STATE OF NEW JERSEY v. CALVIN BYNUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1378-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN BYNUM,

Defendant-Appellant.

_______________________________________________________

November 19, 2010

Submitted November 10, 2010 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-08-0729, 05-07-0993, 06-04-0511 and 06-10-1256.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant argues that the trial judge erred, during the trial on one indictment, in instructing the jury regarding defendant's decision not to testify. He also argues the sentence imposed in that matter and three others upon which sentence was passed at the same time -- particularly because of the imposition of consecutive terms -- was excessive. We find no merit in these arguments and affirm.

Indictment No. 05-07-0993 charged that, on January 28, 2005, defendant committed the following offenses: third-degree possession of a controlled dangerous substance (CDS), namely heroin, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3); and two counts of third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-5(a). At the conclusion of a trial in 2006, defendant was convicted as charged.

Prior to sentencing in Indictment No. 05-07-0993, defendant entered into a negotiated plea agreement pursuant to which he pled guilty to single counts of third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), in Indictment Nos. 06-04-0511 and 06-10-1256.1 In exchange, the State agreed to recommend that any prison term imposed in those matters not exceed four years, with a two-year period of parole ineligibility, concurrent to each other, but consecutive to any prison term imposed in Indictment No. 05-07-0993. At the time of sentencing in these matters, defendant also entered a guilty plea to a violation of the conditions of probation imposed previously in Indictment No. 03-08-729. In addition, the judge granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).

At a hearing on November 17, 2006, after all appropriate mergers in Indictment No. 05-07-0993, the judge sentenced defendant to an aggregate prison term of five years, with a three-year period of parole ineligibility. In conformity with the plea agreement, the judge sentenced defendant to concurrent four-year prison terms, with a two-year period of parole ineligibility, in Indictment Nos. 06-04-0511 and 06-10-1256, and directed that those concurrent terms run consecutively to the prison term imposed in Indictment No. 05-07-0993. The judge lastly vacated the probationary term imposed in Indictment No. 03-08-729, and imposed a three-year prison term to run concurrently with the terms imposed in the other matters.

Defendant appealed the judgments of conviction entered in these matters, arguing:

I. THE INS[T]RUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT (Not Raised Below).

II. THE SENTENCE IMPOSED WAS MANIFESTLY EX-CESSIVE, UNDULY PUNITIVE AND NOT IN CONFORM-ANCE WITH THE CODE OF CRIMINAL JUSTICE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Defendant argues in Point I that the judge erroneously instructed the jury about defendant's election not to testify. Specifically, defendant focuses on the last sentence of the charge on this point, where the judge advised the jury that defendant "is presumed innocent even if he chooses not to testify" (emphasis added). Defendant did not object at trial to this choice of language; indeed the judge's charge on this point adopted the language contained in the Model Jury Charges in effect at the time. Instead, defendant seizes on the fact that the Model Jury Charges have since been revised to substitute "whether or not he chose to testify" for "even if he chooses not to testify." Certainly, the language of the current Model Jury Charge conveys a more neutral connotation, but we do not find that the use of the former version -- especially when viewing this portion of the charge as a whole, State v. Adams, 194 N.J. 186, 207 (2008)2 -- was capable of producing an unjust result. State v. Nero, 195 N.J. 397, 407 (2008). In considering defendant's argument on this point, we need express nothing more than our agreement with the thoughtful resolution of the same issue in State v. Miller, 411 N.J. Super. 521, 533 (App. Div.), certif. granted, 202 N.J. 44 (2010), that a jury hearing the same charge given here "could not be confused by use of the word 'even' and led to conclude that defendant had an obligation to testify."3

Defendant's Point II presents no valid argument of excessiveness in the sentences imposed. Viewed individually, the terms imposed on the indictments were more than reasonable. Reduced to its essentials, defendant's argument is based on the trial court's imposition of consecutive terms. Considering that the negotiated plea agreement contemplated the imposition of consecutive terms, that defendant has a considerable history of committing similar offenses, which had gone undeterred, and that the aggregate sentence involved similar offenses on separate occasions, the imposition of consecutive terms was certainly warranted.

In examining a sentence, we "exercise a vigorous and close review for abuses of discretion by the trial courts," State v. Cassady, 198 N.J. 165, 180 (2009), and "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record,'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)), but we will not "substitute [our] judgment for that of the trial court," Cassady, supra, 198 N.J. at 180, which we will affirm unless "shock[ing] [to] the judicial conscience," id. at 181. Here, after close examination, there is no doubt that the judge adhered to recognized sentencing principles and imposed terms within the parameters set by the Legislature; as a result, the judge's exercise of discretion is "immune from second-guessing" by this court and must be affirmed. Bieniek, supra, 200 N.J. at 612.

1The drug offenses for which defendant was convicted in Indictment Nos. 06-04-0511 and 06-10-1256, occurred on February 9, 2006, and June 29, 2006, respectively.

2For the sake of completeness, the judge's entire instructions on defendant's decision not to testify is as follows, with the phrase in question emphasized:

Now as you know, Mr. Bynum has elected not to testify at trial. It is his constitu-tional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that Mr. Bynum did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all of the evidence presented at trial. He is presumed innocent even if he chooses not to testify.

3As indicated, the Supreme Court recently granted certification in Miller. However, the Court granted certification not to consider the issue raised here but only to consider whether we applied "the appropriate standard of review" in considering "the trial court's determinations to impose consecutive sentences." See http://www.judiciary.state.nj.us/calendars/sc_appeal.htm.