November 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CALVIN BYNUM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-08-0729, 05-07-0993, 06-04-0511 and 06-10-1256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010
Before Judges Cuff and Fisher.
In this appeal, defendant argues that the trial judge erred, during the trial on one indictment, in instructing the jury regarding defendant's decision not to testify. He also argues the sentence imposed in that matter and three others upon which sentence was passed at the same time -- particularly because of the imposition of consecutive terms -- was excessive. We find no merit in these arguments and affirm.
Indictment No. 05-07-0993 charged that, on January 28, 2005, defendant committed the following offenses: third-degree possession of a controlled dangerous substance (CDS), namely heroin, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3); and two counts of third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-5(a). At the conclusion of a trial in 2006, defendant was convicted as charged.
Prior to sentencing in Indictment No. 05-07-0993, defendant entered into a negotiated plea agreement pursuant to which he pled guilty to single counts of third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), in Indictment Nos. 06-04-0511 and 06-10-1256.*fn1 In exchange, the State agreed to recommend that any prison term imposed in those matters not exceed four years, with a two-year period of parole ineligibility, concurrent to each other, but consecutive to any prison term imposed in Indictment No. 05-07-0993. At the time of sentencing in these matters, defendant also entered a guilty plea to a violation of the conditions of probation imposed previously in Indictment No. 03-08-729. In addition, the judge granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).
At a hearing on November 17, 2006, after all appropriate mergers in Indictment No. 05-07-0993, the judge sentenced defendant to an aggregate prison term of five years, with a three-year period of parole ineligibility. In conformity with the plea agreement, the judge sentenced defendant to concurrent four-year prison terms, with a two-year period of parole ineligibility, in Indictment Nos. 06-04-0511 and 06-10-1256, and directed that those concurrent terms run consecutively to the prison term imposed in Indictment No. 05-07-0993. The judge lastly vacated the probationary term imposed in Indictment No. 03-08-729, and imposed a three-year prison term to run concurrently with the terms imposed in the other matters.
Defendant appealed the judgments of conviction entered in these matters, arguing:
I. THE INS[T]RUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT (Not Raised Below).
II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Defendant argues in Point I that the judge erroneously instructed the jury about defendant's election not to testify. Specifically, defendant focuses on the last sentence of the charge on this point, where the judge advised the jury that defendant "is presumed innocent even if he chooses not to testify" (emphasis added). Defendant did not object at trial to this choice of language; indeed the judge's charge on this point adopted the language contained in the Model Jury Charges in effect at the time. Instead, defendant seizes on the fact that the Model Jury Charges have since been revised to substitute "whether or not he chose to testify" for "even if he chooses not to testify." Certainly, the language of the current Model Jury Charge conveys a more neutral connotation, but we do not find that the use of the former version -- especially when viewing this portion of the charge as a whole, State v. Adams, 194 N.J. 186, 207 (2008)*fn2 -- was capable of producing an unjust result. State v. Nero, 195 N.J. 397, 407 (2008). In considering defendant's argument on this point, we need express nothing more than our agreement with the thoughtful resolution of the same issue in State v. Miller, 411 N.J. Super. 521, 533 (App. Div.), certif. granted, 202 N.J. 44 (2010), that a jury hearing the same charge given here "could not be confused by use of the word 'even' and led to conclude that defendant had an obligation to testify."*fn3
Defendant's Point II presents no valid argument of excessiveness in the sentences imposed. Viewed individually, the terms imposed on the indictments were more than reasonable. Reduced to its essentials, defendant's argument is based on the trial court's imposition of consecutive terms. Considering that the negotiated plea agreement contemplated the imposition of consecutive terms, that defendant has a considerable history of committing similar offenses, which had gone undeterred, and that the aggregate sentence involved similar offenses on separate occasions, the imposition of consecutive terms was certainly warranted.
In examining a sentence, we "exercise a vigorous and close review for abuses of discretion by the trial courts," State v. Cassady, 198 N.J. 165, 180 (2009), and "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record,'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)), but we will not "substitute [our] judgment for that of the trial court," Cassady, supra, 198 N.J. at 180, which we will affirm unless "shock[ing] [to] the judicial conscience," id. at 181. Here, after close examination, there is no doubt that the judge adhered to recognized sentencing principles and imposed terms within the parameters set by the Legislature; as a result, the judge's exercise of discretion is "immune from second-guessing" by this court and must be affirmed. Bieniek, supra, 200 N.J. at 612.