STATE OF NEW JERSEY v. RASHAD THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6577-03T46577-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAD THOMAS,

Defendant-Appellant.

____________________________________________

 

Submitted: August 30, 2006 - Decided September 6, 2006

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-07-00783 and 03-07-00732.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Mr. Kaflowitz and David S. Sampson, on the brief).

PER CURIAM

Following a jury trial, defendant, Rashad Thomas, was convicted of the following charges: third degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1); third degree possession of CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and (3); and second degree possession of CDS (heroin) with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1. These charges, set forth in Indictment No. 03-07-0783, stemmed from an arrest in Elizabeth, New Jersey on December 18, 2002. Following these convictions, defendant pleaded guilty to a separate charge for third degree resisting arrest, N.J.S.A. 2C:29-2a, set forth in Indictment No. 03-07-0732, which stemmed from an arrest in Elizabeth on March 14, 2003. The State agreed to dismiss four related charges on the second indictment.

The judge merged the convictions arising from the first indictment and imposed a nine-year term. On the charge from the second indictment, the judge imposed a consecutive four-year term. We affirm the conviction, but remand for re-sentencing.

These are the proofs presented by the State. On December 18, 2002, Plainfield Detective Thomas Robertson was working undercover with the Elizabeth Police Department. At approximately 3:00 p.m., Robertson drove by a store at the intersection of Catherine and Anna Streets in Elizabeth, which was the focus of the investigation. He saw no one there. He made a turn onto Flora Street and saw three men sitting on the porch of a house. He drove by the men slowly and turned around at the end of the block. On the second drive by, Robertson made eye contact with one of the men on the porch, who was later identified as defendant. After exchanging nods, defendant asked Robertson what he needed. Robertson held up four fingers and responded "four bags of dope." Defendant pointed toward the direction of the store on Catherine and Anna and told Robertson to meet him there. Robertson parked in front of the store. Defendant walked to the passenger side and told Robertson to meet him in the store. Defendant went inside the store.

Robertson gave defendant's clothing description and the store's location to backup police units. Robertson observed the backup units move into the area, then he drove away. When Robertson returned to the area of the store, he observed the backup units with the defendant in custody.

Elizabeth Police Officer Joseph Gramiak testified that he was a member of the Street Crimes Unit on December 18, 2002. In response to a transmission from Sergeant Pinho, Gramiak and his partner, Officer Scott Pevonis, responded to the store. They were directed to stop a black male wearing a black wool hat, dark jacket and blue jeans.

Upon arriving at the store, they arrested defendant, who fit the description given. Gramiak saw defendant place one of his hands behind his back toward an ice cream counter. Gramiak attempted to turn defendant around. However, defendant kept forcing himself up against the machine. Gramiak grabbed defendant and brought him to the ground. Gramiak saw four white glassine envelopes with a tan elastic band stamped "Royal Pain" in green ink fall from defendant's rear waistband to the ground. After defendant was cuffed, Gramiak recovered the items. At Elizabeth Police Headquarters, a search of defendant revealed one additional white glassine envelope stamped "Royal Pain" in green ink in his right sock.

Detective Martin Lynch, from the Union County Prosecutor's Office, qualified as an expert in narcotics distribution and packaging. He responded to a hypothetical question asking him to assume certain facts that were similar to those of defendant's December 18, 2002 arrest. Lynch opined that defendant possessed heroin for the purpose of distribution. He gave the following reasons for this opinion: (1) glassine folds of heroin are an extremely common method of selling heroin on the street; and (2) a rubber band around glass vials is very common because it allows the dealer to know how many vials he has.

At a charge conference, defense counsel requested a general identification charge and a cross-racial identification charge. This was premised on the fact that defendant is African-American and Detective Robertson is Caucasian. The State objected to giving a cross-racial identification charge. The judge decided to give the identification charge, but not the cross-racial identification instruction.

Defendant appeals contending:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST THAT THE COURT INCLUDE CROSS-RACIAL IDENTIFICATION IN ITS CHARGE TO THE JURY.

We are not persuaded by this contention.

In State v. Cromedy, 158 N.J. 112, 115 (1999), the Supreme Court held that a trial court's failure to give a requested instruction regarding cross-racial identification may constitute reversible error. The Court held that such instruction should be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132; State v. Harris, 357 N.J. Super. 532, 538 (2003) (holding that if there is evidence of the crime that corroborates the identification, a cross-racial identification is unnecessary). In those circumstances, the jury should be given a "cautionary instruction that it should pay close attention to the possible influence of race" on the accuracy of the identification. Id. at 133.

Here, neither criteria is met. First, identification was not critical. Defendant was arrested at the scene and he was in actual possession of the contraband. He was arrested within minutes of Robertson's observation at the location where Robertson reported defendant would be. There were no other individuals in the store. The charges of possession with intent depended largely on Robertson's credibility, but not on his identification of defendant.

