January 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMAR JORDAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0770.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Carchman, Graves and Messano.
Defendant Damar Jordan appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four). Defendant raises the following points for our consideration:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)
A. THE TRIAL COURT ERRED IN ITS INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS BY INSTRUCTING JURORS THAT "SHARING" CDS CONSTITUTES DISTRIBUTION OF CDS.
B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON EACH AND EVERY ELEMENT OF THE CRIME OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE BY ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE CRIME OF POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK AND WITH THE INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL. (Not Raised Below)
THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT REGARDING HIS FAILURE TO MAKE A POST-ARREST REPORT TO THE POLICE, THE PROSECUTOR, AND THE ATTORNEY GENERAL REGARDING THIS INCIDENT VIOLATES THE DEFENDANT'S FIFTH-AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF IDENTIFICATION G[E]NERALLY AND THE LAW OF THE CROSS RACIAL IDENTIFICATION SPE[C]IFICALLY, EVEN THOUGH IDENTIFICATION WAS A MATERIAL, CONTESTED ISSUE IN THE CASE. (Not Raised Below)
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 WAS VIOLATED BY THE ADMISSION OF AN INAUDIBLE VIDEOTAPE. (Not Raised Below)
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD WAIVED HIS MIRANDA RIGHTS VOLUNTARILY AND KNOWINGLY.
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On December 13, 2007, at 5:49 p.m., members of the Perth Amboy Police Department executed a search warrant at 181 Washington Street. Detective Carlos Rodriguez entered the northeast bedroom of apartment three and saw defendant. As Rodriguez approached, defendant quickly "pulled . . . away from the window." After placing defendant in handcuffs, Rodriguez walked to the window and saw another officer, Ralph Pineiro, on the ground below "picking up an unknown item" that appeared to have fallen or been thrown from above.
Pineiro had "observed a window open . . . and saw a male . . . lunge out the window and discard some objects." Pineiro subsequently identified that man as defendant and acknowledged that he had "met him before." Pineiro retrieved the items and found them to be "two sandwich bags [containing] a white rock-like substance." Believing the contents of the bags to be cocaine, Pineiro secured them, entered the apartment and handed them to the team's lead detective, Mohamed Mohamed.
Mohamed was in the bedroom with Rodriguez and defendant. After examining the contents of the two sandwich bags, Mohamed read defendant his Miranda*fn1 rights. Defendant said he "understood" his rights and that there was "paraphernalia" in a nearby dresser drawer where Rodriguez retrieved a "razor blade with cocaine residue on it." The detectives also recovered $559 in small denominations from defendant. Three other adults who were in the apartment were also taken into custody and charged with narcotics offenses.*fn2
Mohamed identified two maps at trial. One, the "drug school map," demonstrated that the apartment was within 1000 feet of the Anthony V. Ceres School. The second map was used to explain that the apartment was within 500 feet of the Neil J. Lucy Center, a public park. Both maps were duly adopted by municipal ordinance.
The officers recorded their interview of defendant at headquarters on a DVD that was played for the jury.*fn3 Detectives Mohamed and Pineiro can be seen administering defendant the Miranda warnings and defendant can be seen initialing a form after each warning was administered. Although the audio portion of much of the statement is difficult to discern, certain words, including "crack" and "sandwich bags," can be clearly heard. Defendant admitted that he directed the officers to the razor found inside the dresser drawer, explaining that he knew the razor was important because "it probably had coke on it." Defendant also clearly acknowledged that he had taken the "crack" from a pair of "shorts" and calculated its weight to be approximately "four and a half grams." During the interview, Pineiro attempted to jog defendant's memory about the exact location of the bedroom from which he discarded the drugs. And defendant, at one point, implies that he had spoken to the detectives before the videotape commenced.
