STATE OF NEW JERSEY v. GEORGE MIRANDA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0558-07T40558-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE MIRANDA,

Defendant-Appellant.

________________________________

 

Submitted: February 11, 2010 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-04-0463.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Dana Citron, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecu tor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George Miranda appeals his conviction of third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10a(1) (Count One); third-degree dis tribution of CDS, contrary to N.J.S.A. 2C:35-5a(1) (Count Two); third-degree distribution of CDS within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Three); third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (Count Four); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Five). Defendant also appeals the sentences imposed on Count Three of an extended term of eight years with a four-year parole ineligibility term and on Count Five of five years with a three-year parole ineli gibility term to run concurrently with the sentence on Count Three. We now affirm.

We glean the following facts from the evidence presented at trial. On January 14, 2006, at 9:15 a.m. Detective Marvin Sykes of the Paterson Police Department conducted drug surveillance near the intersection of Madison and Oak Streets. This residen tial neighborhood contained a few businesses and was known as a high drug-trafficking area. This intersection was within 1000 feet of a school.

Sykes was a six-year veteran of the Paterson narcotics unit and had previously been involved in over a thousand narcotics arrests. Sykes parked his unmarked vehicle about three hundred feet from the intersection and had an unobstructed view of the intersection with his binoculars. Backup units were positioned outside the surveillance area to avoid being seen by lookouts or drug buyers who might recognize the undercover vehicles.

Sykes immediately saw two men conversing with each other on the corner near the curb. It was cloudy and drizzling. The man with an umbrella was defendant. The other man, who was wearing shorts and a winter coat, was defendant Orlando Cintron. A blue Plymouth Voyager minivan pulled up and stopped at the corner. Both defendants conversed with the occupants of the minivan through the passenger side window. Sykes could not hear what was said. Moments later, a male wearing a black jacket exited the minivan and approached both defendants.

Sykes testified that he then observed a drug transaction:

Q. Okay. . . . What happens when the buyer approaches the defendant and Orlando Cintron?

A. [Defendant] walks towards the corner with the umbrella . . . .

Q. Corner of what?

A. Madison and Oak.

Q. Okay.

A. Which is one house away from where they were, like maybe 20 feet from where they were initially. He walks to the corner, . . . he has the umbrella. He looks around, looks down Madison Street, and looks back over at Cintron. . . . [H]e then gives a head nod to Cintron and then Cintron proceeds to reach in his pocket, pull out an item, and then makes an exchange with the buyer for paper currency. The buyer then walks back towards the previously mentioned mini[]van, towards the mini[]van. The van pulls out. At that time I gave the description of the van and its direction of travel.

Q. Why?

A. Because based on my training and exper ience, I believe I witnessed a hand-to-hand drug transaction.

. . . .

A. I continue to watch Mr. Cintron and [defendant]. [Defendant] then walks back towards Mr. Cintron, at which time Mr. Cin tron then hands paper currency to [defendant].

Q. And what, if anything, did you see the defendant do with that paper currency?

A. He counts it and puts it towards his pocket somewhere.

Detective Troy Bailey, a member of one of the backup teams, heard the description of the blue minivan, the male buyer, and the direction of travel over the police radio. He spotted the van and stopped it near Straight Street and Twentieth Avenue. As Bailey approached the van, he saw the front passenger quickly place a light-colored object into his mouth. Bailey ordered the man to get out of the minivan and remove the items from his mouth. After a brief struggle, the buyer was arrested and spit out two glassine envelopes of heroin that were stamped with the word "King."

Bailey radioed Sykes and told him what he had recovered. Sykes then told the other backup team of Detectives David D'Arco and Paul Miccinilli to arrest defendant and Cintron. As they approached the intersection, defendant and Cintron looked in their direction. Defendant left the corner and headed down Oak Street toward Beech Street. Cintron discarded objects on the ground and walked into a nearby store. The discarded objects were three glassine envelopes containing heroin and were stamped "King."

Miccinilli followed Cintron into the store and arrested him; D'Arco pursued defendant and arrested him. Both men were taken to police headquarters and charged. Defendant had $118 in cash on his person; Cintron had $97. Neither one had drugs in his possession.

