December 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES TALMADGE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictments No. 05-08-00872 and 05-08-00873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Carchman, Parrillo and Lihotz.
Following denial of his motions to suppress evidence seized pursuant to a search warrant and for disclosure of the identity of a confidential informant, defendant, James Talmadge, pled guilty to two counts of first-degree possession of a controlled dangerous substance (CDS), cocaine and heroin respectively, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); and to a separately indicted charge of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7. In accordance with the plea agreement, defendant was sentenced on the two drug crimes to concurrent eighteen-year terms with six-and-one-half year periods of parole ineligibility, to run concurrent to a five-year term with a five-year parole bar on the weapons offense. Appropriate fees and penalties were also imposed.
On appeal, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILS TO ESTABLISH PROBABLE CAUSE TO BELIEVE EVIDENCE WOULD BE DISCLOSED BY A SEARCH OF THE DEFENDANT'S HOME.
B. THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT CONTAINED MISREPRESENTATIONS THAT WERE INTENTIONALLY FALSE OR WERE MADE WITH RECKLESS DISREGARD OF THE TRUTH.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S DECISION TO ALLOW THE STATE TO WITHHOLD THE IDENTITY OF THE CONFIDENTIAL INFORMANT.
III. THE SENTENCE IS EXCESSIVE.
A. AGGRAVATING AND MITIGATING FACTORS.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
After consideration of these arguments, in light of the record and applicable law, we affirm.
According to the State's proofs, Detective James Crowell of the Rahway Police Department received information from a confidential informant (CI) that defendant was distributing narcotics and, based on that information, set up two controlled narcotics buys between the CI and defendant during the weeks of April 10 and 24, 2005. Following his surveillance of these purchases, on May 12, 2005, Crowell prepared an affidavit in support of an application for a search warrant, which was issued that same day. The warrant authorized the search of the defendant's person, his vehicles - a 2003 black Ford Explorer and a 2005 gray Ford Expedition - and his residence in Rahway.
In his affidavit, Crowell attested to the fact that he "received information that a black male known as James Talmadge, is currently involved in the illegal distribution of controlled dangerous substances, namely, cocaine, from within his residence, [ ] Rahway, New Jersey." Crowell represented that the CI's reliability "has previously been established and [his or her] information has been corroborated through this investigation." The informant also identified defendant in a picture provided by police and gave an accurate physical description of defendant. According to the informant, "prospective customers make contact with James Talmadge utilizing cellular number [ ] and negotiate the purchase of controlled dangerous substances." The CDS are "then delivered to the buyer by James Talmadge utilizing a 2003 black Ford Explorer New Jersey Registration [ ] or a 2005 gray Ford Expedition New Jersey Registration [ ]."
The affidavit further described the results of police surveillance of the two controlled narcotics buys arranged through the CI. While surveilling defendant's residence during the week of April 10, 2005, Detective Sergeant Robert Conroy observed defendant exit his home and enter a black Ford Explorer. Again, during the week of April 24, 2005, Conroy observed defendant leave his residence, but this time defendant entered a gray Ford Expedition. On each occasion, Conroy followed defendant to a pre-arranged location - a Rahway go-go bar called "Breathless" - where Detective Crowell then picked up surveillance and witnessed defendant engaging in the controlled drug buys with the CI. Immediately after each transaction, Conroy resumed surveillance, following defendant on his return home. The suspected substances involved in both transactions later tested positive for cocaine. The affidavit also contained additional sources of information that defendant did in fact reside at that particular home and that he owned, and registered in his name, the two vehicles used in the controlled buys.
Execution of the search warrant on May 12, 2005, uncovered multiple clear bags containing "rocky powder," "one clear bag containing off white powder," a clear bag containing fifty yellow tablets in the Explorer, four "pink zip lock bags containing white powder", and $593.00 in cash on defendant's person. In defendant's residence, the police seized a number of items, including but not limited to: a "zip lock bag containing 349 yellow pills" from a desk drawer; "large clear bag containing greenish/brown vegetative substance"; three "digital scale[s]"; multiple clear zip lock bags containing "white powder" and "white rock substance"; "two white paper[s] with numerous names and figures next to names"; "one brandt money counter"; and "22 glassine bags containing white powder."