Second, there was ample corroborating evidence of defendant's guilt. As stated above, the heroin was found in defendant's person. According to Detective Lynch, the packaging of the heroin was consistent with an intention to distribute.

Third, we note, as did the trial judge, that Robertson is a trained observer who was working at the time of his observation. In short, he was at that time and place conducting a surveillance. He was not a person who unexpectedly becomes an eyewitness to a random event. Under those circumstances, there are less compelling reasons to give a cross-racial identification instruction. State v. Murray, 338 N.J. Super. 80, 90 (App. Div.), certif. denied, 169 N.J. 608 (2001).

Defendant also contends that:

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE.

A. The Trial Court Merely Parroted The Statutory Language In Finding The Aggravating Factor Of Deterrence, Contrary to State v. Natale.

B. The Sentence Should Be Remanded Because It Is In Excess Of The Presumptive Sentence, In Accordance With State v. Natale.

The State concedes "that under the new sentencing rules, defendant needs to be re-sentenced." The State also acknowledges that "it may be appropriate for [the appellate court] to advise the trial court to explain the reasoning behind finding aggravating factor nine, on the record, at the re-sentencing hearing." We agree.

Defendant was twenty-six years old at the time of the sentencing hearing. He has a history of three indictable and two disorderly persons convictions. He has served two terms at State prison. In addition, he has three juvenile delinquency adjudications, which resulted in custodial terms at the State Training School For Boys.

On both convictions, the judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b. The judge imposed a nine-year term on the conviction from the first indictment and a four-year term on the charges from the second indictment.

Here, the judge found aggravating factors (6) and (9) which raised no Blakely concern, if supported by the proofs. However, the judge did not articulate a reason why aggravating factor (9) (the need for deterrence), is to be found from defendant's prior record. A prior history of convictions does not automatically lead to a conclusion of a need for deterrence. See State v. Chris Thomas, ___ N.J. ___ (August 2, 2006) (holding that sentencing judges will make qualitative assessments with respect to aggravating factors (3), (6), and (9), which necessarily go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history). On remand, the judge must factually relate defendant's record to the need for general or specific deterrence.

The State also indicates in its brief:

[W]e are constrained to respectfully advise this Court that the Union County Prosecutor's Office has become aware that some Union County judges believe that they are required to lower a defendant's sentence upon a resentencing under Natale. Some among the Union County judiciary also believe that they may no longer find any aggravating factors other than 3, 6 and 9. The State asks this Court, in remanding this matter, to state in its opinion in clear terms that a Natale remand does not mean that the original sentence must be reduced and (even recognizing that no aggravating factors were found in this case other than 3, 6 and 9) that Natale excised only presumptive terms from the Code, not all aggravating factors other than 3, 6 and 9.

We give the following guidance to the trial courts.

In Blakely v. Washington, and other recent cases, the United States Supreme Court overruled the procedure by which sentencing judges, in the exercise of their traditional role, were making their own findings of fact to increase terms of imprisonment beyond that which jury verdicts would allow. State v. Natale, 184 N.J. 458, 482 (2005). Prior to Natale, our own sentencing procedures required that the judge start with a presumptive term for the offense found by the jury and that, within the exercise of sound discretion, the judge could increase or decrease the sentence based upon his own findings as to certain statutorily-delineated aggravating and mitigating factors. Because certain of the aggravating factors inherently required judges to make their own findings separate and apart from the jury's, the constitutional problem recognized in Blakely placed into question the constitutionality of our sentencing laws.

In Natale, the Supreme Court preserved much of our sentencing laws by "eliminating the presumptive terms" contained in the Code. 184 N.J. at 487. In other words, prior to Natale, upon a jury verdict that a defendant had committed a second degree offense, to stay within the boundaries of Blakely, the judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon recidivistic factors, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); State v. Abdullah, 184 N.J. 497, 506 n.2 (2005), or were otherwise admitted by defendant. With Natale's judicial removal of the presumptive terms from the Code, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." 184 N.J. at 487.

That being said, as a general matter, a trial judge may continue to apply all the aggravating factors implicated in the case to increase a term of imprisonment beyond the former presumptive term so long as it does not exceed the statutory limit for such an offense. The Supreme Court in Natale explained the general approach now permitted in the wake of its holding in the following way:

Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone.

[Id. at 488.]

The conviction on Indictment No. 03-07-0783 is affirmed. The sentence on both indictments are vacated and the matter is remanded to the Law Division, Union County for re-sentencing. We do not retain jurisdiction.

 

State v. Natale, 184 N.J. 458 (2005).

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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A-6577-03T4

September 6, 2006