STATE OF NEW JERSEY v. TERRENCE KELLEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1783-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRENCE KELLEY,
Defendant-Appellant.
_________________________________
Submitted March 9, 2010 - Decided August 26, 2010
Before Judges Carchman, Parrillo and Ashrafi.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
07-05-0648.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Gregory P.
Jordan, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent (Steven
E. Braun, Chief Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Terrence Kelley appeals from his conviction by a
jury for possession of cocaine with intent to distribute in a
school zone and for hindering prosecution. He also appeals the
extended term sentence imposed by the court. We affirm.
Defendant was arrested and charged along with co-defendant
Cornelius Smith on February 2, 2007. At about 11:45 a.m. on
that date, Detective Evelyn Gonzalez of the Paterson Police
Department was conducting surveillance in the area of 10th
Avenue between East 25th and 26th Streets to address citizen
complaints about drug dealing in the area. She observed
defendant and Smith standing about 150 to 200 feet from where
her unmarked police vehicle was parked. Ten minutes after
setting up the surveillance, she observed a man approach Smith
and have a brief conversation. She then saw Smith walk several
feet to a public telephone, reach behind it, and obtain a dark
object. She saw Smith hand something to the man in exchange for
what she perceived to be paper currency. During the
transaction, defendant was looking into the trunk of a green
Acura parked near the pay phone. As the unidentified man walked
away, Smith put something back behind the telephone, walked over
to defendant, and appeared to hand him currency, which defendant
placed in his pants pocket.
Ten to fifteen minutes later, Detective Gonzalez observed a
second transaction with a different unidentified man conducted
in a similar manner. She again saw defendant receive what
appeared to be money from Smith and put it into his pocket.
A-1783-08T4
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Detective Gonzalez contacted other police units but they
were unable to respond to her request for assistance at that
time because of other duties. Gonzalez continued to observe
Smith and defendant. Smith briefly spoke to defendant and then
walked away. Defendant closed the trunk of the Acura, walked
over to the pay phone, and appeared to retrieve something from
behind the phone. Defendant then drove away in the Acura but
stopped briefly at the corner of 10th Avenue and 26th Street and
picked up Smith.
Detective Gonzalez again contacted other units and gave
them a description of the vehicle and its direction of travel.
Defendant drove on East 26th Street and made a right turn onto
11th Avenue, coming within 1,000 feet of Rosa Parks School.
Sergeant Troy Bailey and Detective William Palomino stopped the
Acura ten blocks away from the location of the surveillance.
They found seven glassine baggies of cocaine in a magnetic black
key box placed near the gas pedal. They arrested defendant and
Smith.
Defendant and Smith were transported together to the police
station and sat near each other handcuffed to a bar by one hand
for about forty-five minutes before they were processed. When
the police conducted an inventory search of the two men, they
A-1783-08T4
3
found no money on defendant's person but found $313 in Smith's
possession.
At the station, Detective Gonzalez conducted a field test
on the substance in the baggies recovered from the Acura. The
test was positive for cocaine.
A grand jury returned a four-count indictment against
defendant and Smith: (count one) third-degree possession of
cocaine, N.J.S.A. 2C:35-10a(1); (count two) third-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35-
5a(1) and b(3); (count three) third-degree possession of cocaine
with intent to distribute within 1,000 feet of school property,
N.J.S.A. 2C:35-7 and 2C:35-5a; and (count four) fourth-degree
hindering apprehension by concealment of evidence, N.J.S.A.
2C:29-3b(1). Smith entered into a plea agreement with the State
and pleaded guilty to the school zone count. Defendant was
tried before a jury on March 17 to 20, 2008. The jury found him
guilty of all four charges.
Defendant was sentenced on July 31, 2008. After merging
counts one and two into count three, the school zone charge, the
judge imposed a mandatory extended term sentence under N.J.S.A.
2C:43-6f of eight years' imprisonment with a minimum period of
four years before parole eligibility. In addition, the judge
sentenced defendant to eighteen months' imprisonment on count
A-1783-08T4
4
four, the hindering charge, to run concurrently to the sentence
on count three. Defendant filed a notice of appeal on December
3, 2008.