As a result, defendant was charged in a twenty-two count indictment with, among other crimes, possession with intent to distribute cocaine (first-degree); heroin (first-degree); Methylenedioxymethamphetamine (MDMA) (second-degree); marijuana (second-degree); Hydrocodone (second-degree); Oxycodone (second-degree); and second-degree possession of a firearm during the commission of a CDS offense, N.J.S.A. 2C:39-4.1(a). As noted, he was separately indicted for second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7.
Defendant filed a motion for additional discovery, requesting the specific dates and times of the two controlled buys described in the affidavit in support of the State's application of the search warrant, which the judge construed as a request for disclosure of the CI's identity. In denying relief, the court found that the "State has a right to preserve [its] privilege, the right to protect the informant."
After we denied leave to appeal from that decision, defendant filed a motion to suppress, arguing that the affidavit contained material misstatements of fact and that there was no probable cause to support the search warrant for his residence. At the ensuing hearing, defendant produced several witnesses who testified that they never saw defendant drive a Ford Expedition. Defendant himself testified that he never drove the Expedition nor was it ever parked outside him home. He admitted, however, to cosigning for the Expedition, as well as obtaining car insurance for the vehicle as a favor to Steven DiGrado, a friend of defendant and apparent "owner" of the vehicle. In that regard, Art Padulla, a former employee of Bell Ford, testified that the grey Ford Expedition was purchased by defendant and Norma Nogales, the mother of DiGrado's ex-girlfriend. In describing a "jumbled sale", Padulla recalled that "it was very hard to determine who actually was purchasing the vehicle at that time" as there were three people involved, including defendant, DiGrado, and Nogales. Finally, on this topic, Jamison Antonio, an insurance investigator with the Union County Prosecutor's Office, testified that defendant had reported the Ford Expedition stolen on June 30, 2005, and that he was currently under investigation for possible insurance fraud.
Detective Crowell then testified to the information contained in his affidavit. He witnessed the CI make a telephone call to defendant to arrange the controlled buys, although that fact was not included in his affidavit. Having provided the CI with the money to purchase the CDS, Crowell continued surveilling the "area of Breathless" where he observed "an exchange" between defendant and the CI which he believed to be a "drug transaction." Specifically, Crowell observed a hand-to-hand transaction between the CI, who remained outside defendant's vehicle, and the defendant, who did not exit the vehicle. Crowell checked the CI prior to the controlled sale, which came back negative for any currency or CDS, and after meeting with defendant, the CI "turned over CDS to" Crowell and was checked for any other currency or CDS, which came back negative. The CI indicated to Crowell that he/she obtained the CDS from defendant.
Initially in his testimony, Crowell said that he saw defendant arrive in a black or deep blue Explorer during the week of April 24, 2005, whereas in his affidavit, he identified the vehicle observed on that occasion to be the gray Expedition. Later in his testimony, however, Crowell said that during the two controlled CDS buys described in his affidavit, defendant used two different vehicles: "one was a silver Expedition and one was black or dark blue Explorer." On redirect, Crowell clarified that he was mistaken when he indicated earlier that it was the Explorer he observed during the week of April 24th, and that the information contained in the affidavit was correct.
Detective Conroy also testified at the suppression hearing and confirmed that the vehicle he observed and followed the week of April 24th was a gray Ford Expedition. At that time, he saw a black male leave defendant's residence, and get into a gray Expedition, which Conroy followed "[t]o an area where [he] knew Detective Crowell has set up to wait for the vehicle to come or for the defendant to come." Once Conroy knew that Crowell "would have a sight of the vehicle and the occupant," he terminated his surveillance. After about ten to fifteen minutes, when Crowell informed Conroy that "he was going to be meeting with our informant and that the vehicle was leaving the area of the controlled purchase," Conroy then picked up his surveillance of defendant again. After following the vehicle back to defendant's residence, Conroy observed the same individual park the Expedition in the driveway, exit the vehicle, and go up the front stairs of the residence.
