STATE OF NEW JERSEY v. D'AQUON IZQUIERDO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5745-03T45745-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D'AQUON IZQUIERDO,

Defendant-Appellant.

___________________________

 

Submitted February 28, 2006 - Decided March 23, 2006

Before Judges Hoens and Seltzer.

On appeal from a Judgment of Conviction

in the Superior Court of New Jersey,

Law Division, Criminal Part, Passaic

County, 02-12-1503.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Prosper A.

Bellizia, 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 appeals from his convictions, following a jury trial, on charges arising from a May 28, 2002, 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 remand for re-sentencing.

Passaic County Indictment No. 02-12-1503-I charged the defendant with: third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1)(Count One); third- degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3)(Count Two); third-degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and 2C:35-5a (Count Three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Counts Four and Six); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1)(Counts Five and Seven); second-degree eluding, N.J.S.A. 2C:29-2b (Count Eight); third- degree possession of a weapon (an automobile) with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4d (Count Nine); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(1)(Count Ten).

Defendant was found guilty of Counts One, Two, Three, Eight, Nine and Ten. He was also convicted, on Counts Four and Six, of third-degree aggravated assault (a lesser included offense of the first-degree attempted murder originally charged in each of those Counts). He was acquitted on Counts Five, Seven, and the original charges in Counts Four and Six.

On April 2, 2004, the sentencing judge merged Counts One and Two into Count Three. On that Count, he imposed an extended term of eight years, with a parole ineligibility term of four years. Count Nine was merged into Counts Four and Six and concurrent five-year terms were imposed on Count Four, Six and Ten, to run consecutively to Count Three. An eight-year term was imposed on Count Eight, to run concurrent to Count Four. Defendant was also found guilty of two motor vehicle violations that were merged into Counts Four, Six and Eight and dismissed.

Because defendant does not challenge the sufficiency of the evidence, which was overwhelming, we do not recount it in detail. On May 28, 2002, members of the Paterson Police Department and the Drug Enforcement Agency were conducting a surveillance operation when they observed defendant, in a Toyota Camry, make a drug transaction. The law enforcement officers followed the defendant's car and, while defendant was in the process of parallel parking, pulled up next to him. Defendant aimed the Camry directly at the police vehicle and rammed it. Defendant then exited his car and began running from the police van, discarding packets of narcotics as he ran. He later admitted he had just purchased the narcotics. The jury rejected his claim that he did not know it was the police approaching him and his claim that he neither struck the police van nor resisted arrest thereafter.

Defendant's sole argument with respect to his convictions involves what he claims are two incidents of prosecutorial misconduct. Neither incident was the subject of an objection at the time it occurred. Accordingly, we evaluate these claimed errors 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 those claimed errors, defendant must show that they were "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 first asserted error is the exhibition, during the prosecutor's opening statement, of the heroin that would ultimately be introduced into evidence several days later. Although, absent permission from the court, the evidence should probably not have been shown to the jury prior to its admission, see State v. Green, 129 N.J. Super. 157, 166-67 (App. Div. 1974), we do not conceive that the prosecutor's action was "clearly capable of producing an unjust result."

Defendant next complains about comments made by the prosecutor in his summation. While discussing the role of the jury, the prosecutor spoke about the effect of possible disagreements among jury members. He said

And don't ever let it get to the point where jurors are sitting at one end of the table with their arms folded another group sitting at the other end with their arms folded, 'cause once that happens, everything that you've done here the last couple of weeks is gone, a complete waste of time.

Defendant objects that these comments impermissibly invaded the province of the judge. We agree that these comments, in isolation, were inappropriate. There was, however, no objection, suggesting "that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). The remarks were contained in a long summation and were followed by the judge's correct instructions concerning the roles played by the lawyers and the court, the appropriate mechanism for deliberating, and the weight to be afforded to comments made by the attorneys. Under all of these circumstances, we do not believe that whatever impropriety may be represented by the prosecutor's remarks led the jury to a verdict they would not otherwise have reached. The convictions must, therefore, be affirmed.

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, Six, and Ten charged third-degree crimes and Count Eight charged a second-degree crime. 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 on 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). In imposing a sentence in excess of the presumptive term, the judge found three of the aggravating factors described in N.J.S.A. 2C: 44-1(a): (3) (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 a sentence above the presumptive term 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.

Count Three charged third-degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and 2C:35-5a. Since defendant had previously been convicted of that charge, the judge was required to impose an extended term. N.J.S.A. 2C:43-6(f). The sentencing judge was also required to impose a minimum term "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . ." Id.

The term of the extended sentence must be between five and ten years. N.J.S.A. 2C:43-7a.(4). At the time of sentencing, the Code fixed a presumptive term of seven years for extended sentences for third-degree offenses. N.J.S.A. 2C:44-1(f)(1). The eight-year extended term imposed here exceeded that presumptive term. The sentence was justified by the same factors utilized imposing the sentences on Counts Four, Six, Eight and Ten and the same considerations that led us to remand for re-sentencing on those Counts apply here. State v. Nesbitt, 185 N.J. 504, 519 (2006); State v. Young, 379 N.J. Super. 498, 512-15 (App. Div. 2005). Accordingly, we remand for re-sentencing on Count Three as well.

We recognize that, although it is by no means clear, factors (3) and (9), in addition to factor (6), might, under certain circumstances, justify a sentence in excess of the presumptive term. State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). The State argues that since the sentences were based upon those factors, a remand is not necessary. We disagree. The language of Abdullah, upon which the State relies, does not permit the automatic use of factors (3), (6) and (9) to increase a sentence, or an extended sentence, above the presumptive term. It only suggests that such use might be permissible if "the trial court [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 . . . ." Here, the judge made no such findings; rather he concluded, with no further comment, that each factor "applies." That is 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.

We therefore remand, as we did in State v. Young, supra, 379 N.J. Super. 498, to allow the judge to "follow the dictates of Natale and Abdullah in fixing the specific term of the extended sentence." Id. at 515. The judge should fix the minimum term at the greater of three years or between one-third and one-half of the extended term. N.J.S.A. 2C:43-6(f).

The sentencing judge should also consider those mitigating factors that are suggested by the evidence in the record. See State v. Dalziel, 182 N.J. 494, 504-05 (2005).

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

 

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A-5745-03T4

March 23, 2006