In addition to Mohamed, Pineiro and Rodriguez, the State also called as witnesses two other detectives, Carl Graham and William Tiedgen, who were at the scene when the search warrant was executed. Tiffany Tyson, a State Police forensic scientist, testified that she tested the substance found at the scene and "determined it to be positive for cocaine." It weighed 4.38 grams. The State also called Mark Clements, an officer with the Middlesex County Prosecutor's Office, as an expert in narcotics investigations. Clements opined that the manner in which the cocaine was packaged, together with the currency in small denominations found on defendant, signified an intention to distribute the drugs.
Defendant testified on his own behalf. Defendant claimed that he did not live in the apartment and was only there to visit the "mother of [his] children." Defendant further testified that he was "smoking a cigarette" when police burst into the bedroom, put a gun to his head, "handcuffed" him and badgered him about drugs in the apartment. Although defendant repeatedly denied any knowledge of drugs being present, the officers continued to pressure him by arresting everyone "just in case [he] decide[d] to change [his] mind."
Upon arriving at the police station, defendant claimed he was strip-searched, continuously "asked . . . the same questions" and repeatedly coached by the officers to say what "they wanted to hear." He asserted that he only gave a statement because the officers threatened to "call [the Division of Youth and Family Services] to take [his] kids" if he refused.*fn4 Defendant testified that Graham, Tiedgen, Pineiro and Mohamed all questioned him well before the formal interview took place.
We first consider the challenges defendant has raised to the jury charge. Since there were no objections at trial, we review his contentions under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006).
While an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), the error "must be . . . evaluated in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting Chapland, supra, 187 N.J. at 289). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment[,]" State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000), and creates a "presum[ption] that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App.
Div.), certif. denied, 177 N.J. 572 (2003). We note that in this case defense counsel specifically told the judge that the charge was adequate.
In Point IA, defendant claims that the judge erred when he provided the following charge regarding possession of cocaine with the intent to distribute:
[I]intent to distribute . . . means to transfer, actual or constructive or attempted, from one person to another the controlled dangerous substance. Doesn't have to be the whole quantity, can be a portion of it. It is not necessary that the drugs be transferred to another person for payment or promise of payment or anything of value. It can be shared. If I give it to you [for] free . . . or hav[e] intent to give it to you [for] free, the distribution or giving to another person is possession with the intent to distribute. [Emphasis added.]
Defendant argues that the use of the word "shared" misled the jury into concluding that joint possession was "tantamount to distribution." See e.g., State v. Lopez, 359 N.J. Super. 222, 233-34 (App. Div.) (noting there can be no intent to distribute where "two or more defendants" are "intend[ing] to distribute to each other drugs they jointly possess" or are "sharing"), certif. granted sub. nom, State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003). We find the argument unpersuasive.
In most respects, the judge's charge tracked the language of the model charge. See Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance With Intent to Distribute" (2009). His decision to insert the words "it can be shared," was an unfortunate, but passing, attempt to explain the concept of distribution, not joint possession. The State's case focused solely on defendant, who, it contended, personally threw the drugs out of the window, had the drugs packaged in a manner indicative of distribution and was found with a significant amount of currency in small denominations on his person. Defendant was tried alone and not with any other occupants of the apartment. In short, considering the evidence adduced at trial, the charge as given provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991).
In Point IB, defendant claims the instructions were inadequate because the judge never defined the word "attempt."
A person violates N.J.S.A. 2C:35-5(a)(1) if he "manufacture[s], distribute[s] or dispense[s]" a controlled substance, or he possesses the substance with the "intent to manufacture, distribute or dispense" it. "'Distribute' means to deliver . . . ." N.J.S.A. 2C:35-2 "'Deliver' . . . means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance." Ibid.
As noted, the judge utilized the model charge to define "distribute" for the jury.
[D]istribute means the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance . . . . [Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance With Intent to Distribute" (2009) (emphasis added).]
The model charge does not define the word "attempted" in this regard. Defendant contends that the use of the word "attempted" licensed the jury to convict him of "possession with the intent to attempt distribution," a crime that does not exist in our Criminal Code.
