STATE OF NEW JERSEY v. ORRIC MITCHELL
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-6304-03T46304-03T4
STATE OF NEW JERSEY,
Submitted May 1, 2006 - Decided
Before Judges Fall, C. S. Fisher and Yannotti.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-2942.
Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).
Zulima V. Farber, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Following a trial before a jury, defendant was found guilty of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1)(b)(3) (count two); possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); resisting arrest, N.J.S.A. 2C:29-2 (count five); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4) (count six). The judge merged counts one and two with count three and sentenced defendant to five years imprisonment with a three-year period of parole ineligibility. On count five, the judge sentenced defendant to a consecutive term of one year. Defendant also was sentenced to a concurrent one-year term on count six. Defendant's driving privileges were suspended for one year and appropriate penalties and assessments were imposed.
Defendant appeals and raises the following contentions for our consideration:
POINT I: SINCE THE POLICE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION TO BELIEVE THAT DEFENDANT HAD COMMITTED A CRIME, THE EVIDENCE OBTAINED AS A RESULT OF HIS UNLAWFUL SEIZURE SHOULD HAVE BEEN SUPPRESSED. (U.S. CONST., 4th AMEND.; N.J. CONST. ART. I, PAR. 7) (Not raised below).
POINT II: THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO FLIGHT, HOW TO EVALUATE THE STATE'S PROOF WITH RESPECT TO THE SCHOOL ZONE COUNT AND THE STANDARD USED TO EVALUATE THE EVIDENCE, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. (U.S. CONST., AMEND. XIV, N.J. CONST. ART. I, PAR. 1) (Not raised below).
POINT III: THE COMMENTS MADE BY THE PROSECUTOR IN HER SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THERBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. ART. I, PARS. 9 AND 10) (Not raised below).
POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT DEFENDANT'S PRIOR CONVICTION FOR POSSESSION OF CDS COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (U.S. CONST. AMEND V, VI, AND XIV; N.J. CONST. ART. I, PARS. 9 AND 10) (Not raised below).
POINT V: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THE STATE DID NOT ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THE CHARGES IN THIS MATTER.
POINT VI: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR. (Not raised below).
POINT VII: THE FAILURE OF TRIAL COUNSEL TO FILE A MOTION TO SUPPRESS EVIDENCE, TO OBJECT TO THE JURY CHARGE AND THE PROSECUTOR'S SUMMATION AND TO MOVE FOR A NEW TRIAL AFTER THE JURY VERDICT AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT VIII: THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING A) A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERM AS THIS DETERMINATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW; B) A CONSECUTIVE SENTENCE WITH RESPECT TO DEFENDANT'S CONVICTION FOR RESISTING ARREST.
A. THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERM AS THIS DETERMINATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW.
B. THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING A CONSECUTIVE SENTENCE WITH RESPECT TO DEFENDANT'S CONVICTION FOR RESISTING ARREST.
We have carefully considered these contentions in light of the record before us on this appeal. For the reasons that follow, we affirm in part, reverse in part and remand for re-sentencing pursuant to State v. Natale, 184 N.J. 485 (2005).
We begin our consideration of the appeal with a brief summary of the evidence. On July 1, 2003, at about 9:50 a.m., Sergeant John Rodrigues (Rodrigues) and Officer Kevin Herder (Herder) were on parole in a marked police vehicle near the intersection of South 18th Street and Avon Avenue in Newark. Rodrigues observed two African-American men standing in front of a store. The two men exchanged currency for an object. The men apparently observed the police vehicle passing and began to walk away in different directions. The older man, who received the object, walked east on Avon Avenue and the younger individual, who was later identified as defendant, began to walk north on 18th street. Herder observed defendant toss an object onto the ground.
Herder exited the vehicle and defendant began to run away. Herder recovered the object that had been discarded by defendant. It was later determined to be nine glassine envelopes of heroin. Officer Rodrigues followed defendant in the police car. Defendant ran into the yard of a private residence. Rodrigues exited his vehicle and pursued defendant on foot. Herder caught up with Rodrigues and told Rodrigues that the item he had recovered appeared to be heroin. Rodrigues told defendant he was under arrest.
Defendant climbed up a pole and onto the roof of a one-story garage, with the two officers in pursuit. When defendant became aware that Rodrigues was on the roof, he discarded another object, which was recovered by Herder and later determined to be fifty glassine envelopes of heroin. Rodrigues again told defendant that he was under arrest. Defendant went towards Rodrigues, grabbed his shirt and pulled him to the edge of the roof. Rodrigues disengaged himself from defendant and fell backwards onto the roof of the garage but sustained no serious injuries.
