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State of New Jersey v. Christopher Etienne

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 16, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER ETIENNE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0973.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2010

Before Judges Rodriguez, Grall and Miniman.

Defendant Christopher Etienne appeals from convictions following a jury trial and the sentence imposed on convictions following the entry of a negotiated plea.

A jury convicted defendant of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and two counts of third-degree possession of a controlled dangerous substance (CDS), heroin and cocaine, with intent to distribute, N.J.S.A. 2C:35-5b(3). The judge imposed concurrent terms aggregating four years. We reverse the convictions based on two separate trial errors concerning defendant's pre and post-arrest silence and the admission of prejudicial evidence from non-testifying persons. Because these errors denied defendant a fair trial, we remand for a new trial.

THE TRIAL PROOFS

Tinton Falls Police Detective Christopher Camilleri testified that he received complaints about drug sales from the management of local hotels. In response, Camilleri arranged for a surveillance operation. On October 31, 2005, he saw two individuals nervously inspecting the parking lot of the Holiday Inn hotel in Tinton Falls. The two entered a vehicle that was driven by a third person and passed items back and forth. Based on these observations, Camilleri concluded that the two had purchased narcotics in the hotel. He followed the vehicle and radioed for a backup unit. After stopping the vehicle, Camilleri interviewed the passengers. They stated that they had purchased narcotics in room 216 or 204 of the Holiday Inn from a man of Haitian descent.

Two days later, Camilleri and Monmouth County Prosecutor's Detective Scott Samis arranged to meet with a confidential informant. The informant later cancelled the meeting, but participated in a phone call. He told Camilleri and Samis that individuals were selling drugs in room 204 of the Holiday Inn and that the operation would end "shortly."

The Holiday Inn manager told the detectives that room 204 was registered to Roger Louis. Samis recognized the name because he had recently arrested Louis for distributing CDS. Moreover, Louis was Haitian and matched the descriptions given to Camilleri by the informant. The detectives decided to set-up surveillance across the hall from room 204, in room 205.

After the detectives arrived at room 205, they detected a strong odor of burnt marijuana emanating from room 204. The detectives immediately began conducting surveillance of the hallway outside room 204 through the peephole in room 205. Around 6:40 p.m. that night, seven individuals entered and exited room 204 within minutes. Upon exiting, each looked nervously around the hallway. Based on their mannerisms, Camilleri concluded that the individuals were purchasing narcotics in room 204. Due to the frequency of purchases, the detectives called for assistance.

At 10:40 p.m., Samis saw a man, later identified as defendant, exit room 204 using a cellular phone. The bolt on the door to room 204 prevented the door from completely closing. Defendant said that he had "to get out of here." Believing that the sellers were leaving, Samis exited room 205 and shouted to defendant, "stop, police." Defendant turned and ran towards room 204 while shouting to warn the occupants of the officers' presence. Samis tackled defendant into the floor of room 204, where he handcuffed and searched defendant.

Seeing Samis, the four other men in room 204 "scrambled." The police handcuffed all four without incident, and gave each Miranda*fn1 warnings. Defendant, Roger Louis, Wilbert Mesidor, Casey Pierre and Peter Mentor were present. Defendant had forty-one dollars, Pierre, $1,145 and Mentor $1,983. Inside room 204, the officers saw hypodermic needles and marijuana in plain view on top of a dresser.

Louis consented to a search of room 204, which revealed a scale; fourteen cellular phones; eleven bags of crack-cocaine and ten bags of powder cocaine contained in a shaving cream can with a false bottom; a black bag containing nine bags of crack-cocaine; a clear plastic bag containing twenty bags of crack-cocaine and twenty-nine bags of powder cocaine; and a heart-shaped container holding thirty-eight bags of crack-cocaine, eighteen bags of powder cocaine and seventy-two decks of heroin. During the search, several seized cellular phones rang. Monmouth County Prosecutor's Sergeant Barry Graves answered each call and concluded that the calls related to drug purchases.

After defendant was arrested, he was given Miranda warnings. He initially declined to make any statement to the police investigators. Later, he agreed to give a written statement.

Prior to trial, defendant moved to suppress his statement to the police investigators. At a pretrial hearing, Samis testified that he heard Detective Nuccio give defendant the Miranda warnings at 1:15 a.m. Defendant acknowledged and initialed each paragraph on the waiver form. He agreed to provide a statement and answer the questions. Detective Nuccio and Camilleri witnessed defendant's signature.

