STATE OF NEW JERSEY v. MAURICE FLOWERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5505-03T45505-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE FLOWERS,

a/k/a ABDUL M. ALI,

Defendant-Appellant.

_____________________________

 

Submitted October 24, 2005 - Decided February 2, 2006

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0273.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree theft from the person, N.J.S.A. 2C:20-3a (Count Two), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and acquitted of first-degree robbery, N.J.S.A. 2C:15-1 (Count One). On March 26, 2004, defendant was sentenced on the conviction of second-degree aggravated assault as a persistent offender, see N.J.S.A. 2C:44-3a, to an extended term of thirteen years, subject to an 85% parole disqualifier under the No Early Release Act (NERA), and a three-year period of parole supervision. Defendant was sentenced on the conviction of third-degree theft to a concurrent term of four years. Appropriate penalties were also assessed. Defendant appeals, and we affirm.

On October 12, 2002, at approximately 2:30 a.m., Waldine Davis, Joseph Harris, and defendant were engaged in the sale of cocaine. Davis gave a $20 bag of crack cocaine to Harris with directions for him to sell it, retain $15 for himself, and give $5 to defendant. Two men pulled up in a minivan, and defendant approached the vehicle with the $20 bag of cocaine, and attempted to sell the cocaine for $40 to the individuals in the van. Harris intervened, and took a $20 bill in exchange for the cocaine. After the sale, defendant approached Harris and demanded $10, instead of the original $5 defendant was promised, because defendant believed he had performed all the work, and had taken the risk that the buyers could have been police officers. Harris refused, and defendant struck Harris, causing him to lose consciousness and fall to the pavement. While Harris was lying on the pavement, defendant took the $20 bill from Harris's hand; exchanged the $20 bill for two $10 bills with a third party walking nearby; and returned one $10 bill to Harris by putting the $10 bill in his pocket. When Harris awoke, he could not see. Harris was taken to the hospital the next day, where he was diagnosed with a ruptured globe of the left eye that caused total blindness in that eye.

At trial, both Davis and Harris testified as to the events surrounding the assault. Defendant testified and gave a version of events similar to that of Harris and Davis.

On appeal, defendant argues:

POINT ONE

THE PROSECUTOR SPECIFICALLY ELICITED, IN DIRECT CONTRAVENTION OF STATE V. ALVAREZ, 318 N.J. SUPER 137 (APP. DIV. 1999), THAT THE POLICE HAD A WARRANT FOR DEFENDANT'S ARREST. (NOT RAISED BELOW).

POINT TWO

IMPOSITION OF A PERSISTENT OFFENDER EXTENDED TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A THIRTEEN-YEAR EXTENDED TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY.

We have reviewed these arguments in light of the record and pertinent law, and find them to be without merit. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that during trial, the State improperly elicited testimony from Police Officer Joseph Pasela, that on December 11, 2002, defendant was "dropped off to us under a green sheet warrant" and processed. Defendant argues that the reference to his being brought into the Trenton police station on a warrant was "unnecessary and highly prejudicial," and violated his constitutional rights to due process and a fair trial, citing Alvarez, supra, 318 N.J. Super. at 147-48. Because there was no objection to the testimony during trial, we review the matter under the plain error standard. R. 1:7-2; R. 2:10-2. Appellate courts will disregard an unpreserved error unless it is "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Bakka, 176 N.J. 533, 547-48 (2003). "In other words, the error must be 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (alteration in original).

In Alvarez, testimony was adduced at trial that the police went to a certain address to arrest defendant on a warrant. Alvarez, supra, 318 N.J. Super. at 141-42, 145-47. Defendant's room was searched pursuant to a subsequently obtained search warrant, and defendant was charged based upon the fruits of the search. Id. at 141-42. This court reversed, concluding that the repetitive references to the arrest and search warrants and the prosecutor's suggestion "that a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found in defendant's room" were prejudicial. Id. at 147-48. Alvarez is factually distinguishable from the present matter because Alvarez concerned repetitive references to both an arrest warrant and a search warrant. Here, there was only a single fleeting comment about an arrest warrant. We determine that this matter is controlled by our decision in State v. McDonough, 337 N.J. Super. 27 (App. Div. 2001), certif. denied, 169 N.J. 605 (2001).

In McDonough, this court, relying on the Court's decision in State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), rejected defendant's argument that passing references to warrants for his arrest and that of a co-defendant, and for searches of their homes, required reversal of his murder convictions because of suggestion to the jury that a judge found sufficient cause for the arrest and the search of their homes. McDonough, supra, 337 N.J. Super. at 31-33. We conclude the same result is warranted in the present matter where the jurors were instructed at the conclusion of the trial on the presumption of innocence, the burden of proof necessary to warrant conviction, and the necessity of deciding the case on the evidence produced at trial, not speculation or conjecture. We are satisfied that while the jurors heard the single brief reference to defendant's arrest on a warrant, the statement did not improperly lead them to a conclusion of defendant's guilt. There was no suggestion by the State, and the jurors had no cause to conclude, that the arrest was based on more than the statements of the victim and the witness, Davis. The police officer's reference to a "green sheet warrant" was harmless. We determine, likewise, as to defendant's alternative argument, that the comment concerning the "green sheet warrant" was violative of N.J.R.E. 404(b) as a reference to a "prior bad act." That argument is without merit for the same reasons.