On appeal, defendant raises the following points of
argument:
POINT I IT WAS PLAIN ERROR NOT TO INSTRUCT THE JURY
ON THE LESSER INCLUDED OFFENSE OF WANDERING
TO OBTAIN OR SELL CDS, THE ELEMENTS OF WHICH
ARE SUPPORTED BY THE EVIDENCE; A REVERSAL IS
WARRANTED (NOT RAISED BELOW).
POINT II THE TRIAL COURT ERRED IN DENYING A MOTION
FOR A JUDGMENT OF ACQUITTAL AND A MOTION FOR
A NEW TRIAL (PARTIALLY RAISED BELOW).
POINT III THE COURT ERRED IN ALLOWING TESTIMONY ABOUT
THE MONEY RECOVERED FROM THE DEFENDANTS
AFTER COURT RULED THAT TESTIMONY COULD NOT
BE ADDUCED.
POINT IV THE TRIAL COURT ERRED BY ALLOWING THE
STIPULATIONS TO BE ENTERED (NOT RAISED
BELOW).
POINT V THE TRIAL COURT ERRED BY NOT HOLDING AN
APPROPRIATE CHARGE CONFERENCE WHICH
PREJUDICED THE DEFENDANT (NOT RAISED BELOW).
POINT VI THE TRIAL COURT ERRED IN ALLOWING THE
PROSECUTOR'S REMARKS DURING HIS SUMMATION
WHICH WERE IMPROPER AND DENIED THE DEFENDANT
A FAIR TRIAL; A REVERSAL IS WARRANTED (NOT
RAISED BELOW).
POINT VII THE DEFENDANT'S SENTENCE WAS DISPARATE AND
NOT JUSTIFIED AS COMPARED TO HIS CO-
DEFENDANT'S SENTENCE; A REMAND IS REQUIRED.
POINT VIII THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE AND SHOULD BE REDUCED.
A-1783-08T4
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Except for Point II pertaining to the sufficiency of
evidence, defendant's arguments were not raised in the trial
court. And with respect to Point II, only some of the arguments
made on appeal were made to the trial court. Therefore, other
than defendant's appeal of his sentence and the arguments on
sufficiency of evidence that were raised below, his points on
appeal are subject to the plain error standard of review.
Our rule pertaining to trial errors, Rule 2:10-2, provides
that "[a]ny error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result." See State v.
Timmendequas,
161 N.J. 515, 576 (1999), cert. denied,
534 U.S. 858,
122 S. Ct. 136,
151 L. Ed. 2d 89 (2001). The error must
have been of sufficient magnitude to raise a reasonable doubt as
to whether it led the jury to a result it would otherwise not
State v. Branch,
182 N.J. 338, 353 (2005); State
have reached.
v. Brims,
168 N.J. 297, 306 (2001); State v. Macon,
57 N.J. 325,
336 (1971); State v. Swint,
328 N.J. Super. 236, 256 (App.
Div.), certif. denied,
165 N.J. 492 (2000).
Defendant contends the trial court committed plain error by
failing to instruct the jury on a lesser-included disorderly
persons offense of wandering in a public place with the purpose
of obtaining or selling a controlled dangerous substance, in
A-1783-08T4
6
violation of N.J.S.A. 2C:33-2.1.1 Regarding the jury charge, the
trial court specifically noted, "I don't think there's any
lesser-included." Neither party objected or stated otherwise.
Lesser-included offenses are only to be charged when there
is "not only a rational basis in the evidence for a jury to
convict the defendant of the included offense but . . . also a
rational basis in the evidence for a jury to acquit the
defendant of the charged offense." State v. Brent,
137 N.J.
107, 113-14 (1994); see also State v. Cassady,
198 N.J. 165,
177-78 (2009) (two-part inquiry regarding whether lesser-
included offense should be charged: whether the lesser charge is
included in the offense charged and whether the jury could
rationally acquit on the greater charge and convict on the
lesser one).
A trial court has an independent obligation to instruct on
lesser-included charges when the facts adduced at trial clearly
1 N.J.S.A. 2C:33-2.1b states:
A person, whether on foot or in a motor
vehicle, commits a disorderly persons
offense if (1) he wanders, remains or prowls
in a public place with the purpose of
unlawfully obtaining or distributing a
controlled dangerous substance or controlled
substance analog; and (2) engages in conduct
that, under the circumstances, manifests a
purpose to obtain or distribute a controlled
dangerous substance or controlled substance
analog.