At the close of evidence, the judge denied the suppression motion, finding that defendant failed to meet the burden of proving by a preponderance of the evidence that the affidavit in support of the search warrant contained intentional, material falsehoods. On this point, the judge found Crowell credible despite his "blunder, mistake" in referring earlier in his testimony to viewing the Explorer during the week of April 24th. The court found, in any event, that Conroy saw the Expedition and that he observed a "black male exit [the residence], [and] get into that car." Conroy then followed the Expedition to the go-go bar; dropped his surveillance upon word that Crowell had picked up his surveillance; then, when he "got word the buy went down," followed the Expedition back to defendant's residence and saw the same black male enter the residence.
The judge further found that the search warrant was based on probable cause. Satisfied that the CI's reliability was sufficiently established, the court added:
You have two purchases observed by the officer. The drugs were retrieved from the two purchasers. They tested positive for cocaine. The man was seen going to the purchases and followed there by the Sergeant on both occasions, the week of April 24th, paragraph six, and the week of April 10th, paragraph four. The event occurs and then the officer, Sergeant Conroy, follows him back home. The only obvious inference is that located in that home were the drugs that he sold. You might differ, we all can differ but I find the judge was right in issuing a warrant based on what I have in front of me.
Again on appeal, defendant contends the search warrant was defective for want of probable cause to search his residence and because it contained material falsehoods. We disagree.
Consistent with federal and state constitutional law, "police officers must obtain a warrant from a neutral judicial officer prior to searching a person's home, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. Sullivan, 169 N.J. 204, 210 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "A search based on a properly obtained warrant is presumed valid." Id. at 211. When a search is conducted pursuant to a warrant, the defendant bears the burden of proving the invalidity of the search. Ibid.
In this regard, courts "accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant." State v. Jones, 179 N.J. 377, 388 (2004). (internal citations omitted). Doubts as to the validity of the warrant "should ordinarily be resolved by sustaining the search." Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). In fact, "another trial judge of equal jurisdiction should regard as binding the decision of his brothers that probable cause has been sufficiently shown to support a warrant, unless there was clearly no justification for that conclusion." State v. Jones, 308 N.J. Super. 15, 30 (App. Div. 1998) (internal citations omitted) (emphasis added).
Before issuing a warrant, "the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence a crime is at the place sought to be searched." Sullivan, supra, 169 N.J. at 210. Probable cause means "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966). "[N]o mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause." Kasabucki, supra, 52 N.J. at 117. Rather, the standard governing whether a warrant application contains probable cause was set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983), and adopted in New Jersey in State v. Novembrino, 105 N.J. 95, 122-23 (1987):
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548.]
"Stated differently, search warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005); see also Novembrino, supra, 105 N.J. at 120, 124. Probable cause requires balancing "the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy" and "accommodat[ing] those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other." Kasabucki, supra, 52 N.J. at 116.
In applying to "the totality of the circumstances" test, an informant's veracity and basis of knowledge are two of the most important considerations. State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998). "A deficiency in one of those factors may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (internal citations omitted). Police corroboration of that information "is an essential part of the determination of probable cause." Smith, supra, 155 N.J. at 95. If the "police corroborate information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong as well as the veracity prong." Id. at 95-96 (internal quotations and citations omitted). While not creating a per se rule, "a controlled drug buy typically will be persuasive evidence in establishing probable cause." Sullivan, supra, 169 N.J. at 216-17.
Here, defendant contends probable cause to search his home was lacking because the police officers simply observed controlled buys between the CI and defendant in his vehicle, and there is no evidence that the drugs came from his home. We disagree.
In Keyes, supra, the Supreme Court held that the inability of the police to observe the informant enter the defendant's residence during the controlled buys did not invalidate the warrant, rejecting the defendant's argument that probable cause was lacking since the State could not establish a direct connection between the defendant and the apartment. 184 N.J. at 560. The Court noted "that the informant's tip and the corroborating evidence justify the police inference that 236 Rosemont Place was of some importance as a point of drug distribution for William Keyes." Ibid.
Nothing in State v. Kline, 42 N.J. 135 (1964), on which defendant principally relies, suggests the contrary. There, the Court found that probable cause was lacking in a police search, pursuant to a warrant, of the defendant's home for betting slips and "other gambling paraphernalia," reasoning that:
The only mention of defendant's home in the affidavit was the defendant 'ultimately returned' to it. No facts or circumstances were set forth in the affidavit which afforded reasonable grounds to believe that bookmaking were [sic] being carried on in the home, or that bookmaking paraphernalia was to be found there. There was nothing in the affidavit to justify a reasonable belief that defendant carried anything on his person or in the car which was subject to seizure under R.R. 3:2A-2. [Id. at 138.]
