August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRENCE KELLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2010
Before Judges Carchman, Parrillo and Ashrafi.
Defendant Terrence Kelley appeals from his conviction by a jury for possession of cocaine with intent to distribute in a school zone and for hindering prosecution. He also appeals the extended term sentence imposed by the court. We affirm.
Defendant was arrested and charged along with co-defendant Cornelius Smith on February 2, 2007. At about 11:45 a.m. on that date, Detective Evelyn Gonzalez of the Paterson Police Department was conducting surveillance in the area of 10th Avenue between East 25th and 26th Streets to address citizen complaints about drug dealing in the area. She observed defendant and Smith standing about 150 to 200 feet from where her unmarked police vehicle was parked. Ten minutes after setting up the surveillance, she observed a man approach Smith and have a brief conversation. She then saw Smith walk several feet to a public telephone, reach behind it, and obtain a dark object. She saw Smith hand something to the man in exchange for what she perceived to be paper currency. During the transaction, defendant was looking into the trunk of a green Acura parked near the pay phone. As the unidentified man walked away, Smith put something back behind the telephone, walked over to defendant, and appeared to hand him currency, which defendant placed in his pants pocket.
Ten to fifteen minutes later, Detective Gonzalez observed a second transaction with a different unidentified man conducted in a similar manner. She again saw defendant receive what appeared to be money from Smith and put it into his pocket.
Detective Gonzalez contacted other police units but they were unable to respond to her request for assistance at that time because of other duties. Gonzalez continued to observe Smith and defendant. Smith briefly spoke to defendant and then walked away. Defendant closed the trunk of the Acura, walked over to the pay phone, and appeared to retrieve something from behind the phone. Defendant then drove away in the Acura but stopped briefly at the corner of 10th Avenue and 26th Street and picked up Smith.
Detective Gonzalez again contacted other units and gave them a description of the vehicle and its direction of travel. Defendant drove on East 26th Street and made a right turn onto 11th Avenue, coming within 1,000 feet of Rosa Parks School. Sergeant Troy Bailey and Detective William Palomino stopped the Acura ten blocks away from the location of the surveillance. They found seven glassine baggies of cocaine in a magnetic black key box placed near the gas pedal. They arrested defendant and Smith.
Defendant and Smith were transported together to the police station and sat near each other handcuffed to a bar by one hand for about forty-five minutes before they were processed. When the police conducted an inventory search of the two men, they found no money on defendant's person but found $313 in Smith's possession.
At the station, Detective Gonzalez conducted a field test on the substance in the baggies recovered from the Acura. The test was positive for cocaine.
A grand jury returned a four-count indictment against defendant and Smith: (count one) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count three) third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and 2C:35-5a; and (count four) fourth-degree hindering apprehension by concealment of evidence, N.J.S.A. 2C:29-3b(1). Smith entered into a plea agreement with the State and pleaded guilty to the school zone count. Defendant was tried before a jury on March 17 to 20, 2008. The jury found him guilty of all four charges.
Defendant was sentenced on July 31, 2008. After merging counts one and two into count three, the school zone charge, the judge imposed a mandatory extended term sentence under N.J.S.A. 2C:43-6f of eight years' imprisonment with a minimum period of four years before parole eligibility. In addition, the judge sentenced defendant to eighteen months' imprisonment on count four, the hindering charge, to run concurrently to the sentence on count three. Defendant filed a notice of appeal on December 3, 2008.
On appeal, defendant raises the following points of argument:
IT WAS PLAIN ERROR NOT TO INSTRUCT THE JURY
ON THE LESSER INCLUDED OFFENSE OF WANDERING TO OBTAIN OR SELL CDS, THE ELEMENTS OF WHICH ARE SUPPORTED BY THE EVIDENCE; A REVERSAL IS WARRANTED (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING A MOTION FOR A JUDGMENT OF ACQUITTAL AND A MOTION FOR A NEW TRIAL (PARTIALLY RAISED BELOW).
THE COURT ERRED IN ALLOWING TESTIMONY ABOUT THE MONEY RECOVERED FROM THE DEFENDANTS AFTER COURT RULED THAT TESTIMONY COULD NOT BE ADDUCED.
THE TRIAL COURT ERRED BY ALLOWING THE STIPULATIONS TO BE ENTERED (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY NOT HOLDING AN APPROPRIATE CHARGE CONFERENCE WHICH PREJUDICED THE DEFENDANT (NOT RAISED BELOW). POINT VI THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (NOT RAISED BELOW).
