STATE OF NEW JERSEY v. BILEN B. YENICI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2814-04T42814-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BILEN B. YENICI,

Defendant-Appellant.

_______________________________________________________________

 

Submitted May 15, 2006 - Decided June 29, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0102.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Bilen B. Yenici, appeals from his October 7, 2002 final judgment of conviction on Middlesex County Indictment No. 02-01-0102, charging him with third-degree possession of a controlled dangerous substance (CDS), Methylenedioxymethampheta-mine (MDMA), contrary to N.J.S.A. 2C:35-10a(1) (Count One), first-degree possession of MDMA in a quantity of five ounces or more with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count Two), and second-degree conspiracy to distribute MDMA in a quantity of five ounces or more, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Count Three). Defendant was sentenced on October 7, 2002. The judge merged Count One into Count Two for sentencing purposes. On Count Two, defendant was sentenced to ten years imprisonment, with three years and four months to be served without parole. On Count Three, a concurrent term of seven years imprisonment was imposed, with three years and four months to be served without parole. We affirm.

On March 16, 2001, an inspector with the U.S. Customs Service working in the mail room at J.F.K. Airport in New York observed a package addressed to Bay Unlimited, located at 217A Sierra Court in Woodbridge Township. The inspector's attention was drawn to the package because it came from Turkey, a "narcotics source country." Because it was addressed to a corporation, he wanted to insure that all applicable duties had been paid on the package. He placed the package in an X-ray machine and it disclosed two containers of pills. A field test was positive for 7,095 Ecstasy pills.

The inspector contacted the U.S. Customs Office in Newark about the package. A Customs agent retrieved the resealed package and contacted local law enforcement, which turned the package over to the Middlesex County Prosecutor's Office. The prosecutor thereafter arranged a controlled delivery to the addressee.

On March 19, 2001, the narcotics task force from the Middlesex County Prosecutor's Office procured search warrants for the package and for 217A Sierra Court. United States Postal Inspector, Kevin Louis (Louis), dressed as a postal deliveryman and drove to Unit 217A Sierra Court. With officers surrounding the apartment unit, Louis knocked on the door. When no one answered, he returned to the postal vehicle. As Louis was about to drive away, a man, later identified as defendant, came running up to him, saying, "Do you have a package for Bay Unlimited?" Louis replied that he did. Defendant returned to the unit and signed a receipt for the package. After the delivery was confirmed by Louis to the officers, the officers observed defendant running from the rear of his apartment unit. The police immediately gave chase. They identified themselves and ordered defendant to stop.

Defendant was ultimately apprehended and escorted back to his residence. The package was seized and a search of the residence, pursuant to the search warrant, was conducted. As other officers searched the apartment, Investigator Marc Levy (Levy) stayed with defendant in the kitchen, and read defendant his Miranda rights. Defendant told Levy that he had been in Turkey recently, and had met a man named Ibo, who asked him if he would accept delivery of a package in the United States in exchange for $12,000. Defendant stated that when he agreed to accept delivery, he believed the package would contain something illegal. On further questioning, defendant admitted that he believed the package contained cocaine or Ecstasy, but he was not sure which one.

The detectives who searched the two bedroom apartment found, in defendant's sister's bedroom, a clear plastic bag containing a white powdery substance and a music C.D. holder entitled, "Elements of Ecstasy." The white powdery substance in defendant's sister's bedroom weighed 1.13 grams. The package seized from defendant weighed 4.3 pounds.

At trial, Sergeant Albert J. Camesa was qualified as an expert on the drug Ecstasy. He opined that the 4.3 pounds of Ecstasy pills was for distribution and that the 1.13 grams was for personal use. Camesa testified that Ecstasy heightens the senses and is routinely taken during "Ecstasy trips" at clubs that play rave music or techno music.

Defendant presents the following arguments for our consideration:

POINT I

YENICI WAS ENTITLED TO A CHARGE OF IGNORANCE OR MISTAKE OF FACT PURSUANT TO N.J.S.A. 2C:2-4b ON HIS DEFENSE THAT HE DID NOT KNOW PRECISELY WHAT WAS IN THE PACKAGE.

