STATE OF NEW JERSEY v. BRIAN E. SCOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0039-04T40039-04T4

A-0694-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN E. SCOTT,

Defendant-Appellant.

____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS W. MATHIS,

Defendant-Appellant.

_____________________________

 

Submitted April 24, 2006 - Decided

Before Judges Cuff, Parrillo, and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-02-00121-I.

Yvonne Smith Segars, Public Defender, attorney for appellant Brian E. Scott (Alan I. Smith, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Douglas W. Mathis (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent State of New Jersey in A-0039-04T4 (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent State of New Jersey in A-0694-04T4 (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

These two appeals, calendared back-to-back, arise from an indictment returned by a Somerset County Grand Jury on February 25, 2002. The indictment charged co-defendants, Brian E. Scott, and Douglas W. Mathis, with two counts of third-degree burglary, contrary to N.J.S.A. 2C:18-2 (Counts One and Three); two counts of third-degree theft of moveable property, contrary to N.J.S.A. 2C:20-3 (Counts Two and Four); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(2) (Count Five). Mathis was also charged with fourth-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3b(4) (Count Six). Prior to trial, Scott, joined by Mathis, moved to suppress all physical evidence seized by the police pursuant to an order of the Law Division entered on January 15, 2002, and to two post-arrest search warrants issued by the Law Division on January 27, 2002, and January 30, 2002. On or about February 24, 2003, an order was entered by Judge Paul W. Armstrong denying the motions.

Both defendants were tried before Judge Armstrong and a jury on July 22, 23, 24, 28 and 29, 2003. On July 23, 2003, defendants moved for a mistrial due to testimony from a State's witness that defendants' automobile had been observed at the scene of an uncharged burglary. The motion was denied with the court providing a curative instruction. On July 24, 2003, defendants again moved for a mistrial, alleging a violation of a pre-trial sequestration order by two of the State's witnesses. The court denied the motion, and granted the State's request for an instruction that no violation of the sequestration order had occurred. On July 29, 2003, defendants were found guilty on all counts.

On April 30, 2004, Judge Armstrong denied defendants' motions for a new trial, and granted the State's motions for extended-term sentencing pursuant to N.J.S.A. 2C:44-3b. Scott was sentenced to concurrent extended-term sentences of seven years imprisonment with three years and six months parole ineligibility on each of the burglary and theft counts, and a concurrent ordinary term of eighteen months imprisonment on the conviction for resisting arrest. Mathis received identical sentences, and a concurrent ordinary term of eighteen months imprisonment on the conviction for hindering apprehension. All appropriate fees and penalties were imposed. Defendants appeal. Except to remand both defendants for re-sentencing, we affirm. On appeal, Scott presents the following issues for our consideration:

POINT I.

DETECTIVE HOELZEL'S TESTIMONY CONCERNING THE BLACK FIBERS CONSTITUTED AN IMPROPER "NET OPINION" AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II.

DETECTIVE HOELZEL'S TESTIMONY THAT THE DEFENDANT'S AUTOMOBILE WAS OBSERVED AT THE SCENE OF ANOTHER BURGLARY DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

(A) CONTRARY TO HIS REPRESENTATIONS TO THE COURT AND TO THE DEFENSE, THE PROSECUTOR ELICITED TESTIMONY THAT THE DEFENDANT'S AUTOMOBILE WAS OBSERVED AT THE SCENE OF ANOTHER BURGLARY.

(B) THE DETERMINATION THAT THE DEFENSE "OPENED THE DOOR" TO PERMIT ADMISSION OF THE TESTIMONY CONSTITUTED AN ABUSE OF PROSECUTORIAL DISCRETION.

(C) THE TRIAL COURT'S ATTEMPTED CURATIVE CHARGE WAS INEFFECTIVE AND PREJUDICIAL (NOT RAISED BELOW).

POINT III.

THE TRIAL COURT ABUSED ITS DISCRETION[,] AND PREJUDICED THE JURY'S ABILITY TO ASSESS THE CREDIBILITY OF OFFICER FITZPATRICK AND DETECTIVE DEMEO BY INSTRUCTING THE JURY THAT NO VIOLATION OF SEQUESTRATION HAD OCCURRED.

POINT IV.

THE AGGREGATE SEVEN (7) YEAR CUSTODIAL SENTENCE WITH THREE AND ONE-HALF (3[-]1/2) YEARS OF PAROLE INELIGIBILITY IMPOSED BY THE TRIAL COURT WAS MANIFESTLY EXCESSIVE AND ILLEGAL.

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

(B) IMPOSITION OF FOUR (4) EXTENDED TERM SENTENCES IS ILLEGAL.

(C) IMPOSITION OF A DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON [ 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)].

(D) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A THREE AND ONE-HALF (3[-]1/2) YEAR PERIOD OF PAROLE INELIGIBILITY.

POINT V.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE ORDER PERMITTING THE SURREPTITIOUS SEIZURE OF THE MAZDA AUTOMOBILE AND INSTALLATION OF THE GLOBAL POSITIONING DEVICE WAS NOT SUPPORTED BY PROBABLE CAUSE.

Mathis raises the following issues:

POINT I.

DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THERE LACKED PROBABLE CAUSE FOR ISSUANCE OF A WARRANT TO SEIZE THE MAZDA AND TO INSTALL A GLOBAL POSITIONING TRACKING DEVICE IN THE VEHICLE; THEREFORE, DEFENDANT'S BURGLARY AND THEFT CONVICTIONS MUST BE REVERSED.

POINT II.

DEFENDANT'S BURGLARY AND THEFT CONVICTIONS MUST BE REVERSED BECAUSE UNDULY PREJUDICIAL TESTIMONY WAS HEARD BY THE JURY THAT THE SUSPECT VEHICLE HAD BEEN SEEN EARLIER AT THE SCENE OF ANOTHER BURGLARY.

POINT III.

DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE VACATED (NOT RAISED BELOW).

A. THE LOWER COURT VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

B. DEFENDANT WAS NOT "A PROFESSIONAL CRIMINAL," PURSUANT TO N.J.S.A. 2C:44- 3b; THEREFORE, THE EXTENDED TERMS MUST BE VACATED.