THE DEFENDANT'S SENTENCE WAS DISPARATE AND NOT JUSTIFIED AS COMPARED TO HIS CO-DEFENDANT'S SENTENCE; A REMAND IS REQUIRED.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
Except for Point II pertaining to the sufficiency of evidence, defendant's arguments were not raised in the trial court. And with respect to Point II, only some of the arguments made on appeal were made to the trial court. Therefore, other than defendant's appeal of his sentence and the arguments on sufficiency of evidence that were raised below, his points on appeal are subject to the plain error standard of review.
Our rule pertaining to trial errors, Rule 2:10-2, provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Branch, 182 N.J. 338, 353 (2005); State v. Brims, 168 N.J. 297, 306 (2001); State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Defendant contends the trial court committed plain error by failing to instruct the jury on a lesser-included disorderly persons offense of wandering in a public place with the purpose of obtaining or selling a controlled dangerous substance, in violation of N.J.S.A. 2C:33-2.1.*fn1 Regarding the jury charge, the trial court specifically noted, "I don't think there's any lesser-included." Neither party objected or stated otherwise.
Lesser-included offenses are only to be charged when there is "not only a rational basis in the evidence for a jury to convict the defendant of the included offense but . . . also a rational basis in the evidence for a jury to acquit the defendant of the charged offense." State v. Brent, 137 N.J. 107, 113-14 (1994); see also State v. Cassady, 198 N.J. 165, 177-78 (2009) (two-part inquiry regarding whether lesser-included offense should be charged: whether the lesser charge is included in the offense charged and whether the jury could rationally acquit on the greater charge and convict on the lesser one).
A trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004); State v. Choice, 98 N.J. 295, 299 (1985); State v. Powell, 84 N.J. 305, 318-19 (1980). But "when a defendant does not request the judge to charge a particular lesser-included offense, the judge need not sua sponte give that instruction unless the facts clearly indicate that the jury could find the defendant guilty of the lesser-included offense, rather than the charged offense." State v. Viera, 346 N.J. Super. 198, 211 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). "Thus, the trial court is not obliged to, on its own, meticulously sift through the entire record to see if some combination of facts and inferences might rationally sustain a charge on a lesser-included offense." Ibid.
Here, no rational basis existed for the jury to acquit on the greater charge of possession of the cocaine with intent to distribute but to convict on the lesser charge of wandering to obtain or distribute the drugs. The cocaine was found in seven glassine baggies near the gas pedal of the Acura that defendant was driving. The offenses charged related primarily to those drugs found in the car rather than to Detective Gonzalez's surveillance and observation of what appeared to be two hand-to-hand transactions some minutes earlier. With the discovery of the drugs, the jury had no rational basis to conclude that defendant was engaged in wandering to buy or sell drugs earlier but did not possess the cocaine found in the car with intent to distribute.
Defendant contends the court erred in denying his motion for judgment of acquittal pursuant to Rule 3:18-1 at the end of the State's case, and alternatively his motion for a new trial under Rule 3:20-1 made at the time of sentencing. We reject these contentions.
In reviewing a motion for judgment of acquittal, an appellate court applies the same standard as the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006). The motion must be denied where:
[V]iewing 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 a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate court. State v. Kittrell, 145 N.J. 112, 130 (1996).
Defendant argues there "was not enough evidence to draw the logical inference . . . that drugs were handed to the persons who handed money to the defendants." He argues at length that the police failed to apprehend either of the two men who allegedly bought drugs from defendant and Smith, and therefore, the State did not prove that defendant distributed cocaine. As we have already stated, however, the charges in the indictment were based primarily on the drugs found in the car rather than the drugs allegedly sold to the unidentified men observed during the surveillance. The surveillance testimony helped establish that the cocaine was possessed with intent to distribute. It was not used to prove the separate crime of distribution of cocaine to the two unidentified men.
Defendant also contends that the State failed to prove beyond a reasonable doubt that the seven glassine baggies contained cocaine. He also contends the State failed to prove intent to distribute the cocaine because the baggies were "for personal use, especially between two defendants."
The contents of the glassine baggies were the subject of a stipulation at trial, and Detective Gonzalez also testified she field-tested the substance found in them and the test was positive for cocaine.