POINT II

TESTIMONY REGARDING THE CLEAR PLASTIC BAG OF WHITE POWDER AND THE C.D. ENTITLED "ELEMENTS OF ECSTASY" FOUND IN HIS SISTER'S ROOM SHOULD HAVE BEEN SUA SPONTE EXCLUDED BY THE TRIAL COURT FROM EVIDENCE IN THE CASE AT BAR AS IRRELEVANT AND UNDULY PREJUDICIAL TO YENICI. (Not raised below.)

POINT III

THE MOTION COURT REVERSIBLY ERRED DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS YENICI'S STATEMENT GIVEN IN HIS APARTMENT IMMEDIATELY AFTER HIS ARREST WHICH WAS INTER-RELATED WITH A TAPED VERSION OF THAT ORAL STATEMENT WHICH WAS SUPPRESSED.

POINT IV

THE TRIAL COURT SHOULD HAVE GRANTED YENICI'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS 2 AND 3 BECAUSE THE STATE FAILED TO ADEQUATELY PROVE THAT HE KNEW EXACTLY WHICH DRUG OR OBJECT WAS IN THE PACKAGE.

POINT V

THE MOTION COURT REVERSIBLY ERRED IN REJECTING YENICI'S MOTION FOR A NEW TRIAL ON THE BASIS OF (1) NEWLY DISCOVERED EVIDENCE AND (2) THE STATE'S FAILURE TO PROVIDE EXC[UL]PATORY EVIDENCE.

POINT VI

YENICI'S SENTENCES SHOULD BE REVERSED AS EXCESSIVE AND ILLEGAL.

Defendant first alleges that the trial judge erred in not charging the jury on the defense of mistake of fact under N.J.S.A. 2C:2-4. Defendant contends that he was entitled to assert the defense because he did not know precisely what was inside the package.

The judge reviewed the testimony from the police as to defendant's knowledge:

[T]he alleged oral statement that was made by the defendant, was testified to by Investigator Marc Levy that the defendant [said that he] didn't exactly know what it was but he believed it to be drugs, either cocaine or possibly Ecstasy, but he wasn't sure. Sergeant Camisa said first he said he didn't know exactly what was in it, but then he had a suspicion that it was something illegal.

In discussions with the judge on the form of the charge, the prosecutor requested that the judge charge the jury as follows:

The nature of the controlled dangerous substance is not an element of the offense. Thus, the State does not have to prove that the defendant knew precisely what controlled dangerous substance was possessed.

Defense counsel objected to the proposed charge, because he believed the model jury charge on possession of CDS was adequate. However, counsel made no specific request that the judge charge the jury on the defense of mistake of fact.

To support his argument, defendant relies on our Supreme Court's decision in State v. Pena, 178 N.J. 297 (2004). In Pena, the defendant was charged with third-degree possession of CDS and first-degree possession with intent to distribute, after fifteen kilograms of pure cocaine were found in his suitcase. Id. at 300-01. In his defense, the defendant claimed that he believed that he was transporting stolen fur coats, not cocaine. Id. at 300. Defendant's request that the jury be charged on his mistake of fact defense was refused by the trial court because "[i]t viewed the N.J.S.A. 2C:2-4b mistake-of-fact defense as inapplicable to a non-lesser included offense . . . ." Id. at 303. The jury ultimately found defendant guilty on both counts. Ibid. This court, in an unpublished opinion, agreed that the charge was properly denied because receipt of stolen property was not a lesser included offense of either of the CDS crimes charged. Ibid. The Supreme Court disagreed and determined that it was error for the trial court to refuse the defendant's request. Id. at 316. The Court held "that a jury must be instructed that under N.J.S.A. 2C:2-4b that it may convict a defendant of the crime to which he has admitted if it believes his testimony." Ibid.

The facts here are distinguishable from Pena. Pena believed he was transporting stolen furs but was in fact carrying cocaine. Possession of CDS and receipt of stolen property are two distinctly different crimes. In the present case, defendant was asked to receive a package and was told he would be paid $12,000 for doing so. Defendant believed that the package contained drugs, either "cocaine or Ecstasy," but was unsure exactly which one. The mistake of fact defense ruled applicable in Pena, therefore, is inapplicable in the factual situation here. Defendant's crime is the same whether the CDS turned out to be either of the drugs he suspected were in the package.