C. THE LOWER COURT ERRED BY IMPOSING MULTIPLE EXTENDED TERMS.

D. THE LOWER COURT RECOGNIZED AN INAPPROPRIATE AGGRAVATING FACTOR.

I.

On January 15, 2002, Detective Michael P. Fitzpatrick of the Hillsborough Township Police Department, and Detective Darren Herrling of the Montgomery Township Police Department, members of a burglary task force (Task Force) formed by the Somerset County Prosecutor's Office to investigate and arrest individuals responsible for burglaries occurring in Hillsborough and Montgomery Townships, made application to the Law Division for an order authorizing the police to temporarily seize, if necessary, and surreptitiously enter a maroon 1 996 Mazda 626 automobile designated by a certain vehicle identification number and New Jersey license plate number, "for the sole purpose of installing a global positioning [system (GPS)] tracking device . . . and to monitor same for a thirty-day time period." After determining "probable cause exists therein to believe that the installation of the GPS tracking device for a thirty-day time period will yield evidence relating to the crimes of" burglary, theft, receiving stolen property, criminal mischief, and third-degree fencing, Judge Ashrafi entered an order on January 15, 2002, granting the application.

The order provided that Captain Ronald E. Thornburg and other law enforcement personnel assigned to the Task Force were authorized: "to seize said motor vehicle without the consent of the registered owner or other person authorized to give consent, by any means to include seizure by artifice, ruse, or trick;" "to surreptitiously enter said motor vehicle and covertly install a global positioning tracking device [in] the said motor vehicle;" and "to re-enter the said motor vehicle as often as is necessary during the stated time period of this Order for the purpose of maintaining, replacing, repairing, enhancing, moving or removing the said tracking device." The order also provided that the authorization to monitor the tracking device was valid for a period of thirty consecutive days from the date of installation, which had to occur within ten days of date of the order, and the "tracking device shall not be used to intercept nor obtain any wire, oral[,] or electronic communications."

On January 26, 2002, Detective Karen Hoelzel of the Hillsborough Township Police Department and Lieutenant Richard Ike of the Somerset County Prosecutor's Office, both members of the Task Force, along with eight to ten plain-clothes police officers traveling in groups of two or three, in four or five unmarked police vehicles, were conducting undercover surveillance of the Mazda automobile in a residential area of Hillsborough Township.

At 6:30 p.m., while Hoelzel and Ike were "in the area of Amwell Road" in Hillsborough, Hoelzel saw a maroon Mazda 626 exhibit an "unusual driving pattern," namely, "going in and out of the side streets off of Amwell Road, a lot of different cul-de-sacs, just back and forth." When asked whether she thought the car's occupants could have been lost, Hoelzel said that she did not. Although she agreed that it was possible such a driving pattern could indicate a lost or disoriented driver, she testified she knew the driver was not lost or disoriented. When asked how she knew, she replied, "[b]ecause the vehicle had been seen earlier at the scene of another burglary."

The car stopped on Ski Drive and stayed there for what Hoelzel estimated to be forty-five minutes to an hour. Lewis DeMeo, a detective in the Prosecutor's Office, testified that the car stayed on Ski Drive, unoccupied, for an hour or perhaps longer. DeMeo then saw someone "running through the yard" to the car, which pulled away a minute later and stopped just short of the street corner to pick up another person.

The car turned left onto Starview Drive and then left onto Murray Drive. DeMeo radioed that information to the other officers, some of whom blocked off both ends of Murray Drive. The car returned to Starview Drive, and the occupants exited, running around to the back of a house. Hoelzel and other officers arrived at the car's location, and she and some of the other officers searched the area on foot.

Scott was quickly found in a nearby creek wearing black and white batting gloves. DeMeo patted him down for weapons, and found a Rado watch, a Wenger Swiss watch, cash, a lottery ticket, and socks on his person. About a half hour later, Mathis was found hiding in the yard behind the house where he and Scott had left the car. Hoelzel found a pair of black "sweat socks" in that yard. No stolen items were recovered from Mathis's person.

Later that evening, Hoelzel responded to a reported burglary at 17 Murray Drive. On the rear deck of the house, Hoelzel found a brown leather jacket, which she seized because the homeowners said that it was not theirs. On the handle of the door leading from the house to the rear deck, she found one or two black fibers. She believed they were cotton or polyester and said they were "similar" to the socks she found in the yard where Mathis was arrested, although she was unable to testify as to the composition of the fibers beyond her unaided visual observation, because she neither looked for a label on the socks, nor had the fibers tested.

On January 27, 2002, Lee Niles, a sergeant in the forensics unit of the Somerset County Prosecutor's Office, searched Scott's car, and found a screwdriver "shoved between the right front seat and the console," a black "knit or watch-type cap," "a woman's watch," a flashlight, and Scott's wallet. There were no fingerprints, scratches, or paint chips on the screwdriver. Later that same morning, the police unsuccessfully canvassed the neighbors for observations relating to the burglaries. However, they did find a jar of coins containing almost $500 next to the driveway of 17 Murray Drive, which the owners said was not theirs. On the lawn across the street from that house the police found a green duffel bag containing a compact disc player, jewelry, foreign currency, and other items.

Between 6:00 and 6:30 p.m. that day, Hoelzer responded to a call about another burglary, at 12 Murray Drive. The police found pry marks on the master bedroom window at the rear of the residence, and a ladder propped up against the outside of the house. On that window, Hoelzel found black fibers that were similar in appearance and "[a]bout the same length" as the ones she found at 17 Murray Drive. Ryan Karsay, the owner of 12 Murray Drive, told Hoelzel that a brown jacket had been taken, which he later identified as the brown jacket Hoelzel had found at 17 Murray Drive. He also identified the jar of coins and some other items found by the police.

On January 26, 2002, Thea Worden and her family who resided at 17 Murray Drive, had left the house around 2:30 p.m. They returned sometime after 8:00 p.m., discovering that the back door was open, and a hall closet and master bedroom had been ransacked. A music box that contained jewelry was missing, along with jewelry, a Rado watch, another watch, coins and souvenirs from a trip, and a compact disc player. The next day the police told her about the green duffel bag that was found in a neighbor's yard, and Worden identified it and other personal property as belonging to her family.

II.