With respect to the stipulation, we also reject defendant's argument that the trial court committed plain error in suggesting that the parties stipulate to the nature of the substance found in the car. During a pre-trial status conference, the court noted that the parties had agreed to three stipulations:
The Court: . . . Stipulate to matters, I do have a proposed stipulation here, right?
[Defense Counsel]: Yes.
The Court: Lab report, map, chain of custody. [Defense Counsel]: No objection to those going in, Judge.
During the trial, defense counsel again agreed that stipulations pertaining to the lab report, a school zone map, and chain of custody would be read to the jury.
After the judge explained to the jury that parties in a trial often enter into stipulations to save time and needless testimony, the court informed the jury that the State and the defense had entered into the following stipulations:
No. 1. If the New Jersey State Lab Forensic Scientist David Neal Ryan, were to testify in this case his testimony would be that he tested Exhibit S-3 in evidence and it tested positive for cocaine weighing approximately 0.08 grams;
No. 2. The map of Rosa Parks School of Fine Arts accurately depicts the scale 1 inch equaling 100 feet. The 1,000-foot radius surrounding Rosa Parks School of Fine Arts. Furthermore, it is agreed that Rosa Parks School of Fine Arts was owned and operated by the Paterson Board of Education for educational purposes on February 2nd of 2007.
No. 3. Exhibit S-3 in evidence contains the items recovered by Detective Marvin Sykes on February 2nd of 2007, which was later taken to the New Jersey State lab by Detective Jack Baker and tested by David Neil Ryan and later returned here.
The first and third stipulations dispose of defendant's argument that the substance was not proven to be cocaine.
There is simply no merit in defendant's argument that the trial court erred in facilitating stipulation of routine evidentiary matters between the parties. Defendant acknowledges that he may have to rely on arguing ineffective assistance of counsel through a petition for post-conviction relief on this issue.*fn2 It was certainly not a matter of plain error on the part of the trial court to accept the stipulations agreed to by defense counsel.
As to intent to distribute the cocaine, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true." Kittrell, supra, 145 N.J. at 131 (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Here, the jury could infer from all the evidence, including the surveillance, that defendant intended to distribute the cocaine in the seven glassine baggies found in the car.
Defendant argues next that the State lacked evidence that the alleged street transactions occurred within 1,000 feet of Rosa Parks School. The State never contended that the street sales occurred in a school zone. Rather, the State's evidence showed that defendant was in possession of cocaine with intent to distribute in a school zone when he was arrested. A defendant who is within the 1,000 foot perimeter and in possession of illegal drugs with intent to distribute need not intend to distribute the drugs within the perimeter to be subject to N.J.S.A. 2C:35-7. State v. Ivory, 124 N.J. 582, 595 (1991); State v. Bethea, 243 N.J. Super. 280, 283 (App. Div.), certif. denied, 122 N.J. 401 (1990).
Addressing count four of the indictment, defendant argues insufficient evidence to prove that he hindered his own apprehension and prosecution by transferring money to Smith while in transport or at the police station. He argues that the State never showed that he had money in his pocket. The State presented testimony of Detective Palomino that he felt "a large wad" in defendant's pocket at the scene of the arrest upon patting him down for weapons. He believed the wad was money but he did not seize it at the scene. Sergeant Bailey testified that in his patdown search of co-defendant Smith at the scene of the arrest, he did not feel any item that seemed to be money.
Later, when defendant and Smith were searched at the police station for additional contraband and for purposes of a property inventory, Smith had a wad containing $313 on his person and defendant had no money. From this evidence, together with the testimony that defendant and Smith were kept in close proximity for more than forty-five minutes after their arrest, and the testimony of Detective Gonzalez that after each street transaction Smith gave money to defendant which he then put into his pocket, the jury could reasonably infer that defendant and Smith had tried to conceal his possession of the money. The jury could also infer that the purpose of transferring the money was to hinder defendant's prosecution by concealing evidence of his involvement in the street sales.