A-1783-08T4
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indicate that a jury could convict on the lesser while
acquitting on the greater offense. State v. Jenkins,
178 N.J.
347, 361 (2004); State v. Garron,
177 N.J. 147, 180 (2003),
cert. denied,
540 U.S. 1160,
124 S. Ct. 1169,
157 L. Ed. 2d 1204
(2004); State v. Choice,
98 N.J. 295, 299 (1985); State v.
Powell,
84 N.J. 305, 318-19 (1980). But "when a defendant does
not request the judge to charge a particular lesser-included
offense, the judge need not sua sponte give that instruction
unless the facts clearly indicate that the jury could find the
defendant guilty of the lesser-included offense, rather than the
charged offense." State v. Viera,
346 N.J. Super. 198, 211
(App. Div. 2001), certif. denied,
174 N.J. 38 (2002). "Thus, the
trial court is not obliged to, on its own, meticulously sift
through the entire record to see if some combination of facts
and inferences might rationally sustain a charge on a lesser-
included offense." Ibid.
Here, no rational basis existed for the jury to acquit on
the greater charge of possession of the cocaine with intent to
distribute but to convict on the lesser charge of wandering to
obtain or distribute the drugs. The cocaine was found in seven
glassine baggies near the gas pedal of the Acura that defendant
was driving. The offenses charged related primarily to those
drugs found in the car rather than to Detective Gonzalez's
A-1783-08T4
8
surveillance and observation of what appeared to be two hand-to-
hand transactions some minutes earlier. With the discovery of
the drugs, the jury had no rational basis to conclude that
defendant was engaged in wandering to buy or sell drugs earlier
but did not possess the cocaine found in the car with intent to
distribute.
Defendant contends the court erred in denying his motion
for judgment of acquittal pursuant to Rule 3:18-1 at the end of
the State's case, and alternatively his motion for a new trial
under Rule 3:20-1 made at the time of sentencing. We reject
these contentions.
In reviewing a motion for judgment of acquittal, an
appellate court applies the same standard as the trial court.
State v. Bunch,
180 N.J. 534, 548-49 (2004); State v. Felsen,
383 N.J. Super. 154, 159 (App. Div. 2006). The motion must be
denied where:
[V]iewing 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 of the favorable inferences
which reasonably could be drawn therefrom, a
reasonable jury could find guilt of the
charge beyond a reasonable doubt.
[State v. Reyes,
50 N.J. 454, 459 (1967).]
On a motion for a judgment of acquittal, "the trial judge
is not concerned with the worth, nature or extent (beyond a
A-1783-08T4
9
scintilla) of the evidence, but only with its existence, viewed
most favorably to the State." 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
court. State v. Kittrell,
145 N.J. 112, 130 (1996).
Defendant argues there "was not enough evidence to draw the
logical inference . . . that drugs were handed to the persons
who handed money to the defendants." He argues at length that
the police failed to apprehend either of the two men who
allegedly bought drugs from defendant and Smith, and therefore,
the State did not prove that defendant distributed cocaine. As
we have already stated, however, the charges in the indictment
were based primarily on the drugs found in the car rather than
the drugs allegedly sold to the unidentified men observed during
the surveillance. The surveillance testimony helped establish
that the cocaine was possessed with intent to distribute. It
was not used to prove the separate crime of distribution of
cocaine to the two unidentified men.
Defendant also contends that the State failed to prove
beyond a reasonable doubt that the seven glassine baggies
contained cocaine. He also contends the State failed to prove
intent to distribute the cocaine because the baggies were "for
personal use, especially between two defendants."
A-1783-08T4
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The contents of the glassine baggies were the subject of a
stipulation at trial, and Detective Gonzalez also testified she
field-tested the substance found in them and the test was
positive for cocaine.
With respect to the stipulation, we also reject defendant's
argument that the trial court committed plain error in
suggesting that the parties stipulate to the nature of the
substance found in the car. During a pre-trial status
conference, the court noted that the parties had agreed to three
stipulations:
The Court: . . . Stipulate to matters, I do
have a proposed stipulation here, right?
