STATE OF NEW JERSEY v. ALEX JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2221-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEX JONES,

Defendant-Appellant.

_____________________________________

December 10, 2013

 

Submitted October 7, 2013 Decided

 

Before Judges Ashrafi and Leone.

 

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Indictment No. 10-08-00517.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

 

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent

(J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alex Jones appeals from his conviction and sentence for possession of a controlled dangerous substance after a jury found that he fled from a police officer and discarded a cigarette pack that contained rock cocaine. We affirm.

Defendant raises the following arguments on appeal:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED A REASONABLE AND ARTICULABLE BASIS TO SUSPECT THE DEFENDANT OF CRIMINAL WRONGDOING AND THERE WAS INSUFFICIENT ATTENUATION TO REMOVE THE TAINT OF THE POLICE MISCONDUCT. MOREOVER, THE STATE FAILED TO PROVE THAT EVIDENCE SEIZED AFTER THE DEFENDANT WAS UNJUSTIFIABLY DETAINED HAD BEEN ABANDONED. (Partially Raised Below).

A. Because the Judge's Findings of Facts

Contained Inaccuracies, They Are Not Entitled to Deference.

 

B. The Trial Judge Erred in Finding that

the Officer Possessed the Requisite Reasonable, Particularized, Articulable Suspicion to Justify an Investigatory Stop.

 

C. Even if the Officer Had Reasonable

Suspicion to Stop the Defendant for the Crime of Obstruction or Eluding, the Fruits of that Seizure Were Not Sufficiently Attenuated from the Initial Unconstitutional Stop to Cleanse Them from the Taint of that Illegal Seizure and, Therefore, Should Have Been Suppressed.

D. State Failed to Establish that the

Evidence with Which the Defendant Was Charged Was Knowingly and Voluntarily Abandoned.

 

 

 

POINT II

 

THE PROSECUTOR'S REPEATED MISCONDUCT DURING SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amend. VI, XIV; N.J. Const., Art. I, para. 1, 9, and 10. (Not Raised Below).

 

POINT III

 

TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT. (Not Raised Below).

 

POINT IV

 

UNDER THE CIRCUMSTANCES OF THIS CASE, IMPOSITION BOTH OF A DISCRETIONARY EXTENDED TERM AND A DISCRETIONARY PAROLE DISQUALIER WAS INAPPROPRIATE AND RESULTED IN AN EXCESSIVE SENTENCE.

 

I.

The State's evidence at a pretrial suppression hearing was presented through the arresting officer, Odise Carr. Officer Carr testified that in 2008-2009 he was a special police officer employed by the City of Wildwood. In the early morning hours of September 1, 2009, he was patrolling in a high drug-crime area of the city. During the previous three months, he had personally made about fifty drug arrests in that area.

While parked in a police car, he observed several persons congregating outside a pizzeria and across the street from a bar. He knew several of the persons to have a history of drug arrests and convictions. Officer Carr saw defendant gesturing to persons in the street and then speaking to one particular man. Defendant and the other man entered and exited the bar several times, raising the officer's suspicion. While speaking to the other man, defendant noticed the officer in his patrol car and gestured toward him. Defendant then pointed to the rear of the bar, and the two men walked in that direction and toward a dimly-lit alley. Officer Carr drove his police car in the direction the men went. They saw the officer and gestured toward him again.

The officer drove slowly alongside the two men. The other man appeared nervous at the officer's approach. The officer asked the men where they were going. Defendant said "home." The officer recognized defendant from a prior encounter and remembered that he lived in North Cape May, not within walking distance. He concluded defendant was not telling the truth about his destination. At some point, defendant said to the officer: "Carr, I'll see you in court on Wednesday." The officer asked the other man if he knew defendant, and the man answered he did not.

Officer Carr got out of his car and directed the two men to stop. Neither obeyed. Defendant said he was not stopping. He kept on walking, and then began to run. The other man fled in a different direction. Officer Carr pursued defendant on foot, but he was not able to reach him. He returned to his police vehicle to continue the pursuit.

