September 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM A. PAMPLIN, A/K/A RASHEEM MCAIR AND TREMPLIN PAMPLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-2231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012
Before Judges Alvarez and Ostrer.
A jury convicted defendant, Raheem Pamplin, in absentia, of second-degree possession of a controlled dangerous substance (CDS) heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2) (count one); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count two); second-degree possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1a (count three); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). After granting the State's motion to sentence defendant as a persistent offender under N.J.S.A. 2C:44-3a to an extended term on count one, the court sentenced defendant to eighteen years, with nine years of parole ineligibility on count one; nine years on count two; and nine years with four-and-a-half years of parole ineligibility on count three. Count four was merged into count three. Each sentence was to run consecutive to the others, resulting in an aggregate sentence of thirty-six years, with thirteen-and-a-half years of parole ineligibility.
Defendant appeals his conviction of counts three and four, involving weapons possession, and challenges his sentence. He presents the following points for our consideration:
THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE POSSESSION OF THE WEAPON BY DEFENDANT. U.S. Const. Amend. XIV; N.J. Const. Art. I,
POINT II DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S. Const. Amends. VIII, XIV; N.J. Const. Art I,
¶¶ 1, 12.
We affirm defendant's conviction, but remand for resentencing.
Defendant sold heroin to an undercover police officer. Joining him as a look-out was his fifteen-year-old nephew J.P. Defendant and J.P. were both arrested shortly after the transaction. Police discovered that J.P. possessed a .45 caliber Hi-Point automatic handgun in the front waistband of his pants. In order to establish guilt under N.J.S.A. 2C:39-4a, possession of a handgun for an unlawful purpose, and N.J.S.A. 2C:39-4.1a, possession of a handgun in the course of a CDS offense, the State had to establish defendant possessed the handgun, actually or constructively. There was no evidence at all that defendant actually possessed the handgun. He argues there was insufficient evidence for the jury to conclude that he constructively possessed the handgun that J.P. physically possessed. We disagree.
We apply the well-settled test for evaluating a defendant's claim of insufficient evidence. We determine: 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).]
See also State v. Kittrell, 145 N.J. 112, 130 (1996) (appellate court applies same standard as trial court in assessing sufficiency of evidence for conviction).
"The approach is the same though the testimony is circumstantial rather than direct; indeed in many situations circumstantial evidence may be more forceful and more persuasive than direct evidence." State v. Mayberry, 52 N.J. 413, 437 (1968) (quotation omitted). A jury may draw inferences from circumstantial evidence based on a preponderance of the evidence, although the elements of the offense must be established beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 592 (1979).
Whether a person constructively possesses a thing is a fact-sensitive determination, based on the totality of the circumstances. State v. Hurdle, 311 N.J. Super. 89, 96 (App. Div. 1998). We must carefully scrutinize the facts to determine whether the jury properly inferred that defendant constructively possessed the gun. Ibid. "A person constructively possesses 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." State v. Spivey, 179 N.J. 229, 236-37 (2004). More than one person may simultaneously possess an item. State v. McCoy, 116 N.J. 293, 300 (1989). However, mere presence near the item is not enough to support an inference of constructive possession. Id. at 300-01. We must determine whether additional circumstances justified an inference of possession. See Brown, supra, 80 N.J. at 593-94.
Having carefully reviewed the record, we conclude there was sufficient evidence for the jury to conclude that defendant constructively possessed the handgun kept in his nephew's waistband. Bergen County Prosecutor's Office Narcotics Task Force Detective Michael Perez testified that he engaged in undercover purchases of CDS. After several phone conversations with defendant in September 2008, defendant agreed to sell Det. Perez fifteen "bricks" of heroin for $3225. They agreed to meet on September 25, 2008 at a Friendly's restaurant in Elmwood Park. Det. Perez arrived, supported by an arrest team, shortly after 6:00 p.m. He called defendant who said he was inside the restaurant and would be out soon.
Defendant then exited the restaurant, and entered Det. Perez's car, occupying the front passenger seat. Det. Perez asked to see the heroin. Det. Perez testified that defendant stated that his nephew had the heroin. The officer told defendant he did not want the nephew to come to the car, as he wanted to deal only with defendant.
Defendant then left the car, and spoke to J.P., who handed defendant a plastic bag. They both approached the car, but only defendant returned, and handed Det. Perez the bag. Once the officer confirmed the bag contained the heroin, defendant and J.P. were arrested.
In a recorded statement to police that the State introduced into evidence, defendant stated he enlisted an older man known as Brass to drive him from Newark to the meeting. He was to pay him "[l]ike $40" for the service. Brass was in the restaurant during defendant's interactions with Det. Perez. Defendant initially claimed the $3225 drug transaction was beyond his limited capacity and he enlisted Brass to supply the heroin. But, he ultimately admitted that Brass's involvement was limited to providing transportation from Newark.
Defendant also initially claimed that he was going to a football practice with his nephew when the drug transaction "came up." Then defendant said that as he returned from visiting his mother at the hospital, he just happened to see his nephew on the street; his nephew asked defendant what he was doing, and defendant answered, "I'm about to go bust this move, I'm about to do something, take a ride." He claimed his nephew then asked if he could come along and defendant agreed. "I said, all right, come on."
Later in the statement, defendant admitted that he brought J.P. to serve as a look-out.