Both defendants challenge the order denying their motion to suppress all physical evidence obtained after the installation of the GPS tracking device in the Mazda automobile. Scott argues that the order authorizing the installation of the tracking device was invalid because there was insufficient evidence establishing probable cause concerning his involvement in the prior burglaries being investigated, or that the surveillance of the Mazda automobile would result in his arrest immediately following a residential burglary. Mathis makes a similar assertion, arguing that the State's evidence linking the car and Scott to the prior burglaries was "much too attenuated." We disagree.

Although the order of January 15, 2002, authorizing the installation of the GPS tracking device was not designated as a search warrant, the parties implicitly agreed below that the propriety of the order be determined by the standard of "probable cause." We concur. We hold that the validity of a judicial order or warrant authorizing the attachment or installation of a GPS tracking device to or in an automobile is to be determined by the standard of probable cause.

"[T]he Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect [individuals] against unreasonable police searches and seizures . . . ." State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). "It is an established principle of our federalist system that state constitutions may be a source of 'individual liberties more expansive than those conferred by the Federal Constitution.'" State v. Novembrino, 105 N.J. 95, 144-45 (1987) (quoting Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040, 64 L. Ed. 2d 741, 752 (1980)). The New Jersey Supreme "Court has frequently resorted to our own State Constitution in order to afford our citizens broader protection of certain personal rights than that afforded by analogous or identical provisions of the federal Constitution." Id. at 145. Accordingly, "[a]lthough the language of article I, paragraph 7 of the New Jersey Constitution is virtually identical with that of the fourth amendment, we have held in [certain] contexts that it affords citizens greater protection against unreasonable searches and seizures than does the fourth amendment." Ibid.

Because the police applied for and obtained a judicial order authorizing the temporary seizure of the automobile and the installation of the GPS tracking device therein, we need not decide the initial question of whether the installation of a GPS tracking device in an automobile first requires the obtainment of a search warrant. We note, however, that while the issue appears one of first impression in this State, other courts are divided on the question.

Generally, movements of automobiles are monitored by the police by use of beepers or the GPS. "A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver." United States v. Knotts, 460 U.S. 276, 277, 103 S. Ct. 1081, 1083, 75 L. Ed. 2d 55, 59 (1983). "The police can [monitor the signal and] determine whether they are gaining on a suspect because the strength of the signal increases as the distance between the beeper and the receiver closes." United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004). Beepers are used in conjunction with visual surveillance by police officers to assist in tracking moving objects such as automobiles. It requires real time monitoring by the police. Knotts, supra, 460 U.S. at 282-85, 103 S. Ct. at 1086-87, 75 L. Ed. at 63-64. "Measured against today's technology, a beeper is unsophisticated . . . ." Berry, supra, 300 F. Supp. 2d at 367-68.

A GPS tracking device is a more technologically advanced tracking system. The "GPS is based on a network of at least 24 satellites that continuously send out radio signals transmitting their locations. A GPS receiver back on Earth can then triangulate its three-dimensional position using the information received from at least four of the satellites." Aaron Renenger, Satellite Tracking and the Right to Privacy, 53 Hastings L.J. 549, 550 (2002). Contrary to a beeper, a GPS tracking device "is a substitute for police surveillance." Berry, supra, 300 F. Supp. 2d at 368. Depending upon the complexity of the GPS tracking device:

Such devices can be tracked with the aid of a computer that displays a map showing where the device is in real time. The computer's memory can store the device's movement moment-by-moment for days, weeks, or even years . . . . A GPS merely records electronically what the police could learn

if they were willing to devote the personnel necessary to tail a car around the clock.

[Ibid.]

The propriety of installing electronic tracking devices to monitor movements of motor vehicles is reviewed under the principles of search and seizure. Knotts, supra, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55. Because "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another," the installation of a beeper without first obtaining a search warrant does not violate the Fourth Amendment protection against unreasonable searches and seizures. Id. at 281, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62 (1983). While the Supreme Court has not yet ruled on whether search warrants are required for the installation of GPS tracking devices, other federal and state courts have.

Federal courts following the rational of Knotts have held that a search warrant is not required prior to affixing a GPS tracking device to a motor vehicle because there is no expectation of privacy in the whereabouts of a motor vehicle on a public highway. United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D. N.Y. 2005); see also United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (holding that the warrantless attachment of a GPS tracking device to the undercarriage of a motor vehicle did not constitute an unreasonable search or seizure).

State courts are divided. Some require a search warrant. In State v. Jackson, 76 P.3d 217 (Wash. 2003), Jackson called 9-1-1 and reported that his nine-year old daughter was missing from their home in Spokane Valley, Washington. Id. at 220. Determining that Jackson may have had involvement with his daughter's disappearance, the police obtained a warrant to search the residence and impound and search Jackson's two motor vehicles. Ibid. While the vehicles were impounded, the police obtained a second warrant authorizing them to attach GPS tracking devices to the motor vehicles. Id. at 220-21. Data from the GPS tracking device disclosed that Jackson had driven one of the motor vehicles twice to a remote location on a logging road. Id. at 221. The police later discovered Jackson's daughter's body in a shallow grave at that site. Tried to a jury, Jackson was convicted of his daughter's murder.

On appeal, Jackson argued that the warrants were issued without probable cause. The Court of Appeals "concluded that the warrants authorizing installation and use of the GPS devices were unnecessary under article I, section 7 of the Washington State Constitution; [and] the court thus did not reach the merits of Jackson's challenge to issuance of the warrants." Id. at 221. The court held "that use of the GPS devices was merely sense augmenting, revealing information that Jackson exposed to public view. The court noted that law enforcement officers could legally follow Jackson on his travels to the . . . two grave sites." Id. at 223. The Washington Supreme Court reversed, holding that a warrant was required under Washington State's constitutional provisions because the "use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government." Id. at 224. The Court rejected the argument that "use of the GPS devices to monitor . . . travels merely equates to following [a defendant] on public roads where he has voluntarily exposed himself to public view." Id. at 223.