The officer's car eventually caught up to defendant as he was going into the rear yard of a house. Officer Carr saw defendant's hand "almost elbow deep in his pants, between his legs, and his other hand on top of the nearby staircase on top of a pack of cigarettes." He saw defendant throw an object and then run toward the front of the house. Other officers had arrived by then and helped subdue defendant.

After defendant was detained, Officer Carr retraced his steps and retrieved the thrown item, which he believed was a marijuana blunt. He also seized the pack of cigarettes defendant had left behind on the stairs. In the pack, the officer found a folded piece of paper that contained a rocklike substance suspected to be cocaine. Defendant was arrested and charged.

A Cape May County grand jury indicted defendant on three charges: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2; and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. Defendant moved to suppress the evidence seized at the time of his arrest. The trial court held a hearing and denied the motion. At defendant's trial, Officer Carr was again the only witness. The jury found defendant guilty of all three charges.

At the sentencing hearing, the judge reviewed defendant's record of five prior indictable convictions and about the same number of disorderly persons convictions, and he granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). On the third-degree drug charge, defendant was sentenced to six years imprisonment, with two years to be served before eligibility for parole. On each of the other fourth-degree charges, defendant was sentenced to concurrent one-year terms of imprisonment.

II.

Defendant contends the cocaine should have been suppressed as evidence because his federal and State constitutional rights were violated by Officer Carr's conduct leading to its seizure. The trial judge concluded that defendant's constitutional rights were not violated. He found that, when Officer Carr ordered defendant to stop on the street, he was attempting to seize defendant's person, which implicated his constitutional rights, but also that the police command was based on reasonable suspicion of criminal activity. The trial judge found further that defendant abandoned the cigarette pack, thus relinquishing any privacy interest in its contents and any right to prevent its seizure.

In reviewing a motion to suppress evidence, we owe no deference to the trial court in deciding questions of law, State v. Shaw, 213 N.J. 398, 411 (2012), but we must defer to the trial court's fact findings so long as they are supported by sufficient credible evidence in the record. State v. Mann, 203 N.J. 328, 336 (2010); State v. Elders, 192 N.J. 224, 243-44 (2007). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' . . . ." Mann, supra, 203 N.J. at 336 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In particular, we defer to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999).

Under the Fourth Amendment of the United States Constitution and article 1, paragraph 7 of the New Jersey Constitution, "[w]arrantless searches [or seizures] are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena-Flores, 198 N.J. 6, 18 (2009) (citing State v. Wilson, 178 N.J. 7, 12 (2003)). The State has the burden of proving that a warrantless search or seizure falls within a recognized exception. State v. Maryland, 167 N.J. 471, 489 (2001).

The police do not violate constitutional rights by speaking to and asking questions of a person, even without any evidence to suspect that the person may be involved in criminal activity. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Rodriguez, 172 N.J. 117, 125-26 (2002); State v. Davis, 104 N.J. 490, 497 (1986). Such a "field inquiry" is not a "seizure" and, therefore, not restricted by the Fourth Amendment or the State Constitution. Rodriguez, supra, 172 N.J. at 126. Here, Officer Carr's driving alongside defendant and asking him where he was going was such an inquiry that did not violate defendant's constitutional rights.

But a field inquiry grows into the "seizure" of a person, and thus implicates Fourth Amendment and State constitutional rights, if the person is not free to leave because of governmental restraint placed upon him. Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405, 168 L. Ed. 2d 132, 138 (2007); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); Davis, supra, 104 N.J. at 498-99. "An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." Rodriguez, supra, 172 N.J. at 126 (citing Davis, supra, 104 N.J. at 498). In this case, Officer Carr's order to defendant to stop was such a governmental restraint and therefore a "seizure" implicating his constitutional right against unreasonable police conduct. See State v. Tucker, 136 N.J. 158, 165-66 (1994) (police chase of fleeing suspect, like a police command to stop, constitutes seizure of the person under the State Constitution).

