December 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IKEN O. BAILEY, A/K/A DEVON BAILEY, DEVONE BAILEY, IKEM BAILEY, IKEN R. BAILEY, KENNEY BAKER, TOMMY BAKER, HAKEEM BANNEY, RASHAN DUNCAN, HAKEEM FOWLER, IKEN FOWLER, KEYSHAWN HENDY, ALSIDE JACKSON, KASHUN PETERS, RAHEEM THOMAS, RAHEEM TINNEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-00888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Cuff, Lihotz and Waugh.
Defendant Iken O. Bailey appeals from a January 29, 2010 final judgment of conviction entered following a jury trial on several charges of possession and distribution of a controlled dangerous substance (CDS). On appeal, defendant argues:
IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL. POINT II
IT WAS ERROR TO ADMIT THE CDS INTO EVIDENCE BECAUSE IT WAS IRRELEVANT, NOT PROBATIVE IN THE ABSENCE OF ANY LINK TO DEFENDANT AND HIGHLY PREJUDICIAL [NOT RAISED BELOW].
IT WAS ERROR NOT TO HAVE GRANTED A MISTRIAL AFTER A SELECTED JUROR MADE A PREJUDICIAL REMARK OVERHEARD BY THE OTHER MEMBERS OF THE PANEL.
DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
THE JURY'S VERDICT SHOULD HAVE BEEN SET ASIDE WHEN ONE JUROR UPON POLLING SAID SHE DISAGREED WITH THE VERDICT.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
Following our review of the arguments presented, in light of the record and the applicable law, we affirm.
The State presented these facts at trial. On December 22, 2008, Newark Police Detectives Jeffrey Bouie and Mark Garrett were on a routine patrol with Sergeant William Connolly near Brookdale Avenue and Abinger Place in Newark, a "place known for narcotics activity." As the officers approached the intersection, they observed defendant and co-defendant Murray Gillian standing on the corner, outside a bodega. When the two spotted the patrol, they quickly entered the store; then, as the officers drove away from the area, defendant and Gillian emerged from the store and resumed standing outside, notwithstanding the "frigid" twenty degree weather.
The officers parked their patrol car, circled back, and Detective Bouie and Sergeant Connolly set up surveillance on the second floor of a vacant building across the street from the bodega, approximately seventy feet away. From their location inside the building, they observed an unidentified black male approach defendant and Gillian. After a brief conversation between the three men, Gillian crossed the street to an alley, walked to a chain link fence, crouched to reach an object from the bottom of the fence, from which he removed a smaller object. Gillian returned the larger object to its place by the fence, returned to the corner, and gave the small object to defendant, who then handed it to the unidentified man in exchange for "U.S. currency." The unidentified male walked away. Based on his experience and training, Detective Bouie testified he believed he had "witnessed a narcotic transaction."
Approximately two minutes later, a black Honda stopped by the front door of the bodega. Defendant instructed the driver, who was headed westbound on Abinger, to pull up a few feet and he approached the passenger side of the vehicle. Detective Bouie saw defendant hand the occupants a small object in exchange for money. At this point, Detective Bouie and Sergeant Connolly left their surveillance location, met Detective Garrett, who was with the patrol vehicle, and drove toward the bodega. As the officers approached for a second time, defendant and Gillian "ran into the bodega." Detectives Bouie and Garrett entered the store and apprehended defendant and Gillian, placing them under arrest. Sergeant Connolly walked to the chain link fence and recovered the object, which was later determined to contain seventeen decks of heroin and thirty baggies of cocaine.
Defendant and Gillian were charged under Indictment No. 2009-3-00888 with the third-degree charges of conspiracy to manufacture, distribute, or dispense CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (count one); possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count two); distribution or possession of CDS (cocaine), N.J.S.A. 2C:35-5a(1) (count three); conspiracy to manufacture, distribute or dispense CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (count four); possession of CDS (heroin), N.J.S.A. 2C:35-10a(1) (count five); distribution or possession of CDS (heroin), N.J.S.A. 2C:35-5a(1) (count six).
Defendant's pre-trial motion to suppress the narcotics evidence was denied and, following defendant's motion for release of the surveillance location, the State agreed to do so.
The four-day trial against defendant and Gillian commenced on December 3, 2009. Defendant moved for acquittal at the close of the State's case. The court denied the request. Following deliberations, the jury announced it had reached a verdict. However, when the individual jurors were polled, one juror stated she disagreed with the guilty verdict. The court instructed the jury to resume deliberations. The jury returned with a unanimous verdict, convicting defendant of all counts.