Here, in marked contrast to Kline, the affidavit recites evidence that police officers, on two separate occasions, followed defendant from his residence to the pre-arranged site of drug sales and immediately back to his home. In other words, defendant was observed coming from and returning to his home directly before and directly after the controlled drug transactions. Unlike Kline, supra, or Ex Parte Keith Alan Perry, 814 So.2d 840, 843 (Ala. 2001), on which defendant also relies, there is a substantial nexus between defendant's criminal activities and his home. Based simply on the results of police surveillance, we conclude that a reasonable inference can be made that defendant's home probably contained evidence of his illegal drug dealings.
There is more, however. The two controlled buys witnessed by the police corroborated the CI's tip, establishing both the CI's reliability and the veracity of his information that defendant was dealing drugs from his home. Specifically, the CI provided the exact location of defendant's residence, the make and model of the vehicle he owns and uses to transport drugs, the methods he employs to sell narcotics, and even defendant's cell-phone number, which the police used to "set up the controlled buys at pre-determined locations." Police corroboration in this instance provided persuasive evidence of probable cause to believe defendant's home "was of some importance as a point of drug distribution." Keyes, supra, 184 N.J. at 560. Defendant, on the other hand, has offered nothing to defeat the "warrant's presumption of validity or demonstrate the unreasonableness of the police conduct." Sullivan, supra, 169 N.J. at 217. Under the totality of the circumstances, we conclude that the issuing judge could make a practical, common-sense determination that CDS would be found in defendant's residence.
We also agree with the motion judge's finding that the affidavit does not suffer from any material falsehoods. In this regard, we "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). See also State v. Locurto, 157 N.J. 463, 474 (1999); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (internal citations omitted) (stating that the standard of review on appeal from a motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record").
Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978), where "a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit." State v. Howery, 80 N.J. 563, 566, cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979). If the defendant, by a preponderance of the evidence, proves such material falsity of specific portions of the warrant, the warrant is invalid and the evidence seized thereby must be suppressed. Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672. The misstatements claimed to be "false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Howery, supra, 80 N.J. at 568; see also Franks, supra, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed. 2d at 682. An affidavit must be evaluated in a commonsense and realistic fashion. Kasabucki, supra, 52 N.J. at 117.
In support of his Franks argument, defendant points to the inconsistency between the affidavit, reciting that defendant was selling CDS out of the Ford Expedition during the week of April 24, 2005, and Crowell's testimony on direct identifying the Ford Explorer as the vehicle used at the time. He draws from this disparity what he posits as the only conclusion, namely that "some[one] other than defendant was selling drugs." We fail to see the logic in this reasoning. In any event, it is clear Crowell was simply mistaken in his original testimony. Conroy, whom the court found to be "very credible," testified that during the second controlled buy, he observed defendant driving a gray Expedition, which matched the information in the affidavit. Further, Crowell, who initially testified that defendant just drove the Explorer, corrected his misstatement and testified on redirect that defendant did in fact drive a gray Expedition to the second controlled buy. The judge, in finding that Crowell simply made a "blunder" and that he was "credible", found no material falsehood in the affidavit. We defer not only to the motion judge's credibility determination, but his ultimate factual findings. We too discern no misstatement - material or otherwise - in the search warrant affidavit.
We also discern no error in the court's failure to disclose the identity of the CI, which defendant was obviously seeking when he requested discovery of the specific dates and times of the controlled drug buys referenced in the affidavit.
A CI's identity is privileged and protected under N.J.R.E. 516, which provides:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
There is a strong public policy and law enforcement interest related to such a privilege, namely encouraging "citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials" without fear of reprisals. Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). In Cashen v. Spann, the Court noted that there is a "presumption" protecting the informer's privilege given the strong law enforcement concerns. 77 N.J. 138, 142 (1978); see also State v. Williams, 364 N.J. Super. 23, 39 (App. Div. 2003). Accordingly, the presumption protecting a CI's identity will only be overcome by a "strong showing of need" for disclosure by the defendant. Williams, supra, 364 N.J. Super. at 29; see also State v. Florez, 134 N.J. 570, 578 (1994). "The appropriate standard for reviewing the denial of a motion for disclosure is to determine whether the trial court abused its discretion after weighing the competing considerations" of the defendant's need for disclosure on the one hand, and, on the other, the public interest in protecting the flow of information. State v. Milligan, 71 N.J. 373, 384 (1976); see also Roviaro v. United States, 353 U.S. 53, 56, 61 n.9, 77 S.Ct. 623, 628, n.9, 1 L.Ed. 2d 639, 642, 645 n.9 (1952); State v. Williams, supra, 364 N.J. Super. at 40.