However, other state courts have held that a search warrant is not required before police install a GPS tracking device. In Osburn v. State, 44 P.3d 523 (Nev. 2002), the police attached an electronic monitoring device (beeper) to the bumper of Osburn's vehicle to track his movements. Id. at 524. With visual surveillance and the aid of the beeper, the police observed Osburn committing voyeuristic activities. A search warrant was obtained for Osburn's residence and vehicle. Ibid. The police found burglary tools and child pornography. Osburn was arrested and charged with "three counts of open or gross lewdness, two counts of possession of burglary tools, two counts of use of a minor in producing pornography, and fifty-seven counts of possession of visual presentations depicting sexual conduct of a person under sixteen years of age." Ibid. Osburn moved to suppress the evidence obtained from the execution of the search warrant, arguing that the attachment of the beeper violated his Fourth Amendment right to be free from warrantless searches. Ibid. After denial of the motion, Osburn pled guilty to six of the charges, reserving his right to appeal the order denying the motion to suppress. Ibid.

On appeal, Osburn argued that "the attachment of an electronic monitoring device to the exterior of his vehicle constitut[ed] an unreasonable search and seizure within the meaning of the Nevada Constitution." Ibid. The Nevada Supreme Court held that the warrantless attachment of a monitor or beeper to the exterior of a motor vehicle did not constitute an unreasonable search and seizure under either the Federal or State Constitutions. Id. at 525-26. Although the case did not involve a GPS tracking device, the court adopted the rationale of McIver, which held the warrantless attachment of a GPS tracking device to a motor vehicle did not constitute an unreasonable search and seizure. Ibid. See also People v. Gant, 802 N.Y.S.2d 839 (Co.Ct. 2005) (holding that a warrant was not required prior to the affixing of a GPS tracking device on a motor vehicle to track its movements).

Here, the police sought and obtained a warrant. The question presented below, and on appeal, is whether the Law Division judge properly found "probable cause" for the issuance of the January 15, 2002 order. When reviewing the issuance of a search warrant by another judge, the court is required to "pay substantial deference to [the judge's] determination." State v. Kasabucki, 52 N.J. 110, 117 (1968); State v. Jones, 179 N.J. 377, 388 (2004). "A search based on a properly obtained warrant is presumed valid," and "the defendant has the burden of proving" that the search was improper for lack of probable cause or other infirmity. State v. Sullivan, 169 N.J. 204, 211 (2001); State v. Valencia, 93 N.J. 126, 133 (1983). Thus, if "'the adequacy of the facts offered to show probable cause'" on which the warrant was issued "'appears to be marginal, the doubt should ordinarily be resolved by sustaining the search.'" Jones, supra, 179 N.J. at 388-89 (quoting Kasabucki, supra, 52 N.J. at 116).

The existence of probable cause is determined on "'the totality of the circumstances . . . .'" Id. at 389 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)); Novembrino, supra, 105 N.J. at 123. It "is not a technical concept, but one drawn from the 'practical considerations of everyday life' as tested by reasonable persons." State v. Esteves, 93 N.J. 498, 505 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890, reh'g denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949)). There is "'no mathematical formula . . . for . . . deciding whether a search warrant was supported by probable cause[,] [and] [e]ach case depends upon a sensitive appraisal of the circumstances shown to the issuing judge.'" State v. Sims, 75 N.J. 337, 350 (1978) (quoting Kasabucki, supra, 52 N.J. at 117-18).

"Before issuing a [search] warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location, or that evidence of a crime is at the place sought to be searched." Sullivan, supra, 169 N.J. at 210. A search warrant must represent "'a practical, common-sense decision . . . [that] there is a fair probability that contraband or [other] evidence of [the suspected] crime will be found in [the] particular place'" to be searched, State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548, reh'g denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983)); Novembrino, supra, 105 N.J. at 117-18, as well as a belief "that 'the evidence sought will aid in a particular apprehension or conviction' for a particular offense." Dalia v. United States, 441 U.S. 238, 255, 99 S. Ct. 1682, 1692, 60 L. Ed. 2d 177, 191 (1979) (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782, 792 (1967)).

In weighing the quality of the information presented, the court "should take into account the specialized experience and work-a-day knowledge of policemen," as well as "the practical considerations of everyday life on which reasonably prudent and experienced police officers act." Kasabucki, supra, 52 N.J. at 117. The court must also recognize that probable cause does not require as much evidence as would be needed for a conviction, or even require evidence that would be admissible at trial. Id. at 116. However, there must be "something" to give the supporting evidence "reasonable credit" or "the appearance of trustworthiness." Id. at 117. The issuing judge may consider only the information set forth within the four corners of the supporting affidavits or in testimony that is sworn and contemporaneously recorded before the judge. Schneider, supra, 163 N.J. at 363.

We start with a review of the affidavits presented to the court. In his affidavit, Detective Fitzpatrick identified the suspect car, a maroon 1 996 Mazda 626, by license plate and vehicle identification number. Fitzpatrick attested that he was investigating nine similar burglaries in Hillsborough, which had occurred during the preceding eight months, and which he described both in summary and separately. The burglaries had occurred in an affluent section of Hillsborough, in houses on dead-end streets or cul-de-sacs, with no one present and no witnesses. Eight of the burglaries had occurred on either a Friday or Saturday night; the date of the ninth burglary was unknown due to its delayed discovery.

The first two burglaries were of neighboring houses on May 26, 2001, and on another night two houses approximately one mile apart were burglarized. In each burglary, entry was through a rear window or door, sometimes requiring force. The main target areas were the master bedrooms and closets, with the stolen items in six burglaries consisting of jewelry, cash, and electronic equipment, while no items were reported missing from the other three burglaries. The perpetrators could not be identified from the physical evidence that was recovered.

Fitzpatrick related that on the day after the first two burglaries, a neighbor of those properties told Hillsborough Police Detective Trevor Oldenberg he had seen a maroon Honda or Mazda car "parked in the neighborhood around 9:30 p.m." of the preceding evening. On November 23, 2001, eight days before the last of the nine Hillsborough burglaries, Fitzpatrick met with Montgomery Township Police Detective Sergeant Thomas Wayne and Detective Herrling to discuss similar burglaries in Montgomery Township. In December 2001, the Somerset County Prosecutor formed the Task Force to investigate all the burglaries.