The trial judge merged counts one and two into count three and imposed a five-year custodial sentence on count three, with a two-and-one-half year period of parole ineligibility. Similarly, counts four and five were merged with count six and the judge imposed a concurrent five-year custodial sentence on count six, with a two-and-one-half year period of parole ineligibility. The court also imposed the applicable fines and fees and suspended defendant's driver's license. This appeal ensued.
Defendant presents several claims of trial error and challenges his sentence as excessive. We will examine each of these issues.
First, defendant argues the trial judge erred in denying his motion for an acquittal because the State failed to prove the element of possession or that the exchanges observed involved CDS. Defendant contends "[n]either defendant had actual possession of any CDS when detained by the police officers [and n]either of the alleged buyers were stopped, identified or arrested." We reject these arguments.
Rule 3:18-1 requires a trial court to enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The question to be determined when a defendant moves for a judgment of acquittal is: whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
Further, the court "is not concerned with the worth, nature or extent" of the evidence, "but only with its existence, viewed most favorably to the State." State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999) (citations omitted).
In our review of a trial judge's ruling, we apply the same standard. State v. Moffa, 42 N.J. 258, 263 (1964). According all favorable inferences to the State's evidence, we must determine whether a reasonable jury could convict the defendant of the charges beyond a reasonable doubt. Reyes, supra, 50 N.J. at 458--59.
Under this standard, defendant maintains the State's evidence is deficient as it fails to prove "actual possession." Defendant posits that the search incident to arrest yielded no CDS and the two alleged buyers were never stopped and questioned. Therefore, he claims no direct evidence of possession or sale of a CDS was presented.
The element of possession necessary for conviction of the offenses charged is not solely actual possession. Alternatively, the State may prove constructive or joint possession to satisfy the statutory element. State v. Spivey, 179 N.J. 229, 236 (2004). "A person has actual possession of an object when he has physical or manual control of it." State v. Morrison, 188 N.J. 2, 14 (2006) (internal quotations and citations omitted). "Alternatively, a person has constructive possession of 'an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" Ibid. (quoting Spivey, supra, 179 N.J. at 237). Finally, two individuals are deemed to "have joint possession of an object when they share actual or constructive knowing possession of that object." Ibid. (internal quotation omitted).
Our review of the record reveals the State presented facts supporting defendant's constructive possession of the CDS. Specifically, the State offered Detective Bouie's observations of defendant's conduct together with the facts regarding the character of the neighborhood and Sergeant Connolly's recovery of the CDS at the fence. The officers watched defendant and Gillian quickly retreat inside the bodega both times the officers approached the corner of Brookdale Avenue and Abinger Place. From his unobstructed, elevated view of the intersection during surveillance, Detective Bouie saw strangers stop, speak to defendant, and exchange money for a small object Gillian retrieved from a container by the fence. He then observed defendant approach a vehicle and exchange an item for money.
Detective Bouie testified he believed he observed two hand-to-hand drug sales.
After according all favorable inferences drawn from these facts, the record supports the trial judge's determination that the State presented sufficient evidence to defeat defendant's motion. The police might have arrested the suspected buyers, however, the arrest of the buyers is not a requisite to conviction of any of the charged offenses against defendant. The State's inability to provide the buyers affects only the weight of other evidence presented. Accordingly, we conclude the trial court properly denied defendant's motion for acquittal at the close of the State's case.
In a related argument not previously presented to the trial court, defendant challenges the trial judge's discretionary determination, admitting the CDS seized by the arresting officers. See State v. McDougald, 120 N.J. 523, 577-78 (1990) (stating evidentiary issues are within the discretion of the trial court). Defendant suggests the evidence was not relevant because: "no one was shown to have actual physical possession of any CDS. Without any actual link to defendant, the admission of the CDS recovered from the 'stash' was highly prejudicial. It was total speculation as to whether that CDS was the subject of a sale by defendant." Alternatively, defendant maintains presentation of the CDS evidence "without the establishment of a link to him was prejudicial in the same way gory photographs of a murder victim would prejudice and inflame a jury." These arguments lack merit. R. 2:11-3(e)(2).
As an initial matter, because this issue was not raised during trial, Rule 2:10-2 requires a finding of plain error to warrant reversal. Under this standard, we will disregard an error "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" State v. Macon, 57 N.J. 325, 337 (1971) (citations omitted).
