September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RODNEY J. COLEMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 6, 2009
Before Judges Skillman, Gilroy and Simonelli.
A grand jury indicted defendant Rodney Coleman and nineteen other individuals on numerous drug charges stemming from a five-month undercover investigation. Defendant and co-defendants, Kelly Felder, defendant's wife, Rodney Harris, defendant's son, and Donald Scott, defendant's neighbor, were tried jointly. Prior to trial, following a Driver*fn1 hearing the trial judge granted the State's motion to admit electronically recorded wiretap phone conversations and various videotape surveillance.
On defendant's motion at the close of the State's case, the judge dismissed count twenty-five charging him with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. A jury convicted defendant of second-degree conspiracy to possess a controlled dangerous substance (CDS) (cocaine) and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); two counts of second-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2) (counts two and three); third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count seven); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count nine); third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2) (count ten); third-degree distributing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count eleven); and two counts of third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (counts twenty-two and twenty-three). The jury acquitted defendant of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count twenty-four), and second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1 (count twenty-six). Following the jury's verdict, defendant pled guilty under a separate indictment to second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b).
At sentencing, the trial judge granted the State's motion for a mandatory extended term sentence. The judge merged count one with count two and imposed a twenty year term of imprisonment with a ten-year period of parole ineligibility on count two. The judge also sentenced defendant to a concurrent extended term of twenty years with ten years of parole ineligibility on count three; a concurrent five years on count seven; merged counts nine and eleven with count ten an imposed a concurrent extended term of twenty years with ten years of parole ineligibility on count ten; merged count twenty-two with count twenty-three and imposed a concurrent five years on count twenty-three; and a concurrent seven years for the second-degree possession of a weapon by a convicted felon charge. The judge also imposed the appropriate fines and penalties, and suspended defendant's driving privileges for two years.
The following facts were presented at trial. In August 2004, Sergeant Detective John Cerefice of the New Jersey State Police became involved in a narcotics investigation in Irvington, the target of which was a man whose first name was "Rodney." During this investigation, Cerefice met Eddie McElhine, a documented State Police informant, who stated that "Rodney's" last name was "Coleman," and that Coleman, later identified as defendant, distributed one to two kilograms of cocaine per week and kept a handgun in his apartment for protection. McElhine also gave Cerefice Coleman's cell phone number.
Defendant maintained two residences: one located on 40th Street in Irvington, and the other located on Stuyvesant Avenue in Irvington, which was a one-bedroom apartment with a living room and kitchen where he and Felder resided. Defendant also drove a black Acura.
CDS Sales to Undercover Officers
On September 16, 2004, Cerefice and other police officers began surveillance of the 40th Street apartment in order to corroborate the information they had received about defendant's narcotics activities. Cerefice saw defendant's black Acura was parked outside the apartment at the time of the surveillance, and he also saw "cars pulling up [to the apartment], staying for a short period of time and then departing[,]" actions he considered consistent with narcotics distribution.
To initiate contact with defendant, Cerefice gave his cell phone number to McElhine, who then gave it to defendant. At approximately 10:00 p.m. on September 16, 2004, Cerefice received a phone call from a man identifying himself as "Rodney." Cerefice's caller ID confirmed that the call was from defendant's cell phone number. Cerefice told defendant that his name was "John," he was from South Jersey, and he regularly made a profit of $150 to $200 selling a gram of cocaine. Defendant told Cerefice that he had "to try [defendant's] product because it was the best on the market," defendant had been in the business for approximately twenty-two years, and sold $10,000 worth of cocaine the previous week. Cerefice agreed to call defendant back the following week to arrange a purchase. Defendant gave Cerefice his cell phone number.
Following this conversation, Cerefice and State Police Detective Daniel Connolly directed State Police Detective Peter Layng to call defendant and arrange a cocaine purchase. During the week of September 22, 2004, Layng called defendant's cell phone, identified himself as "Pete," and agreed to purchase one ounce of cocaine from defendant. Defendant told Layng that the ounce would cost $37 per gram. The two arranged to meet on September 29, 2004, at the Garden State Parkway service area in Union.
At approximately 7:30 p.m. on September 29, 2004, Layng arrived at the service area before defendant. Defendant arrived in a dark-colored Acura accompanied by McElhine, who was sitting in the front passenger seat. Layng recognized defendant from a photo he had seen prior to the meeting. Layng entered the rear seat of defendant's car, and defendant gave him one ounce of cocaine in exchange for $1,040, which Cerefice had given Layng. Layng exited the car and defendant drove away.