Defendant jumped off the roof. The officers pursued him through the yards of various residences. Eventually, defendant was apprehended with the assistance of back up officers. Defendant had $120 in his possession at the time he was apprehended. When asked for his name, defendant said that his name was Nasir Blake. Later, the officers ascertained that defendant's name was Orric Mitchell.
Invoking the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, defendant argues that the evidence obtained upon his arrest should have been suppressed because the police officers did not have a reasonable and articulable suspicion to believe that he committed a crime. In support of this contention, defendant asserts that there was no evidence that defendant was observed exchanging money for an object in an area known for illegal drug activity. Defendant contends that there was no testimony from the officers as to whether defendant was known to be a drug dealer. Defendant further asserts that the fact that an unknown object was exchanged for money does not give rise to a reasonable suspicion that defendant and the other man were engaged in any criminal activity.
We note initially that defendant never moved in the trial court to suppress the evidence obtained upon his arrest. Our court rules require that a motion to suppress evidence allegedly obtained as a result of an unlawful search and seizure be made prior to trial. R. 3:5-7(a); R. 3:10-2(a). Our court rules further provide that if a timely motion to suppress is not made, "the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." R. 3:5-7(f).
It also is well established that constitutional claims, including those arising under the Fourth Amendment, "may be waived unless properly and timely asserted." State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed.2d 975 (1989). See also State v. Del Fino, 100 N.J. 154, 160-61 (1985), and State v. McKnight, 52 N.J. 35, 48 (1968).
Here, defendant relies on the trial record for his contention that the evidence was unlawfully obtained. But where, as here, a motion to suppress was not made in the trial court, we cannot be assured that the trial record contains all of the facts relevant to the contention that the officers did not have reasonable suspicion that defendant was engaged in criminal conduct when they approached him for questioning. Indeed, the State had no reason to present evidence to establish the validity of the investigative stop because defendant never contested the admissibility of the evidence. In these circumstances, "[t]he State had the right to assume that the validity of the [search and seizure] was not in issue by virtue of defendant's failure to move to suppress." State v. McLendon, 331 N.J. Super. 104, 109 (App. Div. 2000).
We therefore conclude that, by failing to move before the trial court to suppress the evidence, defendant waived his right to assert that the evidence was seized unconstitutionally.
We turn to defendant's contention that he is entitled to a new trial because the judge failed to give proper and correct jury instructions. Defendant did not object to the jury charge at trial. Therefore, we must consider whether any error in the instructions was of "such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Defendant must establish that any error in the charge was clear and obvious and affected his substantive rights. State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.2d 306 (2001).
Defendant asserts that the judge's instruction on flight was flawed. In instructing the jury, the judge stated:
Now, there has been some testimony in this case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant denies that the acts constitute a flight. The question whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight.
If you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the other evidence in this case as an indication or proof of a consciousness of guilt.
Flight may only be considered as evidence of consciousness of guilt if you should determine that defendant's purpose in leaving was to evade accusation or arrest for the offense charged in [the] indictment.
If, after a consideration of all the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other evidence in the case as an indication or proof of consciouness of guilt.
It is for you as judges of the facts to decide whether or not evidence of flight shows consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.
Defendant contends that the charge is erroneous because it includes the statement that the jury could draw an inference of guilt if it believed that defendant fled the scene to avoid accusation or arrest but did not instruct the members of the jury that they could infer no consciousness of guilt if they believed defendant fled the scene for other reasons.
This contention is without merit. We note initially that the charge conformed to the model jury instructions. We are convinced that the charge was not erroneous. As we have pointed out, the judge informed the jury that it could only consider flight if it determined "that defendant's purpose in leaving was to evade accusation or arrest for the offense charged in [the] indictment." The charge thus clearly conveyed the very notion that defendant claims was missing.
Defendant also asserts that the charge was erroneous because the judge stated that defendant denied his actions constituted flight. We reject defendant's contention that he was "greatly" prejudiced by this statement. We recognize that defendant did not testify at trial and offered no reasons to explain why he fled from the police. However, by going to trial and arguing that he was not guilty of the offense, defendant necessarily was taking the position that when he fled from the police, he did so for reasons other than the consciousness of guilt.