[Defense Counsel]: Yes.
[Prosecutor]: Yes.
The Court: Lab report, map, chain of
custody.
[Defense Counsel]: No objection to those
going in, Judge.
During the trial, defense counsel again agreed that stipulations
pertaining to the lab report, a school zone map, and chain of
custody would be read to the jury.
After the judge explained to the jury that parties in a
trial often enter into stipulations to save time and needless
testimony, the court informed the jury that the State and the
defense had entered into the following stipulations:
A-1783-08T4
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No. 1. If the New Jersey State Lab Forensic
Scientist David Neal Ryan, were to testify
in this case his testimony would be that he
tested Exhibit S-3 in evidence and it tested
positive for cocaine weighing approximately
0.08 grams;
No. 2. The map of Rosa Parks School of Fine
Arts accurately depicts the scale 1 inch
equaling 100 feet. The 1,000-foot radius
surrounding Rosa Parks School of Fine Arts.
Furthermore, it is agreed that Rosa Parks
School of Fine Arts was owned and operated
by the Paterson Board of Education for
educational purposes on February 2nd of
2007.
No. 3. Exhibit S-3 in evidence contains the
items recovered by Detective Marvin Sykes on
February 2nd of 2007, which was later taken
to the New Jersey State lab by Detective
Jack Baker and tested by David Neil Ryan and
later returned here.
The first and third stipulations dispose of defendant's argument
that the substance was not proven to be cocaine.
There is simply no merit in defendant's argument that the
trial court erred in facilitating stipulation of routine
evidentiary matters between the parties. Defendant acknowledges
that he may have to rely on arguing ineffective assistance of
counsel through a petition for post-conviction relief on this
issue.2 It was certainly not a matter of plain error on the part
of the trial court to accept the stipulations agreed to by
defense counsel.
2
We make no suggestion that such an argument has any merit.
A-1783-08T4
12
As to intent to distribute the cocaine, "a jury may draw an
inference from a fact whenever it is more probable than not that
Kittrell, supra,
145 N.J. at 131
the inference is true."
(quoting State v. Brown,
80 N.J. 587, 592 (1979)). Here, the
jury could infer from all the evidence, including the
surveillance, that defendant intended to distribute the cocaine
in the seven glassine baggies found in the car.
Defendant argues next that the State lacked evidence that
the alleged street transactions occurred within 1,000 feet of
Rosa Parks School. The State never contended that the street
sales occurred in a school zone. Rather, the State's evidence
showed that defendant was in possession of cocaine with intent
to distribute in a school zone when he was arrested. A
defendant who is within the 1,000 foot perimeter and in
possession of illegal drugs with intent to distribute need not
intend to distribute the drugs within the perimeter to be
subject to N.J.S.A. 2C:35-7. State v. Ivory,
124 N.J. 582, 595
(1991); State v. Bethea,
243 N.J. Super. 280, 283 (App. Div.),
certif. denied,
122 N.J. 401 (1990).
Addressing count four of the indictment, defendant argues
insufficient evidence to prove that he hindered his own
apprehension and prosecution by transferring money to Smith
while in transport or at the police station. He argues that the
A-1783-08T4
13
State never showed that he had money in his pocket. The State
presented testimony of Detective Palomino that he felt "a large
wad" in defendant's pocket at the scene of the arrest upon
patting him down for weapons. He believed the wad was money but
he did not seize it at the scene. Sergeant Bailey testified
that in his patdown search of co-defendant Smith at the scene of
the arrest, he did not feel any item that seemed to be money.
Later, when defendant and Smith were searched at the police
station for additional contraband and for purposes of a property
inventory, Smith had a wad containing $313 on his person and
defendant had no money. From this evidence, together with the
testimony that defendant and Smith were kept in close proximity
for more than forty-five minutes after their arrest, and the
testimony of Detective Gonzalez that after each street
transaction Smith gave money to defendant which he then put into
his pocket, the jury could reasonably infer that defendant and
Smith had tried to conceal his possession of the money. The
jury could also infer that the purpose of transferring the money
was to hinder defendant's prosecution by concealing evidence of
his involvement in the street sales.
