January 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL SARMADI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-10-1709.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2011 -
Before Judges Graves, Harris and Koblitz.
Defendant Michael Sarmadi appeals from a judgment of conviction dated November 20, 2009. Sarmadi pled guilty to committing a first-degree armed robbery on January 28, 2008, N.J.S.A. 2C:15-1 (count three), and a second-degree robbery on February 6, 2008, N.J.S.A. 2C:15-1 (count one). In return for the guilty pleas, the State agreed to recommend that count three would be treated as a second-degree offense for sentencing purposes; defendant would be sentenced to no more than eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and counts two and four of the indictment would be dismissed. In accordance with the plea agreement, defendant was sentenced on count three to a seven-year prison term subject to an eighty-five percent period of parole ineligibility under NERA. The court imposed a concurrent six-year term on count one.
In his initial brief on appeal, Sarmadi presents the following arguments:
MICHAEL SARMADI'S CONVICTION SHOULD BE VACATED BECAUSE OF THE STATE'S INTENTIONAL FAILURE TO DISCLOSE ITS DEAL WITH CO-DEFENDANT ANTHONY SERRAO.
THE SENTENCE IMPOSED ON MICHAEL SARMADI WAS SO DISPARATE FROM THE SENTENCE IMPOSED ON CO-DEFENDANT ANTHONY SERRAO AS TO AMOUNT TO ABUSE OF PROSECUTORIAL DISCRETION.
THE SENTENCE IMPOSED ON MICHAEL SARMADI WAS EXCESSIVE.
In a letter in lieu of a reply brief, Sarmadi argues:
MR. SARMADI'S CHALLENGE TO THE PROPRIETY OF HIS CONVICTION SHOULD BE SUSTAINED BECAUSE THE STATE WITHHELD MATERIAL INFORMATION. POINT II
MR. SARMADI'S SENTENCE WAS BOTH DISPARATE AND EXCESSIVE.
A. MR. SARMADI'S SENTENCE, WHICH IS EFFECTIVELY 25 TIMES AS LONG AS THAT METED OUT TO CO-DEFENDANT SERRAO, WAS UNDULY DISPARATE.
B. MR. SARMADI'S SENTENCE WAS EXCESSIVE.
And finally, in a letter in lieu of a supplemental brief, Sarmadi presents these additional arguments:
THE POST-APPEAL DEVELOPMENTS IN THIS CASE AND THE CASE OF CO-DEFENDANT GORDNICK HIGHLIGHT THE ARBITRARINESS IN THE DISPARITY OF THE SENTENCES BETWEEN SERRAO AND THE CO-DEFENDANTS, INCLUDING MR. SARMADI.
A. THE LOWER COURTS ERRED IN REFUSING TO LET MR. SARMADI PARTICIPATE IN THE REMAND HEARING.
B. EVEN IN THE ABSENCE OF THE OPPORTUNITY TO CROSS-EXAMINE ASSISTANT PROSECUTOR SANTULLI, HIS PROFFERED REASONS FOR THE DISPARATE SENTENCING ARE NOT VALID.
C. THE LAW DEMANDS SENTENCING UNIFORMITY.
After considering these arguments in light of the record and applicable legal standards, we affirm defendant's convictions, but remand for resentencing.
In early 2008, Sarmadi and three co-defendants devised a plan to rob prostitutes by arranging to meet them at local hotels. Sarmadi and his co-defendants gained access to the hotel rooms by pretending to be law enforcement officers. They initially implemented their plan on January 28, 2008, in Clifton. During the robbery, they carried fake police badges and a BB gun; they stole money, a laptop computer, and a PlayStation. The second robbery took place on February 6, 2008, in Hackensack. Sarmadi and his co-defendants stole money and attempted to steal a laptop computer. No BB gun was used, but one of the co-defendants struck the victim in the face during the robbery.
One of Sarmadi's co-defendants, Anthony Serrao, who only participated in the January 28, 2008 armed robbery in Clifton, was arrested on March 15, 2008. Serrao was the first co-defendant to cooperate with law enforcement. On June 19, 2009, he pled guilty to one count of first-degree armed robbery. Pursuant to the negotiated agreement, Serrao promised to "testify truthfully" against his co-defendants, and the State agreed that the charge would be treated as a second-degree offense for purposes of sentencing. The State further agreed to recommend a maximum sentence of five years in state prison and to dismiss a fourth-degree charge of impersonating a police officer.
Sarmadi was arrested on February 28, 2008, but he did not enter a guilty plea until August 3, 2009. When Sarmadi was sentenced on November 20, 2009, the trial court found four aggravating factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the risk that Sarmadi would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior criminal record and the seriousness of the offenses he committed, N.J.S.A. 2C:44-1(a)(6); and the need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court also found two mitigating factors: Sarmadi's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); and his imprisonment would entail excessive hardship, N.J.S.A. 2C:44-1(b)(11). With regard to aggravating factor one, the trial court stated:
The idea of concocting a scheme, whether it's with a real gun, or a fake gun, and robbing people who would be less likely to report this to the police, it's an act of cowardice. You have four people getting together to rob these women, and the fact that they pick people that wouldn't complain, says something of the character of these individuals.*fn1
In support of aggravating factor three--the risk to commit another offense--the trial court observed there were "two separate events" and there was "time to reflect, and it was done a second time." In support of aggravating factor six--the extent of Sarmadi's prior record--the trial court found that he had "six adult arrests, mostly assault, harassment, [and] disorderly persons. But nonetheless, some type of prior record."
