the continued utility of the phrase "res gestae" to describe a sub-category of relevant evidence. See State v. Kemp, 195 N.J. 136, 159-63 (Albin, J. concurring); see also State v. Barden, 195 N.J. 375, 395-96 (2008). However, we need not utilize the "res gestae" label to sustain the admission of Officer Goodman's testimony about his observations of the hand-to-hand transaction in the liquor store and the subsequent recovery of marijuana. Regardless of the label affixed to it, these proofs meet the expansive definition of relevant evidence set forth in N.J.R.E. 401, i.e., evidence having "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See State v. Deatore, 70 N.J. 100, 116 (1976) (noting that our courts' test of relevance is "broad and favors admissibility"). Nor do we find that these proofs were unduly prejudicial under N.J.R.E. 403.
Officer Goodman's testimony about these matters was appropriate to paint a complete picture of the events that unfolded on the evening of September 29, 2006. Without his testimony recounting the full chronology, the jurors naturally would be left to question why the perimeter units had stopped the car that Haynes was driving and had sought to question him and defendant. The officer's testimony supplying the explanatory context for the automobile stop was properly introduced, not only as to the CDS charges against defendant, but also as to the resisting arrest and assault charges.
Although it presents a closer question, the proof that marijuana was recovered from defendant and Haynes reasonably corroborated the veracity of Officer Goodman's factual account of an apparent hand-to-hand transaction he had observed inside the liquor store. Given defense counsel's failure to object, we discern no error, much less plain error, from the admission of this testimony.
Similarly, we discern no reversible error in the prosecutor's references to the marijuana testimony in closing arguments, which likewise were not objected to contemporaneously by defense counsel. See State v. Ramseur, 106 N.J. 123, 323 (1987) (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial). We recognize that the prosecutor suggested to the jury in his comments that the packaging of the marijuana was similar to the packaging of the bags of heroin found on defendant, without expert testimony corroborating that similarity. We discern no undue prejudice arising from that discrete portion of the summation, and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008). (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").
Defendant further contends that the trial court improperly admitted the map depicting the 500-foot zone*fn4 around a City park and Goebel's testimony about that map. He argues that the 500-foot map was inadmissible because it was not adopted in a City ordinance. He further argues that the map constitutes inadmissible hearsay because it was created out-of-court and defense counsel had no opportunity to cross-examine its creators. As a final point relating to the map, defendant maintains that there was insufficient evidence that he actually bought or sold drugs within the 500-foot park zone. None of these contentions are persuasive.
The statutory scheme pertaining to the 500-foot map is straightforward. N.J.S.A. 2C:35-7.1(a) provides that:
[a]ny person who violates subsection a. of N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana. [(Emphasis added).]
With respect to an "official" map depicting the 500-foot boundaries, N.J.S.A. 2C:35-7.1(e) provides, in pertinent part, that:
[i]n a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 500 feet of a . . . public park, . . . or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of a public housing facility, a public park, or a public building . . . [.] [(Emphasis added).]
However, in instances where no such official map has been adopted pursuant to a formal municipal ordinance, N.J.S.A. 2C:35-7.1(e) further provides that an alternative "unofficial" map may be admitted, provided that the map otherwise meets the general requirements of the Evidence Rules:
Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense; nor shall this section be construed to preclude the use or admissibility of any map or diagram other than one which has been approved by the governing body of a municipality or county, provided that the map or diagram is otherwise admissible pursuant to the Rules of Evidence. [Ibid.]
Goebel, the State's engineering expert, identified the 500-foot map and conceded that it was not adopted through a municipal ordinance. He described the map's purpose, and noted that it was created under his direct supervision. He testified that the map was created based on a scale taken from another map that was adopted and certified by the State. Goebel personally spot-checked all of the work done in creating the map. The map supports the State's theory that the CDS transaction involving defendant occurred within 500 feet of Audubon Park, a municipal park.
Additionally, Officer Goodman testified, over defendant's objection, that the location of the drug transaction was committed, as shown on the map, within 500 feet of a public park. Like Goebel, Officer Goodman acknowledged that the 500-foot map had not been adopted in a City ordinance.
In State v. Thomas, 132 N.J. 247 (1993), the Supreme Court described the standard of review that an appellate court should apply in analogously considering a defendant's challenge to the sufficiency of evidence as to whether a CDS offense had occurred within 1000 feet of a school zone. Specifically, an appellate court must decide: whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond reasonable doubt. [Id. at 256 (quoting State v. Martinez, 97 N.J. 567, 570-71 (1984)).]