We review decisions concerning the admissibility of evidence according to the palpable abuse of discretion standard. State v. Carter, 91 N.J. 86, 106 (1982). Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted. Ibid.
Without question, the evidence was relevant. See N.J.R.E. 401 (broadly defining "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action"). Further, we find no basis to exclude the evidence after applying the balancing test of N.J.R.E. 403, which allows exclusion only when the evidence's probative value is "so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues in the case. State v. Thompson, 59 N.J. 396, 421 (1971). Sergeant Connolly discovered CDS in the same area by the fence where he had observed Gillian reach for an object he subsequently relinquished to defendant for its sale. This chain of events sufficiently links the CDS evidence to the defendant, making it more probative than prejudicial and allowing its admission.
Defendant next asserts the court erred in denying his request for a mistrial following the utterance of a prejudicial remark by a putative juror during voir dire. We recite these additional facts for context.
During jury selection, a potential juror admitted his nephew was convicted of a similar CDS offense and the following colloquy occurred between the trial judge and the potential juror:
THE COURT: Alright, now, Mr. [W.], do you think that the fact that your nephew was involved in similar charges as we're dealing with in this case would affect your ability to be fair and impartial in this case in any way?
MR. [W.]: . . . I have to kinda [sic] question that because, . . . I'm familiar with that particular area . . .
THE COURT: Okay.
MR. [W.]: . . . that this happened in. And, . . . I, um, grew up in that area.
THE COURT: Okay.
MR. [W.]: . . . I really saw the destruction of that area due to, . . ., you know the proliferation of drugs in that area.
THE COURT: Let me ask you this, sir. Do you think you would feel uncomfortable sitting on this jury?
MR. [W.]: Um, I really do, you know. THE COURT: Okay. Alright, sir.
MR. [W.]: And it's . . . kinda [sic] of a mixed feeling, too, because I feel that, . . . the way the neighborhood destructed . . .
THE COURT: Alright, sir.
The court excused the prospective juror and voir dire continued. Defendant and co-defendant moved for a mistrial. The trial judge reviewed Mr. W.'s comments, then examined the thirteen jurors selected for service, individually questioning them regarding their recollection of Mr. W.'s comments. Only two jurors recalled the comments regarding the deterioration of the neighborhood, and each quickly and confidently asserted the remarks had no impact on their ability to be impartial. The court concluded the untoward remarks had not tainted the panel and denied the request for mistrial.
On appeal, defendant argues the juror's "comments conveyed the fact that the neighborhood was a drug infested area . . . [which] implied defendant could well have been involved in some aspect of that activity." Defendant asserts it "should have been obvious to the trial judge" that a juror's comments about "drug trafficking in the neighborhood and its subsequent 'destruction' were inherently prejudicial" because defendant was accused of CDS possession and distribution. He concludes "the trial judge abused his discretion by not granting defendant['s] application for a mistrial." We are not persuaded the comments tainted those jurors selected for service.
The selected jurors' responses to the trial judge's examination directed to their recollection of Mr. W's remarks revealed eleven did not hear the negative comments or could not recall the nature of Mr. W.'s remarks, evincing no exposure to outside information or infecting bias. The two who heard and remembered Mr. W.'s comments asserted the remarks would have no impact on their ability to be fair and impartial jurors in this case.
Importantly, Mr. W.'s remarks commenting on the neighborhood's decline and drug trade contained no suggestion regarding defendant's participation in drug trafficking. Once it became obvious Mr. W.'s remarks suggested a possible bias, the trial judge cut him off from additional comment and dismissed him from service. The judge then carefully examined each juror to reveal any effect of the comments. The judge asked several questions of each juror and did not limit the format to leading questions.
We commend the trial court's reasoned response to explore any potential bias caused by Mr. W.'s comments. See State v. R.D., 169 N.J. 551, 558 (2001) ("The court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby."). The court's conclusion that the jurors were "capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court" obviating the need for a mistrial is supported by the facts. State v. Bey, 112 N.J. 45, 87 (1988). We conclude defendant's right to a fair and impartial jury was preserved and protected. See Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982) (noting that "due process does not require a new trial every time a juror has been placed in a potentially compromising situation").
Defendant asserts the State violated his due process rights and prejudiced his case by failing to provide favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). According to defendant's argument, the detective's decision not to apprehend the two alleged buyers, record their observations through photographs or video, and look for fingerprints on the "stash" represent willful omissions, ignoring possible exculpatory evidence. We disagree.