Defendant additionally argues that the instructions on the charge of possession of CDS with intent to distribute in a school zone were flawed. On this charge, the judge instructed the jury as follows:
Any person who violates another section of our law by possessing with the intent to distribute a controlled dangerous substance while on any school property used for school purposes which is owned by any elementary or secondary school or school board, or within one thousand feet of any school property, is guilty of a crime.
* * *
In addition to proving the possession with intent to distribute, the State must also prove beyond a reasonable doubt that this act occurred within one thousand feet of school property.
The term school property means any property which is used for school purposes and is owned or leased to an elementary school, secondary school or school board. The thousand feet zone extends from the outermost boundary of the school property and not from the school building itself. It doesn't mean whether the school is public, private or parochial. It is also no defense to this charge that no juveniles were present on the school property at the time of the offense or that the school was not in session that day.
Defendant argues that, although the judge informed the jurors that the State had to prove that the offense occurred within 1,000 feet of school property used for school purposes, it did not present this information to the jury "in the form of a question." Defendant argues that the jurors did not understand that they first had to determine whether the Madison Avenue School was school property being used for school purposes. Defendant further contends that the judge erred in not defining the term "school purposes."
These arguments also are without merit. The charge was not framed in terms of a question but plainly informed the jury that the State was required to prove that the crime had been committed within 1,000 feet of school property used for school purposes. Moreover, the absence of any definition of the term "school purposes" did not prejudice defendant. Defendant stipulated that the engineering map admitted into evidence as S-3 indicated that the intersection of Avon Avenue and 18th Street is "within 1,000 feet of the Madison Avenue School." Defendant never alleged that the Madison Avenue School was not used for school purposes. Consequently, the judge was not required to define the term "school purposes" for the jurors.
Defendant also contends that the judge erred in his instructions to the jurors concerning the manner in which they were to deliberate. The judge stated:
There is nothing different in the way a jury is to consider the proof in a criminal case than that in which all reasonable persons treat any questions depending on evidence presented to them. You are expected to use your own common sense, consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction in light of your knowledge of how people behave. Remember, it is the quality of the evidence, not simply the number of witnesses that control.
Defendant argues that this instruction is in conflict with the principle that the jury may only render a verdict based on the evidence presented at trial. The assertion is without merit. In his charge, the judge did not invite the jury to consider evidence outside the record. The judge instructed the jurors on the manner in which they should weigh the evidence introduced in this case. The judge's statement was merely another way of informing the members of the jury that they should use their common sense in considering the evidence. The charge was not erroneous.
We next consider defendant's assertion that the assistant prosecutor made improper comments in summation that served to deny defendant his right to a fair trial. Defendant focuses upon the following remarks:
When you think about the merits of this case, you think about the witness' demeanor, their motive to lie, the way they testified, you need to decide whether the inconsistencies were insignificant or whether they rose to fabricating facts.
Just a side note. The defense counsel would have you believe that this incident that happened at this corner didn't happen, that there are unknown places, we don't know where we received these drugs from. But you are going to have the reports. And you need to think about if you have two officers that have 18 years of experience together, what's the motive to plant evidence, falsify reports, lie on the witness stand. There is a lot of risk that is involved in that.
Defense counsel did not object to these statements at trial. Defendant asserts for the first time on appeal that, in making these statements, the assistant prosecutor improperly bolstered the credibility of the law enforcement officers who testified in this case.
A prosecutor is "permitted considerable leeway to make forceful, vigorous arguments in summation." State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997)). An appellate court must assess the propriety of the comments "in the context of the entire trial record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998)). A prosecutor's comments, even if considered to be improper, will not result in the reversal of a conviction unless the misconduct "was so egregious as to work a deprivation of a defendant's right to a fair trial." Ibid. (quoting State v. Pennington, 119 N.J. 547, 566 (1990)). Moreover, in determining whether a prosecutor's statements denied defendant a fair trial, we must consider among other things whether defense counsel made a "timely and proper objection." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)). "If no objection is made, the remarks usually will not be deemed prejudicial." Ibid. "The failure to object suggests 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).
In State v. R.B., 183 N.J. 308, 331-32 (2005), the Court held that it was improper for an assistant prosecutor to assert in summation that a police officer had no motive to lie. In that case, the prosecutor responded to defense counsel's assertion that the officer was "somehow complicit in manufacturing" a statement by the victim. Id. at 331. The prosecutor responded to the assertion by stating that the detective "has no reason to lie." Ibid. The prosecutor added that the detective had only been assigned to the unit for two months and, in those circumstances, he would not fabricate a statement and "score points by falsely accusing" someone of a crime. Ibid. The Court concluded, however, that the remarks did not constitute reversible error because defense counsel made a timely objection, the judge sustained the objection and ordered the jury to disregard the comments. Id. at 333.