At 3:55 a.m., Samis gave defendant Miranda warnings a second time. Appearing coherent and calm, defendant again initialed each paragraph on the waiver form. After an interview, defendant authored a handwritten statement in which he admitted that he "willingly and knowingly" possessed narcotics and sold drugs to "three or four different people." Defendant also provided an affidavit, stating that:

Peter Mentor, Roger Louis, Wilbert Mesidor, Casey Pierre had nothing to do with the drugs [and] paraphernalia found in Room 204 [in] the Holiday Inn on the night of 11/1/05. I take full responsibility for every and only [sic] illegal substance recovered that night. They did not have any knowledge of the drugs in the room.

The judge denied the motion to suppress.

Defendant was tried by himself. At trial, the State presented Monmouth County Prosecutor's Detective Thomas Mahon, as an expert on narcotics distribution. Mahon explained that the amount of drugs found in room 204 was indicative of the intent to distribute. Further, because drug dealers were "territorial," the shared use of room 204 indicated that the five men were working together.

Pierre pleaded guilty and testified for the State. He testified that defendant visited room 204 to pick up drugs. Defendant sold drugs within twenty minutes of arriving. Despite testifying that each man had "a different stash," Pierre could not identify what type of drugs defendant sold or where defendant's drugs were located.

Mentor pleaded guilty to possession of cocaine and testified for the defendant. According to Mentor, defendant did not sell drugs in room 204, but did smoke marijuana there.

Defendant testified that he initially refused to provide a statement and did not agree until "six, seven hours" after his arrest. He agreed because he "got tired and [he] just gave up." Defendant repudiated his written statement in his direct testimony. He explained that he went to the Holiday Inn to visit Mesidor. He brought some food; smoked marijuana; and within twenty minutes the police arrived. Defendant admitted that he also sold $10 of marijuana to a co-worker to support his "habit," but did not know that the other men were selling cocaine and heroin. As for the telephone call in the hallway prior to his arrest, he explained that it was from his girlfriend and had nothing to do with drug sales.

The following colloquy occurred on cross-examination:

[ASSISTANT PROSECUTOR]: And from one o'clock-you indicated that your statement was given around four? [DEFENDANT]: Yes, ma'am.

Q. And from 1:15, the time that you signed that first Miranda warning, until four o'clock, you weren't questioned?

A. I was, but I refused to give a statement.

A-3368-07T4

Q. Okay. So the police questioned you?

A. They asked me would I like to give a statement. And I responded, no.

Q. Because you didn't want to give a statement at that time, correct?

A. Yes, ma'am.

Q. You weren't afraid of them?

A. Can't say that but I didn't-

Q. Because you refused, correct?

A. Yea, I refused to give a statement at that time, yes, ma'am.

Q. You weren't succumbing to the pressure; you weren't giving into the pressure?

A. Not at that time, no.

Q. Okay. And who was asking you questions between one o'clock and four o'clock in the morning.

A. I don't recall the officer's name, but I think it was the officer for the gang unit there, or something. And he was the one who kept questioning us, like are you ready to give your statement?

Q. And you don't recall his name?

A. No, ma'am.

Q. And how many times did he ask you if you want to give a statement?

A. He had asked me, I think he had asked me like once or twice. And then Officer Samis came and asked me too.

Q. And each and every one of those times you said, no, I don't want to give a statement?

A. Yes, ma'am.

Defense counsel did not object.

On cross-examination defendant was asked about the events at the time he was confronted by police in the hotel hallway. The following exchange occurred:

[ASSISTANT PROSECUTOR]: Q. So at no point were you running down the hall? [DEFENDANT]: A. No, ma'am.

Q. At no point were you running into room 204?

A. No, ma'am.

Q. You didn't run down the stairway that was immediately next [to] it, did you?

A. No, ma'am.

Q. You didn't stand in the hallway and say, "wait a minute, what's going on here?"

A. I was not aware of the police presence at the time, ma'am.

Defense counsel did not object.

On summation, the assistant prosecutor remarked that, [it was a pretty sophisticated operation] that [the defendant and the four other men] had going here. How do we know that? The first time we see this defendant in this scenario, he is running from the police and warning his co-defendants. That was the testimony of Detective Samis and Detective Camilleri. He didn't run down the stairs. He didn't stop and say, what's going on here, I don't know what's going on here. He was running from them, yelling to warn [the other men in room 204].

Defense counsel did not object.

On appeal, defendant contends:

THE STATE'S ARGUMENT THAT THE DEFENDANT IS GUILTY BECAUSE HE REMAINED SILENT AT OR NEAR THE TIME OF HIS ARREST VIOLATES THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION (Not Raised Below).

A. Evidence Of The Defendant's Silence Near The Time Of His Arrest And After His Arrest To Prove Consciousness Of Guilt Is Minimally Relevant And Unduly Prejudicial.