In support of mitigating factor one--lack of actual harm-- the trial court found that Sarmadi's actions frightened the victims, but he "didn't cause [any] serious harm." The trial court found mitigating factor eleven--Sarmadi's imprisonment would entail excessive hardship--based on:
[T]he defendant's young age, the fact that he recently fathered an infant child, and the impact of his incarceration upon his family. The Court also considered the fact that the defendant suffers from a congenital heart disease. Finally, the Court considered the statements and diagnoses made in the report of Dr. David J. Gallina, M.D., P.A., wherein he explained the defendant's neuropsychiatric status.
On December 11, 2009, the State allowed Serrao to amend his guilty plea from first-degree armed robbery to third-degree theft, and the State agreed to recommend that he would be sentenced to a flat four-year term. The basis for the amended plea was Serrao's "substantial cooperation" with law enforcement on investigations unrelated to the robberies. On January 22, 2010, Serrao was sentenced in accordance with the amended plea agreement.
On January 4, 2010, Sarmadi filed a notice of appeal, and his subsequent request to transfer his appeal from the excessive sentencing calendar to the plenary calendar was granted. On January 4, 2011, we remanded the case for a hearing to determine the extent of Serrao's cooperation with law enforcement. During the remand hearing on February 9, 2011, the assistant prosecutor provided testimony regarding the "ongoing nature" of Serrao's cooperation. Specifically, the assistant prosecutor identified six drug-related investigations for which Serrao provided information, five of which resulted in arrests.
"The practice of plea bargaining has become institutionalized in our criminal justice system." State v. Bellamy, 178 N.J. 127, 134 (2003). The State has a "legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining, a process mutually beneficial to both the defendant and the State." Corbitt v. New Jersey, 439 U.S. 212, 222, 99 S. Ct. 492, 499, 58 L. Ed. 2d 466, 476 (1978).
It is within the prosecutor's discretion to enter into plea negotiations with a defendant, and it is within the sole discretion of the prosecutor to determine the specific terms of any plea offer. See, e.g., R. 3:9-3(a) ("The prosecutor and defense counsel may engage in discussions relating to pleas and sentences and shall engage in discussions about such matters as will promote a fair and expeditious disposition of the case . . . ."); State v. Brimage, 271 N.J. Super. 369, 374 (App. Div. 1994) ("[A] prosecutor may exercise discretion and enter into a plea agreement with a defendant . . . ."). The decision to offer a plea bargain to a lesser included offense implicates prosecutorial authority and discretion. State v. Hessen, 145 N.J. 441, 453 (1996).
It is also clear that we should not disturb the sentence imposed by a trial court unless "the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unconscionable." State v. Roach, 146 N.J. 208, 230 (citing State v. Roth, 95 N.J. 334, 364-65 (1984)), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). "In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).
The Supreme Court has "acknowledge[d] that '[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'" Roach, supra, 146 N.J. at 232 (second alteration in original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The issue is not simply whether a defendant's sentence is greater than that of his co-defendant, but "whether the disparity is justifiable or unjustifiable." Id. at 233. When determining whether a justifiable disparity exists between a defendant's and a co-defendant's sentence,
[t]he trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. [Ibid.]
A defendant's cooperation is a key factor justifying disparate sentences. State v. Williams, 317 N.J. Super. 149, 159 (App. Div. 1998) (finding no basis to disturb a defendant's sentence based on a disparity where the co-defendant cooperated with the State and the defendant did not), certif. denied, 157 N.J. 647 (1999). At sentencing, the trial judge is required to consider cooperation with law enforcement as a mitigating factor if it is supported by evidence in the record. Dalziel, supra, 182 N.J. at 505. The court must decide how much weight to ascribe to the mitigating factor, and the court may conclude "that voluntary cooperation by a defendant in the very early stages of an investigation is more significant than later cooperation." Id. at 505-06.
In the present case, Serrao was involved in only one of the two robberies, he was the first to come forward and actively cooperate with law enforcement, and he was entitled to the benefit of mitigating factor twelve. Sarmadi, on the other hand, participated in both robberies, was one of the last defendants to plead guilty, and mitigating factor twelve did not apply. Thus, there are no "grievous inequities" between Serrao's and Sarmadi's sentences. Hicks, supra, 54 N.J. at 391.
Based upon our review of the record, we are satisfied that the sentencing judge had appropriate and valid reasons for imposing different sentences for Serrao and Sarmadi. However, we find insufficient evidence to support the trial court's finding of aggravating factor one, which requires the court to consider "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). While the crimes committed by Sarmadi were undoubtedly reprehensible, the record does not support a finding that the offenses were committed in a particularly "heinous, cruel, or depraved manner." We are therefore constrained to remand for resentencing without consideration of aggravating factor one.
Sarmadi's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Accordingly, his convictions are affirmed, and the matter is remanded for resentencing. Jurisdiction is not retained.