"'[A] defendant is not entitled to have the jury instructed in his [or her] own words.'" State v. Whitaker, 402 N.J. Super. 495, 513 (App. Div. 2008) (alteration in original) (quoting State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149, 150 (1999)), aff'd, 200 N.J. 444 (2009). When the challenged instruction is the model charge, "'it is a persuasive argument in favor of the charge as delivered.'" Id. at 514 (quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000)).
We are firmly convinced that the jury was not misled by the instruction. The charge focused the jury's attention on the necessary element of intent when defendant possessed the drugs, not the actual distribution of the drugs, a crime for which he was not charged. There was no evidence to suggest that defendant was "attempting" to distribute the drugs when apprehended. Rather, the evidence supported the jury's finding that defendant possessed the crack cocaine and that he intended to distribute the drugs. There was no error.
In Point II, defendant contends the judge failed to provide instructions on the "law of confessions." Although the judge omitted a pertinent instruction, under the unique facts of this case we conclude the error does not require reversal.
When a defendant's confession is admitted in evidence, a jury "shall be instructed that they should decide whether . . . the defendant's confession is true," and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders." State v. Hampton, 61 N.J. 250, 272 (1972); and see N.J.R.E. 104(c) ("If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible."). A trial court should provide a "Hampton" charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not." Jordan, supra, 147 N.J. at 425 (referencing Hampton, supra, 61 N.J. at 272). However, the failure to provide a Hampton charge is not "reversible error per se." Jordan, supra, 147 N.J. at 425. Rather, a reviewing court will only reverse if the "omission is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Here, defendant testified to facts that challenged the credibility of his confession that was seen and heard by the jury. Defendant did not deny making the statement; rather, he claimed he provided the statement because the officers threatened to remove his children, and that he simply repeated what the officers "told" him to say. Thus, the jury clearly understood it was necessary to decide whether defendant's confession was credible or not. Although the judge should have provided the requisite charge, his failure to do so under the peculiar facts of this case does not require reversal.
Lastly, in Point V, defendant contends the judge erred in not providing sua sponte the general identification and specific cross-racial identification charges. The failure to provide the general instructions on identification is not plain error. State v. King, 372 N.J. Super. 227, 238 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005). Instead, we apply a "highly fact-sensitive" analysis to determine "whether the failure to instruct the jury as to identification created a possibility of injustice sufficient to raise a reasonable doubt as to the propriety of the jury's conviction." Ibid. (quotations omitted).
"A cross-racial identification occurs when an eyewitness is asked to identify a person of another race." State v. Cromedy, 158 N.J. 112, 120 (1999). However, juries should only receive a Cromedy charge when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132.
The record fails to disclose the respective races of Rodriguez, Piniero, Mohammed and defendant. Despite defendant's failure to establish the necessary predicate for a cross-racial identification instruction in the first instance, we have no difficulty concluding that such an instruction was unnecessary because, contrary to defendant's assertion, identification was not the critical issue in the case. Rodriguez saw defendant at the window just as Pineiro saw him throw something from that window. Pineiro had met defendant before. Defendant confessed to the crimes on videotape and there was other evidence, the currency for example, that provided "independent reliability" to the officers' identification. Moreover, the identifications were made by trained police personnel. See State v. Murray, 338 N.J. Super. 80, 89-90 (App. Div.) (holding that no instruction was necessary when the identification was made by a "trained" Drug Enforcement Administration agent), certif. denied, 169 N.J. 608 (2001). Because identification was not critical to the case, the failure to provide the general instructions on identification testimony and the cross-racial identification charge was not plain error.
In Point III, defendant contends the maps used by the State to prove that the crimes occurred within 1000 feet of school property and 500 feet of a public park were inadmissible hearsay that violated his "right to confront" those who prepared them. There was no objection to the admission of the maps at trial.