On December 22, 2001, a Saturday night, Fitzpatrick and other Task Force detectives conducted undercover surveillance of the neighborhoods where the burglaries had occurred. They saw the suspect car at approximately 7:00 p.m. parked on a street in Montgomery, about 350 feet away from a residence for which the police would receive a burglary report about one hour later.

Fitzpatrick then investigated the car's registration to ascertain whether any law enforcement agencies had made inquiries of the registration during the period when the prior burglaries occurred. He discovered that the car had been the subject of a random look-up by Hillsborough police on July 30, 2001, and look-ups by Montgomery police on August 11, 2001, and October 1, 2001. The car was registered to Scott's father, Etoy, who lived at 491 Stuyvesant Avenue in Trenton. Further investigation established that Scott drove the car to and from his job at a trucking company. Fitzpatrick also asked the Trenton Police Department to search its records concerning jewelry sales to local pawn brokers, and was advised that on August 10, 2001, Scott had pawned five chains and two bracelets.

On January 5, 2002, a Saturday, Task Force detectives, conducting surveillance of Scott, saw him drive the suspect car, pick up an unidentified man, and proceed to drive "in a manner consistent with counter-surveillance measures," in particular "driv[ing] down two one-way streets." At that point the detectives ended the surveillance to avoid detection.

Fitzpatrick also contacted the police department of Lower Makefield Township, Pennsylvania, located across the Delaware River from Trenton, and learned that Scott had been arrested, and was "a member of an organized burglary ring that operates out of Trenton," known to the Lower Makefield police as the "Original Trenton Clan," several members of whom resided in Trenton. The Lower Makefield police named Scott and eleven other men as suspected members of the gang, which was "linked to" residential burglaries, typically committed on a Friday or Saturday in the early evening by a team of two or three, with the burglars parking their car one or two blocks away and entering the homes from the rear. The Lower Makefield police added that the burglars "would typically ransack the master bedrooms for jewelry and electronics equipment," and they "would wear socks over their hands to avoid leaving fingerprints." The gang sometimes burglarized two or three homes in the same neighborhood during the same evening, and sometimes returned to a neighborhood to commit other burglaries. Fitzpatrick attested that "other law enforcement sources" knew the gang as the "Higginbotham Gang."

Fitzpatrick concluded there was "probable cause to believe" that the installation and monitoring of the tracking device as requested would "yield evidence relating to" burglaries and thefts, as well as to the identity of the perpetrators and the location of the stolen property. He asserted that the absence of physical evidence at the crime scenes prevented identification of the perpetrators, surveillance had been unsuccessful, and further surveillance was unlikely to be fruitful because Scott's described "counter-surveillance methods" made physical surveillance "impracticable" and because the number of neighborhoods needing surveillance would "require too many detectives with a reduced chances [sic] of success." Fitzpatrick then outlined the successful prior use of a tracking device to apprehend and convict the perpetrators of approximately thirty-five residential burglaries in Somerset County committed in late 1999 and early 2000.

A companion affidavit by Detective Herrling described eight residential burglaries in Montgomery Township during the preceding three months. They had the same characteristics as the Hillsborough burglaries, namely: occurrence during the early evening on a Friday or Saturday; house location on a dead-end street or cul-de-sac in an affluent neighborhood; no occupants present and no witnesses; entry through a rear door or window; focus on the master bedroom and closets; and theft of jewelry, cash, and electronic equipment. Another similarity was that for a majority of the Montgomery burglaries, two neighboring homes were burglarized on the same night.

Herrling confirmed Fitzpatrick's description of the December 22, 2001 surveillance and burglary in Montgomery, adding that the burglary resembled all the prior ones. When Herrling received the report of that burglary, he sent officers to the location where the suspect car had been parked, but the officers found the automobile was no longer in the vicinity. A "neighborhood canvass" for information relating to the car failed to yield anyone who knew of the suspect car "or [had] entertained visitors from the Trenton area" on the date of the burglary.

Herrling further attested that a search for all licensed drivers residing at the address listed in the car's registration yielded Scott's name, and Scott's "supervising parole officer" confirmed that Scott drove the car. A search of State Police records showed Scott had eighteen prior arrests leading to ten indictments and "at least five" convictions in New Jersey for crimes that included burglary, theft, receiving stolen property, and drug-related offenses. Herrling sought information related to the investigation from the Princeton Township police, who advised him that the style of burglary was "associated with the 'Higginbotham gang,'" who committed residential burglaries in New Jersey and Pennsylvania.

We determine, after applying the standards of review against the facts contained in the two affidavits, that Judge Armstrong's decision on the motion was correct. The facts that the police presented may have been "attenuated" when viewed in isolation; however, when viewed together, they established probable cause.

III.

Both defendants also argue the trial judge erred in denying their motions for a new trial due to testimony that the Mazda automobile had been observed at the scene of an earlier burglary for which they were not charged. Defendants contend that the prosecutor violated his promise that the State and its witnesses would avoid the subject unless the door was opened in cross-examination, and the prosecutor's violation of that promise obligated the trial judge to apply prosecutorial estoppel. Defendants further assert that the curative instruction, to which they did not object, was inadequate to neutralize the prejudice from that testimony. We reject these arguments.

At a pretrial conference, the prosecutor represented that the State would not mention the prior observation of the car in the same neighborhood as the burglaries for which defendants were indicted. The prosecutor also represented that the State would not mention the tracking device or its use, and its witnesses would instead "pick up the story as if [defendants] just happened to be followed by the police[,] and lo and behold[,] they commit a burglary," with "no insinuation of prior investigations [or] burglaries in that neighborhood." However, while the prosecutor had instructed the State's witnesses "not to say anything in that regard" and "to make every effort not to discuss electronic surveillance or burglaries," he also directed them "on cross-examination if they are asked a question and the only reasonable answer is a discussion of those issues, then they [were] to answer truthfully."

Hoelzel testified about the car's "unusual driving pattern" of going down one side-street of Amwell Road after another. She disagreed when Scott's counsel asked if the driver could have been lost, but agreed with his suggestion that it was possible for a lost or disoriented driver to exhibit such a driving pattern. On re-direct, the prosecutor then asked the questions which elicited the testimony that is the subject of this issue:

Q. [Scott's counsel] asked you whether the driver could have been disoriented. Do you recall those questions?

A. Yes.

Q. As you sit here today under oath before these ladies and gentlemen, do you know whether in fact he was lost or disoriented?

