STATE OF NEW JERSEY v. ANTHONY SPRUILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1258-04T41258-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY SPRUILL,

Defendant-Appellant.

___________________________

 

Submitted March 14, 2006 - Decided March 31, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal Part,

Essex County, 04-02-0404.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Lora B. Glick,

Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Defendant appeals from his convictions, following a jury trial, on charges arising from a July 31, 2003, incident. He also appeals from the sentences imposed. Because we find no defect in the proceeding leading to the convictions, we affirm the convictions; but we remand for re-sentencing.

Essex County Indictment No. 2004-2-404 charged defendant with: second-degree conspiracy to possess a controlled dangerous substance (heroin and cocaine) with intent to distribute, N.J.S.A. 2C:5-2 (Count One); third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1) (Count Two); third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1), and b(3) (Count Three); third-degree possession of a controlled dangerous substance (heroin), with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Four); second-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 500 feet of a public housing facility, a public park or a public building, N.J.S.A. 2C:35-7.1 (Count Five); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (Count Six); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1), and b(3) (Count Seven); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Eight); and second-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 500 feet of a public housing facility, a public park or a public building, N.J.S.A. 2C:35-7.1 (Count Nine).

Defendant was convicted of all nine counts and sentenced on September 24, 2004. Counts One, Two, and Three merged with Count Four and Counts Six and Seven merged with Count Eight. Defendant was sentenced to two concurrent five-year custodial terms, each with a three-year period of parole ineligibility, on the convictions of the third-degree crimes charged in Counts Four and Eight. He was also sentenced to concurrent ten-year custodial terms on the convictions for the second-degree offenses alleged in Counts Five and Nine. The sentences on Counts Five and Nine were to run concurrent to the sentences imposed on Counts Four and Eight. Appropriate fines and penalties were also imposed.

Defendant does not challenge the sufficiency of the evidence supporting his conviction and, accordingly, we do not recount it in great detail. It is sufficient to note that the State produced evidence that several members of the Newark Police Department were in the area of 100 Spruce Street, investigating complaints of narcotics activity. They observed what they understood to be a drug transaction involving defendant and several other individuals. The police officers approached the doorway of 100 Spruce Street and apprehended defendant and two others. The State produced evidence that similarly packaged drugs were recovered from each of the individuals.

Defendant did not testify. Instead, he produced the testimony of a co-defendant, Teresa Aikens, who the police had identified as being a participant in the transaction. Aikens had pled guilty and was awaiting sentencing. She testified that she did not know defendant personally, although she had seen him "around." She also testified that she saw the police search defendant but did not see any narcotics removed from his person.

Defendant also had the benefit of testimony from the other individual charged, Terrell Walker. Walker denied any involvement in the transaction and denied possession of the drugs the police officers testified were on his person. He also denied knowing defendant. In short, the evidence provided a classic factual contest that was ultimately resolved against defendant.

In summation, counsel attempted to explain the evidence against defendant. He explained:

I would submit to you that when you ... consider all of the evidence on both sides, they went there and just rousted people. They went to this high drug area, and just searched people around, searched people who they could find, they searched for drugs. And the -- the drugs are not always on the people. Drugs are not always on the people. And then [the police] made arrests, and then finally transported the people they arrested into the police station, and never went out on the street again during that tour. That was I think Officer Cabrera's testimony, and maybe that of another. That was their day's work.

In response, the prosecutor, before reviewing the testimony of the police officers, said:

Defense counsel would have you believe that these police officers are evil. That's a nice old fashion word I'd like to use, evil. You don't hear that word around too often anymore, but I like to use it, cause it covers so many areas and so many different nuances. They are evil. They have come in here, and they have deliberately lied to you. They have, for whatever reason, pointed to these two defendants and said these two individuals are selling narcotics on July 31st, 2003 -- 2003 in front of 100 Spruce Street, in the City of Newark.

Defendant now argues that the prosecutor's comment was tantamount to an improper commentary supporting the police officers' testimony. See State v. Thornton, 38 N.J. 380, 398-99 (1962) cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). In evaluating that claim, we are mindful that there was no objection to the comment at the time it was made. Accordingly, we evaluate the claimed error in accordance with the plain error standard. R. 2:10-2. That standard prohibits a reversal absent a showing that the error was "clearly capable of producing an unjust result." Ibid. To secure a reversal based on the claimed error, defendant must show that it was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

The comment followed a summation in which defense counsel attacked the credibility of the police officers. The response did no more than restate the defense argument in preparation for a rebuttal that included the legitimate argument that a more compelling, simpler story could have been produced had the police intended to lie. The comments cannot be seen as improper and certainly cannot be seen as probably leading the jury to a result it might otherwise not have reached.

Defendant has also filed a pro se brief. We have carefully reviewed that brief in light of the record before us and have concluded that none of the arguments raised have sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

Although we have found no defect warranting reversal of the convictions, we are satisfied that the matter must be returned for re-sentencing. Counts Four and Eight charged third-degree crimes and Counts Five and Nine charged second-degree crimes. At the time of sentencing, the New Jersey Penal Code provided for the imposition of a sentence on a third-degree crime of a term from between three years and five years, N.J.S.A. 2C:43-6(a)(3), with a presumptive term of four years, N.J.S.A. 2C:44-1(f)(d). The Code at that time provided for the imposition of a sentence for a second-degree crime of a term from between five years and ten years, N.J.S.A. 2C:43-6(a)(2), with a presumptive term of seven years, N.J.S.A. 2C:44-1(f)(c).

The sentences imposed here exceeded the presumptive terms. In imposing the sentences, the judge found three of the aggravating factors described in N.J.S.A. 2C: 44-1(a): "(3) The risk that defendant would commit another offense; . . . (6) The extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; . . . [and] (9) The need for deterring defendant and others from violating the law[.]"

As the result of constitutional challenges to the sentencing provisions of the Code, the Supreme Court eliminated presumptive terms and required re-sentencing of any defendant who had received a term of imprisonment that (1) exceeded the presumptive term and (2) was based on aggravating factors other than defendant's prior criminal record. State v. Natale, 184 N.J. 458 (2005). Since the trial court here imposed sentences above the presumptive terms and relied on factors other than defendant's prior criminal record, we are constrained by the language of Natale to remand for re-sentencing on Counts Four, Six, Eight and Ten.

The State argues that, since the sentences were based upon factors (3), (6), and (9), a remand is not necessary. We disagree. The language of State v. Abdullah, 184 N.J. 497, 506 n.2 (2005), upon which the State relies, does not permit the use of factors (3), (6) and (9) to increase a sentence above the presumptive sentence in all cases. It only suggests that such use might be permissible if "the trial court specifically [finds] that aggravating factors (3), (6) and (9) related to defendant's prior convictions as the basis for increasing defendant's sentence above the presumptive [.]". Ibid. Here, the judge made no such findings. He said only that "Aggravating factors are 3, 6, and 9. Mitigating factors are not [found] in this case." Although he commented on defendant's prior convictions, he did not relate factors (3) and (9) to that record. The judge's comments are not sufficient to avoid a remand, even if we were to conclude from the Abdullah footnote that the use of factors (3), (6) and (9) are constitutionally permissible. When re-sentencing, the judge should be guided by the instruction contained in Natale and Abdullah.

The convictions are affirmed and the matter is remanded for re-sentencing consistent with this opinion.

 

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A-1258-04T4

March 31, 2006