The two maps were clearly admissible pursuant to N.J.S.A. 2C:35-7.1(e) (as to public parks) and N.J.S.A. 2C:35-7(f) (as to school zones). Additionally, N.J.R.E. 803(c)(8) excepts "[p]ublic records" from the hearsay rule. Undoubtedly, the two maps at issue were "public records" duly authorized and authenticated by the municipality through the passage of an ordinance. They were not, therefore, inadmissible hearsay.
We also reject defendant's argument that admission of the maps violated his Sixth Amendment right to confrontation. The Court has noted that the "use of an out-of-court testimonial statement" would violate the Confrontation Clause if defendant did not have a "prior opportunity to cross-examine [the witness]." State v. Basil, 202 N.J. 590, 591 (2010) (citing Crawford v. Washington, 541 U.S. 36, 50-53, 124 S. Ct. 1354, 1363-65, 158 L. Ed. 2d 177, 192-94 (2004)).
Documents excepted under the hearsay rule as "business records" are generally considered non-testimonial. Crawford, supra, 541 U.S. at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195 (stating that "by their nature [these] were not testimonial"); and see State v. Chun, 194 N.J. 54, 142-43 (2008) (holding that "foundational documents" qualified as a business record because they are generally not "subject to manipulation by the preparer"), cert. denied sub nom. Chun v. New Jersey, __ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).
Defendant's reliance on State v. Simbara, 175 N.J. 37 (2002), is misplaced. There, the Court held that the defendant's Sixth Amendment rights had been violated because he objected to the introduction of toxicology results and was not afforded the chance to cross-examine the preparer of the report. Id. at 40. But here, unlike Simbara, the maps were adopted as official records without regard to defendant in particular. In other words, the maps were not "testimonial" evidence prepared in anticipation of defendant's prosecution. Moreover, since defendant never objected to their admission, the State was denied the opportunity to address any challenge by presenting additional witnesses to bolster its case. There was no error.
During cross-examination, the prosecutor asked defendant whether he confirmed that his children were safe and had not been removed by the Division of Youth and Family Services before giving his statement to the police. After extended colloquy outside the presence of the jury, and without objection from defense counsel, defendant responded that his incarceration prevented him from making phone calls or ascertaining his children's whereabouts. The prosecutor also asked defendant if he ever made a complaint about the alleged police misconduct that he claimed occurred prior to giving his statement. Defendant admitted he had not. Defendant now argues in Point IV that these questions infringed upon his right against self-incrimination.
Defendant chose to testify and specifically claimed that he confessed only because the police officers assured him his children would not be removed from their mother's custody. Criminal defendants who voluntarily testify essentially "'waiv[e] [any] . . . privilege against self-incrimination, at least to the extent necessary to permit effective cross-examination.'" Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 503 (2010) (quoting State v. Buonadonna, 122 N.J. 22, 37 (1991)). Moreover, defendant "opened the door" to this line of legitimate inquiry. State v. Jenkins, 299 N.J. Super. 61, 68 (App. Div. 1997) (quotation omitted). The argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
Defendant contends in Point VI that his due process rights were violated when the judge admitted the DVD of his confession because of its poor sound quality. There was no objection on this basis at trial.
A trial court may use "sound recordings" as long as "the speakers [are] identified and . . . (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement." State v. Driver, 38 N.J. 255, 287 (1962). Generally, a "trial judge should listen to the recording out of the presence of the jury . . . [to] decide whether it is sufficiently audible, intelligible, . . . [and] whether it contains any improper and prejudicial matter which ought to be deleted." Id. at 288.
Here, defendant's contention is again unfounded. First, defendant failed to object to the admission of the video recording before both the Miranda hearing and at trial. Second, even though the trial judge and the parties conceded that the audio was difficult to hear, and it is, defense counsel played the tape for the jury while cross-examining Mohamed about its contents. Third, although defendant speaks in a low voice throughout the tape, certain statements, including his knowledge of the drugs and their weight, can be clearly heard. Admitting the DVD was not error.
In Point VII of his brief, defendant claims that the State failed to prove beyond a reasonable doubt that he knowingly and voluntarily waived his Miranda rights. Defendant contends that the officers who testified at the pre-trial hearing on the admissibility of his statement "did not account for all [the] interactions between [him and] the police." Defendant did not testify at the pre-trial hearing.