The trial court may also set aside a jury verdict on a
motion for a new trial where the verdict is against the weight
A-1783-08T4
14
R. 3:20-1.3
of the evidence. The jury verdict should only be
set aside where it clearly and convincingly appears there was a
State v. Sims,
65 N.J. 359, 373-74
miscarriage of justice.
(1974); Dolson v. Anastasia,
55 N.J. 2, 7 (1969).
Our scope of review is limited, and we give due regard to
the jury's assessment of witness credibility based on its
opportunity to hear live witness testimony and to gain a "feel
for the case." Sims, supra,
65 N.J. at 373. It is not fatal to
the State's case that other possible explanations of defendant's
conduct could be argued or that the evidence failed to "exclude
every other conceivable hypothesis except guilt." State v.
Brown,
80 N.J. 587, 599 (1979). Here, we find no miscarriage of
justice in the jury's determination that the evidence proved
beyond a reasonable doubt each of the charges against defendant.
Next, defendant contends his convictions should be reversed
because Sergeant Bailey testified that he asked defendant about
3 Rule 3:20-1 states:
The trial judge on defendant's motion may
grant the defendant a new trial if required
in the interest of justice . . . . The
trial judge shall not, however, set aside
the verdict of the jury as against the
weight of the evidence unless, having given
due regard to the opportunity of the jury to
pass upon the credibility of the witnesses,
it clearly and convincingly appears that
there was a manifest denial of justice under
the law.
A-1783-08T4
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money while defendant was at the police station. After
conducting a hearing outside the presence of the jury, the trial
court had ruled that defendant's response to the police question
-- namely, that he did not know what happened to the money --
would not be admitted because the State did not prove defendant
voluntarily waived his Miranda4 rights when he was asked about
the money.
At trial, Sergeant Bailey testified:
In the field Mr. Kelley had money on him,
and when we got to headquarters he had no
money on him. He was asked about the money.
A few seconds after that the money - there
was money recovered off of Mr. Smith.
Defense counsel raised no objection to this testimony. Bailey's
testimony did not indicate that defendant ever responded to his
question. We conclude there was no prejudice to defendant
R. 2:10-2.
"clearly capable of producing an unjust result."
Defendant argues that the trial court did not conduct a
charge conference as required by Rule 1:8-7(b). That rule
provides:
Prior to closing arguments, the court shall
hold a charge conference on the record in
all criminal cases. At the conference the
court shall advise counsel of the offenses,
defenses and other legal issues to be
4
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
A-1783-08T4
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charged and shall rule on requests made by
counsel.
At the end of testimony on the day before summations, the
court addressed scheduling for the next day and very briefly
mentioned on the record the charges in the indictment. A few
minutes later, in the midst of excusing the jury for the day and
other scheduling matters, defense counsel asked the court to
"emphasize with particularity the circumstantial evidence" and
"that the client has a right not to testify." The State noted
that it was requesting nothing "aside from the standard charges
and the charges on the substantive offenses." It appears that
neither party had submitted written requests to charge pursuant
to Rule 1:8-7(a). Nothing further appears on the record in the
nature of a charge conference.
Defendant now argues that the absence of a charge
conference precluded his attorney from objecting to certain
charges or suggesting others, such as the lesser-included
offense of wandering. The State argues that "the routine nature
of the case" dispensed with the requirement of a more in-depth
charge conference.
The brief discussion of proposed charges on the record was
not adequate to comply with Rule 1:8-7(b), or to make an
adequate record of requested jury charges and the court's
rulings. However, neither party sought anything more. The
A-1783-08T4
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defense made oral requests for two charges that were given, and
neither attorney made any objections to the jury charge. As to
the lesser-included offense of wandering to obtain or distribute
illegal drugs, we have already concluded that such a charge was
not appropriate in the circumstances of this case. Defendant
has not pointed to any erroneous charge that warranted
objection.
Moreover, at the conclusion of the charge to the jury,
counsel were given the opportunity to object to the charge.
Defense counsel said, "I have nothing with respect to the
charge[.]" Defense counsel made an additional request for an
instruction that the jury should not rush its deliberations.
The court agreed and so instructed the jury.
Defendant can point to no prejudice that resulted from the
court's failure to hold a charge conference in accordance with
Rule 1:8-7(b). We find no plain error requiring reversal of his
conviction.