N.J.S.A. 2C:2-4, in applicable part, states:

a. Ignorance or mistake as to a matter of fact . . . is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:

(1) It negatives the culpable mental state required to establish the offense[.]

. . . .

b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

As explained in State v. Sexton, 160 N.J. 93, 102 (1999), subsection (a.) does not create a separate defense but requires that the type of mistake involved be applied to the essential elements of the charged offense to determine if the mistake negates the culpability element required for conviction of the offense. See also Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2-4 (2006).

In this case, defendant presented no evidence in support of the defense of mistake of fact, which would negate the charged offenses. In the statement made while in his apartment, defendant admitted that he thought the package contained narcotics, either cocaine or Ecstasy. The mistake of fact defense under N.J.S.A. 2C:2-4b was, therefore, not implicated. Defendant claimed not that he was mistaken that CDS was contained inside the package, rather, he stated that he was unsure about which drug constituted its contents.

For criminal liability to be imposed, there needs to be proof of both "a voluntary act and a culpable state of mind . . . ." Sexton, supra, 160 N.J. at 98. In cases of CDS possession, the requisite mental state is "knowingly or purposely." N.J.S.A. 2C:35-10a. "A person acts purposely . . . if it is his conscious object to engage in conduct of that nature . . . ." N.J.S.A. 2C:2-2b(1). "A person acts knowingly . . . if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2). Possession is a voluntary act wherein "the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c.

In State v. Edwards, 257 N.J. Super. 1 (App. Div. 1992), Edwards claimed that "despite the fact that the substance she possessed turned out to be cocaine, she should only be found guilty of the disorderly persons offense of possession of hashish because of her alleged belief that the substance was hashish." Id. at 3. Edwards contended that the language of N.J.S.A. 2C:2-4b supported her position. Ibid. We disagreed and determined that "[t]he possessory offense under N.J.S.A. 2C:35-10 is that of possession of a controlled dangerous substance. Thus, the nature of the CDS, like the quantity, is not an element of the offense." Id. at 4 (footnote omitted). We held, "the State must prove that the defendant knew that she possessed a controlled dangerous substance. It does not have to prove that a defendant knew precisely what controlled dangerous substance was possessed." Ibid.

The trial judge instructed the jury:

[T]he person must know or be aware that he possesses or controls the item . . . and he must know what it is that he possesses or controls, that is, that it is a controlled dangerous substance. . . .

Now, the nature of the controlled dangerous substance is not an element of the offense. Thus, the State does not have to prove that the defendant knew precisely which controlled dangerous substance was possessed.

Later, when the jury asked for clarification regarding whether defendant had to be aware that the CDS was Ecstasy, or whether mere knowledge that it was CDS would suffice, the judge answered, "you would have to find beyond a reasonable doubt that he knowingly or purposely in possessing S-1 in evidence knew that it was a controlled dangerous substance. The State does not have to prove that the defendant knew precisely which controlled dangerous substance he possessed." We find no error in the judge's charge.

II

Defendant, for the first time on appeal, contends that the small bag of Ecstasy seized from his sister's bedroom in his apartment was improperly admitted as "other crimes" evidence under N.J.R.E. 404(b). Defendant also belatedly complains that no limiting instruction was provided concerning how the jury could use the evidence.

Because defendant's allegation of error was not brought to the trial judge's attention, it will be reviewed under the plain error standard. This court will disregard the error unless defendant proves that it was "clearly capable of producing an unjust result." R. 2:10-2. In a jury trial, the possibility of an unjust result must be "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).

At trial, the State, without defense objection, presented testimony that a clear bag containing a white, powdery substance and a C.D. case entitled "Elements of Ecstasy" were seized from defendant's sister's bedroom in defendant's apartment. Defendant claims that this testimony should have been excluded as irrelevant and unduly prejudicial.

Relevant evidence is evidence that tends to prove or disprove a material fact. N.J.R.E. 401. All relevant evidence is admissible unless prohibited by another rule. N.J.R.E. 402. N.J.R.E. 403 allows relevant evidence to be excluded if its admission would be unduly prejudicial. Damaging evidence, however, is normally prejudicial. The issue is whether the risk of prejudice substantially outweighs the probative value. In other words, defendant must demonstrate that the nature of the testimony made it reasonably probable that the jurors were diverted from their task of fairly evaluating the issue of guilt. State v. Long, 173 N.J. 138, 163-64 (2002).