Brady has no application in the instances described for several reasons. First, the State did not ignore its responsibility to release evidence because there was no evidence. See Id. at 87, 83 S.Ct. at 1196-97, 10 L.Ed. 2d at 218 (holding "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"); State v. Martini, 160 N.J. 248, 268-269 (1999) (holding Brady is applicable even when a defendant does not make a formal request for material).
Second, the State is not required to obtain and present all possible proofs, just proof beyond a reasonable doubt. The constraints of limited manpower and financial resources dictate police choices of how to conduct an investigation. Consequently, the police never apprehended the buyers but allocated their resources to arresting the sellers; no photographic equipment was available to record defendant's activities; and standard police procedure did not include attempting to obtain fingerprints from narcotics evidence. Defendant cannot show the police tactically ignored or discarded available evidence. Unlike television dramatizations, the police are not in a position to gather each and every possible item of evidence.
Third, defendant presents nothing to establish that the possible evidence would have aided his defense. For example, defendant does not state what testimony the buyers would have offered to challenge the State's case or describe how photographs or videos would have undermined the State's inculpatory evidence.
Most important, the detectives' decisions not to undertake certain efforts impacts the quantum of proofs offered by the State. Defendant had the opportunity to probe each of these purported omissions in cross-examination.
Defendant's trial was a fair one. His arguments to the contrary are meritless.
Defendant's final challenge to the fairness of his trial centers on events occurring when the jury was polled after first announcing it had reached a verdict. Initially, the foreperson advised the unanimous verdict found both defendants guilty on each count. The court then asked the foreperson to state the verdict as to each count, starting with the charges against defendant. As the verdict was revealed on the six charges against defendant, he began interjecting comments such as "Oh, my God" and "That's my life right there." The last comment was repeated aloud three times.
The trial judge then polled the individual jurors, asking them to stand as their number was called and state, "[i]f you agree with the verdict in each and every respect -- that is, to each and every count, respond, I agree. If you do not agree with any aspect whatsoever of the verdict as announced by the foreperson, then respond I disagree or I do not agree."
When juror ten was called, she advised she disagreed with the verdict as to each defendant. Finding the verdict was not unanimous, the judge instructed the jury to return to the jury room and resume deliberations. While the court was printing a new verdict sheet for the jury, defendant's outbursts resumed, this time peppered with profanity.
Subsequently, the judge received a note from the jury, which he recited as follows: "Juror number [ten] feels very intimidated by the stares and comments of the defendant, as do all of us . . . . Then the note goes on to say the verdict still stands." After some discussion outside the presence of the jury, the trial judge determined he would ask the jury to state its verdict followed by a poll of the individual jurors. The trial judge declined co-defendant's motion to individually examine juror ten.
When the jury returned, the foreperson announced the jury reached a unanimous verdict as to each defendant on each charge. Starting with the charges against defendant, the foreperson stated each verdict, finding defendant guilty on all charges. As the jurors were polled, each juror expressed agreement with the verdict.
Defendant, joined by co-defendant, requested the jury not be discharged, and a short recess be permitted to review this issue. Thereafter, the trial judge conducted discussion outside the jury's presence regarding whether juror ten should be interviewed regarding the contents of the note and her change in position regarding the verdict. After considering the arguments presented on behalf of all parties, the trial judge stated:
I find . . . the jury verdict was unanimous.
I find the responses of all the jurors to be clear and unequivocal, i.e., that he or she agreed to the verdict announced by the foreperson. Accordingly, having so found, I find that there is no need for any further inquiry as to any . . . facet or any part or parcel of the jury's vote and/or as to their reasons or the occurrence of the second vote. Therefore, the application is denied[.]
In light of these events, defendant argues the verdict should be set aside and maintains the trial judge abused his discretion when juror ten initially disagreed with the announced verdict because she "was clearly 'hesitant' for undetermined reasons" and possibly her "agreement was coerced." See, e.g., Cook v. United States, 379 F. 2d 966, 970 (5th Cir. 1967) ("There is no verdict as long as there is any uncertainty contingency to the finality of the jury's determination.").