In this case, the assistant prosecutor merely asked the jurors to consider a number of factors bearing on the credibility of the testimony, including whether the officers, with a total of eighteen years of experience, had a motive to "plant evidence, falsify reports [and] lie on the witness stand." That statement was consistent with the general instructions provided by the judge concerning the manner in which the jurors were to assess the credibility of the witnesses:
In determining whether a witness is worthy of belief and therefore credible, you may take into account a number of different factors: [t]he appearance and demeanor of the witness on the witness stand; the manner in which he testified; the witness' interest in the outcome of the trial, if any; his means of obtaining knowledge of the facts; the witness' power of discernment, which means their judgment or understanding; his ability to reason, observe, recollect and relate; possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence in the case; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness has given; and any and all matters in evidence which serve to support or discredit his testimony.
However, as we pointed out previously, the assistant prosecutor also stated that "there is a lot of risk" should a police officer "plant evidence, falsify reports, [or] lie on the witness stand." We are convinced that the statement should not have been made. See Frost, supra, 158 N.J. at 85-86 (holding that it was improper for the prosecutor to state that the police officers would not lie because of the "magnitude" of charges that could be brought against them).
Nevertheless, we are satisfied that the prosecutor's remark did not deprive defendant of a fair trial. Here, the prosecutor was responding directly to the statements of defense counsel, who argued forcefully that the officers had been less than candid and the incident could not have occurred as described by the officers. In considering the propriety of the prosecutor's comments, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Engle, 249 N.J. Super. 336, 379 (App. Div. 1991) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed.2d 1, 11 (1985)). We note again that there was no objection by defense counsel, who presumably did not believe that his client would be prejudiced by the prosecutor's assertion. Moreover, the comment was brief and there were no other objectionable statements in the prosecutor's summation. For these reasons, we are convinced that the prosecutor's assertion was not egregious and does not warrant a new trial. See Ibid. (holding that the prosecutor's assertion that police would not "jeopardize their careers" over the defendant did not unfairly prejudice defendant).
Defendant next argues that the judge erred in ruling that the defendant's prior conviction for possession of CDS could be used to impeach his credibility were he to testify in this case. The contention is entirely without merit.
The record shows that, prior to jury selection, defendant's attorney informed the judge that defendant had a prior conviction for possession of CDS, from November 2003. There was no specific ruling by the judge as to the admissibility of the evidence. The judge merely noted that the conviction would have to be sanitized if defendant were to testify.
Defendant did not testify at trial and the record does not reflect that defendant's decision on whether to testify was in any way dependent upon the admissibility of the prior conviction for impeachment purposes. Moreover, defense counsel did not object to the use of the prior conviction for impeachment purposes in the event defendant were to testify and did not seek a hearing on the admissibility of this evidence.
We are convinced that in these circumstances, the judge's failure to conduct a hearing and make a specific ruling on the admissibility of defendant's prior conviction was not reversible error. The issue was not pressed at trial. We cannot speculate as to the decision the judge might have made if this issue had been raised in the trial court.
Defendant additionally argues that the judge erred in denying his motion for acquittal. Defendant further asserts that the verdict is against the weight of the evidence.
When a motion for acquittal is made at the close of the State's case, or after all of the evidence has been presented, the judge must determine whether a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom." State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply this same standard in determining whether the judge should have granted the motion. State v. Moffa, 42 N.J. 258, 263 (1964).
Defendant asserts that the proofs were insufficient to establish that he possessed CDS as charged on the indictment. Defendant contends that the State presented no evidence as to the nature of the conversation between the unknown man and defendant on the corner of Avon Avenue and 18th Street. Defendant asserts that the police officers could not identify the item that defendant allegedly handed to the other man, nor did the officers establish that the money had been exchanged for the object. Defendant also argues that the evidence is insufficient to establish that he possessed the CDS recovered by the officers.
We are convinced, however, that based on the testimony of the police officers, the jury could reasonably determine that defendant had engaged in what appeared to be a drug transaction on the corner of Avon Avenue and 18th Street and that defendant was in possession of the CDS. Based on the amount of the CDS recovered, the jury also could reasonably find that defendant possessed the CDS with intent to distribute the same.