As the statute instructs, the map or diagram utilized for this purpose need not be official, nor does it have to be adopted in a municipal ordinance.
For example, in State v. Trotman, 366 N.J. Super. 226, 235-36 (App. Div. 2004), we held that a 500-foot map was admissible, based on a testifying police officer's experience, his knowledge of the area, his prior use of a similar map, and testimony that the offenses took place within 500 feet of a public housing facility, which under the statute is treated the same as a public park. The State also presented in Trotman the testimony of a local housing authority executive, who testified that a public housing facility was situated within 500 feet from where the crime occurred. Id. at 235. A diagram of the facility was stipulated to by the parties. The map, diagram, and testimony were all held, in combination, sufficient to convict the defendant under N.J.S.A. 2C:35-7.1(a). Id. at 236-37.
Here, Officer Goodman is likewise an experienced police officer, who testified about the area where the transaction took place. He identified the 500-foot map, and identified where on that map the transaction occurred. As we have already noted, Goebel, the State's map expert, described how he supervised creation of the map and the techniques that were used in creating it. The testimony of these two witnesses provided a sufficient reasonable foundation for the map to be placed in evidence and considered by the jury.
As a matter of nomenclature, defendant maintains that Officer Goodman's references in his trial testimony to the "500-foot map" and to the "1000-foot map" improperly created an "official police imprimatur" in the minds of the jurors as to the maps' importance. We reject that claim. The terms "500-foot map" and "1000-foot map" were used not only by the prosecutor and Officer Goodman, but also by defense counsel and the trial judge. Those verbal designations obviously served only as shorthand terms of art for referring to the maps that are more formally described in N.J.S.A. 2C:35-7 and in N.J.S.A. 2C:35-7.1. The courtroom nomenclature was proper and not prejudicial.
In addition, defendant argues for the first time on appeal that the 500-foot map comprises inadmissible hearsay and that he was deprived of his constitutional right to cross-examine the map's creators, allegedly in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). We disagree.
First, with respect to defendant's hearsay claim, we are satisfied that the map satisfied the hearsay exceptions for business records, N.J.R.E. 803(c)(6), and public records, N.J.R.E. 803(c)(8). See also State v. Chun, 194 N.J. 54, 147-48, cert. denied, ____ U.S. ____, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008) (finding the business record hearsay exceptions applicable to various "foundational documents" for the Alcotest device, which are prepared out of court but utilized in various prosecutions for drunk driving); see also State v. Zolta, 217 N.J. Super. 209, 214 (App. Div. 1987) (noting the overlap between the hearsay exceptions for business records and public records).
The defendant's Crawford argument is similarly misplaced. In Crawford, supra, 541 U.S. at 59, 124 S.Ct. at 1389, 158 L.Ed. 2d at 199, the United States Supreme Court held that although the Sixth Amendment right to cross-examination cannot disallow all hearsay, the admission of so-called "testimonial" hearsay is prohibited, unless the declarant was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. See also State v. Buda, 195 N.J. 278, 300-02 (2008) (applying Crawford's "testimonial" standard).
Defendant asserts that the 500-foot map was testimonial under Crawford because it was created for the purpose of narcotics prosecutions. That generalized purpose does not make the map testimonial. The map was not created for the specific purpose of this particular defendant's prosecution, but rather is a generic representation of geography relevant to a host of cases. By comparison, the so-called "foundational documents" in Chun, supra, 194 N.J. at 142-44, as well as general breathalyzer maintenance records not created for a specific prosecution, see State v. Sweet, 195 N.J. 357, 371-74 (2008), have been held to be non-testimonial under Crawford. Moreover, even if the map is regarded as testimonial, defendant's confrontation rights were not infringed because defense counsel had an ample opportunity to cross-examine Goebel, under whose direction the map was created.*fn5
We are also satisfied that the State presented sufficient proofs, apart from the map itself, to establish that defendant possessed the heroin within the 500-foot park zone. Defendant emphasizes that the location of his arrest, where the fifty-four bags of heroin were found on his person, was outside of the 500-foot park radius. However, defendant was observed by police in the liquor store where an apparent CDS transaction took place. The trial proofs consistently indicated that the liquor store is within the 500-foot zone.*fn6 There is ample circumstantial proof that defendant possessed the heroin at some point within the 500-foot zone immediately prior to his arrest.