A. Yes, I do.

Q. And what was it?

A. He was not lost or disoriented.

Q. How do you know that he was not lost or disoriented when he was observed in that neighborhood?

A. Because the vehicle had been seen earlier at the scene of another burglary.

Defendants' counsel objected, and moved for a mistrial. The prosecutor asserted that he expected Hoelzel to answer that "he was not lost and disoriented because we had been following him from the City of Trenton up through Hunterdon County." The prosecutor argued Scott's counsel had opened the door "by insinuating that the defendants had some legitimate reason to be there" which the police should have presumed, instead of intercepting the car before they had any information that its occupants were engaged in illegal conduct.

The trial judge determined that Scott's counsel had not opened the door, and implicitly denied the motion for a mistrial, addressing the matter by a curative instruction:

As Detective Hoelzel was testifying the State had posed a question: "How do you know that he was not lost or disoriented when he was observed in that -- that neighborhood?"

And the detective responded: "Because the vehicle had been seen earlier at the scene of another burglary."

I direct you as jurors to specifically disregard this specific answer by Detective Hoelzel. It is to play no role in your deliberations and ultimately your resolution of the question of the guilt or innocence of the defendants in this case.

There has been no testimony when that prior event may have occurred. There is no proof that a burglary did occur. Three, there is no evidence that defendants were identified at that scene. And four, the fact that the car may have been seen in no way links the defendants to that event.

Again, I direct you that you are to disregard this response by the detective.

Defendants did not object to the instruction or ask the court to revisit the matter in the closing jury charge. Instead, after the verdict, they moved for a new trial based on Hoelzel's testimony and on the inadequacy of the curative instruction, which the court denied on the grounds that "the testimony was not serious enough to warrant a mistrial," the curative instruction was adequate, and defense counsel accepted the instruction without making "any additional request[s] that were [sic] denied."

A trial court has the discretion to decide whether a curative instruction can suffice to negate the prejudice from inadmissible evidence:

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.

[State v. Winter, 96 N.J. 640, 646-47 (1984).]

Accord State v. Hogan, 297 N.J. Super. 7, (App. Div.), certif. denied, 149 N.J. 142 (1997). Similarly, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court" because "[t]he adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Winter, supra, 96 N.J. at 647.

A party's failure to object to a jury instruction is presumed to reflect an assessment of the charge as unlikely to prejudice his or her case. See State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 333-34 (1971). That failure is an indication that the instruction was not clearly capable of causing prejudice, which is the standard for establishing plain error. See Wilbely, supra, 63 N.J. at 422; Macon, supra, 57 N.J. at 334. In addition, juries are presumed to understand and follow instructions. State v. Loftin, 146 N.J. 295, 390 (1996); State v. Manley, 54 N.J. 259, 271 (1969). However, the presumption "that the jury had the intelligence and understanding to follow the direction of the court to be guided only by the evidence actually adduced" can be rendered questionable by "[p]ronounced and persistent misconduct having a probable cumulative effect upon the jury . . . ." State v. Witte, 13 N.J. 598, 612 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954).

Here, the officer's comment, referencing the prior observation of the Mazda automobile and limited in duration, was neither repeated during the trial, nor referred to in the prosecutor's closing argument. The trial judge sustained defendants' objection, and gave a strong curative instruction. Because defendants do not challenge the sufficiency of the other admitted evidence of guilt, which we determine to be overwhelming, we conclude that there was no error in denying defendants' motions for a mistrial. Winter, supra, 96 N.J. at 649-51; State v. LaPorte, 62 N.J. 312, 317-20 (1973).

IV.

Scott argues the judge erred by allowing Hoelzel to testify that the black fibers, which she found at the scene of both burglaries, were similar to those comprising the fabric of the black socks she had found in the yard where Mathis was arrested. He argues such a conclusion required expert testimony, Hoelzel was not an expert, and her testimony was plain error because it could have persuaded the jury that he had been at the scene of both burglaries.

Because Scott failed to object to this testimony, we review for "plain error," i.e., error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The test is whether the possibility of an unjust result from the error is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

"As a preliminary matter, a trial court's evidentiary rulings are 'entitled to deference, absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Accordingly, "an appellate court should not [upset the decision] of the trial court unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting Marrero, supra, 148 N.J. at 484) (internal quotation omitted).

A non-expert witness may give "testimony in the form of opinions or inferences" as long as "it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness'[s] testimony or in determining a fact in issue." N.J.R.E. 701. Experts may testify on the basis of "knowledge, skill, experience, training, or education," N.J.R.E. 702, although they may not give a "net opinion," which is a bare conclusion with no explanation to serve as a foundation. In re Yaccarino, 117 N.J. 175, 196 (1989); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

By contrast, "[a] lay witness may give an opinion on matters of common knowledge and observation." State v. Johnson, 120 N.J. 263, 294 (1990). The Johnson Court ruled that a police officer did not have to be qualified as an expert in footprint identification in order to testify that the pattern of a footprint at the crime scene matched the pattern of the defendant's shoe, because "no subtle analysis or scientific determination" was needed. Ibid. (quotations omitted).

In this case, Hoelzel did not testify that the black fibers had been proven to any particular degree of certainty as having come from the socks that she found near the site of Mathis's arrest. She admitted that the fibers had not been tested, and she had no experience in testing fibers; she did not identify the composition of the fibers or of the socks other than to say she believed them to be either cotton or polyester; and she said they appeared similar solely on the basis of her unaided visual appraisal. Hoelzel was not offered as an expert, and she admitted her lack of expertise in front of the jury, so her testimony could not have had the effect of an expert's "net opinion."

Turning to the admissibility of Hoelzel's testimony as a lay opinion, her statement that the fibers seemed to be similar was rationally based on her own perceptions about a matter of common knowledge and observation, i.e., whether fibers appeared to be composed of materials that were more similar to each other, such as cotton and polyester, than to other materials such as wool. Contrary to Scott's argument, State v. Kelly, 97 N.J. 178 (1984), does not indicate that the subject required expert testimony. The opinion testimony in Kelly concerned "battered-woman's syndrome," a psychological phenomenon far beyond common knowledge and understanding of the average juror, and an appropriate subject for expert opinion. Id. at 187, 200-09. Hoelzel's testimony about the threads was admissible for the assistance it might provide the jury in determining the contested fact of whether Scott was a participant in both burglaries, and the jury had sufficient information about Hoelzel to weigh her credibility.