B. The Defendant's Fifth Amendment And New Jersey Common Law Right Against Self-Incrimination Was Violated.

We agree with respect to some of the incidents of impeachment of defendant or prosecutorial comments. We disagree as to other such incidents.

At the outset we note that, except for a narrow exception, evidence of defendant's silence before his arrest is inadmissible at trial. State v. Muhammad, 182 N.J. 551, 569 (2005). The State may not use silence to prove a consciousness of guilt. Ibid.; see also State v. Black, 380 N.J. Super. 581, 593-94 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).

DEFENDANT'S PRE-ARREST SILENCE

Defendant argues that the assistant prosecutor's questioning him regarding his silence, upon seeing the police officers in the hotel hallway, was improper. He reasons that such questioning raises an erroneous inference that an innocent person would have questioned the police; or that defendant had a duty to question the police, rather than a right to remain silent. Defendant argues that the assistant prosecutor's questioning constituted plain error. We agree with this argument.

In State v. Brown, 118 N.J. 595, 609-14 (1990), the Supreme Court considered the circumstances under which a defendant's pre-arrest silence may be used to impeach his credibility as a witness. The Court held:

[E]vidence regarding pre-arrest silence is admissible if, when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's apparent exculpatory testimony. [Id. at 615.]

Although a defendant is under no duty to speak prior to arrest, if "a reasonable person situated as the defendant, prior to arrest, would naturally have come forward" and told the authorities of his "involvement in the criminal episode," then "the failure to have done so has sufficient probative worth bearing on defendant's credibility for purposes of impeachment." Id. at 613-14. In State v. Elkwisni, 190 N.J. 169 (2007), the Supreme Court held that, with exceptions, the admission of evidence of silence at the time of arrest before the defendant gives a statement to the police violates the privilege against self-incrimination. 190 N.J. at 177.

Here, the assistant prosecutor questioned defendant about his failure to ask the officers that confronted him in the hotel hallway to explain their actions. Such questioning does not give rise to an inference of defendant's consciousness of guilt. A reasonable person would not have naturally come forward to speak to the police, or question their presence in the hotel hallway. Moreover, defendant's silence at the hotel hallway cannot be used to impeach his trial testimony which was that:

(a) he was in room 204 to smoke marijuana and to sell $10 of marijuana to a co-worker; (b) he was not aware that cocaine and heroin were being sold in the room; and (c) he was on a cell phone call with his girlfriend when the police tackled him. There is no logical connection to argue that defendant's silence in the hallway cast doubt on the credibility of the testimony that he actually gave. Therefore, this questioning was impermissible; and plain error for the judge to allow it.

POST-ARREST SILENCE

Defendant argues that the assistant prosecutor's questioning of defendant regarding his failure to provide the police with a statement at the police station constituted plain error. The assistant prosecutor questioned defendant about his invocation of the right to remain silent at police headquarters, and argued on summation that defendant's failure to say anything to the police was evidence of his guilt. We conclude that this constituted plain error.

There can be no negative inference from the invocation of the constitutional right to remain silent. In State v. Ripa, 45 N.J. 199, 204 (1965), the Supreme Court recognized that where a suspect remains silent while in custody "no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept." See also Muhammad, supra, 182 N.J. at 569 ("Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises . . . while in police custody."). It is "fundamentally unfair" to advise defendant that he has the right to remain silent and then penalize him for invoking that right. Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976).

Post-arrest silence may be used for impeachment in very narrow circumstances. Only where a defendant testifies about an exculpatory account given to the police while in custody may he be questioned about silence regarding other facts, or why he/she omitted these facts when the statement was given. Elkwisni, supra, 190 N.J. at, 179-180. In Elkwisni, the defendant testified at trial that he was coerced into committing a robbery. Id. at 179. The Elkwisni exception is inapplicable here because the limited use of post-arrest silence to impeach credibility applies when the defendant gives an exculpatory account of events to the police. Id. at 179. Here, defendant eventually gave the police an inculpatory statement. At trial however, the assistant prosecutor pressed defendant again and again about his silence at police headquarters after defendant had been given his Miranda warnings and declined to give a statement.

We conclude that the improper delving into defendant's post-arrest silence constitutes plain error capable of producing an unjust result. Therefore, a reversal of the convictions is warranted.