We next address defendant's arguments concerning his sentence. Defendant was sentenced on the conviction for second-degree aggravated assault to a discretionary persistent offender extended term of thirteen years, subject to an 85% parole disqualifier under the NERA. Defendant argues that the sentence is excessive, and violates the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Defendant contends that the imposition of an extended term sentence was impermissible because the judge relied upon her own fact-finding rather than that of a jury. Defendant asserts that the thirteen-year term is predicated on an erroneous application of aggravating factors found by the court.

We reject defendant's argument that the imposition of an extended term under the Persistent Offender Statute is violative of Blakely and Apprendi. The imposition of an extended term sentence under the statute, N.J.S.A. 2C:44-3a, is based on defendant's record of prior criminal convictions, and thus the sentence falls within the recidivism exception to the holdings in Blakely and Apprendi. State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005).

A court engages in a "multi-step process" when determining whether to impose an extended term sentence under the Persistent Offender Statute. State v. Dunbar, 108 N.J. 80, 88-89 (1987). The first step is to determine "whether the minimum statutory predicates for subjecting [a] defendant to an extended term have been met." Id. at 89. The second step is for the court to determine whether to impose an extended term sentence. Ibid. Next, the court must "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence." Ibid. There is no dispute that defendant satisfied the criteria for a persistent offender. The judge engaged in an appropriate analysis as required by Dunbar in making her discretionary determination whether to impose an extended term sentence. That discretion was properly exercised.

Lastly, we address defendant's argument concerning the length of the extended term sentence. Although the range of sentence under the extended term statute is ten to twenty years, N.J.S.A. 2C:43-7a(3), the judge only imposed an extended term of thirteen years, taking into account the 85% parole disqualifier that she had decided to impose.

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)).

The base term of the extended sentence was determined by the judge considering the aggravating and mitigating factors as required by the third prong of Dunbar. The judge found three aggravating factors: 1) that defendant had a consistent pattern of criminal activity, not only in drug offenses, but also in weapon offenses, N.J.S.A. 2C:44-1a(3); 2) that defendant had an extensive criminal record with five prior convictions, N.J.S.A. 2C:44-1a(6); and 3) that there was a need to deter defendant and others. N.J.S.A. 2C:44-1(9). The judge found no statutory mitigating factors although she noted defendant had some "favorable employment history." Defendant contends that the judge should have found his longstanding drug addiction as a "substantial ground[] tending to excuse or justify [his] conduct, though failing to establish a defense." N.J.S.A. 2C:44-1b(4). We disagree. See State v. Ghertler, 114 N.J. 383, 390 (1989) (holding that the Court will not "adopt the proposition that one who demonstrates that the motive for unlawfully acquiring the funds of another . . . to purchase cocaine has satisfied them mitigating factor of N.J.S.A. 2C:44-1b(4)"). Defendant also asserts that the Court should have found as a mitigating factor that he "did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1b(2). We reject this argument. On the date of the offense, defendant was five inches taller, eighty pounds heavier, and thirteen years younger than the victim, and should have realized that the punch to the victim's eye may have had the potential to inflict serious harm.

While the mere sentencing of a defendant to an extended term under the Persistent Offender Statute is not violative of Blakely and Apprendi, we review sentences imposed prior to the Court's decision in State v. Natale, 184 N.J. 458, 466 (2005) (Natale II), with a cautious eye to determine whether or not a base extended term under the Persistent Offender Statute exceeds the presumptive term that existed prior to Natale II and Young. We would remand for re-sentencing if the base extended term that was imposed exceeded the then presumptive term, and violated Natale II, by the judge finding sentencing factors other than those based on defendant's prior criminal record, rather than factors found by a jury by proof beyond a reasonable doubt. Here, however, the base extended term was two years below the then presumptive term, N.J.S.A. 2C:44-1(f)(1). Because of defendant's prior extensive record and the convictions herein, we find no abuse of the judge's discretion in fixing a thirteen year base extended term with an 85% disqualifier under the NERA. Accordingly, we affirm.

 

 

N.J.S.A. 2C:43-7.2.

On March 26, 2004, the judge also found defendant had violated his five-year probationary term imposed on June 13, 2003, for conviction of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5b, and re-sentenced defendant to a term of five years, to be served concurrently with the sentences on the present convictions.

Presumptive terms were judiciously excised from our Code of Criminal Justice subsequent to the imposition of the sentence. Natale II, supra, 184 N.J. at 487; Young, supra, 379 N.J. Super. at 514. As such, an extended term sentence is only required to be within the general statutory range, here, ten to twenty years. N.J.S.A. 2C:43-7a(3).

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A-5505-03T4

February 2, 2006