According to N.J.R.E. 404(b), while evidence of other crimes, wrongs or acts may not be used to prove the person acted in conformity with its character, it is admissible as proof of a material issue in dispute such as intent, knowledge or absence of mistake. See State v. Reddish, 181 N.J. 553, 608 (2004).

In this case, the testimony indicating that other drugs were found in defendant's apartment was relevant to counter defendant's claim that he was unaware of the package's contents. Defendant lived at 217A Sierra Court as evidenced by the miscellaneous paperwork and bills found in the apartment. The small amount of Ecstasy found in his sister's bedroom, along with the C.D. holder, was relevant to show that defendant's acceptance of the package containing more than 7000 Ecstasy pills was based on his knowledge that CDS was inside the package. Therefore, the Ecstasy seized from defendant's sister's bedroom was relevant to the issues of intent, knowledge or absence of mistake.

We are satisfied that the evidence produced at trial clearly established that defendant accepted a package containing 7,095 Ecstasy pills. This large quantity of CDS was the basis for the charges against defendant. Therefore, if any error occurred in admitting the small amount of Ecstasy seized from defendant's sister's bedroom, its admission was not clearly capable of producing an unjust result. R. 2:10-2.

III

Defendant contends that the statement he gave to police in his apartment immediately following his arrest should be suppressed as the "tainted fruit" of his second statement given at police headquarters, which the judge suppressed.

In the pre-trial hearing on defendant's challenge to his statements to police, Levy testified as to defendant's acceptance of delivery of the package. Levy stated that he administered Miranda rights to defendant, and defendant signed the Miranda waiver card after indicating that he understood each right. Levy asked defendant about the package, and defendant then recited how he met a man in Turkey who asked defendant if he would accept delivery of a package in the United States in exchange for money.

Levy testified that defendant was arrested at about 5:50 p.m. The search of the apartment lasted about one hour and forty-five minutes. During the search, Levy stayed with defendant in his kitchen, as did two other detectives. Defendant told Levy he wanted to talk. The investigator stated that defendant was permitted to change his clothes before he was questioned as they were "full of mud" from the chase. Two officers accompanied defendant to his bedroom so he could put on clean clothes.

After the detectives searched defendant's apartment, defendant was taken to police headquarters. Defendant eventually gave a taped statement. Before giving the taped statement, defendant asked to telephone a lawyer, and he was permitted to make a call but it was after making the call that defendant gave his taped statement.

The judge ruled that defendant's first statement to police was admissible but suppressed the second statement because the police were present when defendant telephoned the lawyer and defendant should have been left in private during the call. Defendant claims that his initial statement should also be suppressed because it was "inter-related" with the suppressed statement.

The fruit of the poisonous tree doctrine is implicated "when the State seeks to make use of evidence derived from an illegally obtained confession . . . ." State v. James, 346 N.J. Super. 441, 453 (App. Div.), certif. denied, 174 N.J. 193 (2002). Thus, there must be a seed of initial illegal police conduct that requires the court to determine whether subsequent evidence is sufficiently attenuated from the illegal conduct or was discoverable through independent sources. See State v. Chew, 150 N.J. 30, 67-70 (1997).

We are satisfied that defendant's first statement was lawfully obtained. Defendant's Miranda rights were properly administered and then waived. Defendant made the statement knowingly, intelligently and voluntarily. There is no evidence that defendant was coerced into making this statement. On the contrary, within a short period of time after defendant was apprehended, he was returned to his apartment and allowed to change his clothes. By signing the card, he indicated that the warnings had been given and that he understood them. He gave his statement while in the kitchen of his own apartment. We, therefore, find no error in the judge's determination that defendant's first statement was voluntary beyond a reasonable doubt and thus admissible in evidence.

IV

Defendant contends that the judge erred by not granting his motion for a judgment of acquittal at the end of the State's case-in-chief. We disagree.

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion . . . order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. . . .

[R. 3:18-1.]

When such a motion is made, the trial judge must deny the motion, if after considering both the direct and circumstantial evidence and giving the State the benefit of all favorable reasonable inferences, a jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). On review, an appellate court will apply the same standard as the trial court to determine if the trial judge should have acquitted the defendant. State v. Moffa, 42 N.J. 258, 263 (1964).