However, there are other contentions by defendant regarding references to his silence which were not improper. We address these contentions for the guidance of the judge at the retrial. For example, defendant argues that the assistant prosecutor's questions regarding defendant's failure to produce evidence to corroborate his testimony that he was on his cellular phone with his girlfriend, at the time he was confronted by police in the hotel hallway, constituted plain error. Defendant cites the following colloquy:

Q. And at any point in time did you provide the subscriber information for your telephone?

A. No ma'am.

Q. Okay. The telephone bill says who called in, who called out, correct?

A. Yes, ma'am.

Q. And you don't have that here with you today?

A. No, ma'am.

Q. At any point in time did you provide the police with your cell telephone bill documenting that?

A. No, ma'am.

Q. At any point in time did you provide the police the name of your girlfriend and you were on the telephone with her that night?

A. No ma'am.

Defense counsel did not object.

We disagree with defendant. This line of questioning did not inadmissibly inquire into defendant's failure to provide the police with exculpatory evidence or a defense. See Elkwisni, supra, 190 N.J. at 179. "A defendant's right to remain silent is not violated when the State cross-examines a defendant regarding the differences between a post-Miranda statement and testimony at trial." State v. Tucker, 190 N.J. 183, 189 (2007). This is so because, once a defendant has agreed to give a statement, he or she has not remained silent but has spoken.

Ibid.

Here, the assistant prosecutor was challenging the credibility of defendant's trial testimony. Defendant had testified that he was in the hallway speaking to his girlfriend prior to his arrest. It was, therefore, appropriate for the assistant prosecutor to impeach defendant's testimony by questioning why he did not provide any evidentiary support to corroborate his direct testimony.

Once a defendant testifies about statements made to police at or near the time of the arrest, "the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made." Elkwisni, 190 N.J. at 178 (quoting State v. Elkwisni, 384 N.J. Super. 351, 370 (App. Div. 2006)). The State was therefore permitted to inquire into defendant's post-arrest silence regarding facts that are introduced for the first time at trial. Moreover, defendant "opened the door" for the State to cross-examine him regarding the truthfulness of his statement.

We also reject defendant's argument that plain error occurred when the State questioned his failure to file a complaint against the interrogating officers. Defendant testified on direct examination that he fabricated his statement to assist the other co-defendants; and explained that he made his statement because he was "tired" and "gave up." Defendant cites to the following colloquy on cross-examination:

[ASSISTANT PROSECUTOR]: Now when you felt coerced and threatened, after this did you go to the Tinton Falls Police Department and file a complaint?

[DEFENDANT]: No.

Q: Did you go to the Monmouth County Assistant Prosecutor's Office and file a complaint?

A: No, but I did go to my lawyer.

Q: Okay. Was there a complaint filed? A: No, he told me that I'd have to take it to trial.

COURT: You can't tell us what somebody told you.

Q: Did you go to the Attorney General's Office and file a complaint?

A: No, ma'am.

The State may not comment on defendant's silence during interrogation and prior to providing a statement. See Muhammad, supra, 182 N.J. at 558. However, "[a] defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial." Tucker, supra, 190 N.J. at 189; see also State v. Jenkins, 299 N.J. Super. 61, 68 (App. Div. 1997).

Here, defendant therefore opened the door for the State to challenge whether defendant voluntarily provided the statement. The assistant prosecutor, therefore, was permitted to attack defendant's credibility and question whether defendant did in fact voluntarily provide the statement.

Defendant also contends that:

THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 10 OF THE [N.J. CONST.], AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 1 OF THE [N.J. CONST.] WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES.

We agree.

EVIDENCE OF STATEMENTS BY NON-TESTIFYING PERSONS

Defendant argues that Detective Camilleri's reference to statements of non-testifying persons deprived him of the right to confrontation. Camilleri's cross-examination included the following testimony:

A. Det. Samis knew Mr. Louis from prior investigations. He had recently arrested him for distributing narcotics and he also knew that his ethnic background and his race matched the descriptions we received of people that were selling drugs in Room 204.

Q. Okay and when you say ethnic background what specifically are you referencing? [TRIAL COUNSEL]: Objection, hearsay. [THE COURT]: I'll permit that.

A. We were told that the people that were selling narcotics in the room were of Haitian decent [sic].

Statements implicating the defendant in the commission of crimes are inadmissible if the declarant does not testify at trial and is not subjected to cross-examination because a defendant's right to confrontation or cross-examination is a fundamental constitutional right. Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004); State v. Basil, 202 N.J. 570, 591-92 (2010). Thus, witnesses cannot suggest to a jury that accusations of guilt have been made by third parties who do not appear in court and are not subject to confrontation. State v. Bankston, 63 N.J. 263, 271 (1973).

The prosecution cannot inferentially do what it cannot do directly. State v. Irving, 114 N.J. 427, 446-47 (1989). Nor can the prosecution suggest to the jurors that it has additional evidence against the defendant from unknown sources. State v. Branch, 182 N.J. 338, 351 (2005); see also State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003).

