March 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HADIYAH SOREY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-10-3414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2011
Before Judges Carchman and Messano.
Following a jury trial, defendant Hadiyah Sorey was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A.2C:35-5(a)(1); and third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1).
Prior to sentencing, defendant pled guilty to offenses related to four other indictments, which were not the subject of the trial. Specifically, defendant pled guilty to two counts of third-degree possession of heroin with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; one count of third-degree possession of heroin with intent to distribute, N.J.S.A. 35:5(a)(1); and one count of third-degree distribution of heroin, N.J.S.A. 35-5(a)(1). After appropriate mergers, the trial judge sentenced defendant on all charges to an aggregate term of ten years imprisonment with a four-year period of parole ineligibility together with mandated fines and penalties. Defendant appeals, and we affirm the convictions; however, we remand for reconsideration of the parole eligibility term imposed for the school zone pleas as well as for correcting the judgment.*fn1
The relevant facts are simply stated. On February 18, 2005, at approximately 6:35 a.m., defendant was seen standing at the corner of North 9th Street and Springdale Avenue. At the time, Lieutenant Tyrone Broner together with Detectives Alex Martin, Rafael Cabrerra and Phillip Turzani of the Newark Police Department observed defendant motioning and beckoning cars and pedestrians to approach her. Based on his observations as well as his knowledge that the area being known for "heavy drug activity," Broner concluded that defendant was selling drugs.
Utilizing a police technique known as a "buy-and-bust," Broner approached defendant, who was standing on the sidewalk on North 9th Street and asked "do [sic] anybody have any Diesel[,]" a street term of heroin. Defendant inquired as to how many the officer required, and after being told "two," she reached into her pocket and removed several glassine envelopes. She handed the officer two of the envelopes in exchange for $20. After the transaction, Broner alerted the other officers who proceeded to place defendant under arrest. A subsequent search of defendant revealed a clear plastic zip-lock bag containing 16 glassine envelopes. All of the envelopes, including those previously given to Broner, contained the marking "Seven-Thirty Virus." A laboratory analysis confirmed that the bags contained heroin.
On appeal, defendant raises the following issues:
THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED.
DEFENDANT IS ENTITLED TO BE RESENTENCED ON TWO INDICTMENTS.
THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Following presentation of the State's case, defendant moved for a judgment of acquittal arguing that the police testimony was not credible. She relies on various discrepancies in the testifying officers' accounts of events such as where they sat in the patrol car and where they parked. Although defendant concedes that the issue of credibility is properly for the jury, State v. Dellisanti, 203 N.J. 444, 462 (2010), defendant asserts that the testimony is so unbelievable as to place the verdict in issue. Doe v. Arts, 360 N.J. Super. 492, 503 (App. Div. 2003). While we agree with this general proposition of law espoused by defendant, we conclude that it is not applicable here. The alleged discrepancies are tangential or collateral to the critical testimony offered by the officers as to the buy-and-bust operation. Details as to whether the police cruiser was parked one or three blocks away or who was sitting in the passenger seat in the cruiser may be relevant to the general credibility of the officers, but they do not rise to the level of suggesting that officers' testimony is so incredible as not to be believed. As Judge Casale properly observed: "There are some discrepancies, but these are all matters . . . for the fact finder, for the jurors to determine." He properly afforded the State all favorable inferences, State v. Nero, 195 N.J. 397, 410 n.3 (2008), and properly denied the motion.
Defendant further argues that she is entitled to be resentenced as to the sentences imposed on the school zone offenses. She is correct. When defendant was sentenced in February 2007, N.J.S.A. 2C:35-7 provided for a mandatory minimum of three years of parole ineligibility. The statute was amended effective January 12, 2010, and permitted a judge to waive or reduce the period of parole ineligibility or grant probation for considerations set forth in the amendment. The amendment further provides that a defendant, serving a mandatory minimum sentence, may move to have the sentence reviewed by the court, and where the court finds that the sentence under review does not serve "the interests of justice, the court shall consider all relevant circumstances, including whether the defendant pleaded guilty pursuant to a negotiated agreement . . . ."N.J.S.A. 2C:35-7a.
The State concedes that defendant is entitled to such a review and joins with defendant in requesting a remand for reconsideration of the sentence. We agree that such a remand is appropriate.
Finally, defendant asserts that the sentence was excessive. Even considering that portions of the sentence will be remanded for reconsideration, we conclude that the sentence imposed was neither excessive nor inappropriate. Judge Casale carefully weighed the aggravating and mitigating factors. He was particularly sensitive to defendant's medical and psychological condition as well as recognizing that the pleas, and ultimately the sentence, emerged from extensive plea negotiations that resulted in the dismissal of numerous charges pending against defendant.
We are satisfied that the sentence was appropriate and see no basis for our intervention. State v. Bieniek, 200 N.J. 601 (2010) (reaffirming appellate deference afforded to sentencing court's discretion).
We affirm the convictions and remand for resentencing consistent with this opinion. We do not retain jurisdiction.