STATE OF NEW JERSEY v. WAYMON CHESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6646-02T46646-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYMON CHESTER,

Defendant-Appellant.

_________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. 01-05-2155.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, 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

This appeal is one of three appeals by defendant that were calendared before us, back-to-back. Each appeal involves discrete issues flowing from defendant's convictions under two separate indictments returned against him. We thus address these issues in separate opinions.

Tried to a jury under Indictment 01-05-2155, defendant was convicted of possession of a controlled dangerous substance ("CDS"), heroin, a crime of the third degree, N.J.S.A. 2C:35-10a(1); possession of CDS with intent to distribute, a crime of the third degree, N.J.S.A. 2C:35-5b(3); possession of CDS with intent to distribute within one thousand feet of school property, a crime of the third degree, N.J.S.A. 2C:35-7; possession of CDS with intent to distribute within five hundred feet of a public building, park or housing facility, a crime of the second degree, N.J.S.A. 2C:35-7.1; and resisting arrest, a crime of the fourth degree as a lesser-included offense of third-degree resisting arrest, N.J.S.A. 2C:29-2. At sentencing, the trial court merged all of the drug convictions into the conviction for possession of CDS with intent to distribute within five hundred feet of a public building and sentenced defendant to ten years in prison, with a three-year period of parole ineligibility. The trial court also sentenced defendant to a concurrent five-year term for resisting arrest. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand the matter to the trial court for resentencing.

At approximately 5:30 p.m. on March 8, 2001, Detective Vincent Feliciano and Patrolman Jose Sosa of the Newark Police Department responded to a report of a black male engaging in a drug transaction. They arrived at 14th Avenue and Bedford Street and observed one man hand to defendant what appeared to be money; defendant reached into his pocket and retrieved a small object which he started to hand over to the first man. Before the transaction was completed, defendant noticed the officers, and he dropped the object he had taken from his pocket and started to run away. Feliciano pursued and caught up with defendant, who struggled as the officer tried to subdue him. Sosa had stopped to pick up the object defendant discarded, seven glassine envelopes containing what proved to be heroin. Each of the envelopes was stamped "Kim." Sosa then went to assist Feliciano. A search of defendant incident to his arrest uncovered thirty glassine envelopes in defendant's coat pocket, all stamped "Kim." In addition, defendant had cash totaling $122.35.

Defendant testified at the trial. He told the jury that he was a heroin addict and used five bags of heroin a day. He said that on the day in question he had gone to the site to purchase drugs from a dealer known as "Chill" and that he had purchased thirty-seven bags because he was tired of running back and forth every day. He said he put thirty bags in his pocket and kept out seven for his immediate use. He dropped the seven bags and ran when he saw the police because he did not want to be arrested. By its verdict, the jury indicated that it did not accept defendant's testimony that while he possessed the heroin, he did not intend to distribute it.

On appeal, defendant raises the following contentions:

POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY BY A STATE'S WITNESS INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW)

POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)

POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.

POINT IV: THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION REFUSING TO WAIVE SOME OR ALL OF THE PAROLE DISQUALIFIER PURSUANT TO N.J.S.A. 2C:35-7. (NOT RAISED BELOW)

POINT V: THE TRIAL COURT'S IMPOSITION OF A FIVE YEAR TERM ON COUNT V INVOLVING FOURTH DEGREE RESISTING ARREST WAS ILLEGAL. (NOT RAISED BELOW)

POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VII: THE TEN YEAR TERM IMPOSED ON COUNT IV AND THE FIVE YEAR TERM IMPOSED ON COUNT V IS UNCONSTITUTIONAL SINCE THEY EXCEED THE MAXIMUM SENTENCES AUTHORIZED BY THE JURY'S VERDICT.

Defendant's first argument revolves around an incident that occurred during the testimony of Detective Feliciano. After identifying defendant at counsel table, the prosecutor asked him whether, based upon his being a patrol officer in the west district, he knew defendant from the area. Officer Feliciano responded that he did. Defendant, who made no objection at the time of trial, now contends this remark deprived him of a fair trial because it implied to the jury prior criminal conduct on his part.

In the context of this trial, we perceive no error, let alone plain error. R. 2:10-2. Officer Feliciano's response said no more than that as an officer patrolling in that area, he had previously seen defendant. It said nothing about the context in which he had made those observations.

We cannot disregard, moreover, that defendant testified and admitted to the jury that he had previously been convicted of receiving stolen property. Even if we were to accord this answer the aura that defendant attempts to create, it told the jury no more than did defendant himself.

We also reject defendant's challenge to the prosecutor's summation. We do not find it necessary to set forth the remarks of which defendant now complains, although he did not at trial. We have reviewed the entirety of the summations in this case and find no error. We do not consider the matter to require further discussion in a written opinion because it would lack precedential value. R. 2:11-3(e)(2).

Nor was there any error by the trial court in denying defendant's motion for a mistrial. The prosecution was entitled to probe defendant's assertion that he was on the scene merely as a purchaser of narcotics, not a seller. The trial court correctly limited the prosecution's questioning to preclude the jury from learning that defendant was incarcerated pending trial.

The State concedes, however, that the matter must be remanded to the trial court for resentencing. The jury found defendant guilty of resisting arrest through flight but not guilty of resisting arrest through the use of physical force or violence. Resisting arrest through flight is a crime of the fourth degree, N.J.S.A. 2C:29-2a(1), and thus subject to a maximum term of incarceration of eighteen months. N.J.S.A. 2C:43-6a(4). The trial court, however, imposed a term of five years, a period in excess of the statutory maximum.

In addition, the trial court imposed a three-year period of parole ineligibility for the conviction for possession of CDS with intent to distribute. The State concedes that at defendant's sentencing, there was no statement of reasons by the State in support of its decision not to waive the three-year period of parole ineligibility. State v. Vasquez, 129 N.J. 189, 196 (1992). Again, the State concedes that this omission requires that the matter must be remanded.

Defendant makes two additional contentions: that his sentence is manifestly excessive and that its imposition violated the principles enunciated by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In that case, the Court "ruled that a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury." State v. Natale, 184 N.J. 458, 465-66 (2005). Defendant contends that because the trial court imposed a sentence beyond the presumptive term, his sentence is invalid under Blakely.

In Natale, supra, our Supreme Court conducted a detailed analysis of New Jersey's sentencing scheme in light of Blakely and concluded that our then-existing "system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury." Id. at 484.

Because we have concluded that the matter must be remanded to the trial court for resentencing in any event, we find it unnecessary to determine whether the sentence imposed by the trial court was improper under Blakely and Natale. Defendant is to be resentenced in accordance with the law as it stands on the date of resentencing.

Defendant's conviction is affirmed; the matter is remanded for resentencing.

 

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A-6646-02T4

October 27, 2005