"To ensure that no uncertainty remains about the verdict and its unanimity, our court rules afford all parties the right to poll the jury after the foreperson has announced the verdict but before the verdict has been officially recorded." State v. Milton, 178 N.J. 421, 432 (2004). Accord R. 1:8-10. The Court has been clear that "the trial court has broad discretion in determining whether a juror's response reflects agreement with the verdict." Milton, supra, 178 N.J. at 433. Polling permits the trial court to detect and resolve any confusion or disagreement and clarify the precise nature of verdict. Id. at 433-34. "Because the trial court has the benefit of hearing a juror's answer and personally observing a juror's demeanor, it is in the best position to ascertain whether hesitancy or equivocation on the part of a juror reflects involuntary or coerced assent." Id. at 434. "[T]he trial court has a duty to eliminate all doubt about the unanimity of the verdict to effectuate the poll's essential purpose of ferreting out coerced decisions." Ibid. "The precise methodology to be used is less important than the fact that the poll ensures that a juror's concurrence with the verdict is devoid of any ambiguity or coercion." Id. at 438. Therefore, the jury's verdict is not final until it is accepted by the court, State v. Jenkins, 349 N.J. Super. 464, 475-76 (App. Div.), certif. denied, 174 N.J. 43 (2002), and jurors may be asked to resume deliberations before they are discharged if the verdict needs to be clarified, State v. Rodriguez, 254 N.J. Super. 339, 348 (App. Div. 1992).
We are satisfied the trial judge fulfilled his "duty to eliminate all doubt about the unanimity of the verdict to effectuate the poll's essential purpose of ferreting out coerced decisions." Milton, supra, 178 N.J. at 434. The judge properly evaluated the demeanor of the jurors, including juror ten. When the jury resumed deliberations and announced its verdict, the judge found "all the jurors to be clear and unequivocal," each agreeing with the verdict announced by the foreperson.
We are not persuaded by defendant's position that the court has an obligation to probe further into the reasons for the initial polling results and juror ten's possible equivocation. Once satisfied a verdict is unanimous, and not the product of "involuntary or coerced assent," the trial judge need not go further. Milton, supra, 178 N.J. at 434. We conclude there is no basis to disturb the jury's verdict.
Defendant argues the five-year sentence imposed by the trial court was manifestly excessive. He suggests, given the "range of sentence for a third degree offense is [three] to [five] years[,] . . . the trial court abused its discretion by imposing a greater term ([five] years) than the minimum term ([three] years)." We disagree.
When reviewing a claim of excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). The trial judge is afforded considerable discretion in the imposition of the sentence. Ibid. Provided the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we must not substitute our view of a proper sentence for the one imposed by the trial judge. State v. Roth, 95 N.J. 334, 364-65 (1984). Trial judges who do so, "'need fear no second-guessing.'" Bieniek, supra, 200 N.J. at 608 (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). We will vacate an imposed sentence only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364.
Prior to imposing the sentence, the trial judge found four aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent and seriousness of the defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9); and the mere imposition of a fine or order of restitution alone would be perceived as merely part of the cost of doing business. N.J.S.A. 2C:44-1a(11). The trial judge found one mitigating factor, a hardship would result by incarceration to defendant and "his spouse and his [six]-year-old daughter," N.J.S.A. 2C:44-1b(11).
Analyzing the factual support for the application of these factors, the judge explained defendant had "a substantial criminal history," including seven juvenile adjudications stemming from eighteen complaints and twenty-four complaints as an adult, which resulted in four indictable convictions, inclusive of the present conviction, "for robbery, possession of firearms for an unlawful purpose, unlawful possession of a handgun, knowingly riding in a stolen vehicle, [and] possession of C.D.S." Facts supporting the need to impose a custodial sentence also included evidence of defendant's marijuana use since the age of fourteen and "some participation in gang activity as a juvenile."
Finding "the aggravating factors clearly outweigh the mitigating factors in this matter, and that the preponderance of the aggravating factors weigh in favor of a custodial term towards the higher end of the range permitted[,]" the court fixed the term at the top of the third-degree range.
The court's findings undergirding the application of the aggravating and mitigating factors are supported by the evidence in the record and the term was within the appropriate range. We find no error and no basis to intervene. Roth, supra, 95 N.J. at 364.
We have thoroughly reviewed the arguments advanced to set aside defendant's conviction in light of the record and the applicable law. We have found no basis for reversal and need not disturb the Judgment of Conviction entered by Judge Alfonse
J. Cifelli. We also determine Judge Cifelli properly evaluated the applicable facts when he imposed defendant's sentence.
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