August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARL BOYD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0434.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Graves and Grall.
Defendant Carl Boyd appeals from a judgment of conviction and sentence entered after a trial by jury. We affirm defendant's convictions and his sentence, but remand for entry of a corrected judgment of conviction.
The first eight counts of Essex County Indictment No. 06-02-0434 charged defendant Carl Boyd as follows: (1) third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); (2) third-degree possession of cocaine 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); (3) third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); (4) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count four); (5) 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 five); (6) third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count six); (7) third-degree distribution of heroin to Zaleka Davis, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count seven); and (8) third-degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7 (count eight). The jury acquitted defendant of the first six counts, but the jury returned a guilty verdict on counts seven and eight.
At defendant's sentencing hearing on December 12, 2006, the trial judge denied defendant's pro se motion for entry of a judgment of acquittal, and the court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f). The court merged count seven into count eight, and defendant was sentenced to a ten-year extended prison term with five years of parole ineligibility.
During the three-day trial, Narcotics Officer Mitchell Molina of the Irvington Police Department, Detective Ishmael Tamimi of the Essex County Sheriff's Bureau of Narcotics, and Detective Marion DiRienzo of the New Jersey State Police testified for the State. Officer Molina testified that on November 2, 2005, at approximately 9:30 a.m., he was working undercover in the area of 193 22nd Street in Irvington, when he observed a female approach defendant. After a brief conversation, the female, who was later identified as Zaleka Davis, "reached into her pocket, took out money, [and] handed it to [defendant]." According to Molina, defendant put the money in his pocket. Molina testified that he lost sight of defendant for about "a minute and a half or so" after defendant received the money and walked "towards the back of the house." When defendant returned to the front of the house, he handed Ms. Davis an item that she put in her purse, and she walked away. The exchange took place within 1000 feet of the Grove Street School.
Officer Molina believed that a narcotics transaction had taken place, and he radioed a description of Ms. Davis to his back-up unit. When Ms. Davis was stopped and arrested, Detective Tamimi recovered one glassine envelope of heroin stamped "one way" from Ms. Davis. The heroin found on Ms. Davis was admitted into evidence as exhibit S-3. The back-up unit then searched the abandoned building that defendant was standing in front of when the exchange occurred, and they found thirty-nine glassine envelopes of heroin, one yellow-capped vial of cocaine, and a plastic Ziploc bag containing cocaine. Several of the glassine envelopes were stamped "one way."
Ms. Terry Williams, who lived across the street from 193 22nd Street, was called as a defense witness. She testified that on November 2, 2005, she saw defendant working on his car at approximately 8:30 a.m., and she saw him being arrested at about 8:40 a.m. Ms. Williams did not see defendant speak to any female, but she was not watching defendant while she was in her house for about ten minutes between 8:30 a.m. and 8:40 a.m. Defendant did not testify at his trial.
Thus, the first six counts of the indictment were based on the stash----the heroin and cocaine recovered from the abandoned building----and the jury concluded that the State failed to prove that defendant possessed those drugs. Nevertheless, based on the transaction observed by Officer Molina and the recovery of heroin from Ms. Davis, the jury determined that defendant had distributed heroin, as alleged in count seven, and that the distribution had occurred within a school zone as alleged in count eight of the indictment.
Defendant presents the following arguments on appeal:
THE JUDGMENT OF CONVICTION IS VOID ON ITS FACE AS INCONSISTENT WITH THE INDICTMENT AND JURY VERDICT.
COUNT 8 SHOULD HAVE BEEN DISMISSED BEFORE TRIAL FOR FAILURE TO ADEQUATELY DESCRIBE THE ELEMENTS OF THE CRIME [NOT RAISED BELOW].
THE CHARGES BY THE TRIAL JUDGE WERE INCORRECT AND HIS LATER ANSWERS TO THE JURORS' QUESTIONS WERE HOPELESSLY CONFUSING THEREBY DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL [NOT RAISED BELOW].
THE VERDICT SHEET WAS FLAWED [NOT RAISED BELOW].
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANTS A REVERSAL AND NEW TRIAL.
THE TRIAL COURT ERRED IN DENYING AN ADJOURNMENT ON HEARING OF DEFENDANT'S MOTION FOR [ACQUITTAL] AND THE MOTION ITSELF, PARTICULARLY WHERE DEFENSE COUNSEL'S LACK OF PREPARATION WAS ADMITTED ON THE RECORD.
IMPOSITION OF THE MAXIMUM SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
Based on our review of the record and briefs, we are satisfied that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As the trial court noted when it denied defendant's motion for acquittal, the evidence of defendant's guilt on counts seven and eight "was overwhelming." We add only the following comments.
With respect to defendant's first point, it is clear that the judgment of conviction dated December 12, 2006, listing count seven as "possession of CDS with intent to distribute" and count eight as "possession of CDS with intent to distribute within 1000 feet of a school zone" is inconsistent with the indictment, the jury charge, the verdict sheet, and the sentencing transcript, which refer to the distribution of heroin (count seven) within a school zone (count eight). Accordingly, a remand is necessary for the entry of a corrected judgment of conviction.
Defendant also challenges his sentence, but he does not dispute he was subject to a mandatory extended term as a repeat drug offender under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present, enhanced sentencing must occur."). Defendant was thirty-six years old when he was sentenced. In determining defendant's sentence within the extended-term range, the court noted that this was defendant's fifth indictable conviction. In addition, he had two convictions for disorderly person's offenses and several adjudications as a juvenile. Based on aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no mitigating factors, defendant was sentenced to a ten-year term with five years of parole ineligibility.
"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. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). In the present matter, the trial court's findings regarding the aggravating and mitigating factors were based on competent and credible evidence in the record, the court correctly applied the sentencing guidelines enunciated in the Criminal Code, and in applying the facts to the law, the court reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.
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