All four officers testified at trial; defendant did not take the stand and did not call any witnesses. The jury con victed defendant on all counts. At sentencing, the State moved to sentence defendant to an extended term under N.J.S.A. 2C:43-6f based on his prior convictions. Defendant was convicted in 1986 for possession of CDS with intent to distribute. Thereafter, defendant was arrested eighteen times between 1988 and 2006 and convicted of seven indictable offenses between 1989 and 2003, including aggra vated assault and unauthorized use of a vehicle in 1989; burglary in 1990 and 2001; theft by unlawful taking in 1994; possession or distribution of a hypodermic syringe in 2002; and receiving stolen property in 2003. Five of the seven prior offenses resulted in a state prison sentence, and the current offenses were committed while defendant was still on parole. The judge granted the motion for an extended term and found aggravating factors three, six, and nine and no mitigating fac tors. He concluded that the aggravating factors outweighed the mitigating factors and sentenced defendant as described above. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE COURT BELOW ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT II - THE PROSECUTOR AND JUDGE BOTH ABUSED THEIR DISCRETION IN SENTENCING DEFENDANT.

A. THE PROSECUTOR ABUSED HIS DIS CRETION IN MOVING FOR AN EXTENDED TERM PURSUANT TO N.J.S.A. 2C:43-6(f).

B. DEFENDANT'S SENTENCES WERE MANIFESTLY EXCESSIVE.

At the close of the State's case, defendant moved for a judg ment of acquittal pursuant to Rule 3:18-1. He argued that the State had not proven all of the elements of possession and that no reasonable juror could find defendant guilty. The State responded that, under State v. Reyes, 50 N.J. 454, 458-59 (1967), the judge must view the evidence in the light most favorable to the State and determine whether the State made out a prima facie case on each of the crimes charged. It asserted that the stan dard was not proof beyond a reasonable doubt "at this juncture" and it had certainly made out a prima facie case.

The judge found that the State's evidence linked defendant to the actual sale of narcotics at the time and place described by the witnesses; the buyer had been picked up in possession of heroin; and Cintron had been arrested after the officers made observations of his actions and defendant was then arrested. He found that the State made out a prima facie case on each count and concluded that a reasonable jury could find guilt on each count beyond a reasonable doubt.

Defendant argues that the judge erred in this respect because "[t]he State did not meet its burden of proving that defendant possessed and distributed the two bags of heroin sold to the buyer and possessed the three bags of heroin thrown to the ground by Cintron." He urges that the State did not prove defendant possessed the drugs or was guilty of possession under accomplice liability, thus requiring dismissal of Counts One, Four, and Five.

Pursuant to Rule 3:18-1, the court shall order the entry of a judgment of acquittal if the evidence is insufficient to warrant a conviction. In deciding a motion for acquittal made at the close of the State's evidence, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. Reyes, supra, 50 N.J. at 458-59; see also State v. Wilder, 193 N.J. 398, 406 (2008). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996); State v. Moffa, 42 N.J. 258, 263 (1964).

We see no error in the judge's denial of defendant's motion for a judgment of acquittal. Criminal possession involves an "intentional control and dominion, the ability to affect physi cally and care for the item during a span of time accompanied by knowledge of its character." Brown, supra, 80 N.J. at 597 (citations and internal quotations omitted). However, possession can be constructive as opposed to actual. Ibid. There must be "an intention to exercise control over [the item] manifested in circumstances where it is reason able to infer that the capacity to do so exists." Ibid. (citations omitted). It cannot be inferred simply by mere presence at the location of the narcotics, "unless there are other circumstances . . . tend ing to permit such an inference to be drawn." Id. at 593 (citation and internal quotations omitted).

Here, a reasonable jury could conclude beyond a reasonable doubt that defendant was acting as the lookout for buyers and police, while Cintron was responsible for holding the heroin and exchanging it for cash. When the prospective buyer approached them, defendant walked to the corner and checked down the street for anyone who would interfere with the transaction. He then gave a nod of approval to Cintron, who consummated the illegal transaction. Thus, defendant significantly aided in the distribution of heroin. He certainly must have known heroin was present, and it can be reasonably inferred that he intended to exercise control over it, either directly or through Cintron. After the transaction, defendant accepted the case from Cintron, proving a shared role in the sale of the CDS and his purpose with respect to the CDS subsequently discarded by Cintron. This evidence was legally and factually sufficient to prove accom plice liability. See State v. Gelb, 212 N.J. Super. 582, 591-92 (App. Div. 1986) ("Concerted action need not be proved by direct evidence of a formal plan to commit a crime[;] . . . [r]ather the proof may be circumstantial and participation and acquies cence may be inferred from conduct . . . ."), certif. denied, 107 N.J. 633 (1987).