In October, 2004, Layng called defendant to arrange another purchase of one ounce of cocaine. Defendant said the price was $35 per gram, and the two agreed to meet on October 18, 2004 at a restaurant in Union located near the service area where the first drug transaction occurred. Layng arrived at approximately 6:20 p.m. on October 18, 2004. A surveillance team followed defendant's black Acura from the 40th Street apartment to the restaurant in order to determine whether the cocaine was coming from the residence. Defendant arrived at the restaurant at approximately 6:30 p.m., once again accompanied by McElhine. Layng entered the rear seat of defendant's car, and defendant gave him one ounce of cocaine in exchange for $980, which Cerefice had given Layng. Layng exited the car and defendant drove away. The transaction was captured on videotape, which was shown to the jury and narrated by Layng.
On December 8, 2004, Cerefice called defendant, identified himself as "John," and arranged to purchase fifteen grams of cocaine for $450. Defendant informed Cerefice that if he was not available his son, Rodney, later identified as Harris, would conduct the transaction.
The following day, at approximately 11:00 a.m., posing as "John," Detective Michael Lasalandra of the Parsippany Police Department called defendant from Cerefice's cell phone and arranged to meet defendant at the 40th Street apartment about twenty minutes later. When Lasalandra arrived at the apartment, Harris admitted the detective into the apartment. After the two men briefly discussed the cocaine purchase, Harris went into another room, and returned with fifteen grams of cocaine. Lasalandra paid Harris $450 and left the apartment.
Electronic Surveillance and Execution of Warrants
On October 19, 2004, the police obtained a dialed number retriever (DNR) or "pen register" for defendant's cell phone. A DNR identifies incoming and outgoing calls to the phone number along with the date, time and length of the calls. The length of each call is significant because calls of a short duration may indicate the phone owner's involvement in CDS distribution. The DNR revealed that defendant had over one hundred and fifty pen register calls with co-defendants or clients during the month the DNR was in place.
In December 2004, the police conducted court-approved wiretap monitoring of defendant's cell phone conversations in conjunction with surveillance of his two residences, during which they observed numerous narcotics transactions. The police recorded over sixty wiretap conversations, the majority of which involved narcotics transactions, and one involved defendant's sale of a gun to Cerefice. There were also two conversations between defendant and Felder, where defendant told her that people were coming to their apartment to purchase cocaine or give her money for previous purchases, and several conversations between defendant and Harris involving drug transactions. The jury heard the wiretap conversations and had the transcripts available for their review.
The police also obtained search warrants for defendant's two apartments, and arrest warrants for defendant, Felder, Harris, and two other co-defendants. On December 30, 2004, at approximately 7:00 a.m., the police executed the warrants at the Stuyvesant Avenue apartment, where they found defendant and Felder. The police searched the apartment, finding a bag of cocaine in plain view on a kitchen cabinet shelf, a bag of cocaine inside an entertainment center in the living room, over forty bags of cocaine and a digital scale inside the pocket of a black leather jacket located in the living room closet, a bullet-proof vest in the living room closet, a box of .9 mm luger ammunition and two loaded magazines in the bedroom, $2,301 under a mattress in the bedroom, and two cell phones in the bedroom. They also seized defendant's black Acura. The police arrested defendant and Felder.
The police simultaneously searched the 40th Street apartment at approximately 7:00 a.m. and arrested Harris and another co-defendant. A search revealed twelve bags of cocaine behind a picture in the bedroom, a Black Point drug scale on the floor of a closet, a crusher, sixty-five small yellow glassine baggies on a shelf in the bedroom, and five cell phones in the bedroom.
Pursuant to a signed consent, the police searched the apartment of co-defendant Joy Prentiss in Jersey City, where they found three loaded .9 millimeter handguns above the kitchen sink cabinet. The police arrested Prentiss.
Prentiss testified at trial that she had dated defendant for approximately one year, he would come to her residence often because he had a key, and the guns belonged to him. In early December 2004, Prentiss asked defendant to remove the guns from her apartment, and she believed he had complied. She claimed to have no knowledge that the three guns were still in her apartment at the time of her arrest.
A firearms expert testified that the guns were operable, and that two magazines confiscated from the Stuyvesant Avenue apartment fit two of the three handguns found in Prentiss' apartment. An expert in narcotics and narcotics investigation and distribution testified that the magazines were possessed for protection of individuals involved in narcotics distribution, and that the money confiscated from the Stuyvesant Avenue apartment was proceeds from narcotics transactions.
Connolly testified as an expert in narcotics distribution. He summarized the contents and meaning of the wiretap conversations and explained the narcotic terminology defendants and co-defendants used in those conversations. He also testified about pricing the techniques for preparing, weighing and packaging of the cocaine, and the manner in which purchases were arranged.