In State v. Lewis, 185 N.J. 363, 365 (2005), the Supreme Court considered whether a defendant could be convicted for possession with intent to distribute CDS within 500 feet of a public park "if he is located in the park zone, but the drugs are not." In Lewis, an undercover officer saw the defendant engage in numerous apparent transactions within a park zone, and also noticed that the defendant was retrieving the suspected CDS from a location outside the zone. Id. at 365-66. The officer investigated that other location and discovered CDS. Id. at 366.
The Supreme Court concluded in Lewis that an individual may be found to have constructively possessed CDS located outside the zone while he was physically within the zone. Id. at 365, 368-73. Otherwise, drug dealers would be influenced to distribute within a prohibited zone but to maintain "their stash of drugs outside the zone. Id. at 373. There merely needs to be a logical connection between the location of the drugs and that zone. Id. at 374. That connection becomes stronger the closer the drugs are to the boundaries of the zone. Ibid. See also State v. Spivey, 179 N.J. 229, 235-37 (2001) (finding that a defendant, who was arrested outside of his apartment building, was criminally liable for the constructive possession of a gun found inside his apartment along with CDS, even though the gun was not on his person at the time of his arrest).
Lewis is instructive here. Although Officer Goodman did not specifically observe identifiable drugs while peering into the liquor store, he did observe the exchange of a small package indicative of CDS. Defendant was arrested only blocks away, not far from the 500-foot zone, and very shortly after the transaction between him and Haynes had concluded. Thus, the nexus between the location of the transaction and the location of the CDS was substantial.
We are mindful that no one definitively saw defendant possessing CDS within the park zone. However, that was the case in Lewis as well, where the police officer only saw defendant give "items [in a] bag" to others in exchange for cash. Lewis, supra, 185 N.J. at 366. Despite that circumstance, the Supreme Court held in Lewis that the defendant could be found to have "constructively possessed the drugs within the zone, and that the statute was not meant to reach only those who physically possessed the drugs within the zone." Id. at 373.
Defense counsel hypothesizes that perhaps defendant was handed the heroin when he was riding with McCord in the car traveling away from the liquor store, and that the heroin did not pass into his hands until the car had moved outside of the 500-foot zone. We reject this suggestion as sheer speculation. Defendant did not offer such a scenario in his own trial testimony. Moreover, defendant, Haynes, and McCoy were never completely out of sight of the surveillance officers, even though the trio's bodies may have been partially obstructed from the officer's view while they were inside the car. The State's inferences of defendant's possession of CDS within the 500-foot zone are reasonable, and may not be defeated on appeal by speculative alternative possibilities. See State v. Brown, 80 N.J. 587, 592 (1979) (allowing convictions to be based upon inferences from the State's evidence, so long as the inferences are reasonable).
Next, defendant claims that the court erred in permitting the State's narcotics expert, Sergeant Wolfe, to testify as to the purity of the heroin found in defendant's possession. We find no error in the admission of this testimony.
The parties stipulated that the CDS found on defendant's person included heroin. It is undisputed that the seized heroin was not tested for purity. When the prosecutor sought to question Wolfe about the purity of the heroin found generally in that area of the City, defendant objected, claiming that such evidence would be overly prejudicial and was irrelevant. The State responded that Wolfe's anticipated testimony would demonstrate that an individual who would possess fifty-four-bags of such highly potent heroin would typically do so for purposes of distribution, and not for personal use. The court permitted the question, and Sergeant Wolfe testified that the Federal Drug Enforcement Agency ("DEA") had concluded that, in general, the heroin sold "in the streets of Jersey City" was "very potent."
Defendant's assertion that Sergeant Wolfe was referring specifically to the heroin found on defendant, rather than to heroin in the City in general, is belied by the trial court's remark on the record in reacting to the Sergeant's testimony, i.e., "I think he's giving a general description." The prosecutor then asked Wolfe again about the purity of the "heroin generally in the area," to which Wolfe again responded that it was "very potent." Wolfe opined that, given the heroin's purity, an individual could ingest only four to five bags a day.