We are satisfied that defendant's motion for a judgment of acquittal was properly denied. Relying on Edwards, supra, the judge correctly determined that the State had to prove that defendant knew the character of what he possessed, but the State was not required to prove that defendant knew the precise nature of the CDS in the package. Defendant admitted to police that he agreed with another person to accept delivery of a package from Turkey for $12,000 and that he suspected it would contain either cocaine or Ecstasy. The large amount of Ecstasy involved raises an inference that defendant knew exactly what was in the package. The State's evidence, viewed in its entirety and in the light most favorable to the State, supported the charges and the jury's guilty verdict.

V

Prior to sentencing, defendant moved for a new trial based on newly discovered evidence and the State's failure to provide exculpatory evidence. Specifically, defendant claimed that the State failed to advise him of the identity and custody status of the package's sender, Huseyne Tuncer. Defendant contends that if this information had been presented to him, the result of the trial would have been different.

The judge determined that the sender's name had been provided to defendant because Tuncer's name was on the package delivered to defendant. Therefore, it was not newly discovered evidence. The judge also found that defendant failed to show that the outcome of his trial would have been different.

Rule 3:20-1 provides in pertinent part, "The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . ." The trial judge's determination will not be reversed unless it is clear that there has been "a miscarriage of justice under the law." R. 2:10-1. In making this determination, the appellate court defers to the trial court with respect to such things as "credibility and demeanor and the 'feel of the case[,]'" but will make its own finding regarding whether a miscarriage of justice has occurred. Carrino v. Novotny, 78 N.J. 355, 361, n.2 (1979). For the new evidence to support an order for a new trial, it must be material, it must have been discovered after the trial and not reasonably discoverable prior thereto, and must be of the type that would have altered the jury's verdict. State v. Ways, 180 N.J. 171, 187 (2004).

Defendant does not satisfy these requirements. Tuncer was incarcerated in the Middlesex County Jail as of March 15, 2002. Tuncer pled guilty on August 9, 2002 to Indictment No. 02-08-298, which involved CDS charges unrelated to this case. Although Tuncer's name was on the package mailed to defendant, the significance of the name was not recognized by the State until August 2002, when Tuncer was pleading guilty to the unrelated CDS charges. At that time, Tuncer admitted involvement in the conspiracy to distribute Ecstasy with defendant. Additionally, Tuncer stated at the time of his plea that defendant did not know what was in the package. Although defendant knew the name of Tuncer from discovery, he claims prejudice because the State did not advise him that Tuncer was in custody.

Although defendant contends that Tuncer made exonerating statements when he testified that defendant did not know what was contained in the package, Tuncer's statement was negated by defendant's own statement to Levy that he believed the package contained drugs, either Ecstasy or cocaine. As a result, the requirements necessary to find criminal liability had been satisfied.

Our Supreme Court has stated that a jury verdict "should not be disturbed except for the clearest of reasons." Ibid. Newly discovered evidence must be reviewed with circumspection to ensure it is not fabricated and it must be of sufficient weight to alter the outcome of trial. Id. at 187-88.

We are satisfied, therefore, that discovery of Tuncer's identity and custody status were not material to defendant's case. Moreover, with regard to the second factor, defendant knew the identity of the package's sender because his name was on the package and the information regarding Tuncer's custody status was discoverable through reasonable diligence by defendant.

Defendant's reliance on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is misplaced. In Brady, the Supreme Court determined that suppression by the state of evidence favorable to the accused violated due process when the evidence is material to guilt or innocence. Id. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. Here, the State did not suppress exculpatory evidence. Tuncer's name was provided to defendant in discovery. The fact that Tuncer was in the county jail is immaterial, because his involvement in defendant's case was not known at that time. Defendant was not denied an opportunity to investigate Tuncer's identity and discover his whereabouts. "The Brady rule is invoked where [exculpatory] information is discovered after trial 'which had been known to the prosecution but unknown to the defense.'" State v. Carter, 91 N.J. 86, 111 (1982) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342, 349 (1976)). We are satisfied that defendant's claim that the State suppressed exculpatory evidence is belied by the record.