It is against these facts that defendant raises the following contentions:
I. THE STATE'S NARCOTICS EXPERT PROVIDED TESTIMONY THAT INVADED THE PROVINCE OF THE JURY AND UNDULY PREJUDICED DEFENDANT (NOT RAISED BELOW).
II. THE TRIAL JUDGE EXHIBITED A PATTERN OF MISCONDUCT THAT DENIED MR. COLEMAN A FAIR TRIAL (NOT RAISED BELOW).
A. The judge demonstrated bias against the defense by critiquing and chastising defense counsel in front of the jury.
B. The judge demonstrated bias against the defense by embarrassing a co-defendant in front of the jury.
C. The trial judge demonstrated impatience with the proceedings by commenting to the jury about the length of the trial.
D. The trial judge engaged in misconduct by communicating with a juror off the record outside the presence of the attorneys.
III. THE WEAPONS-RELATED COUNTS SHOULD HAVE BEEN SEVERED FROM THE NARCOTICS-RELATED COUNTS IN THE INDICTMENT (NOT RAISED BELOW).
IV. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE GOVERNMENT'S INVESTIGATORY MISCONDUCT DID NOT VIOLATE DEFENDANT'S RIGHT TO DUE PROCESS (NOT RAISED BELOW).
V. DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
Defendant contends for the first time on appeal in Point I that Connolly's narration of the wiretap conversations constituted impermissible expert testimony that encroached on the fact-finding province of the jury. Defendant concedes that Connolly did not opine on the ultimate issue of his guilt on any of the drug charges; however, he argues that Connolly summarized the evidence in the wiretap recordings in a way that specifically suggested to the jury that he was guilty of criminal wrongdoing. Because defendant did not raise this contention below, we review it under the plain error standard to determine whether the testimony was sufficiently prejudicial to have the capacity to produce an unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006).
Expert testimony is admissible where the subject matter at issue may not be sufficiently familiar to the average juror or where it would "assist the [jurors] to understand the evidence or to determine a fact in issue." State v. Berry, 140 N.J. 280, 289 (1995); N.J.R.E. 702. The requirement that expert testimony "assist the [jurors]" has been interpreted broadly to encompass testimony helpful to their understanding of the evidence presented. Id. at 290-91. The admissibility of expert testimony does not depend on "'whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield Packing Corp. 4 N.J. 135, 141-42 (1950)). Expert opinion testimony is permissible even where it embraces the ultimate issue to be determined by the jury, so long as the testimony does not express an "'opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of [the expert's] specialized knowledge.'" Summers, supra, 176 N.J. at 314 (quoting State v. Odom, 116 N.J. 65, 79 (1989)); N.J.R.E. 704. The admissibility of such testimony rests in the sound discretion of the trial court. Summers, supra, 176 N.J. at 312.
Expert testimony about drug-trade practices is generally admissible because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror. State v. Reeds, 197 N.J. 280, 290 (2009); Odom, supra, 116 N.J. at 76. A narcotics expert is permitted to assist the jurors to understand how the defendant's statement and actions, in conjunction with the words and actions of other drug purchasers and sellers, could be indicative of narcotics distribution. See, e.g., Nesbitt, supra, 185 N.J. at 515; Berry, supra, 140 N.J. at 301-02 (expert testimony on the modus operandi of drug dealers should generally be admitted where it assists the jury in understanding the evidence and in resolving material factual issues). However, the expert is not permitted to opine about the ultimate issue of the defendant's guilt. Reeds, supra, 197 N.J. at 285.
Connolly did not opine as to whether defendant was guilty of any of the drug charges, as did the State's narcotics experts in Reeds, supra, 197 N.J. at 287, State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006), State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999), and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), cases on which defendant relies. He merely described matters in the wiretap conversations in order to assist the jury in understanding the evidence. His testimony did not usurp the jury's function to determine the ultimate issue of defendant's guilt on any charge, nor did it in any way suggest that defendant was guilty. Further, there was other overwhelming evidence of defendant's guilt, including numerous surveillances of defendant's two residences, undercover drug purchases, over one hundred and fifty pen register calls between defendant's cell phone and other co-defendants and drug clients, and over sixty wiretap conversations detailing defendant's extensive involvement in illegal narcotics activity. Accordingly, no error, let alone plain error, occurred as a result of Connolly's testimony.
Defendant contends for the first time on appeal in Point II that the trial judge demonstrated bias. His first example involves the following opening remarks by Harris' counsel:
You're going to hear witnesses called by the State, law enforcement officers, and if there's anything you can be sure of, some of them -- not all, but some of them are gonna intentionally try to deceive you, misrepresent to you and lie to you.
