On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-01-0061.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 1, 2010 - Decided: Before Judge Axelrad and R. B. Coleman.
Defendant Manuel Mayas appeals from his conviction and sentence. We affirm.
Defendant was indicted on third-degree possession of cocaine, N.J.S.A. 2C:35-l0a(l) (count one), and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(l), for an incident occurring in October 2005. After conducting a Sands/Brunson*fn1 hearing on January 17, 2007, the court determined the State could seek to impeach defendant's credibility with three prior indictable convictions, two of which were entered over ten years before the current incident. Trial commenced, during which count two was dismissed and defendant was convicted by a jury on count one. The court imposed a five-year custodial sentence with a two and one-half year period of parole ineligibility, along with appropriate fees and penalties. Defendant appealed and we ordered a partial remand for reconstruction of the record.
On appeal, defendant argues:
THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DEFENDANT'S 1995 CONVICTIONS WERE ADMISSIBLE TO IMPEACH DEFENDANT IF HE ELECTED TO TESTIFY, THEREBY DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
After reviewing the record and applicable law, we find these arguments unpersuasive and affirm.
Based on defendant's limited challenge, we need not recite the facts at length. The testimony presented by the State was that Vineland Patrolman Dominic Ferrari observed defendant dropping a clear plastic bag, containing a white rocky substance, to the ground and sweeping it into a storm drain, which he and Detective William Bontcue retrieved. Sergeant John McMahon and Carissa Wilcox testified about the chain of custody and laboratory test of the substance, which tested positive for .599 grams of cocaine. The jury apparently credited the State witnesses rather than defendant's denial and explanation that he only flicked a cigarette butt to the ground.
Defendant did not challenge the sanitized use of his July l997 conviction for third-degree drug offenses arising out of a December 4, 1996 incident. He does challenge, however, as an abuse of discretion, the ruling by Judge Waters permitting the sanitized use of two convictions for third-degree drug offenses entered on February 27, 1995, one resulting from an offense committed on September 30, 1994 and the other resulting from an offense committed on November 29, 1994.*fn2 According to defendant, the relevant factors that favored exclusion of these convictions were: (1) the twelve-year passage of time between the convictions and the trial; (2) the CDS offenses to which defendant pled guilty were third-degree offenses for which a probationary sentence was initially imposed, and did not involve acts of violence; (3) CDS distribution is not the type of crime that necessarily reflects poorly on a defendant's credibility; and (4) defendant had a single criminal conviction that was going to be used for impeachment purposes and only had an intervening handful of disorderly persons offenses.
Defendant conceded he had contact with the criminal justice system during the lengthy intervening period of time. He argues, however, the judge overemphasized and misapplied this factor, which led to the faulty conclusion that the convictions "demonstrate a pattern of antisocial behavior on the part of the Defendant, that a jury may take into consideration." Defendant urges that if the judge had weighed this factor against the other three factors favoring exclusion, he would have excluded the two l995 convictions as too remote. Defendant posits that the admission of the remote convictions unfairly ...