Our review of the record confirms that Sergeant Wolfe's testimony about purity was only general in nature and was not specific to the heroin found on defendant. Further, the accused's defense was not that the State had failed to prove his intent to distribute CDS; rather, he claimed that the heroin was not his, but was "planted" on him by the police during his arrest. Moreover, defendant possessed fifty-four bags of heroin, a substantial quantity that would certainly provide rational support to the State's claim that defendant had possessed the CDS "with intent to distribute" it. N.J.S.A. 2C:35-7.1(a).
In short, Sergeant Wolfe's expert testimony regarding the potency of the heroin generally in Jersey City was appropriate, and, in any event, not sufficiently prejudicial as to mandate a reversal. See N.J.R.E. 403.
As his final evidentiary argument, defendant claims that Officer Goodman's testimony about his prior experience as a police officer was so prejudicial as to require a new trial. Defendant complains the officer "exaggerated" the extent of his experience in arresting suspects, when that record was "mathematically translated" to arrests per week. We find this complaint unavailing.
Specifically, Officer Goodman testified that he was a Jersey City police officer for nine years, had been assigned to the narcotics unit for seven years, and had arrested many drug dealers and purchasers. He further described the training he received at the State Police Academy, and additional training he received on narcotics trafficking and undercover work. In particular, Goodman testified that he had been involved in a "couple of thousand" narcotics investigations, and had "probably twice" as many arrests. Notably, defense counsel did not object to any of this testimony. Having supplied this general autobiographical information, Goodman then described the particular events leading to defendant's arrest.
The State's case hinged, in large part, on Officer Goodman's credibility, since he was the only prosecution witness who viewed the interactions between defendant and Haynes. Consequently, the State had the right to question Goodman about his experience, so that the jury could assess his ability to perform surveillance and help them decide whether his testimony should or should not be believed.
Defendant claims that Officer Goodman exaggerated his experience in an effort to make his testimony more believable. However, defense counsel elicited from Goodman during cross-examination that Goodman's arrest record amounted to five or six arrests per week over the duration of his career, and that his surveillance experience was similarly productive. Defense counsel further argued in summation that the jury had to consider "the believability" of the State's witnesses, particularly Goodman's. He also raised questions about Goodman's ability to observe the events leading to defendant's arrest. Given that attack, the State was well within its adversarial prerogatives to have presented competing proofs about Goodman's experience. It was proper for the jurors, as factfinders, to assess whether Goodman was exaggerating and not credible.
In addition, defendant contests the admission of Officer Goodman's testimony commenting on defendant's and Haynes's probable states of mind when they entered the liquor store. Defendant did not object to that testimony at trial. Given Goodman's training and experience, we do not perceive that this one observation by Goodman constituted plain error, i.e., that it was "clearly capable of producing an unjust result." R. 2:10-2.
Lastly, defendant claims that the prosecutor improperly vouched for Officer Goodman's credibility when, during his closing, the prosecutor stated that:
[s]o what I'm saying to you folks is you have a choice. In this case, when it comes to the facts of this case, the choice in front of you I will submit is as follows, you have a choice to believe the testimony of two veteran narcotic's officers who you had an opportunity to sit here, watch and listen to and evaluate.
You have a choice to find them credible or you can find credible the self-serving statements of a convicted felon. That's your choice.
Although defendant correctly points out that a prosecutor cannot personally vouch for a witness's credibility, see State v. R.B., 183 N.J. 308, 337 (2005); State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 187 N.J. 148 (2004), we do not believe that the prosecutor did so here. Rather, the prosecutor simply alluded to the State's evidence and defendant's competing claim of innocence, and then suggested to the jury that the case essentially revolved around the credibility of the State's "veteran narcotics officers" and defendant's version of the events leading to his arrest. The prosecutor explicitly and properly told the jurors that it was their own "choice" of which witnesses to believe.
Moreover, defendant did not timely object to these summation points. The prosecutor was responding to defense counsel's attack on Goodman's credibility, and his comments did not constitute plain error requiring a reversal. State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993).
Defendant asserts that the court's jury instructions were deficient in several respects, and that his convictions of several of the charged offenses must be overturned. We disagree.
We recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 51 (1997) (quoting State v. Alexander, 136 N.J. 563, 567 (1994)).
In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., supra, 183 N.J. at 325; State v. Hipplewith, 33 N.J. 300, 317 (1960). A defendant is not entitled to have a jury charged in his or her own words. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002); State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999).
Because defendant did not object to the trial court's charge he again must demonstrate plain error, i.e., that the error possessed a clear capacity to cause an unjust result.