Our review of the judge's decision to admit defendant's statements is limited to considering whether, viewing the totality of the circumstances, there was "sufficient, credible, evidence" that defendant voluntarily waived his Miranda rights. State v. Knight, 183 N.J. 449, 468 (2005). Here, the judge had the opportunity to assess the crediblility of the police officers who testified. See State v. Locurto, 157 N.J. 463, 474 (1999) ("Appellate courts . . . defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.") (citations omitted). There was substantial evidence in the record to support the judge's finding that defendant had adequately waived his Miranda rights. The argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
Lastly, defendant contends his sentence for an extended term was improper because the prosecutor gave no reasons for her decision to seek an extended term even though defendant "cooperat[ed] and facilitated the investigation." Alternatively, defendant contends that even if the extended-term sentence were proper, it was excessive because an appropriate weighing of the aggravating and mitigating sentencing factors warranted only a five-year term.
Initially at sentencing, the judge merged Counts One and Two with Count Four, and imposed an extended term of twelve years with a six-year period of parole ineligibility. On Count Three, the judge imposed a concurrent term of five years. One week later, believing the sentence was "illegal," the judge vacated that sentence, merged Counts One and Two with Count Three and imposed the following sentence: an extended term of seven years with a three and one-half year term of parole ineligibility on Count Three; and a concurrent term of seven years with a three and one-half year period of parole ineligibility on Count Four.
The judge concluded four aggravating factors existed: the risk of re-offense, N.J.S.A. 2C:44-1(a)(3); involvement in organized criminal activity, N.J.S.A. 2C:44-1(a)(5); the extent and seriousness of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors.
Defendant concedes he was eligible for an extended-term sentence. See N.J.S.A. 2C:43-6(f) (requiring that "upon application of the prosecuting attorney" an extended term shall be imposed for a school-zone violation if the defendant was previously convicted of certain CDS offenses). He argues, however, that the prosecutor failed to adequately explain her reasons for seeking an extended term, and the judge conducted no analysis of the request. See State v. Kirk, 145 N.J. 159, 171 (1996) (subjecting the prosecutor's decision to review under an abuse of discretion standard).
We acknowledge that the transcript of both the initial sentencing hearing and the re-sentencing hearing provide little explication of the reasons supporting the prosecutor's motion beyond defendant's prior conviction.*fn5 Nevertheless, we reject defendant's claimed reasons as to why a sentence to an ordinary term was appropriate. In short, "[d]efendant has failed to meet the heavy burden that [he] must bear to prove that the State's decision to deny leniency was arbitrary and capricious; he simply failed to establish by clear and convincing evidence that he was entitled to a waiver." Kirk, supra, 145 N.J. at 171.
Alternatively, defendant contends that his sentence was excessive and resulted from the judge finding aggravating factors based solely upon his prior criminal record and failing to find mitigating factors that existed. We note that an appellate court must "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) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. Id. at 608; accord State v. Cassidy, 198 N.J. 165, 183-84 (2009).
The aggravating factors found by the judge were amply supported by the record. Defendant was twenty-six years old, had seventeen municipal, and a number of juvenile, arrests. In addition to his prior drug conviction, defendant had been convicted as an adult of "bail jumping."
Defendant contends that the judge should have considered mitigating factors eleven and twelve. See N.J.S.A. 2C:44-1(b)(11) (imprisonment would cause him excessive hardship) and N.J.S.A. 2C:44-1(b)(12) (his cooperation with law enforcement). Neither was advanced at trial and we fail to see how they apply in this case. Defendant claims he was addicted to cocaine and needed substance abuse treatment. Such programs are available in prison and therefore the sentence does not work an "excessive hardship" on defendant. Moreover, although defendant provided the police with a statement, we do not view that as "cooperation" justifying the finding of a mitigating sentencing factor.