And the judge will instruct you at the close of this proceeding that if you believe that they're intentionally trying to deceive you or lie to you, you can disregard that portion of the testimony or you can disregard their entire testimony. And I suggest to you that if you believe that they are trying to deceive you under the circumstances, you should disregard their entire testimony, for you shouldn't reward officers that are trying to deceive you by convicting; you should punish them by dismissing the . . . charges.
In response to this remark, the judge gave the jury the following instruction:
Ladies and gentlemen, [Harris' counsel] made a couple of comments that I feel compelled to . . . elaborate on. First of all, he discussed some issues with regard to what . . . I'm gonna charge you as to the law, that's improper. We don't know at this point in the case what I'm going to charge you as to the law. . . . So to the extent that he told you that I am gonna tell you certain things, such as if a witness lies, you have the right to disregard or accept that type of remark. You have to disregard those comments.
Defendant's second example involves Felder's counsel's opening remark that "I know [Felder] is not guilty." The judge instructed the jury that "[i]t is improper for [Felder's counsel] to say to you: I know [Felder] is not guilty. He is not allowed, under our rules of evidence and our court rules, to impose his own personal views to the jury. Accordingly, you are to disregard that statement[.]"
Defendant's third example involves Scott's counsel's summation remark implying that Scott refused a plea deal. The judge instructed the jury that this remark was improper and that the jury should disregard it.
The fourth example involves the judge's sustaining the State's objection to Scott's counsel's summation remark that Prentiss was an exotic dancer, and overruling Scott's counsel's objection to the prosecutor's summation comment that an individual named Anthony Deflumeri had contacted Scott seeking to purchase cocaine.
We first emphasize that none of the above examples involved defendant, and Felder's, Harris' and Scott's counsel did not object. Nonetheless, we are satisfied that the judge's instructions did not have the capacity to produce an unjust result. Rather, the judge properly exercised his discretion to correct counsels' improprieties. State v. Taffaro, 195 N.J. 442, 450 (2008); State v. Tilghman, 385 N.J. Super. 45, 53-54 (App. Div.), remanded on an unrelated issue, 188 N.J. 269 (2006). Harris' counsel's opening remark exceeded the purpose of opening statements and improperly instructed the jury as to the law. Id. at 55. Felder's counsel's opening remark improperly stated his personal belief as to his client's innocence. RPC 3.4(e). Scott's counsel's summation remark implying that Scott refused a plea deal, and that Prentiss was an exotic dancer is not supported by the evidence.*fn2 State v. Reddish, 181 N.J. 553, 629. The judge also properly overruled Scott's counsel's objection to the prosecutor's summation remark about DeFlumer because there was evidence in the record about DeFlumer's attempt to purchase cocaine from Scott. Ibid.
Defendant also contends that the judge demonstrated bias by instructing Scott in the jury's presence to cease making facial and other gestures. During Scott's counsel's cross-examination of Detective Quaasim Austin of the Irvington Police Department, the judge said to Scott, "[t]his is a number of occasions now you've made faces and gestures and I am instructing you . . . not to do that any more. You understand that?" Scott nodded his head affirmatively. Scott's counsel did not object.
We discern no bias on the judge's part in this exchange with Scott. "[I]t is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country; that the flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated." State v. Spivey, 122 N.J. Super. 249, 255-56 (App. Div. 1973), rev'd on other grounds, 65 N.J. 21 (1974). "[T]rial judges confronted with disruptive, contumacious, stubborn, defiant defendants must be given discretionary power to meet the circumstances of a case[.]" Id. at 256. The judge here properly exercised his discretion in admonishing Scott for his behavior in order to maintain order in the courtroom and to insure that Scott's conduct did not taint the jury.
Defendant also contends that the judge improperly demonstrated impatience by stating to the jury during the State's case that
It seems like I'm in an excellent mood today, don't think it has anything to do with the fact that this trial is coming to an end. It's just because it's a beautiful day.
But seriously, I'd like to thank everyone for being here on time. We are winding down, so to speak, and without any further [ado.]
Defendant argues that this comment suggested to the jury that they should quickly reach a verdict. He concludes that the deliberation period of six and one-half hours for a four week trial demonstrates this comment's improper influence on the jury. We disagree.
Although the trial was lengthy, there was overwhelming evidence of defendant's guilt, which no doubt contributed to what defendant characterizes as the jury's short deliberation period. Moreover, at no time during the trial did the judge express any kind of impatience. There is no evidence that he impermissibly curtailed cross-examination, failed to permit defendants from making motions or presenting arguments, or coerced the jury into quickly reaching a verdict.