VI

In reaching his sentencing decision, the judge found three aggravating factors: risk of re-offense, need for deterrence, and imposition of a fine without imprisonment would be considered a cost of doing business. N.J.S.A. 2C:44-1a(3),(9) and (11). The judge found defendant had no history of prior delinquency or criminal activity as a mitigating factor, N.J.S.A. 2C:44-1b(7), and found that the aggravating factors substantially outweighed the mitigating factors. The judge noted that the presumption of incarceration had not been overcome. The judge made particular note that defendant had engaged in a plan to smuggle a large quantity of very dangerous drugs into the United States from Turkey for profit.

Defendant challenges the judge's failure to find additional mitigating factors. Defendant claims that the judge should have found mitigating factors two, eight and twelve: defendant's failure to contemplate that his conduct would harm others, the unlikely recurrence of defendant's conduct, and his willingness to cooperate with law enforcement. N.J.S.A. 2C:44-1b(2), (8) and (12). Defendant also argues that the court should have considered his young age, 34, as a mitigating factor.

When reviewing a trial court's sentencing decision, an appellate court must consider three questions: first, whether the sentencing guidelines were followed; next, whether there is adequate evidence to support the findings of aggravating and mitigating factors; and finally, whether the trial court came to an unreasonable conclusion. State v. Roth, 95 N.J. 334, 364-66 (1984). A sentence will not be modified unless there was a "clear error of judgment that . . . shocks the judicial conscience." Id. at 364.

The trial judge provided reasoning for both the mitigating factor found and those not found. We are satisfied, therefore, that the trial judge's failure to find the mitigating factors of which defendant complains were properly supported and that the aggravating factors found are grounded in adequate evidence with one exception. The court's finding of aggravating factor eleven, that a fine would be perceived as a cost of doing business, was improperly found. In State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003), we determined that where a defendant is being sentenced for a crime that contains a presumption of imprisonment, this factor is "ordinarily inapplicable unless the court is being asked to overcome the presumption . . . ." In State v. Zadoyan, 290 N.J. Super. 280, 289 (App. Div. 1996), we concluded that where a court has resolved to incarcerate the defendant, this factor "would appear to have little significance . . . ."

We are convinced, however, that the other two aggravating factors support defendant's sentence and conform with the sentencing guidelines. On Count Two, for which there was a mandatory parole bar, the judge imposed the minimum base term for a first-degree crime, ten years. See N.J.S.A. 2C:35-5b(1). On Count Three, the judge imposed a concurrent term of seven years with one-third of the sentence to be served without parole.

Defendant argues that his sentence is excessive. We disagree. Based upon the sentencing principles established in Roth, we are satisfied that defendant's sentence was reasonable. The presumption of incarceration was applied to defendant's convictions for a first and a second-degree crime, and it was not overcome by the fact that defendant had led a law-abiding life, nor by the fact that he was a first-time offender. See State v. Evers, 175 N.J. 355, 388, 400 (2003). Although a sentencing court has the authority to sentence one degree lower for purposes of sentencing, the reasons for a downgrade must be compelling, and the mitigating factors must substantially outweigh the aggravating factors. N.J.S.A. 2C:44-1f(2); State v. Megargel, 143 N.J. 484, 505 (1996).

In this case, there was no justification for sentencing defendant to one degree lower for his crimes. He was involved in a plan to distribute over four pounds of Ecstasy, a dangerous drug. Defendant agreed to accept the package of CDS for money, and the street value of over seven thousand pills is substantial, as evidenced by the $12,000 he agreed to accept in exchange for receiving the package. The amount of CDS involved in this case supported the judge's finding that defendant was at risk for reoffense. Defendant's acceptance of the package for a substantial profit also supports the judge's finding of the need

to deter. The sentence imposed is not excessive. The sentence does not shock the judicial conscience. Roth, supra, 95 N.J. at 364.

Affirmed.

 

MDMA is known by the street name, Ecstasy. When referencing MDMA throughout this opinion, we use the street name, Ecstasy.

Sentencing did not take place until October 7, 2002 because defendant absconded before the jury verdict was returned and remained a fugitive until arrested by police. The three day jury trial took place May 29-31, 2002.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Because defendant did not object to this testimony, the State did not indicate the exact purpose for which the testimony was being offered.

The Supreme Court has held that "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true . . . ." State v. Brown, 80 N.J. 587, 592 (1979).

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June 29, 2006