STATE OF NEW JERSEY v. MANUEL MAYAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0861-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL MAYAS,

Defendant-Appellant.

_______________________________

December 15, 2010

Submitted: December 1, 2010 - Decided:

Before Judge Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-01-0061.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Manuel Mayas appeals from his conviction and sentence. We affirm.

Defendant was indicted on third-degree possession of cocaine, N.J.S.A. 2C:35-l0a(l) (count one), and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(l), for an incident occurring in October 2005. After conducting a Sands/Brunson1 hearing on January 17, 2007, the court determined the State could seek to impeach defendant's credibility with three prior indictable convictions, two of which were entered over ten years before the current incident. Trial commenced, during which count two was dismissed and defendant was convicted by a jury on count one. The court imposed a five-year custodial sentence with a two and one-half year period of parole ineligibility, along with appropriate fees and penalties. Defendant appealed and we ordered a partial remand for reconstruction of the record.

On appeal, defendant argues:

POINT I

THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DEFENDANT'S 1995 CONVICTIONS WERE ADMISSIBLE TO IMPEACH DEFENDANT IF HE ELECTED TO TESTIFY, THEREBY DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT II

THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.

After reviewing the record and applicable law, we find these arguments unpersuasive and affirm.

Based on defendant's limited challenge, we need not recite the facts at length. The testimony presented by the State was that Vineland Patrolman Dominic Ferrari observed defendant dropping a clear plastic bag, containing a white rocky substance, to the ground and sweeping it into a storm drain, which he and Detective William Bontcue retrieved. Sergeant John McMahon and Carissa Wilcox testified about the chain of custody and laboratory test of the substance, which tested positive for .599 grams of cocaine. The jury apparently credited the State witnesses rather than defendant's denial and explanation that he only flicked a cigarette butt to the ground.

Defendant did not challenge the sanitized use of his July l997 conviction for third-degree drug offenses arising out of a December 4, 1996 incident. He does challenge, however, as an abuse of discretion, the ruling by Judge Waters permitting the sanitized use of two convictions for third-degree drug offenses entered on February 27, 1995, one resulting from an offense committed on September 30, 1994 and the other resulting from an offense committed on November 29, 1994.2 According to defendant, the relevant factors that favored exclusion of these convictions were: (1) the twelve-year passage of time between the convictions and the trial; (2) the CDS offenses to which defendant pled guilty were third-degree offenses for which a probationary sentence was initially imposed, and did not involve acts of violence; (3) CDS distribution is not the type of crime that necessarily reflects poorly on a defendant's credibility; and (4) defendant had a single criminal conviction that was going to be used for impeachment purposes and only had an intervening handful of disorderly persons offenses.

Defendant conceded he had contact with the criminal justice system during the lengthy intervening period of time. He argues, however, the judge overemphasized and misapplied this factor, which led to the faulty conclusion that the convictions "demonstrate a pattern of antisocial behavior on the part of the Defendant, that a jury may take into consideration." Defendant urges that if the judge had weighed this factor against the other three factors favoring exclusion, he would have excluded the two l995 convictions as too remote. Defendant posits that the admission of the remote convictions unfairly tipped the scales in the State's favor in a case that revolved around credibility, thus violating his constitutional rights to due process and a fair trial.

We disagree. A court's Sands ruling will not be reversed unless it is shown the admission of the prior conviction constituted an abuse of discretion. Sands, supra, 76 N.J. at 144; State v. Jackson, 278 N.J. Super. 69, 79 (App. Div. l994), certif. denied, l4l N.J. 95 (l995). There is a strong presumption in favor of admission and the defendant has the burden of proof to justify exclusion. Sands, supra, 79 N.J. at l44.

When determining whether a conviction can be used for impeachment purposes, "the key to exclusion is remoteness"; however, this cannot be determined simply from the passage of time. Ibid. The court is required to "balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Ibid. In explaining that in exercising its discretion, the court should also consider intervening convictions, the Supreme Court elaborated:

When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at l45.]

Between committing the first and second third-degree offenses in l994, defendant committed two disorderly persons offenses for which he was convicted in municipal court. He then committed and was sentenced in municipal court for three more disorderly persons offenses. Defendant then violated probation and committed his third indictable offense, which resulted in incarceration. Following his release, defendant committed and was convicted of three more municipal court offenses before committing the subject offense.3 In concluding the two l995 convictions could be utilized in a sanitized fashion to impeach defendant's credibility if he chose to testify, Judge Waters considered their remoteness but found particularly compelling defendant's ongoing criminal conduct, which continued even after his release from jail.

We are satisfied the record supports the judge's discretionary ruling that defendant's antisocial behavior was strong enough to tip the balance in favor of admitting the sanitized l995 convictions. We note that although only indictable convictions may be admitted, State v. Rowe, 57 N.J. 293, 302-03 (l970), municipal court convictions can be considered when determining whether prior convictions should be excluded. State v. McBride, 213 N.J. Super. 255, 267 (App. Div. l986), certif. denied, l07 N.J. ll8 (l987). We further note that even if the judge's decision were erroneous, the outcome most likely would have been the same as defendant's credibility would have already been damaged by reference to the l997 indictable conviction.

Defendant next challenges his sentence, arguing the judge should not have applied aggravating factor nine, N.J.S.A. 2C:44-la(9), and should have attached minimal weight to factors three and six, N.J.S.A. 2C:44-1a(3) and (6). Our view of a sentence is limited and we are not permitted to substitute our judgment for that of the sentencing court. State v. Cassady, 198 N.J. 165, 180 (2009). We may only modify a sentence when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (l984). The record supports the judge's finding as to the aggravating factors and lack of mitigating factors. Moreover, the judge appropriately weighed the factors and sentenced defendant within the appropriate range for a third-degree offense, which sentence does not shock our conscience. Accordingly, we discern no basis to second-guess the sentence.

1 State v. Sands, 76 N.J. 127 (l978); State v. Brunson, l 32 N.J. 377 (l993).

2 Defendant was sentenced on these offenses on April 13, 1995.

3 Defendant was also charged with a variety of indictable weapons and theft offenses about a week before committing the subject offense; however, as trial was not scheduled until after the present trial, the judge did not consider these charges in his Sands assessment.