Finally, defendant contends for the first time on appeal that the judge engaged in misconduct by improperly communicating with a juror, off the record and outside counsels' presence. At the conclusion of Connolly's testimony on October 25, 2006, the judge instructed the jury to return the following morning. At a juror's request, the judge spoke to the juror privately at sidebar. All counsel were present in the courtroom, and no one objected. The record does not reveal the substance of the conversation between the juror and judge.
We have "repeatedly and clearly condemned judges' ex parte communications with deliberating juries." State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005) (emphasis added). However, an ex parte communication between a judge and a deliberating juror does not automatically require a reversal of the conviction where the record shows affirmatively that the communication had no tendency to influence the verdict. Id. at 134-35.
The jury was not deliberating when the sidebar conversation occurred here, and defendant cites no authority requiring reversal of a conviction for an ex parte communication occurring prior to deliberation.*fn3 Further, although the trial judge should have stated on the record the substance of his sidebar conversation with the juror, counsel did not object or request a statement, there is no reason to believe that anything improper occurred in that conversation or that the conversation affected the juror's thought process.
Defendant's contention in Point III that the weapons-related counts should have been severed from the narcotics-related counts, and his contention in Point IV that the State failed to prove by clear and convincing evidence that the government's investigatory misconduct did not violate his due process entrapment rights, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following comments.
Defendant never sought severance of the drug and weapons charges. A motion for separate trials on counts of an indictment must be made prior to trial pursuant to Rule 3:10-2. R. 3:15-2(c). Failure to do so "constitutes a waiver thereof[.]" R. 3:10-2(c).
Also, defendant did not raise the defense of entrapment before trial, as required by Rule 3:12-1, did not present evidence of entrapment at trial, or seek a judgment of acquittal or a new trial based on entrapment. In any event, the due process entrapment defense defendant asserts here requires the court to determine (1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime. [State v. Johnson, 127 N.J. 458, 474 (1992).]
See also State v. Florez, 134 N.J. 570, 584 (1994); Grubb, supra, 319 N.J. Super. at 414-15. Defendant failed to establish any of the Johnson factors. Defendant's crimes were not "primarily police-inspired." Johnson, supra, 127 N.J. at 478. Defendant initiated the drug-selling activity by calling Cerefice, he managed all of the undercover buys, and was a willing participant in the narcotics activity for which he was convicted. There is no evidence that the police used unreasonable methods to involve defendant in the commission of the drug sales, or pressured him into selling narcotics to the undercover officers, and the government obviously had a legitimate law enforcement purpose in making the undercover drug purchases from defendant, who was a known drug dealer. Ibid.; Florez, supra, 134 N.J. at 578, 589.
Defendant challenges his sentence in Point V, contending that the judge abused his discretion in failing to find mitigating factors N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm); N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); and N.J.S.A. 2C:44-1b(4) (there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense). He argues that he sold cocaine to consenting adults, not children, and never intended any serious harm, and that his heroin addiction caused his actions. Defendant also contends that given the non-violent nature of the underlying offenses, three twenty-year extended-term sentences "shocks the judicial conscience."
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). We "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).
In determining the propriety of a sentence, we must make sure that the trial judge did not violate the sentencing guidelines and made findings on aggravating and mitigating factors based on the evidence, and decide whether application of the guidelines make a particular sentence so clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.
Applying these factors, we discern no reason to disturb defendant's sentence. Defendant does not challenge the judge's findings of aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); or N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). Indeed, the record supports these factors. Defendant has three prior convictions (one for murder and two for possession of CDS with intent to distribute); he continued his involvement with drug distribution shortly after his parole on the murder conviction; and he failed to complete drug treatment resulting in a violation of probation.
The record does not support a finding of mitigating factors one and two because "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994). Also, defendant's alleged drug addiction is not sufficient to support mitigating factor four. See State v. Gherlter, 114 N.J. 383, 390 (1989); State v. Towey, 244 N.J. Super. 582, 595-96 (App. Div.), certif. denied, 122 N.J. 159 (1990).
The sentence does not "shock the judicial conscious." For defendant's second-degree convictions, the judge was required to impose a mandatory extended term of between ten and twenty years. N.J.S.A. 2C:43-7a(3); State v. Thomas, 188 N.J. 137, 149-51 (2006). The judge properly imposed the maximum term based on the evidence before him and his weighing of the aggravating and mitigating factors, which he articulated on the record. The judge was also required to impose a parole ineligibility period of "at or between one-third and one-half of the sentence imposed by the court or five years, whichever [was] greater." N.J.S.A. 2C:43-7c.