State v. Jordan, 147 N.J. 409, 422 (1997). He has failed to do so. We are mindful that erroneous jury instructions on material issues are often regarded as consequential. State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Here, however, we discern no such consequential errors in the charge.
Defendant first claims that the trial court failed to mold the law to the facts of the case because the court simply read the indictment to the jury and explained the relevant law. He complains that the court did not specifically connect the evidence and theories of the case presented at trial in the context of that substantive law.
Our Supreme Court has held that a jury charge is required to be tailored to the facts when a statement of the law "divorced from the facts, [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). A trial court is not required to comment on the evidence. Id. at 43. However, if the court "refers to the State's evidence in any significant way, it must also refer to the defendant's contrary contentions." Id. at 45. The Court in Robinson further held that the responsibility to advise a jury of weaknesses in the State's case falls on defense counsel, not on the trial court. Id. at 44-45. In fact, a trial court should refrain from providing detailed commentary to a jury, so as to avoid appearing as an advocate for one side or the other. State v. Swint, 328 N.J. Super. 236, 259 (App. Div.), certif. denied, 165 N.J. 492 (2000). On the whole, the trial court has discretion as to whether and how to comment on the evidence. Robinson, supra, 165 N.J. at 45.
Here, the trial lasted just two days, few witnesses were presented, and the case was a fairly simple one. Either the jury would believe the police officers who testified about the operative events or, on the other hand, believe defendant's claim of innocence. This was not a case where a plain statement of the law, without detailed references to the facts of the case, realistically could have confused the jury. Further, the trial court did not refer to the State's evidence, and therefore was not required, under these circumstances, to refer to defendant's competing evidence and his claim of innocence.
Defendant's reliance on State v. Tucker, 280 N.J. Super. 149 (App. Div. 1995), and State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998), on this particular issue is misplaced. In Tucker, supra, 280 N.J. Super. at 152-53, the jury instruction on accomplice liability was given "in generalities only." The jury in Tucker was manifestly confused, given the number of questions that it posed to the court during deliberations and the number of re-instructions it sought. The re-instructions were issued in generalities only. We concluded that, in light of the jury's evident confusion, the jury charge was insufficient, and we therefore reversed defendant's conviction. Id. at 153. In Bilek, supra, 308 N.J. Super. at 10-11, we recognized that a trial court's failure to mold the law to the facts of the case is not always fatal. However, we found that where the jury instruction involved self-defense, a tailored jury charge is required. Ibid. We held that the trial court's failure in Bilek to issue such a tailored self-defense charge "rendered an already confusing charge hopelessly misleading." Id. at 11.
Here, there was no complicated self-defense issue as in Bilek, or a manifestly confused jury as in Tucker. The record does not contain any indicia that the jurors were unable to apply the legal elements to the facts. The sole written request submitted by the jury during their deliberations was a request to repeat the charges on the 500-foot and 1000-foot zones, which the judge provided without objection. We are satisfied that the trial court did not abuse its discretion in failing to comment on the evidence and the competing theories of the case during its jury instructions.
Defendant next contends that the trial court's instruction as to aggravated assault on a police officer was so mistaken as to require a reversal. We disagree.
N.J.S.A. 2C:12-1(b)(5)(a) provides that an individual is guilty of aggravated assault if he or she commits a simple assault upon "[a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer[.]" (Emphasis added). In charging the jury, the trial court quoted the entire definition under N.J.S.A. 2C:12-1(b)(5), rather than stating only the relevant portions of it. The indictment charged defendant with aggravated assault based on the theory that he had assaulted Officer Burgess (count five) and Officer Rivera (count six) while they were "acting in the performance of [their] duties while in uniform, and exhibiting evidence of [their] authority." The indictment did not explicitly charge defendant with assaults committed because of each partolman's "status as a law enforcement officer." Defendant claims that because the court instructed the jury on both types of assault under the statute, including the status-based type, a theory not presented by the State in its proofs was thereby made impermissibly available to the jury through the language of the charge to convict him.
Defendant maintains that there was no evidence here to support the latter type of aggravated assault on a police officer.