We reject defendant's assertion that the evidence was insufficient to show that defendant possessed the CDS with intent to distribute in the school zone. Defendant argues that the proofs were insufficient to show that the Madison Avenue School was used for school purposes. However, as we pointed out previously, the parties stipulated at trial that the corner of Avon Avenue and 18th Street was within 1,000 feet of the Madison Avenue School. The map of the area was also admitted into evidence. This evidence was sufficient to make out a prima facie case that the CDS was possessed within the school zone and the Madison Avenue School was used for school purposes. State v. Thomas, 132 N.J. 247, 254 (1993). The jurors could reasonably infer from the existence of the school that it was used for school purposes. Id. at 259.
We also are satisfied that there is no merit to defendant's assertion that the State presented insufficient evidence to support the charges for hindering prosecution. The evidence established that, after he was apprehended, defendant told Herder that his name was Nasir Blake. The officers later learned defendant's legal name. Defendant argues that the State did not present a prima facie case because defendant gave Herder his birth date, which was March 3, 1986. Defendant asserts that there was no evidence that the information was incorrect. Thus, he contends that there was insufficient evidence to show that defendant intended to hinder his own apprehension or prosecution. However, the evidence that defendant gave the officer the wrong name was sufficient to establish that defendant hindered his own apprehension or prosecution by giving false information to the police. See N.J.S.A. 2C:29-3b(4).
Defendant also argues that the verdict is against the weight of the evidence. However, defendant did not move in the trial court for a new trial on this basis. Therefore, he is barred from raising this contention of appeal. R. 2:10-1. In any event, the contention is completely without merit. For the reasons stated previously, there was sufficient evidence to support the jury's verdict in this case.
We turn to defendant's contention that he was denied the effective assistance of trial counsel. Defendant asserts that his trial counsel's representation was deficient because his attorney did not move to suppress evidence, failed to object to the jury charge and the prosecutor's summation and did not move for a new trial on the ground that the verdict was against the weight of the evidence.
However, claims that a defendant was denied the effective assistance of counsel are better addressed in a petition for post conviction relief "because such claims involve allegations and evidence that lie outside the trial record." State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996). See also State v. Preciose, 129 N.J. 451, 460 (1992) (noting the court's general policy against entertaining claims of ineffective assistance on direct appeal). Therefore, we defer consideration of these claims.
Last, we address defendant's contention that his sentences are excessive and were imposed in contravention of his right to trial by jury under the Sixth Amendment.
Here, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of defendant's prior record and the seriousness of the offenses for which he has been convicted); N.J.S.A. 2C:44-1a(8) (the defendant committed a crime against a law enforcement officer); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. We are satisfied that there is ample support in the record for the judge's findings of fact.
The judge merged counts one and two with count three, which charged defendant with possession of CDS with intent to distribute within 1,000 feet of school property, a third degree offense. On this count, the judge imposed a five-year custodial term with a three-year period of parole ineligibility. The judge sentenced defendant to one year on count five, which charged resisting arrest, a fourth-degree offense. The sentence is consecutive to the sentence imposed on count three. In addition, the judge imposed a one-year sentence on count six, hindering apprehension or prosecution, which is also a fourth-degree offense. This sentence is concurrent to the sentences on counts three and five.
We are convinced that the judge did not abuse his discretion in imposing a consecutive sentence on count five, resisting arrest. In this respect, the judge made the following findings:
There is an alleged possession of CDS and then there was a dangerous chase onto a roof and in a residential area. The crimes involved separate incidents. Although you could say they were committed very closely in time and place, I don't believe they indicate a singe period of aberrant behavior, especially when [defendant] was apprehended giving the wrong name. At any time [defendant] could have stopped and submitted. The crimes involve multiple victims in the sense that the one is a crime involving CDS, a crime to society. The other one here is [to] the officers. The officers could have been severely injured.
In our view, the imposition of the consecutive sentence on count five was an appropriate exercise of discretion and a proper application of the relevant factors under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986).
We are further convinced that the sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Turning to defendant's assertion that his sentences were imposed in contravention of his right to trial by jury, we note that the imposition of a consecutive sentence based on judicial fact finding does not run afoul of the Sixth Amendment. State v. Abdullah, 184 N.J. 497, 512-15 (2005). However, the sentences imposed on counts three, five and six were all longer than the presumptive terms. See N.J.S.A. 2C:44-1f. Defendant therefore is entitled to be re-sentenced pursuant to Natale, supra, 184 N.J. at 495-96.
Affirmed in part, reversed in part and remanded for re-sentencing on counts three, five and six.
May 30, 2006