Q. [W]hat did you tell him to do, just come and watch out for me?
A. That's it. Make sure no police don't come.
Q. Okay. So he just gonna look out for you?
A. That's it.
Q. And what was he gonna get for looking out for you? You just gonna feed him?
A. No, he wasn't gonna . . . if he asked me for some money, I would've gave it [to] him.
We recognize defendant, in his statement, denied telling J.P. to bring the weapon to the drug transaction, and denied knowing he possessed it. However, the jury was not bound by that statement. State v. Ingenito, 87 N.J. 204, 211 (1981) ("The jury's fact-finding function . . . encompasses the evaluation of the credibility of witnesses and the weight and worth of evidence.").
Although defendant initially portrayed himself as a minor drug dealer who needed the help of another, he ultimately admitted that he was the leader of the trio. He procured the $3225 in heroin. He arranged for the driver.
Defendant lived with his mother, his sister, and his nephew. He admitted that his nephew looked up to him. He admitted his nephew was to serve as a look-out. He also carried the $3225 worth of heroin. Defendant exercised dominion over J.P. with respect to his presence at the transaction, and his possession of the heroin until defendant was ready to transfer it to Det. Perez.
The jury could reasonably infer that, despite defendant's denials, his control and dominion extended to the weapons possession. The jury could have rejected as preposterous that defendant just happened upon J.P. and allowed him to tag along for the ride to a significant drug transaction. The jury could also have rejected as unbelievable defendant's statement that before the drug transaction came up, he and his nephew were actually going to attend football practice, which would have implied that his nephew was taking a .45 caliber handgun to a high school football practice. Rather, based on reasonable inferences, the jury could conclude, consistent with J.P.'s assigned role as a look-out and drug carrier, that defendant knew J.P. was armed; defendant intended that J.P. possess the gun to protect him and to provide security for the transaction; and defendant exercised control and dominion over J.P.'s possession of the weapon, just as he exercised control and dominion over the drugs and J.P.'s role in the transaction.
We have no quarrel with the trial judge's conclusion that defendant's prior record was "horrendous." Twenty-seven years old at time of sentencing, defendant had six prior adult convictions, including multiple convictions involving CDS and one prior firearms conviction. He was adjudicated delinquent five times - four adjudications involving CDS and one for a violation of probation. The court found aggravating factors three, six, nine, and eleven, N.J.S.A. 2C:44-1a(3), (6), (9), and (11), considering defendant's risk of reoffending, his prior record, the need to deter, and avoidance of the perception of a non-custodial sentence as a cost of doing business. The court found only mitigating factor eleven, N.J.S.A. 2C:44-1b(11), hardship on dependent children.
We discern no error in the court's determination that defendant was eligible for a discretionary extended term as a persistent offender. N.J.S.A. 2C:44-3a. Indeed, as the prosecutor observed at sentencing, defendant would have been subject to a mandatory extended term given his prior CDS distribution conviction. N.J.S.A. 2C:43-6f.
Nonetheless, we are compelled to remand for resentencing based on three errors. First, the court did not provide sufficient reasons for requiring the sentence for employing a juvenile in the CDS offense to run consecutive to the other terms. The assistant prosecutor asserted at sentencing, "There is also a mandatory consecutive sentencing that applies, I believe, on counts two and three, that is for the employment of a juvenile in a drug distribution scheme as well as the combination of a drug distribution offense and a possession of a handgun offense on count three." In imposing consecutive sentences, the court apparently agreed that they were mandated by statute, and therefore provided no other justification for the consecutive terms.
However, the assistant prosecutor misspoke. Although possession of a handgun during a CDS offense is subject to a mandatory consecutive sentence and an anti-merger provision, employing a juvenile is subject only to an anti-merger provision. Compare N.J.S.A. 2C:39-4.1d (barring merger, and requiring sentence consecutive with any conviction for violating another section of chapter 35 or chapter 16 referred to therein, including N.J.S.A. 2C:35-5 and -6), with N.J.S.A. 2C:35-6 (conviction shall not merge with conviction for violating N.J.S.A. 2C:35-3, -4, -5, or -9). Consequently, in determining whether to impose a consecutive sentence for count two, the court was required to apply the criteria set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. den., 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In the absence of a statement of reasons for the consecutive term, we are compelled to remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987) (requiring remand where trial court does not provide separate statement of reasons for imposing consecutive sentence).
Second, the court failed to impose a mandatory period of parole ineligibility for count two.
Any person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5 . . . shall, except as provided in N.J.S. 2C:35-12, be sentenced to a term of imprisonment which shall include the imposition of a minimum term which shall be fixed at, or between, one third and one-half of the sentence imposed, or five years, whichever is greater, during which the defendant shall be ineligible for parole. [N.J.S.A. 2C:35-6.]
As the State concedes, the court may determine it appropriate to reconsider the length of the term imposed on this count, given the mandate of a minimum term.
Third, the court mistakenly applied aggravating factor eleven - imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices[.] [N.J.S.A. 2C:44-1a(11).]
Factor eleven ordinarily does not apply where the defendant, as here, faces a presumption of incarceration. State v. Dalziel, 182 N.J. 494, 502-03 (2005). In all other respects, we are satisfied the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record.
Affirmed as to conviction, and remanded for resentencing. We do not retain jurisdiction.
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