We recognize that defendant has a fundamental right to be informed of the nature of the charges against him. State v. Smith, 279 N.J. Super. 131, 145 (App Div. 1995). Thus, an indictment must advise a defendant of the crimes with which he is being charged; be sufficiently specific to enable defendant to prepare a defense; and be sufficiently precise to prevent a jury from replacing a new offense for the one charged in the indictment. Ibid. As a general rule, a defendant "may not be convicted for an offense not charged in the indictment." State v. Dixon, 125 N.J. 223, 257 (1991). However, if the indictment "fairly apprised defendant of the [un-indicted charge]," and defendant had sufficient notice to defend against that charge, then "there is no constitutional infirmity." Id. at 258.
Given these well-established principles, we are satisfied that defendant had ample notice that he was being charged with assaulting a uniformed officer, and that the State could have relied upon either alternative theory specified by N.J.S.A. 2C:12-1(b)(5)(a). Defense counsel vigorously defended against the State's claims, particularly by calling defendant as a witness, who denied assaulting either officer. The fact that defendant was acquitted of the alleged assault on Officer Burgess reinforces the notion that he had ample notice of, and a fair opportunity to defend against, the assault charges. His contrary assertion is thus rejected.
Defendant also complains, again with respect to the assault counts, that the trial court told the jury that defendant could be convicted if either he purposely attempted to cause injury to the officers, or he purposely, or knowingly, or recklessly caused injury to them. Counts five and six of the indictment charged only that defendant "purposely did attempt" to cause injury to Officers Burgess and Rivera. Because the court allegedly provided a basis for conviction not provided for in the indictment, defendant claims reversible error. We discern no such error.
As we have noted, defendant was acquitted of assaulting Officer Burgess but convicted of assaulting Officer Rivera. The jury clearly had the ability to appreciate the factual differences between the severity of the attacks on the two respective officers, and defendant's apparent state of mind in lashing out against each of them. Moreover, defendant had sufficient awareness of the allegations against him. Defense counsel did not object to the jury charge. The instructions on assault, even if not optimally precise on the "purposeful" issue, did not create plain error requiring reversal. Defendant's conviction of assault should not be disturbed.
Finally, defendant claims that the trial court improperly suggested a theory of guilt within the resisting arrest charge that was not identified in the indictment. Specifically, N.J.S.A. 2C:29-2(a)(1) provides that a person is guilty of resisting arrest if he or she "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." The offense is a third-degree crime if the defendant "uses or threatens to use physical force or violence" against the officer, or "uses any other means to create a substantial risk of causing physical injury" to the officer. N.J.S.A. 2C:29-2(a)(3).
Any error the court may have made in this particular aspect of the charge was ameliorated by the jury's verdict, in which it found the State had not proven the element needed to elevate the conviction to a third-degree crime. Defendant was sentenced on this seventh count only as a disorderly person. Consequently, we are confident that the trial court's jury instructions regarding aggravated assault of a police officer and pertaining to resisting arrest do not require a reversal.
Defendant lastly contends that his sentence was illegal and unfair. With the exception of a merger issue conceded by the State, we reject his claims.
In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
As we have noted, defendant was convicted on count four of second-degree distribution of CDS within 500 feet of a public park. Pursuant to N.J.S.A. 2C:43-6(a)(2), he was subject to a term of between five and ten years. He was given a nine-year term, with four-and-one-half years to be served without parole. On count six, a third-degree crime, defendant received a four-year term, with two years to be served without parole.
In imposing sentence, the trial judge appropriately applied the aggravating factors identified at N.J.S.A. 2C:44-1(a)(3) (the risk defendant would commit another offense); N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others from violating the law). No mitigating factors were identified.
Defendant asserts, and the State agrees, that his conviction on count three (distribution of CDS within 1000 feet of a school zone) should have merged with count four (distribution of CDS within 500 feet of a public park). We accept that proposition. See State v. Wesner, 372 N.J. Super. 489, 491 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). Therefore, the matter should be remanded for resentencing to correct this one stipulated error.
Apart from that one matter requiring correction, defendant asserts that the trial court "overvalued" the aggravating factors because it allegedly focused on "offender-based factors" related to defendant specifically, rather than upon "offense-based factors" that related to the offenses he committed.
Having carefully examined the record and defendant's presentence report ("PSR"), we conclude that the trial court properly applied the factors that the Legislature determined could justifiably lengthen a prison term. Our Criminal Code does not distinguish between the weight to be given to the "offender-based," as opposed to the "offense-based," factors. Defendant's assertion to the contrary is rejected.