Even assuming we were to reach a different determination concerning the admissibility of Hoelzel's testimony concerning the fibers, we are satisfied that its admission does not constitute plain error requiring reversal. "Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); see R. 2:10-2. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Burton, supra, 309 N.J. Super. at 289. At the time of Scott's arrest, several items were found on his person that were identified as having been stolen from the house at 17 Murray Drive. The police also found at that house the brown jacket which was identified as having been stolen from 12 Murray Drive, with no other explanation for its presence at 17 Murray Drive, other than it was left there by persons who had stolen it. We are satisfied beyond a reasonable doubt that there was other evidence in the record supporting the conclusion that both burglaries were committed by the same perpetrators. Accordingly, we determine the testimony harmless. R. 2:10-2.

V.

Before trial, the judge ordered all witnesses to be sequestered. Although the exact instruction does not appear in the record, Scott describes the order as being "general." Scott argues the judge erred by failing instruct the jury that the State's witnesses violated the sequestration order before they testified. He contends that he was entitled to such an instruction even though he cannot establish prejudice. Fitzpatrick testified that he did not have personal knowledge about the discovery of the two watches on Scott's person at the time of arrest, and he learned about the discovery from discussing the case with Officer DeMeo "[a]s we were sitting outside prior to our testimony." Fitzpatrick represented that he and DeMeo had discussed the case "[j]ust in general terms" by addressing "just what happened that night" and "[g]oing over the facts of how it played out." The discussion had occurred before either officer testified and Fitzpatrick stated that his discussion with DeMeo did not alter his own testimony in any way. Scott's counsel cross-examined Fitzpatrick on his understanding of sequestration orders, and defendants moved for a mistrial before Fitzpatrick resumed testifying.

The judge found that its sequestration order had not specified any particular conditions. He ruled that the discussion between Fitzpatrick and DeMeo did not violate the "ordinary understanding" of sequestration:

no witness is permitted in the courtroom while the trial is in progress except when that witness is testifying; two, that after a witness has testified he or she may not discuss his or her testimony with any other witnesses until all the witnesses have testified. . . . And three, that counsel may not discuss the case with one witness in the presence of a second witness.

The judge stated further that the point of sequestration "is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence." Determining the absence of such an occurrence, the judge denied the motions for a mistrial. Moreover, because the cross-examination of Fitzpatrick implied a violation of the sequestration order had occurred, the judge granted the State's request for an instruction that no violation had occurred. The trial judge gave an instruction which explained the sequestration order, the claim of a violation, the reasons why no violation occurred, and how the jury was to assess the witnesses' credibility.

The purpose of sequestration is "to prevent prospective witnesses from hearing what the other witnesses detail in their evidence, 'for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbias[]ed.'" State v. DiModica, 40 N.J. 404, 413 (1963) (quoting State v. Zellers, 7 N.J.L. 220, 226 (Sup. Ct. 1824)). An alternative characterization is that the purpose "is to discover truth, [and to] detect and expose falsehood," and to "prevent[] testimony of one witness from being influenced by another" and "preventing witnesses from shaping their testimony to match that given by other witnesses within their hearing." State v. Jascalevich, 158 N.J. Super. 488, 492 (Law Div. 1978).

If sequestration is ordered, and a witness for one party then violates the order, the remedy is a mistrial, but only if the prejudice to the party would result in a "manifest injustice." State v. Tillman, 122 N.J. Super. 137, 140 (App. Div.), certif. denied, 62 N.J. 428 (1973). When "it does not clearly appear that the violation . . . possesses a potential for prejudice," the court should consider a remedy less drastic than a mistrial or the exclusion of the entirety of the witness's testimony, such as to "call the disobedience of the order to the attention of the jury as bearing on the credibility of the witnesses involved." Id. at 144.

Here, the judge did order sequestration, so the question is whether the court's failure to instruct the jury that a violation had occurred was reversible error. In Tillman, the sequestration order was violated because the prosecutor, within the presence of a second witness who had not yet testified, discussed the case with a witness who already had. Id. at 142-43. See also Cacciarelli v. Boniface, 325 N.J. Super. 133 (Ch. Div. 1999) where the order was violated when a relative of three sequestered witnesses attended the testimony given by another sequestered witness, took notes, and then discussed that testimony in "generalities" with some of the sequestered witnesses who had not yet testified. Neither of those situations occurred here, because Fitzpatrick and DeMeo had their discussion before either of them testified.

Also, there was no prejudice to defendants from the discussion between DeMeo and Fitzpatrick. Indeed, their testimony was not consistent, as DeMeo stated that socks were found in Scott's pockets, while Fitzpatrick did not name those socks in his list of Scott's clothing or otherwise account for them. The remainder of their testimony, which concerned their participation in the surveillance on the night in question and the arrest of defendants by other officers, was cumulative to the more-detailed testimony of several other officers, and therefore, added very little to the State's case. We conclude that the trial judge correctly found no violation of either the purpose or spirit of his sequestration order. Nor do we find error in the curative instruction provided to the jury. The instruction accurately reflected the case law on sequestration.

VI.

In imposing sentence on Scott, the trial judge granted the State's motion for an extended term, determining Scott eligible under N.J.S.A. 2C:44-3b for extended-term sentencing "as a professional criminal" based upon his criminal history. The judge found four aggravating factors: 1) the risk of committing another offense; 2) the extent of the prior criminal record; 3) the need to deter the defendant and others from future violations; and 4) a fine, penalty, or restitution, instead of imprisonment, would be perceived by defendant or others as an acceptable "cost of doing business." N.J.S.A. 2C:44-1a(3), (6), (9), and (11). The judge found no mitigating factors, determined that the aggravated factors were "clearly controlling," and imposed concurrent extended-term sentences of seven years imprisonment with three and one-half years parole ineligibility on each of the four third-degree convictions for burglary and theft, and a concurrent ordinary term of eighteen months imprisonment on the fourth-degree conviction for resisting arrest.