A "seizure" of the person can be either an investigatory detention or an arrest, depending on the constraints placed upon the person and their duration. See Davis, supra, 104 N.J. at 498; State v. Contreras, 326 N.J. Super. 528, 538-39 (App. Div. 1999). An investigatory detention generally occurs at or near the scene of the initial police encounter and is of short duration. See Dunaway v. New York, 442 U.S. 200, 210-11, 99 S. Ct. 2248, 2255-56, 60 L. Ed. 2d 824, 834-35 (1979). While the police restrict the person's movements, they do not place him under arrest, or employ constraints that are the functional equivalent of formal arrest. See State v. Toro, 229 N.J. Super. 215, 221 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled in part on other grounds, State v. Velez, 119 N.J. 185, 187 (1990). Our Supreme Court has described such investigatory detentions as "minimally intrusive" restraints on the person's freedom. State v. Dickey, 152 N.J. 468, 478 (1998).

To subject a person to investigatory detention, the police must have reasonable and articulable suspicion of conduct that violates the law. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985); Elders, supra, 192 N.J. at 247; Rodriguez, supra, 172 N.J. at 126-27. Reasonable suspicion means "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). It requires less evidence than probable cause to arrest a person for violation of the law. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); Stovall, supra, 170 N.J. at 356.

Here, the trial judge found that Officer Carr articulated reasonable suspicion of criminal activity that justified his ordering defendant to stop so that the officer might investigate further. We agree. As the trial judge found, Officer Carr was patrolling at 2:00 a.m. in an area with a high level of illegal drug activity. He had made many drug arrests in that area. He knew that some of the persons congregating outside the pizzeria had prior drug convictions or arrests. The officer saw defendant gesturing to people on the street, and then saw defendant and the other man going into and coming out of the bar as if they were engaged in an activity that could not be conducted inside the bar. He saw defendant gesture toward his patrol vehicle, and then direct the other man towards the alley. After the officer moved his patrol vehicle to keep the two men in view, defendant again pointed to the police vehicle as if police observation was interfering with his intended activity.

When Officer Carr pulled alongside the men and spoke to them, defendant gave him false information about being on his way home. The officer's suspicion was heightened when the other man said he did not know defendant, thus suggesting a possible surreptitious drug transaction between strangers. Also, the other man appeared nervous at the sight of the officer. Considering the area of the encounter, the time of night, and defendant's and the other man's making distinct efforts to avoid observation, Officer Carr had reasonable suspicion of criminal activity that might warrant further investigation, including a minimally intrusive detainment and questioning of the two men.

When both men fled in response to the officer's command to stop, the suspicions increased, thus justifying the pursuit of defendant on foot and in the police vehicle. Cf. State v. Williams, 192 N.J. 1, 11 (2007) (suspect has no right to flee even from an unconstitutional police command to stop); State v. Crawley, 187 N.J. 440, 460-61 (same), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Upon seeing defendant throw an object while fleeing, the officer's suspicions developed into a basis to restrain defendant and to determine what he had discarded. While each of defendant's actions taken individually do not rise to the level of reasonable suspicion or probable cause, the facts taken as a whole reasonably suggested to a trained officer that criminal activity was afoot.

Defendant argues that his activities before the officer ordered him to stop were innocent conduct that should not have aroused suspicion. But "the fact that a suspect's behavior may be consistent with innocent behavior does not control the analysis." Mann, supra, 203 N.J. at 338 (citing State v. Arthur, 149 N.J. 1, 11-12 (1997)). When analyzing the circumstances that gave rise to suspicion of criminal activity, the court gives weight to "the officer's knowledge and experience in addition to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Todd, 355 N.J. Super. 132, 137-38 (App. Div. 2002).

Defendant also argues that the trial judge made incorrect findings of fact, namely, that the item defendant threw was a marijuana blunt and that the officer knew defendant had "a CDS history." As developed later at the trial, the thrown item was a hand-rolled cigarette but it did not contain marijuana, and there was no testimony at the suppression hearing that the officer knew defendant had a record of drug arrests or convictions. The judge's mistaken references were not necessary to his conclusion that the officer had reasonable suspicion to investigate defendant's conduct, including by a limited detention of defendant. The officer reasonably believed that defendant had discarded items of contraband, and defendant's remarks about seeing the officer in court later in the week provided a reasonable inference that he had a criminal arrest history.