The trial court may also set aside a jury verdict on a motion for a new trial where the verdict is against the weight of the evidence. R. 3:20-1.*fn3 The jury verdict should only be set aside where it clearly and convincingly appears there was a miscarriage of justice. State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
Our scope of review is limited, and we give due regard to the jury's assessment of witness credibility based on its opportunity to hear live witness testimony and to gain a "feel for the case." Sims, supra, 65 N.J. at 373. It is not fatal to the State's case that other possible explanations of defendant's conduct could be argued or that the evidence failed to "exclude every other conceivable hypothesis except guilt." State v. Brown, 80 N.J. 587, 599 (1979). Here, we find no miscarriage of justice in the jury's determination that the evidence proved beyond a reasonable doubt each of the charges against defendant.
Next, defendant contends his convictions should be reversed because Sergeant Bailey testified that he asked defendant about money while defendant was at the police station. After conducting a hearing outside the presence of the jury, the trial court had ruled that defendant's response to the police question - namely, that he did not know what happened to the money - would not be admitted because the State did not prove defendant voluntarily waived his Miranda*fn4 rights when he was asked about the money.
At trial, Sergeant Bailey testified:
In the field Mr. Kelley had money on him, and when we got to headquarters he had no money on him. He was asked about the money. A few seconds after that the money - there was money recovered off of Mr. Smith.
Defense counsel raised no objection to this testimony. Bailey's testimony did not indicate that defendant ever responded to his question. We conclude there was no prejudice to defendant "clearly capable of producing an unjust result." R. 2:10-2.
Defendant argues that the trial court did not conduct a charge conference as required by Rule 1:8-7(b). That rule provides:
Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.
At the end of testimony on the day before summations, the court addressed scheduling for the next day and very briefly mentioned on the record the charges in the indictment. A few minutes later, in the midst of excusing the jury for the day and other scheduling matters, defense counsel asked the court to "emphasize with particularity the circumstantial evidence" and "that the client has a right not to testify." The State noted that it was requesting nothing "aside from the standard charges and the charges on the substantive offenses." It appears that neither party had submitted written requests to charge pursuant to Rule 1:8-7(a). Nothing further appears on the record in the nature of a charge conference.
Defendant now argues that the absence of a charge conference precluded his attorney from objecting to certain charges or suggesting others, such as the lesser-included offense of wandering. The State argues that "the routine nature of the case" dispensed with the requirement of a more in-depth charge conference.
The brief discussion of proposed charges on the record was not adequate to comply with Rule 1:8-7(b), or to make an adequate record of requested jury charges and the court's rulings. However, neither party sought anything more. The defense made oral requests for two charges that were given, and neither attorney made any objections to the jury charge. As to the lesser-included offense of wandering to obtain or distribute illegal drugs, we have already concluded that such a charge was not appropriate in the circumstances of this case. Defendant has not pointed to any erroneous charge that warranted objection.
Moreover, at the conclusion of the charge to the jury, counsel were given the opportunity to object to the charge. Defense counsel said, "I have nothing with respect to the charge[.]" Defense counsel made an additional request for an instruction that the jury should not rush its deliberations. The court agreed and so instructed the jury.
Defendant can point to no prejudice that resulted from the court's failure to hold a charge conference in accordance with Rule 1:8-7(b). We find no plain error requiring reversal of his conviction.
Defendant contends he was prejudiced when the prosecutor made the following argument during his summation in reference to the police being otherwise occupied and not apprehending the two alleged buyers of cocaine:
They were on backup that day but they weren't stationed right there waiting for the call, they were involved in other matters, and that was Detective Gonzalez's testimony, that they were involved in other matters, that they couldn't respond at that time, they were helping these other investigations. This wasn't a I set up the surveillance, you guys park around the corner and just wait by the radio for me to call and say, hey, this guy is leaving, he looks like this, he's walking in this direction. She put the call out but they were all around doing investigations. Paterson's a busy city.
Defendant contends this argument was not factually accurate. He contends "[i]t was incorrect to imply to the jury that all the other officers were busy and therefore could not assist Detective Gonzalez when she called in." We see no summation error.
Prosecutors are afforded considerable leeway in giving their closing arguments at trial "as long as their comments are reasonably related to the scope of the evidence." State v. Frost, 158 N.J. 76, 82 (1999); see Timmendequas, supra, 161 N.J. at 587; State v. Dixon, 125 N.J. 223, 259 (1991); State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). "[W]hile a prosecutor's summation is not without bounds, '[s]o long as he stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his summation.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969)).
A prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence. There is no error so long as he confines himself in that fashion. Ultimately it was for the jury to decide whether to draw the inferences the prosecutor urged. [Ibid. (quoting State v. Carter, 91 N.J. 86, 125 (1982)).]