Defendant also contends that the prosecutor abused his dis cretion in seeking an extended term, because the prior drug con viction was remote, and the judge abused his discretion by sen tencing him to an extended term. N.J.S.A. 2C:43-6f governs extended terms for persons convicted under N.J.S.A. 2C:35-5 of distributing CDS or possessing CDS with intent to distribute, or convicted under N.J.S.A. 2C:35-7 of distributing CDS or possess ing CDS with intent to distribute on or near school property. It provides that any such person:

who has been previously convicted of manu facturing, distributing, dispensing or possessing with intent to distribute a [CDS] or controlled substance analog, shall upon application of the prose cuting attorney be sentenced by the court to an extended term as authorized by [N.J.S.A. 2C:43-7c], notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S.A. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, . . . during which the defendant shall be ineligible for parole.

[N.J.S.A. 2C:43-6f.]

Here, defendant was convicted of possession of CDS with intent to distribute in 1986. The present offense occurred twenty years later in 2006. In the meantime, defendant was con victed of (1) unauthorized use of a vehicle on February 5, 1989, for which he was sentenced to sixty days in jail; (2) aggravated assault with a firearm on March 27, 1989, for which he was sen tenced to eighteen months in prison; (3) two counts of burglary on December 17, 1990, for which he was sentenced to four years in prison; (4) theft by unlawful taking on November 11, 1994, for which he was sentenced to five years in prison and, when he was paroled, violated his parole; (5) burglary on December 2, 2001, for which he was sentenced to five years on probation, but violated his probation and was sentenced to four years in prison; (6) possession or distribution of hypodermic syringes on July 2, 2002, for which he received a conditional discharge; and (7) receiving stolen property on March 3, 2003, for which he was sentenced to four years in state prison and, when he was parole, violated his parole.

The State has the burden to establish eligibility for an extended term by a preponderance of the evidence. State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.), certif. denied, 164 N.J. 562 (2000). The prose cutor need only show that the defendant had a prior conviction for one of the drug offenses enumerated in N.J.S.A. 2C:43-6f. The Supreme Court required the decision to seek an extended term to be governed by guide lines adopted by the Attorney General in order to render the statute constitutional. State v. Lagares, 127 N.J. 20, 32 (1992). Such guidelines were subsequently adopted, and the Attorney General provided for waiver of an extended term if: "[D]efendant's prior record includes only convictions that are extremely remote, and the State determines that there is no reason to believe that defendant derived a substan tial source of income from criminal activity at any time . . . ." Irrizary, supra, 328 N.J. Super. at 203 (quoting State v. Kirk, 145 N.J. 159, 169 (1996) (emphasis added) (citing Attorney General Guidelines (Apr. 20, 1992))) (footnote omitted). We explained that, when deciding whether waiver was appropriate, "the sentencing judge must consider intervening convictions, including disorderly persons convictions." Ibid.

That consideration clearly called for an extended term. In the twenty years between defendant's first drug offense and his second drug offense, he was convicted of two dis orderly persons offenses and five indictable offenses. He was sentenced to a total of eighteen years and eight months in jail and repeatedly violated his probation and parole after being released from prison before the end of his term. We find no abuse of discretion in the prosecutor seeking an extended term and the judge imposing one. There is nothing about this sen tence that shocks our judicial conscience, State v. Roth, 95 N.J. 334, 363 (1984), and the sentence is affirmed.

Defendant has brought to our attention an error in the judg ment of conviction entered on April 25, 2007, regarding Indictment No. 06-04-00463-I. That judgment indicates that defendant pled guilty to Counts One through Five on February 8, 2007. It should indicate that defendant was adjudicated by jury trial on February 8, 2007. We remand this matter for correction of the judgment of conviction.

 
Affirmed; remanded for correction of the judgment of conviction.

Counts One and Two were merged into Count Three for sentencing purposes.

Count Four was merged into Count Five for sentencing purposes.

N.J.S.A. 2C:44-1a(3).

N.J.S.A. 2C:44-1a(6).

N.J.S.A. 2C:44-1a(9).

(continued)

(continued)

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A-0558-07T4

July 26, 2010