STATE OF NEW JERSEY v. FLOYD STEVENS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4458-03T44458-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD STEVENS,

Defendant-Appellant.

________________________________

 

Submitted May 3, 2006 - Decided July 13, 2006

Before Judges Grall and Newman.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Indictment No. 02-03-0320.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent,

(Terry Bogorad, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Floyd Stevens appeals from a final judgment of conviction and sentence. The grand jurors for Passaic County charged Stevens and his co-defendant Wanda McRae with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one), second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2) (count two), and third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three). On McRae's motion, the co-defendants were tried separately. The judge denied defendant's pre-trial motion based on alleged defects in the complaint and his motions for change of venue. The jury found defendant guilty of all charges.

Defendant was sentenced to a term of twenty years, ten without possibility of parole. Because defendant had previously been convicted of possession of a controlled dangerous substance with intent to distribute in a school zone, the judge granted the State's motion to impose an extended term, as required by N.J.S.A. 2C:43-6f. The judge merged counts one and three into count two and imposed the mandatory fines, penalties and assessments. The judge granted the State's motion to dismiss a disorderly persons charge for possession of drug paraphernalia arising from the same incident. Defendant was given credit against his sentence for all time spent in jail prior to sentencing.

Defendant presents three arguments for our consideration on appeal.

I. THE COMPLAINT USED TO INDICT AND PROSECUTE THE DEFENDANT WAS DEFECTIVE THEREFORE ALL SUBSEQUENT PROCEEDINGS WHICH FLOWED FROM SAID COMPLAINT MUST BE DISMISSED.

II. THE TRIAL JUDGE ERRONEOUSLY DENIED THE DEFENDANT'S MOTION FOR A CHANGE OF VENUE WHEN HE CONSIDERED ONLY HIS OWN IMPARTIALITY AND NOT THE PREJUDICIAL EFFECT THE TRIAL WOULD MOST LIKELY HAVE ON A LOCAL JURY.

III. THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL JUDGE USED FACTORS OUTSIDE OF HIS AVAILABLE DISCRETION TO SENTENCE THE DEFENDANT TO A MAXIMUM EXTENDED TERM.

Our review of the record convinces us that the arguments raised in Points I and II lack sufficient merit to warrant extended discussion in a written opinion. Accordingly, we affirm the convictions. R. 2:11-3(e)(2).

The facts relevant to the issues raised in Points I and II are as follows. On October 26, 2001, defendant was arrested pursuant to a warrant authorizing the action. Two complaints were issued, one charging crimes and the other charging a disorderly persons offense based on possession of drug paraphernalia. He was subsequently released on bail. On November 9, 2001, the State moved before a judge of the Superior Court to increase bail initially set by the Paterson Municipal Court. The State's motion was based on information about defendant's extensive prior record and information relevant to the risk of flight. At that hearing, defense counsel requested a copy of the complaint.

On March 14, 2002, defendant was indicted. In a separate pre-trial proceeding on July 28, 2003, the defense again raised a question about the complaints that had been filed on the day of defendant's arrest. The prosecutor reported that the State's file did not include the original complaints. Instead, it contained a complaint form that bore the stamp "Duplicate," which had been forwarded to defendant's attorney. The document was a printed copy of the initial complaint that had been entered in and was printed from the computer system. The original was missing. Concerned that the complaint presented to the grand jury could have stated different charges, defendant's attorney moved to dismiss the indictment. The judge denied the motion on the ground that the indictment returned by the grand jurors included the charges upon which defendant would be tried.

On July 30, 2003, defense counsel told the judge that officers had given defendant the original complaint in an effort to obtain his cooperation in further investigation of drug crimes. Defense counsel renewed his application to dismiss the charges, noting that the original had not been signed under oath. The judge again denied the request on the ground that defendant was standing trial, not on the basis of a complaint, but on the basis of the indictment returned by the grand jurors, which included the same charges that were reflected on the complaint in defendant's possession.

The judge properly denied the motion. Defendant was arrested pursuant to a warrant. He does not challenge the legality of his arrest. He was given credit against his sentence for the time he was incarcerated prior to sentencing. His constitutional right to indictment by a grand jury was honored, and he raises no objection to the proceedings before the grand jury. Cf. State v. Ciba Geigy Corp., 222 N.J. Super. 343 (App. Div.), certif. granted, 111 N.J. 574 (1988). There is no authority for the proposition that an indictment must be proceeded by a complaint. Moreover, even where an indictment is not required and a defendant is charged on the basis of a complaint alone, a defect in a complaint is remediable. State v. Fisher, 180 N.J. 462, 465 (2004) (rejecting claim that "an officer's failure to attest to probable cause by signing a traffic ticket requires dismissal of the charges alleged in the ticket"). In this case, the indictment was the remedy for any defect in the complaint.

We also reject defendant's claim that the trial judge erred in denying his motion for a change of venue. He requested the change on the ground the jurors in the county could not give fair consideration to his defense, which was to be based on a claim that officials of the county conspired to retaliate against him. The judge denied the motion, finding no reason why jurors in the county would be unable to consider the defense fairly and impartially.

A trial court's decision on a motion for change of venue is entitled to "special deference" and reviewed for abuse of discretion. State v. Nelson, 173 N.J. 417, 476-77 (2002).

R. 3:14-2 provides for a change of venue when "a fair and impartial trial cannot otherwise be had." Defendant presented nothing that would have permitted the judge to conclude that a change of venue was "necessary to overcome [a] realistic likelihood of prejudice." Nelson, supra, 173 N.J. at 475 (internal quotations omitted). In denying a change of venue, the judge exercised proper discretion.

Although we affirm defendant's convictions, a remand for resentencing is required. Defendant was sentenced to the maximum extended term. His sentence was imposed prior to the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005). In that case, the Court held that a sentence above the presumptive statutory term based on aggravating factors other than a defendant's criminal record that were not found by the jury violates a defendant's rights under the Sixth Amendment of the United States Constitution. Id. at 466.

It is unclear whether the judge found a need for deterrence based solely on defendant's criminal record, and it is clear that one aggravating factor the judge found is not based on defendant's record. Accordingly, we must remand for resentencing. Id. at 495; see State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

On remand, the judge may not consider the aggravating factor set forth in N.J.S.A. 2C:44-1a(11). Where, as here, incarceration is required, it is inappropriate to increase the duration of a sentence on the ground that incarceration is necessary to avoid the perception that monetary sanctions are a "cost of doing business." State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003).

 
The convictions are affirmed, and the matter is remanded for resentencing in accordance with Rivera and Natale. We do not retain jurisdiction.

Following grant of certification, a superseding indictment was issued and, "[a]t the request of the State, the proceedings concerning SGJ 147-85-2 were remanded to the trial court and dismissed on January 27, 1989." State v. Ciba-Geigy Corp., 253 N.J. Super. 51, 56 (App. Div. 1992).

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A-4458-03T4

July 13, 2006