Moreover, there was sufficient evidence in the record to support the court's application of aggravating factors (3), (6) and (9). According to defendant's PSR, he had "12 arrests including the . . . pending [charges]." Those arrests resulted in "1 Superior [Court] level conviction, 2 Municipal Court convictions, 5 dismissals and 3 active cases pending in Hudson County." Defendant was also involved in four family court matters, one of which resulted in the issuance of a final restraining order in 2003. In addition, defendant had criminal charges pending against him in New York and was "listed as a registered sex offender." In sum, defendant had a sufficiently lengthy and serious criminal record to justify the trial court's conclusions, collectively under aggravating factors (3), (6) and (9), that there was a risk that defendant would commit another offense and required deterrence. Nevertheless, defendant claims that the trial court should have also considered whether he was employed when arrested and whether he had made efforts to rehabilitate himself. He relies largely on the fact that a local minister spoke on his behalf at sentencing. He also cites his attempts at drug rehabilitation and his continued employment.
The PSR revealed that defendant had been employed for one year when arrested, and before that worked at a construction firm. Despite that employment, however, defendant not only committed the instant offenses, but also apparently the ones that were still pending in other cases. Thus, his employment did not negate the application of aggravating factors (3), (6) or (9).
Defendant further claims that the trial court's use of facts deriving from his criminal past to satisfy three different aggravating factors constituted impermissible "double-counting." Defendant is incorrect. To be sure, it is inappropriate for a court to apply as an aggravating factor a statutory element of the crime. State v. Kromphold, 162 N.J. 345, 353-55 (2000); State v. Pineda, 119 N.J. 621, 627-28 (1990). Consideration of such an inappropriate factor may provide the ground to vacate a sentence. Kromphold, supra, 162 N.J. at 355. Here, that clearly did not happen. There is no case holding that it is improper for a court to rely on a defendant's prior record more than once when sentenced for multiple crimes, where that prior record reasonably supports more than one sentencing element. Defendant's contrary assertion is rejected.
Defendant next argues that the trial court should have applied the mitigating factor identified at N.J.S.A. 2C:44-1(b)(11), i.e., that "the imprisonment of the defendant would entail excessive hardship to himself and his dependents." In this respect, defendant points out that he has several dependent children who rely on him financially. However, the PSR revealed that defendant was in "arrears [on] his child support payments" indicating that, at least for some period, defendant's children were not financially dependent on him. Moreover, defendant did not have custody of his children. Given these circumstances, the trial court properly refused to apply mitigating factor (11).
Finally, relying on State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), defendant asserts that the trial court erred in imposing consecutive sentences on counts four and six. We disagree.
In Yarbough, our Supreme Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The Court noted that it is "senseless" to give a criminal free crimes. Id. at 639.
Instead, a sentencing court should consider the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) 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; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Id. at 643-44. These five factors are to be applied qualitatively, rather than quantitatively. A consecutive sentence can be imposed, even if a majority of the Yarbough factors support concurrent sentences. Carey, supra, 168 N.J. at 427-28. The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J. 471, 485 (1993); State v. Miller, 108 N.J. 112, 120 (1987).
Here, the trial court imposed consecutive sentences upon defendant as to count four (possession with intent to distribute CDS within 500 feet of a public park) and count six (aggravated assault of a police officer). The court did so because, as it stated at sentencing, the two offenses comprise "distinct crimes."
The trial court did not err in making the sentences on these particular counts consecutive. The heroin offenses and the assault offenses had different objectives, the first being the distribution of CDS and the second being an assault on a police officer who was attempting to perform his duties. No violence was involved with the CDS count, while count six involved a distinct act of violence perpetrated on Officer Rivera. The crimes involved multiple victims, namely (1) Rivera as to the assault, and (2) the general public, which would have been exposed to the heroin that defendant was evidently intending to distribute. In addition, defendant was convicted on all but one of the seven counts, even though several of the counts were merged at sentencing.
When all of the sentencing factors are viewed, either qualitatively or quantitatively, the trial court's decision to impose consecutive sentences on counts four and six should not be disturbed.
In sum, defendant's convictions are affirmed, but his sentence are remanded so that the conviction for distribution of CDS within 1000 feet of a school is merged with the conviction for distribution of CDS within 500 feet of a public park.
We have carefully considered the remaining issues and sub-issues raised by defendant, and conclude that they all lack sufficient merit to justify discussion in this opinion. R. 2:11-3(e)(2).
Affirmed as to defendant's convictions and remanded for resentencing in accordance with this opinion. Jurisdiction is not retained.