STATE OF NEW JERSEY v. JAMAL SATTERFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3451-03T43451-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAL SATTERFIELD,

Defendant-Appellant.

________________________________________________________

 

Submitted September 13, 2005 - Decided

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 01-02-00278-I, 01-06-01662-I, 02-10-02628-I, 01-04-00847-I, 02-07-01594-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jamal Satterfield was tried with co-defendant Jamal Robinson on charges contained in Indictment Number 01-04-00847 of third degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one); and third degree distribution of cocaine within one-thousand feet of school property, contrary to N.J.S.A. 2C:35-7 (count two). The jury found each defendant guilty on both counts. Prior to sentencing, defendant Satterfield entered into a plea agreement with the State whereby he pled guilty to charges of fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a in Indictment Number 01-02-00278; third degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) in Indictment Number 02-07-01594; and third degree hindering apprehension, contrary to N.J.S.A. 2C:29-3a(3) in count two of Indictment Number 02-10-02628.

In accordance with the comprehensive plea agreement, the court sentenced defendant to an aggregate term of six and one-half years allocated as follows: as to Indictment Number 01-04-00847, five years incarceration in state prison with four years of parole ineligibility on count one, distribution of cocaine, and five years concurrently on count two, distribution of cocaine in a school zone; as to Indictment Number 01-02-00278, resisting arrest, one and one-half years to be served concurrent to Indictment Number 01-04-00847; as to Indictment Number 01-06-01662, possession of cocaine, four years concurrent to Indictment Numbers 01-04-00847 and 01-02-00278; as to Indictment Number 02-07-01594, possession of cocaine, four years concurrent to Indictment Numbers 01-04-00847, 01-02-00278 and 01-06-01662; and as to 02-10-02628, count two, hindering apprehension, eighteen months consecutive to all other sentences. Count one of Indictment Number 02-10-02628, resisting arrest, was dismissed on motion of the State.

On appeal, defendant raises the following contentions for our consideration:

POINT I: TESTIMONY THAT THE DEFENDANT WAS IDENTIFIED AS A "POSSIBLE DRUG DEALER" SHOULD HAVE RESULTED IN A MISTRIAL BECAUSE THE PREJUDICE TO THE DEFENDANT COULD NOT BE AMELIORATED BY THE TRIAL COURT'S ATTEMPTED CURATIVE INSTRUCTIONS (NOT RAISED BELOW).

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING THE PROSECUTOR TO CROSS-EXAMINE THE DEFENDANT CONCERNING A POST-ARREST STATEMENT BY THE DEFENDANT BECAUSE THE STATEMENT WAS INADMISSIBLE (NOT RAISED BELOW).

POINT III: THE JUDGMENT OF CONVICTION ON COUNT ONE OF INDICTMENT NO. 01-04-0847 SHOULD BE AMENDED, WITHOUT REMAND, TO IMPOSE ONLY A THREE (3) YEAR PERIOD OF PAROLE INELIGIBILITY.

We reject the first two contentions and affirm the judgment of conviction; however, we agree with defendant's third contention, that the period of parole ineligibility is illegal to the extent it exceeds three years. We remand to the trial court for a modification of the sentence to conform to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:43-6b.

Defendant contends the court should have granted a mistrial, sua sponte, because in testimony elicited from the undercover detective who approached defendant to purchase cocaine, the detective responded that he approached defendant because defendant was "a possible drug dealer." A motion for a mistrial is addressed to the sound discretion of the trial court. State v. Winter, 96 N.J. 640, 647 (1984).

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[Id. at 646-47.]

Here, the trial judge gave an appropriate and timely curative instruction. Moreover, the answer of the witness was responsive to a question asked by defense counsel, not by the assistant prosecutor. In addition, defendant, himself, testified that he purchased four bags of cocaine from another person and then delivered them to the undercover officer or his unidentified companion. Certainly, defendant has not demonstrated that it was plain error for the judge to have given a curative instruction regarding the reason the detective approached him, rather than to have granted a mistrial. R. 2:10-2. "A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) certif. denied, 139 N.J. 442 (1995) (citations omitted).

Defendant also contends he was deprived of a fair trial when the trial court permitted the assistant prosecutor to cross-examine him regarding a post-arrest statement. In that statement, defendant allegedly disclosed to Detective Coleman that co-defendant Robinson had assaulted him because Robinson believed defendant set him up. The State's proofs through the testimony of Detective Brown were that when Brown approached defendant, defendant had no drugs to sell but said he knew someone who did. He accompanied Brown and the unidentified occupant of Brown's car to McDonald's. There, defendant entered the bathroom of the restaurant where he used forty dollars Brown gave him to buy drugs from another individual who the State contends was co-defendant Robinson.

The court found defendant's statement about Robinson's assault upon him was relevant on the issue of defendant's credibility because defendant testified at trial that he did not recall from whom he had purchased the drugs at McDonald's; defendant contended he was "high." It was appropriate for the jury to scrutinize all circumstances when considering whether defendant made the statement. The statement tended to explain Robinson's assault upon defendant and it cast doubt on defendant's testimony that he did not know who sold him the drugs he delivered to the undercover officer. The jury was appropriately instructed to scrutinize and assess the statement in light of all the surrounding circumstances. State v. Gross, 121 N.J. 1, 16-17 (1990).

Defendant also contends his statement was inadmissible hearsay. That argument fails because it was defendant's own statement, admissible on the proffer of a party-opponent. N.J.R.E. 803(b). Defendant waived his right to remain silent. He testified at trial and acknowledged his belief that he was assaulted by co-defendant Robinson because Robinson believed defendant was the cause of Robinson's involvement in the case. The police report containing defendant's statement was not admitted at trial and Detective Coleman's testimony was not necessary since defendant did not refute the assistant prosecutor's assertions as to the underlying reason for the altercation.

The State agrees with defendant's final contention - that the sentence is illegal inasmuch as it features a four year period of parole ineligibility on a five year base prison term. The law is clear. The statutorily prescribed period of parole ineligibility must be fixed at or between one-third and one-half of the base sentence or three years, whichever is greater. N.J.S.A. 2C:35-7; N.J.S.A. 2C:43-6f; State v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004). The parties may not negotiate an illegal sentence. Ibid. Here, the four year period of parole ineligibility on a five year base prison term contravenes the statutory authority. As in Smith, "either an illegal sentence was negotiated and must be rejected, or there was no 'negotiated sentence' in which case defendant had to accept the State's [revised] offer or go to trial." Ibid.

Defendant contends we should simply modify the sentence by imposing a three year parole disqualifier. The State suggests that such a modification of the period of parole ineligibility would confer a windfall on defendant. It urges that the matter should be remanded to the trial court in order that an appropriate and legal sentencing package can be structured in accordance with the parties' negotiated plea agreement. The State contends the six and one-half year aggregate term with a mandatory minimum of four years was the result the parties intended, that it was negotiated as an integral part of a so-called "global" agreement, and that, in exchange for such terms of incarceration, the State agreed not to file a motion for an extended term. The current record is not clear on this issue. Accordingly, we remand so that defendant may entertain a legal offer that the assistant prosecutor may recommend. Alternatively, he may withdraw his plea. State v. Smith, supra, 372 N.J. Super. at 543.

 
Judgment of conviction affirmed; reversed and remanded for sentencing only.

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A-3451-03T4

October 5, 2005