Here, Camilleri referred to the statement of one of the occupants in a stopped car who had allegedly purchased CDS from Haitians at room 204. Because defendant was a Haitian present at room 204 the following night, the statement Camilleri referenced was testimonial evidence against defendant that violated defendant's right to confrontation.

MOTION TO SUPPRESS EVIDENCE

Although we reverse, we address defendant's remaining contentions for retrial. Defendant argues:

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 7 OF THE [N.J. CONST.] WAS VIOLATED BY THE WARRANTLESS AND ILLEGAL SEARCH AND SEIZURE.

A. The Defendant Was Unlawfully Detained.

B. The Warrantless Entry Into The Hotel Room Was Unlawful.

We disagree.

The judge found Camilleri to be credible and accepted his factual assertions as true. We will not disturb the trial court's findings where they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). We find that the judge's factual findings are amply supported by the evidence.

A judge's interpretation of the law is not entitled to such deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). After a thorough review of the record, however, we concur with the judge's legal analysis that the observations made by Camilleri and Samis, along with the information gained through the pre-arrest investigation, gave the officers sufficient reasonable suspicion to justify their search and seizure of defendant and room 204.

MOTION TO SUPPRESS CONFESSION

Defendant also contends that:

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.

We disagree.

The judge found that defendant made a knowing, intelligent and voluntary confession to the police. The videotape of defendant reviewing his handwritten statement shows, as the judge found, "that [defendant] was coherent. He was responsive to the questions that were asked. What he said made sense. He didn't slur his words. He didn't fall asleep. He didn't fall off the chair. He didn't act bizarrely. There was nothing unusual about [defendant]." A determination that a defendant's confession is admissible should not be disturbed where the decision is supported by sufficient credible evidence in the record. State v. Knight, 183 N.J. 449, 468-69 (2005).

Based on our careful review of the record, we conclude that the judge's findings were supported by the evidence. Therefore, the State has met the burden of proving that defendant's waiver of his Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000).

Defendant also contends:

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 1 OF THE [N.J. CONST.] WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Partially Raised Below).

A. Other-Crime Evidence Was Improperly Admitted.

B. The Trial Court Failed To Give A Proper Limiting Instruction (Not Raised Below).

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 1 OF THE [N.J. CONST.] WAS VIOLATED BY PROSECUTORIAL MISCONDUCT (Not Raised Below).

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 1 OF THE [N.J. CONST.] WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND CONTRADICTORY INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION (Not Raised Below). THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE [U.S. CONST.] AND ART. I, PAR. 1 OF THE [N.J. CONST.] WAS VIOLATED BY THE ADMISSION OF IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE (Not Raised Below).

We reject these arguments, concluding that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). In light of the reversal, we also decline to consider defendant's contention that his due process rights were violated by the judge's failure to explain the law in the context of the facts of the case after the jury asked for a reinstruction on the law.

THE PLEA CONVICTIONS

Following the trial, defendant entered into a negotiated guilty plea to five other third-degree charges for possession of CDS with intent to distribute and four counts of possession of CDS. The State agreed to dismiss related charges and another indictment, and to recommend concurrent five-year terms with a thirty-month parole disqualifier. These terms were to run consecutively to the sentences imposed on the trial conviction.

Defendant contends that the sentences imposed on the plea convictions are excessive because the judge: "improperly balanced the aggravating and mitigating factors;" or "made findings of fact to enhance the sentence." We reject these arguments and affirm.

Defendant was twenty-one years old at the time of sentencing and had a history of seven disorderly persons convictions. In addition, he has a number of drug-related juvenile delinquency adjudications.

The judge found four of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; (9) the need for deterrence; and (11) the imposition of a fine, penalty or order for restitution without also imposing a term of imprisonment would be perceived by defendant or others merely as part of the cost of doing business. The judge found no mitigating factors.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

We also conclude that the sentences comply with the mandates of Blakely v. Washington, 542 U.S. 296, 308-312, 124 S. Ct. 2531, 2540-2542, 159 L. Ed. 2d 403, 416-419 (2004) and State v. Natale, 184 N.J. 458, 484 (2005). In Natale, the Supreme Court abrogated the presumptive terms in New Jersey Criminal Code. 184 N.J. at 484. Thus, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Natale, supra, 184 N.J. at 487. All of the sentences under review here were imposed after Natale. Therefore, the sentences imposed were within the statutory maximum.

In summary, the convictions stemming from the jury trial are reversed and remanded for a new trial. The sentences for the plea convictions are affirmed.


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