Defendant contends he was prejudiced when the prosecutor
made the following argument during his summation in reference to
the police being otherwise occupied and not apprehending the two
alleged buyers of cocaine:
They were on backup that day but they
weren't stationed right there waiting for
the call, they were involved in other
matters, and that was Detective Gonzalez's
A-1783-08T4
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testimony, that they were involved in other
matters, that they couldn't respond at that
time, they were helping these other
investigations. This wasn't a I set up the
surveillance, you guys park around the
corner and just wait by the radio for me to
call and say, hey, this guy is leaving, he
looks like this, he's walking in this
direction. She put the call out but they
were all around doing investigations.
Paterson's a busy city.
Defendant contends this argument was not factually accurate. He
contends "[i]t was incorrect to imply to the jury that all the
other officers were busy and therefore could not assist
Detective Gonzalez when she called in." We see no summation
error.
Prosecutors are afforded considerable leeway in giving
their closing arguments at trial "as long as their comments are
reasonably related to the scope of the evidence." State v.
Frost,
158 N.J. 76, 82 (1999); see Timmendequas, supra,
161 N.J.
at 587; State v. Dixon,
125 N.J. 223, 259 (1991); State v.
Marshall,
123 N.J. 1, 161 (1991), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed. 2d 694 (1993). "[W]hile a
prosecutor's summation is not without bounds, '[s]o long as he
stays within the evidence and the legitimate inferences
therefrom the Prosecutor is entitled to wide latitude in his
summation.'" State v. R.B.,
183 N.J. 308, 330 (2005) (quoting
A-1783-08T4
19
State v. Mayberry,
52 N.J. 413, 437 (1968), cert. denied,
393 U.S. 1043,
89 S. Ct. 673,
21 L. Ed. 2d 593 (1969)).
A prosecutor may comment on the facts shown
by or reasonably to be inferred from the
evidence. There is no error so long as he
confines himself in that fashion.
Ultimately it was for the jury to decide
whether to draw the inferences the
prosecutor urged.
[Ibid. (quoting State v. Carter,
91 N.J. 86,
125 (1982)).]
Also, "failure to make a timely objection indicates defense
counsel's belief that the prosecutor's remarks were not
State v. Josephs, 174
prejudicial at the time they were made."
N.J. 44, 125 (2002). In this case, defense counsel made no
objection at the time of the disputed summation remarks.
Reversal of a conviction is warranted only if the conduct
is so egregious that defendant was denied his right to a fair
trial. State v. Ramseur,
106 N.J. 123, 322-23 (1987). "To
justify reversal, the prosecutor's conduct must have been
clearly and unmistakably improper, and must have substantially
prejudiced the defendant's fundamental right to have a jury
fairly evaluate the merits of his [or her] defense." State v.
Harris,
181 N.J. 391, 495 (2004) (internal quotation marks
omitted) (quoting State v. Papasavvas,
163 N.J. 565, 625
(2000)), cert. denied,
545 U.S. 1145,
125 S. Ct. 2973,
162 L. Ed. 2d 898 (2005).
A-1783-08T4
20
Here, the disputed remarks were a matter of credibility of
Detective Gonzalez and weight of the evidence. Considering that
defendant and Smith were arrested with glassine baggies of
cocaine in their possession, the inability of the police to
apprehend and seize drugs from the alleged buyers did not
significantly affect the State's primary evidence against
defendant. We find no plain error in the prosecutor's remarks.
See Papasavvas, supra,
163 N.J. at 626.
Finally, defendant challenges his sentence as excessive and
disproportionate to the sentence received by his co-defendant
Smith following a guilty plea. He argues that his eight-year
extended term sentence, with four years before parole
eligibility, was excessive because of the small amount of drugs
involved and lack of evidence that defendant actually
distributed drugs to buyers on the street.
Our review of a sentencing decision can involve three types
of issues: (1) whether guidelines for sentencing established by
the Legislature or by the courts were violated; (2) whether the
aggravating and mitigating factors found by the sentencing court
were based on competent credible evidence in the record; and (3)
whether the sentence was nevertheless "clearly unreasonable so
State v. Roth, 95 N.J.
as to shock the judicial conscience."