In determining whether disclosure of a CI's identity is appropriate, the court must look to "the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 629, 1 L.Ed. 2d at 646. Courts must "weigh and balance the competing considerations on a case-by-case basis." Florez, supra, 134 N.J. at 579. While a court "must remain sensitive to the legitimate needs of defendants and to fundamental principles of fairness," it "should not honor frivolous demands for information on unsubstantiated allegations of need." Milligan, supra, 71 N.J. at 393. "Under most circumstances... an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons." State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J. 327 (1991); see also Milligan, supra, 71 N.J. at 392 ("In assessing the above factors, we are cognizant that free and unwarranted access to the identity of informers will effectively eliminate the informer's privilege.").
New Jersey courts have refused to disclose the identity of the CI where the defendant's argument is based on mere speculation that the informer might exculpate the defendant on the issue of the identification of the defendant. State v. Williams, 356 N.J. Super. 599, 605-06 (App. Div. 2003); see also Milligan, supra, 71 N.J. at 391 ("Most courts have found that the possibility that an informer's testimony might establish a defense of mistaken identity is too speculative to warrant disclosure."); State v. Booker, 86 N.J. Super. 175, 179 (App. Div. 1965). Accordingly, "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393.
Here, the defendant has made no showing, much less a strong showing, how disclosure of the informer's identity would be helpful to his defense. He merely asserts, without any substantiation, that because the CI was an "active participant" and "key witness" in the two controlled drug buys, that disclosure was necessary. However, the mere fact that the CI actively participated in the controlled drug sales does not require automatic disclosure. See State v. Brown, 170 N.J. 138, 148 (2001) (holding that the trial court "properly ruled that the confidential police informant's identity should not be revealed" where the CI had cooperated with police and carried out two separate controlled buys from the defendants).
Furthermore, as the trial court noted, the affidavit's format - of mentioning only the weeks during which the controlled buys took place, rather than the specific dates and times of the buys - was deliberately meant to shield the CI's identity for his/her protection. Balanced against that weighty concern was the defendant's purported need for the information, which the court found to be wanting, particularly in light of defendant's outright denial that he ever drove the gray Expedition. Under the circumstances, we perceive no abuse of discretion in the motion judge's refusal to disclose the CI's identity.
Lastly, defendant argues that his sentence, imposed in accordance with the plea agreement, was excessive.
On appeal, a sentence imposed in accordance with a plea bargain "should be given great respect, since a 'presumption of reasonableness... attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)), certif. denied, 145 N.J. 373 (1996); see also State v. Pilot, 115 N.J. 558, 566 (1989). "The essence of a negotiated plea is the defendant's voluntary and informed waiver of the right to remain silent and stand trial on specified charges in return for concessions from the State by way of reduction or dismissal of charges, recommendation as to sentence and the like." State v. Spinks, 66 N.J. 568, 574 (1975).
Here, in return for defendant's plea to two first-degree drug crimes and a second-degree weapons offense, the State agreed to dismiss twenty other counts charging crimes ranging in gravity from the second to fourth degree, and to recommend an aggregate eighteen-year term with a six-and-one-half parole bar. At the October 20, 2006 sentencing, defendant's counsel represented: "[a]lthough [defendant] does have a criminal history, I would submit that the plea agreement should be followed in this matter and ask the court to abide by the negotiated plea arrangements in this matter." The judge agreed, clearly convinced that the aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1(a)(3), (6) and (9), substantially outweighed the lack of any mitigating circumstances to warrant the sentence ultimately imposed.
It is fundamental that we do not "second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989). We are satisfied that these findings here are amply supported in the record, and therefore we discern no warrant for interference with the sentence imposed.
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