Finally, the officer's seizing the cigarette pack from the location where defendant discarded it did not involve a search or constitute a seizure that in itself violated defendant's constitutional rights against unreasonable police conduct. The discarded item would be suppressed as evidence under State constitutional law only if it was seized as the fruit of an earlier constitutional violation in seizing defendant's person. See Shaw, supra, 213 N.J. at 412-13 (applying the "fruit of the poisonous tree" doctrine of Wong Sun v. United States, 371 U.S. 471, 485, 488, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454-55 (1963), to illegal drugs seized after an unconstitutional temporary detention of the defendant); see also Tucker, supra, 136 N.J. at 172-73 (jettisoned contraband was not abandoned because unconstitutional police conduct caused the suspect to discard it). Because defendant's rights were not violated when the officer ordered him to stop and then pursued him, there was no "poisonous tree," and the seizure of the cocaine was not its inadmissible "fruit."

The record supports the judge's findings and conclusions denying defendant's motion to suppress evidence.

III.

Next, defendant argues that prosecutorial misconduct deprived him of a fair trial. He contends that the prosecutor's closing argument included vouching for Officer Carr's credibility as a witness, improper arguments outside the evidential record, and a racial stereotype to prejudice the jury against defendant. We find no merit in any of these contentions.

Defense counsel did not object to the prosecutor's comments during or after the closing argument. Consequently, the appropriate standard of appellate review is whether the challenged remarks constitute plain error. See R. 2:10-2; State v. Gore, 205 N.J. 363, 382-83 (2011); State v. Papasavvas, 163 N.J. 565, 625-26 (2000).

To reverse a conviction based on prosecutorial misconduct, the error must be so egregious in the context of the trial as a whole as to deprive the defendant of a fair trial. State v. Jackson, 211 N.J. 394, 409 (2012). A reviewing court must "consider the 'fair import' of the State's summation in its entirety," ibid. (quoting State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)), and the remarks must have had a "palpable impact" on the jury's verdict, State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). "Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they 'so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.'" Jackson, supra, 211 N.J. at 409 (quoting State v. Koedatich, 112 N.J. 225, 338 (1988) (alteration in original), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).

In State v. Timmendequas, 161 N.J. 515, 576 (1999) (citation omitted), the Court stated: "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action." Thus, if trial counsel did not object, the remarks will likely not be deemed to have been prejudicial. State v. Ramseur, 106 N.J. 123, 322-23 (1987).

It is improper for the prosecutor to bolster the credibility of the State's witness by arguing matters that are not in evidence. State v. Bradshaw, 195 N.J. 493, 510 (2008). In this case, the prosecutor referred to Carr's youth and energy and said that Carr had the physical capability of pursuing defendant and observing what he testified he saw. The comment was based on the evidence and the jury's perception of Carr as a witness and as a person. It was an acceptable argument based on the evidence and reasonable inferences that could be drawn from the evidence.

Defendant also argues that the following remarks of the prosecutor were improper vouching for Carr as a police witness:

Remember folks, there was cocaine found back behind the house, okay? How did it get there? If the Defendant didn t put it there, did the officer plant it there? Did he take the stand and lie about the whole thing to frame the Defendant up?

These rhetorical questions were also acceptable argument in the context of the evidence. The prosecutor never stated that Carr had no reason to lie, as defendant now contends on appeal. In fact, the prosecutor stated that the jury should not rely on the officer's testimony simply because he was a police officer and discussed alternative theories for how the evidence might have come to be located at the place of arrest. The quoted rhetorical questions were used in conjunction with evidence in the record to persuade the jury that the alternative theories were not plausible, specifically, that an earlier discarding of the cocaine by some other person in the very location where defendant fled would be too coincidental to be credible. There was no prosecutorial misconduct in the challenged argument.