Scott argues that the imposition of the extended term was manifestly excessive, and represents an abuse of the sentencing judge's discretion. Scott contends that the remoteness of his prior convictions vested the sentencing court with discretion to deny the State's motion for extended-term sentencing, and the absence of a finding that he needed to be deterred from future acts of violence made the imposition of an extended-term sentence improper. Scott contends that even if extended-term sentencing were proper, the statutory scheme allows only one extended-term sentence, and therefore, the judge erred by imposing four of them. In addition, he argues the imposition of a period of parole ineligibility was improper because the sentencing statutes require the judge to be "clearly convinced" that the aggravating factors predominate over the mitigating factors, and the judge only found that the aggravating factors were "clearly controlling." Scott further argues that his sentence violates the constitutional standards applicable to extended-term sentencing, that is, the determination that the extended term was necessary for public safety should have been made by a jury beyond a reasonable doubt, rather than by the judge as a matter of sentencing discretion. Lastly, he asserts that he should not have received more than the presumptive term on any conviction.

In sentencing Mathis, the trial judge also granted the State's motion for extended-term sentencing, concluding that Mathis was a "professional criminal" under N.J.S.A. 2C:44-3b. The judge found aggravating factors, N.J.S.A. 2C:44-1a(3), (6), (9), and (11). The judge found no mitigating factors, and concluded that the aggravating factors were "clearly controlling." Mathis was sentenced to concurrent extended terms of seven years imprisonment with three and one-half years of parole ineligibility on each of the four third-degree convictions for burglary and theft, and to concurrent ordinary terms of eighteen months imprisonment on the two fourth-degree convictions of resisting arrest and hindering apprehension.

Mathis also claims that the sentencing judge committed several errors. He argues that the judge incorrectly found him eligible for extended-term sentencing under N.J.S.A. 2C:44-3b as a "professional criminal" without any evidence that he was involved with organized crime. He argues further that it was error for the sentencing judge to find aggravating factor N.J.S.A. 2C:44-1a(11) and to impose more than one extended-term sentence. Mathis contends that both the decision to impose an extended-term sentence, based on his supposed involvement in organized crime, and the actual terms imposed, which exceeded the presumptive ordinary terms for offenses of the same degree, were unconstitutional because they rested on judicial findings, rather than findings by a jury beyond a reasonable doubt. Lastly, Mathis asserts that it was error for the judge to sentence him to an eighteen-month term of imprisonment on each of the fourth-degree convictions when the presumptive term was only nine months.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court . . . ." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an "appellate court[] may review and modify [a] sentence[] . . . when the trial court's determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). "[A]ppellate review of [a] sentence requires examination of whether correct legislative standards or guidelines have been followed, review for substantial evidence in [the] record to support findings, and determination whether [the] sentence 'shocks the judicial conscience.'" State v. Pierce, ____ N.J. ____, _____ (2006) (slip. op. at 14) (quoting State v. Roth, 95 N.J. 334, 364 (1984). "An abuse of discretion standard applies in the review of a sentencing court's decision to impose an extended-term sentence." Id. at n.4.

Defendants argue against extended-term sentencing. Both contend that even if extended-term sentencing were proper, the statutory scheme allows only one extended-term sentence; therefore, the judge erred by imposing four of them. Both further assert that the court violated the constitutional standards applicable to extended-term sentencing and to the imposition of eighteen months imprisonment on the fourth-degree convictions, citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

We first address the court's determination that each defendant was eligible for extended-term sentencing as a "professional criminal." N.J.S.A. 2C:44-3b. "A professional criminal is a person who committed a crime as part of a continuing criminal activity in concert with two or more persons, and the circumstances of the crime show that he has knowingly devoted himself to criminal activity as a major source of livelihood." Ibid. Here, the judge made no such findings as to either defendant, but rather articulated reasons more consistent with a determination that defendants were eligible for extended-term sentencing as persistent offenders under N.J.S.A. 2C:44-3a. The imposition of an extended-term sentence under N.J.S.A. 2C:44-3a is not violative of Blakely because it is based on a defendant's record of prior criminal convictions, and thus, falls within the recidivism exception to the holdings in Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Pierce, supra, slip op. at 9-10; State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005).

The State concedes, however, and we concur, that the trial judge erred in imposing more than one extended-term sentence. The statutory injunction that "[n]ot more than one sentence for an extended term shall be imposed," N.J.S.A. 2C:44-5a(2), means that only one extended-term sentence may be imposed on any occasion when multiple sentences reflecting separate convictions are issued. State v. Papasavvas, 163 N.J. 565, 627 (2000). Accordingly, we vacate the extended-term sentences imposed on each defendant's four third-degree convictions; and remand for re-sentencing. At the re-sentencing hearings, the trial judge is to determine each defendant's eligibility for extended-term sentencing under the persistent offender statute and their respective base terms in accordance with Pierce.

The State also concedes, and we again concur, that the eighteen-month jail terms imposed on each of the fourth-degree crimes exceeded the then presumptive terms of nine months, and are violative of State v. Natale, 184 N.J. 458 (2005). Accordingly, we also vacate the sentence imposed on each defendant's fourth-degree conviction for resisting arrest and on Mathis's fourth-degree conviction for hindering apprehension.

The judgments of conviction are affirmed; the sentences imposed are vacated; and the matters are remanded for re-sentencing in accordance with this opinion.

 

We consolidated the appeals for purposes of this opinion.

The order was not designated as a search warrant, nor did either of the affidavits filed in support of the application state that they were being submitted in support of a search warrant.

But see State v. Campbell, 759 P.2d 1040 (Or. 1988) holding that a warrantless attachment of a monitoring radio transmitter (beeper) to a motor vehicle constituted an unreasonable search under Article I, Section 9 of Oregon's Constitution.

Scott asserts in his brief that he was sentenced as a persistent offender under N.J.S.A. 2C:43-3a. A review of the sentencing transcript and the judgment of convictions discloses, however, that he was sentenced to an extended term upon a finding that he was a "professional criminal," N.J.S.A. 2C:43-3b.

(continued)

(continued)

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A-0039-04T4

 

September 15, 2006