STATE OF NEW JERSEY v. KENOL MOREAU

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2473-03T42473-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENOL MOREAU,

Defendant-Appellant.

_______________________________

 

Submitted September 19, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-06-2088-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was found guilty by a jury on the following charges set forth in an Essex County indictment: resisting arrest, a disorderly persons offense, N.J.S.A. 2C:29-2a(1) (Count Ten); possession of a controlled dangerous substance, third degree, N.J.S.A. 2C:35-10a(1) (Count Eleven); possession of a controlled dangerous substance with intent to distribute, second degree, N.J.S.A. 2C:35-5a(1) (Count Twelve); and possession of a controlled dangerous substance with intent to distribute same within 1,000 feet of school property, third degree, N.J.S.A. 2C:35-7 (Count Thirteen). Certain charges were dismissed, and the jury found defendant not guilty on the remaining counts.

The trial judge, at sentencing, merged for sentencing purposes the convictions on Count Eleven and Twelve with the conviction on Count Thirteen and imposed the following sentence: Count Ten, one hundred days imprisonment concurrent with the sentence imposed on Count Thirteen; Count Thirteen, an extended term as a persistent offender, N.J.S.A. 2C:44-3, of eight years imprisonment, four years to be served without eligibility for parole.

This incident allegedly arose from observations made by members of the Newark Police Department auto theft task force in the early morning of December 21, 2001. Officers approached a Jeep Cherokee that was idling in the middle of South Ninth Street, with defendant seated in the vehicle. Defendant then rammed a police vehicle, drove off at a high speed, and struck a second police car, after which he left the Jeep and was arrested. Cocaine was found in the vehicle when it was searched by a detective.

In his brief on appeal, defendant contends as follows:

POINT I: THE TRIAL COURT COMMITTED A SERIOUS AND HARMFUL ERROR, ONE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT, BY DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT ON COUNTS TEN-THIRTEEN WAS A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT II: THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS AND RIGHT TO A JURY TRIAL WHEN THE COURT MADE FACTUAL FINDINGS, OTHER THAN THE FACT OF A PRIOR CONVICTION, LEADING THE COURT TO IMPOSE AN EXTENDED TERM AND TO SENTENCE THE DEFENDANT TO EIGHT YEARS ON COUNT THIRTEEN WHICH WAS THREE YEARS BEYOND THE MAXIMUM ORDINARY TERM.

POINT III: THE TRIAL COURT COMMITTED A SERIOUS ERROR, PRODUCING AN UNJUST RESULT, WHEN IT IMPROPERLY CONSIDERED AND APPLIED AGGRAVATING FACTORS IN DECIDING THE DEFENDANT'S EXTENDED SENTENCE.

We conclude, first, that there was no error in denying defendant's new trial motion. The trial judge correctly observed that the jury's verdict did not constitute a manifest denial of justice. The verdict was not against the weight of evidence. See, State v. Reyes, 50 N.J. 454, 458-9 (1967). The existence of some inconsistencies in the evidence does not carry the day for defendant on his motion. There was sufficient evidence on which the conviction could be founded, and from which the jury could have found both that defendant possessed the cocaine and that he intended to distribute it within 1,000 feet of school property.

With respect to sentencing, we note first that defendant as a persistent offender received an extended term sentence pursuant to N.J.S.A. 2C:44-3. The State correctly points out that according to such authorities as State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), sentencing pursuant to that statute does not constitute a Sixth Amendment violation under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). See also, State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005), where we held that we would "adhere to our prior holdings that the 'prior conviction' exception permits imposition of an extended term under the persistent offender statute, N.J.S.A. 2C:44-3a." (Citations omitted.) Furthermore, we find no departure from the sentencing principles laid down in State v. Dunbar, 108 N.J. 80 (1987).

Defendant argues that the judge erred in considering his record in determining whether to sentence defendant to a term longer than the presumptive term. But under Dunbar, with respect to the sentencing of a persistent offender under N.J.S.A. 2C:44-3, portions of a defendant's record may be considered, including the "juvenile record, parole or probation records, and . . . attempts at rehabilitation." 108 N.J. at 92. Defendant acknowledges that the judge took into account certain "legitimate" Dunbar considerations, such as his parole violations, failure at rehabilitation and his juvenile record. These "legitimate" considerations are a sufficient basis for the sentence that was imposed.

Finally, we have considered the impact of our Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005) (Natale II), with respect to defendant's sentence. Because this appeal was in the "pipeline," as we described it in State v. Young, supra, fairness constrains us to follow Young, vacate the sentence, and remand for reconsideration.

Thus, in light of the action of our Supreme Court in striking down presumptive terms, and because this appeal was in the pipeline, even though there are no other Sixth Amendment objections with respect to the sentence, the term ought to be reevaluated, as we held recently in Young. We thus remand for reconsideration of the sentence. In so doing we do not direct that any particular sentencing modification be made, but the instructions in Young, supra, 379 N.J. Super. at 510, must be followed in such remand proceedings to guide the judge in reevaluating the sentence.

We affirm the conviction; we remand for reconsideration of sentence in light of Natale II.

 

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A-2473-03T4

October 11, 2005