Defendant contends the prosecutor's explanation for why defendant ran from Officer Carr, and why he ultimately stopped running, were speculative and unsupported by the evidence. He argues it was improper for the prosecutor to state that a person would not normally run from the police, and also it was improper to state that an innocent person would not stop running if that person felt he was going to be harassed by the police. These, too, were matters of argument that the jury could accept or reject. The prosecutor asked the jury to infer from Carr's account of what occurred that defendant ran not because he was afraid of harassment by the police but because he was gathering time and opportunity to discard the contraband he knew he was carrying. The argument was not outside the scope of the evidence presented.

Finally, defendant argues that the prosecutor described defendant's responses to Officer Carr using "Black English" in an attempt to call attention to defendant's race and to portray him in an unfavorable light. Specifically, he takes issue with the prosecutor's use of the phrase, "I ain't stopping, man" when describing defendant's refusal to obey Carr's command to stop. We fail to see why defendant equates that phrase with a racial stereotype. We find insufficient merit in defendant's argument to warrant further discussion in a written opinion. See R. 2:11-3(e)(2).

IV.

Defendant argues that the trial court instructed the jury about defendant's Fifth Amendment right not to testify without first determining whether defendant wanted the instruction to be given. Defendant's argument is wrong factually.

The record shows that the issue of the contested instruction was discussed during the trial. At the conclusion of the State's case, the trial judge stated it was "his practice to have defense counsel question a client, whatever the decision with regards to Fifth Amendment, the defendant's rights, the right not to testify, [and] right to corresponding jury instructions, that no inferences, no negative inferences are to be drawn." The judge instructed defense counsel to "make sure [he] understands that he has the right not to [testify] and would enjoy the appropriate jury charges as well." After defendant and his attorney discussed the options in private, counsel informed the judge that defendant had decided not to testify.

A short time later, immediately before the defense rested formally before the jury, the judge had defendant placed under oath outside the jury's presence and had his attorney question him. Defendant confirmed that he understood his right to testify or not to testify and that the jury would be instructed not to consider the fact that he did not testify.

Although giving the challenged instruction is not error whether defendant sought it or not, see State v. Lynch, 177 N.J. Super. 107, 115 (App. Div.), certif. denied, 87 N.J. 347 (1981); State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979), here, defendant was personally informed of the judge's intent to give the instruction, and he voiced no objection.

V.

Defendant challenges as excessive his six-year term of imprisonment, and two-year period of parole ineligibility, because he possessed only a small amount of cocaine.

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court reconfirmed that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

To impose an enhanced sentence, the judge must (1) determine if the defendant is eligible within statutory criteria of N.J.S.A. 2C:44-3(a)1; (2) determine if an extended sentence will be imposed; (3) weigh aggravating and mitigating factors to determine the base term of the extended sentence; and (4) determine if a term of parole ineligibility will be imposed. State v. Pierce, 188 N.J. 155, 164 (2006); State v. Dunbar, 108 N.J. 80, 89 (1987). The court is not required to sentence defendant to an enhanced term. Pierce, supra, 188 N.J. at 169.

In this case, the court reviewed defendant's substantial prior criminal record and found him to be a persistent offender in accordance with the terms of the statute. It concluded that an enhanced term of imprisonment should be imposed. The court found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The court found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). The court explained its findings on the record. We find no abuse of discretion in the court's findings with respect to aggravating and mitigating factors, see Bieniek, supra, 200 N.J. at 610-11, or ultimately the six-year sentence imposed. State v. Roth, 95 N.J. 334, 364-66 (1984).

A term of discretionary parole ineligibility is appropriate "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors." N.J.S.A. 2C:43-6(b). When considering a discretionary parole ineligibility term, the judge should weigh the aggravating and mitigating factors under "a stricter standard that reflects the serious impact that a parole disqualifier will have on the 'real time' a defendant serves on his sentence." State v. Abdullah, 184 N.J. 497, 509 (2005) (quoting State v. Kruse, 105 N.J. 354, 359 (1987)). Here, the court followed the statutory provisions and sentenced defendant within its discretionary authority.

Affirmed.

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

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.