Also, "failure to make a timely objection indicates defense counsel's belief that the prosecutor's remarks were not prejudicial at the time they were made." State v. Josephs, 174 N.J. 44, 125 (2002). In this case, defense counsel made no objection at the time of the disputed summation remarks.
Reversal of a conviction is warranted only if the conduct is so egregious that defendant was denied his right to a fair trial. State v. Ramseur, 106 N.J. 123, 322-23 (1987). "To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Harris, 181 N.J. 391, 495 (2004) (internal quotation marks omitted) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
Here, the disputed remarks were a matter of credibility of Detective Gonzalez and weight of the evidence. Considering that defendant and Smith were arrested with glassine baggies of cocaine in their possession, the inability of the police to apprehend and seize drugs from the alleged buyers did not significantly affect the State's primary evidence against defendant. We find no plain error in the prosecutor's remarks. See Papasavvas, supra, 163 N.J. at 626.
Finally, defendant challenges his sentence as excessive and disproportionate to the sentence received by his co-defendant Smith following a guilty plea. He argues that his eight-year extended term sentence, with four years before parole eligibility, was excessive because of the small amount of drugs involved and lack of evidence that defendant actually distributed drugs to buyers on the street.
Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.
The sentencing court found three aggravating factors applicable: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Defendant's prior record contained five indictable convictions for drug offenses and receiving stolen property. In addition, his criminal history included four charges of violating the terms of probationary sentences. That record amply supported the sentencing court's findings as to aggravating factors. See State v. Breitweiser, 373 N.J. Super. 271, 287-88 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).
In addition, defendant's two prior convictions for distribution-type offenses also established the basis for a mandatory extended term under N.J.S.A. 2C:43-6f. In fact, at the time of defendant's arrest on these charges, he was on parole from a prior sentence for distribution of drugs, and he had been sentenced on yet another indictable drug charge less than three weeks earlier.
The court found one mitigating factor applicable, that a sentence of imprisonment would be an excessive hardship to defendant and his four dependents, N.J.S.A. 2C:44-1b(11). The court concluded that the aggravating factors outweighed the one mitigating factor and sentenced defendant in the middle of the applicable second-degree extended term range.
Defendant argues that the small amount of cocaine involved supported a finding of mitigating factor one, that defendant's conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1b(1), and mitigating factor two, that defendant did not contemplate that his conduct would cause serious harm, N.J.S.A. 2C:44-1b(2). Street sales of cocaine, however, are not offenses that do not cause serious harm. See State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). The trial court is not required to reject explicitly every mitigating factor argued by a defendant. State v. Bieniek, 200 N.J. 601, 608-09 (2010). In any event, defendant did not argue these mitigating factors at the time of his sentencing.
On appeal, defendant argues that his sentence is disproportionate from that imposed upon his co-defendant Smith, a sentence of three years' imprisonment with one year of parole ineligibility on the school zone charge, N.J.S.A. 2C:35-7. He argues that the two co-defendants' "backgrounds do not differ widely, their roles in the crime appeared to be exactly the same apparently operating as partners, and Mr. Smith's cooperation is not evident."
In Roach, supra, 146 N.J. at 232, the Supreme Court stated that "[d]isparity may invalidate an otherwise sound and lawful sentence." But the Court also acknowledged that "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The Court noted that the sentencing judge must determine whether a co-defendant is "identical or substantially similar to the defendant regarding all relevant sentencing criteria"; if so, then the co-defendant's sentence deserves "substantive weight" in order to avoid excessive disparity. Id. at 233. In Roach, the Court remanded a sentence for justification of the thirty-year disparity between sentences given to co-defendants. Ibid.
In this case, the State moved only as to defendant for an extended term as a repeat drug-distribution offender under N.J.S.A. 2C:43-6f. There is no evidence on this record as to whether Smith was also eligible for an extended term sentence. If he was, he avoided a similar motion by the State by entering into a plea agreement and pleading guilty. That fact does not make defendant's extended term sentence excessive in comparison to the sentence received by Smith.
The two co-defendants were not subject to the same sentencing range. Each was sentenced within the range applicable to him, and the sentence of each included a period of parole ineligibility. We conclude that the trial court did not abuse its discretion in the sentence imposed upon defendant. See Bieniek, supra, 200 N.J. at 608-09.