334, 364-66 (1984); accord State v. Carey,
168 N.J. 413, 430
A-1783-08T4
21
(2001); State v. Roach,
146 N.J. 208, 230, cert. denied,
519 U.S. 1021,
117 S. Ct. 540,
136 L. Ed. 2d 424 (1996). We do not
substitute our judgment regarding an appropriate sentence for
that of the trial court. Roth, supra,
95 N.J. at 365.
The sentencing court found three aggravating factors
applicable: the risk that defendant will commit another offense,
N.J.S.A. 2C:44-1a(3); the extent of defendant's criminal record,
N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others
from violating the law, N.J.S.A. 2C:44-1a(9). Defendant's prior
record contained five indictable convictions for drug offenses
and receiving stolen property. In addition, his criminal
history included four charges of violating the terms of
probationary sentences. That record amply supported the
sentencing court's findings as to aggravating factors. See
State v. Breitweiser,
373 N.J. Super. 271, 287-88 (App. Div.
2004), certif. denied,
182 N.J. 628 (2005).
In addition, defendant's two prior convictions for
distribution-type offenses also established the basis for a
mandatory extended term under N.J.S.A. 2C:43-6f. In fact, at
the time of defendant's arrest on these charges, he was on
parole from a prior sentence for distribution of drugs, and he
had been sentenced on yet another indictable drug charge less
than three weeks earlier.
A-1783-08T4
22
The court found one mitigating factor applicable, that a
sentence of imprisonment would be an excessive hardship to
defendant and his four dependents, N.J.S.A. 2C:44-1b(11). The
court concluded that the aggravating factors outweighed the one
mitigating factor and sentenced defendant in the middle of the
applicable second-degree extended term range.
Defendant argues that the small amount of cocaine involved
supported a finding of mitigating factor one, that defendant's
conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-
1b(1), and mitigating factor two, that defendant did not
contemplate that his conduct would cause serious harm, N.J.S.A.
2C:44-1b(2). Street sales of cocaine, however, are not offenses
that do not cause serious harm. See State v. Tarver,
272 N.J.
Super. 414, 435 (App. Div. 1994). The trial court is not
required to reject explicitly every mitigating factor argued by
State v. Bieniek,
200 N.J. 601, 608-09 (2010). In
a defendant.
any event, defendant did not argue these mitigating factors at
the time of his sentencing.
On appeal, defendant argues that his sentence is
disproportionate from that imposed upon his co-defendant Smith,
a sentence of three years' imprisonment with one year of parole
ineligibility on the school zone charge, N.J.S.A. 2C:35-7. He
argues that the two co-defendants' "backgrounds do not differ
A-1783-08T4
23
widely, their roles in the crime appeared to be exactly the same
apparently operating as partners, and Mr. Smith's cooperation is
not evident."
In Roach, supra,
146 N.J. at 232, the Supreme Court stated
that "[d]isparity may invalidate an otherwise sound and lawful
sentence." But the Court also acknowledged that "[a] sentence
of one defendant not otherwise excessive is not erroneous merely
because a co-defendant's sentence is lighter." Ibid. (quoting
State v. Hicks,
54 N.J. 390, 391 (1969)). The Court noted that
the sentencing judge must determine whether a co-defendant is
"identical or substantially similar to the defendant regarding
all relevant sentencing criteria"; if so, then the co-
defendant's sentence deserves "substantive weight" in order to
avoid excessive disparity. Id. at 233. In Roach, the Court
remanded a sentence for justification of the thirty-year
disparity between sentences given to co-defendants. Ibid.
In this case, the State moved only as to defendant for an
extended term as a repeat drug-distribution offender under
N.J.S.A. 2C:43-6f. There is no evidence on this record as to
whether Smith was also eligible for an extended term sentence.
If he was, he avoided a similar motion by the State by entering
into a plea agreement and pleading guilty. That fact does not
A-1783-08T4
24
make defendant's extended term sentence excessive in comparison
to the sentence received by Smith.
The two co-defendants were not subject to the same
sentencing range. Each was sentenced within the range
applicable to him, and the sentence of each included a period of
parole ineligibility. We conclude that the trial court did not
abuse its discretion in the sentence imposed upon defendant.
See Bieniek, supra,
200 N.J. at 608-09.
Affirmed.
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25
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