August 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEVIN REILLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Accusation No. 05-10-0955-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2009
Before Judges Yannotti and LeWinn.
On October 3, 2005, defendant Devin Reilly pled guilty to an accusation charging him with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1); second-degree leader of organized crime, N.J.S.A. 2C:5- 2(g) and 2C:41-1; and second-degree eluding law enforcement, N.J.S.A. 2C:29-2(b). On November 18, 2005, defendant was sentenced, pursuant to the plea agreement, to a term of fifteen years with a five-year parole ineligibility period on the first count, a consecutive five-year term on the second count and a concurrent five-year term on the third count. On January 18, 2006, defendant filed a pro se motion for reconsideration of sentence; the trial court denied this motion by an order entered on May 12, 2006, which stated that defendant provided "no documentary support for [his] application as required by Rule 3:21-10(c)."
Defendant appeals from the November 18, 2005 judgment of conviction, raising the following issues for our consideration:
POINT I THE FACTUAL BASIS FOR LEADER OF ORGANIZED ACTIVITY WAS INSUFFICIENT
POINT II [THE] TRIAL COURT INAPPROPRIATELY CONSIDERED AGGRAVATING FACTOR NUMBER 11
POINT III THE TRIAL COURT ERRED IN IMPOSING THE "PRESUMPTIVE" TERM ON COUNT ONE AND THE LOWEST TERM FOR THE SECOND DEGREE RANGE ON COUNT TWO
POINT IV THE IMPOSITION OF CONSECUTIVE SENTENCES ON COUNTS 1 AND 2 WAS IMPROPER
For the reasons that follow, we affirm defendant's convictions, but remand for resentencing.
At defendant's plea hearing, his attorney questioned him on the leader of organized crime count as follows:
Q: Count 2, you're pleading guilty to being a leader of organized crime, a crime of the second-degree; on diverse dates in Cumberland County, did you possess marijuana, cocaine, steroids, and engage in gambling activities with other persons?
Q: And, was that done for profit?
Q: And, . . . did you give drugs to people, and allow them to go out and sell it, and then bring you the money?
Q: Okay. And, did you do that with cocaine, marijuana and steroids? You sold steroids as well?
A: Yes, I sold steroids.
Q: Okay. And, was [the] marijuana in a quantity of over five pounds?
Q: And, was the cocaine in a quantity of over five ounces?
Defendant now contends that this factual basis "falls woefully short of demonstrating that [his] conduct was a pattern of racketeering, as opposed to an isolated incident where he simply gave persons drugs to sell for him." We disagree. N.J.S.A. 2C:5-2(g) provides in pertinent part:
A person is a leader of organized crime if he purposely conspires with others as an organizer, supervisor, manager or financier to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S. 2C:41-1.
N.J.S.A. 2C:41-1(d) defines "[p]attern of racketeering activity" as:
(1) Engaging in at least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act [June 15, 1981] and the last of which shall have occurred within 10 years (excluding any period of imprisonment) after a prior incident of racketeering activity; and
(2) A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.
N.J.S.A. 2C:41-1(a)(1)(u) includes "all crimes involving illegal distribution of a controlled dangerous substance" within the definition of "[r]acketeering activity[.]"
In State v. Ball, 141 N.J. 142 (1995), the Supreme Court addressed the nature of the criminal conduct enjoined by the racketeering statute, stating:
"[C]ontinuity," understood as an antonym of the terms "isolated" or "sporadic," points to "incidents of criminal conduct" that exhibit some ongoing connection. . . .
We . . . conclude that some degree of continuity, or threat of continuity, is required and is inherent in the "relatedness" element of the "pattern of racketeering activity."
[Id. at 168 (citations omitted).]
We conclude that defendant provided an adequate factual basis for the court to accept his plea of guilty to a violation of N.J.S.A. 2C:5-2(g) and 2C:41-1. Not only did defendant admit to "giv[ing] drugs to people, and allow[ing] them to go out and sell it, and then bring[ing him] the money[,]" he also acknowledged engaging in such activity "on diverse dates in Cumberland County . . . ." Defendant's acknowledgement of acting "on diverse dates" with respect to a variety of controlled dangerous substances, namely "cocaine, marijuana and steroids[,]" is sufficient to connote a "pattern of racketeering activity" within the purview of N.J.S.A. 2C:41-1(d). We are satisfied that defendant's factual basis for his guilty plea on this charge "include[d] defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987).
We turn next to defendant's sentencing arguments. Defendant first argues that the trial judge erred by inappropriately considering aggravating factor number eleven, namely:
The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices[.]
In imposing sentence, the trial judge weighed the aggravating and mitigating factors as follows:
In looking at the facts of this case, . . . I would suggest that aggravating factors 3, 9, and 11 should be given weight. I would give some weight to 3, the risk that he'll commit another offense . . . .
I would give full weight to 9, the need to deter the defendant and others from violating the law; and I would give full weight to 11, that the imposition of a fine, penalty, or order for restitution without also imposing a term of imprisonment would be perceived by the defendant and others merely as a part of the cost of doing business.
The judge found that mitigating factor number seven applied, since defendant had no history of prior delinquency or criminal activity, and had led a law-abiding life for a substantial period of time. The judge also gave "full weight to [mitigating factor number ten], that [defendant]'s likely to respond affirmatively to probationary treatment." The judge thereupon found that "the aggravating factors slightly outweigh the mitigating factors," and imposed sentence in accordance with the plea agreement.
We concur with defendant that the judge improperly considered aggravating factor number eleven. "By its very terms, that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005).
Defendant pled to first- and second-degree offenses, which carry a presumption of imprisonment. N.J.S.A. 2C:44-1(d). Moreover, defendant failed to establish any basis for overriding that presumption. Therefore, consideration of this factor was clearly inappropriate.
Defendant next argues that the trial judge erred by imposing the "'presumptive'" term of fifteen years on the first- degree offense and the "low end of the range," a term of five years on the second-degree offense. Because we have concluded that aggravating factor number eleven should not have been considered in sentencing defendant, we leave it to the discretion of the trial judge to address the appropriate terms on each offense on remand.
Finally, defendant argues that the imposition of consecutive sentences on the first two counts of the accusation was improper. Defendant acknowledges that these two offenses are "separate." He argues, however, that the imposition of consecutive sentences does not necessarily follow and that the trial judge failed to make specific findings on the record to support his imposition of consecutive sentences.
We are satisfied that the trial judge did not err in imposing consecutive sentences. Count one of the accusation charged first-degree possession of cocaine "on or about August 26, 2004 . . . ." Count two charged the significantly more expansive offense of "a pattern of racketeering activity, contrary to . . . N.J.S.A. 2C:5-2(g) . . . ."
"These were separate crimes committed on separate occasions and the plea agreement itself called for consecutive sentences." State v. Soto, 385 N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491 (2006). In that case, we recognized that "we have the discretion to affirm a consecutive sentence without the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly mistaken.'" Ibid. (quoting State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) certif. denied, 177 N.J. 492 (2003)).
Notwithstanding the trial judge's failure to analyze the so- called "Yarbough factors," State v. Yarbough, 100 N.J. 627, 643- 44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986), we are satisfied that the judge did not err in imposing consecutive sentences.
Defendant's convictions are affirmed. This matter is remanded for resentencing in conformance with this opinion.
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