STATE OF NEW JERSEY v. JAMES D. JETER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. JETER,

Defendant-Appellant.

________________________________________________________________

February 14, 2014

Submitted November 13, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-02-0302.

Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Priya Ramrup-Jarosz, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his convictions for third-degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1), (count one); second-degree possession with intent to distribute PCP, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(7), (count two); third-degree possession with intent to distribute PCP within a school zone, N.J.S.A. 2C:35-7, (count three); and second-degree possession with intent to distribute PCP within 500 feet of a public park, N.J.S.A. 2C:35-7.1, (count four).1 The court sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). In this appeal, defendant challenges his convictions and sentence. We affirm.

I

Defendant argues that his convictions should be reversed because the motion judge erred in denying his motion for a severance. We disagree.

The underlying indictment charged both defendant and Alexander R. Malave in one count with third-degree possession of PCP. The charge arose from activity observed by Sergeant Jack Redmond of the Jersey City Police Department on October 10, 2009. Redmond testified he saw defendant and Malave engage in a brief conversation and continued to watch them as they walked slowly west. Malave took a cigar from his pocket, opened it up lengthwise, and removed some of its contents. Malave then resealed the cigar and gave it to defendant, who dipped the cigar into a small bottle. Defendant handed the cigar back to Malave, who gave money to defendant. Malave walked away to a bench in the park. Using binoculars, Redmond observed him smoke the cigar, known as a "blunt." Based upon his training and experience, Redmond opined that the two conducted a drug transaction involving PCP.

In support of his motion for a severance, defendant asserted that Malave wanted to testify that defendant did not serve him narcotics on the date in question and would do so if their trials were severed. At the hearing that followed, Malave testified his interaction with defendant that day was simply saying hello and a handshake and nothing was exchanged between them. Malave testified he purchased the blunt from somebody else at a carnival in the park and that defendant had done nothing that affected the condition of the blunt.

Malave's testimony as to whether he was only willing to testify if a severance was granted was equivocal at best. Initially, Malave stated he would "definitely" testify at a separate trial for defendant if he was tried first. He also testified he would admit being in possession of CDS. When his counsel and the motion judge explained his rights and the consequences of testifying at a separate trial or at a joint trial, Malave replied he understood and wished to testify for defendant at a joint trial.

THE COURT: So do you wish to have a joint trial?

[MALAVE]: Yes.

. . . .

[MALAVE'S COUNSEL]: Do you understand that if you have a joint trial and you choose to testify in favor of [defendant], you'll be giving up your right to remain silent and by doing so you will be inculpating yourself, meaning . . . admitting that you are guilty, in front of the jurors. . . .

. . . .

THE COURT: But if you decide in a joint trial to testify in favor of [defendant], as your attorney says, you will be inculpating, admitting your guilt. You understand?

[MALAVE]: Yes.

. . . .

THE COURT: Do you wish to have a joint trial?

[MALAVE]: Yes.

Malave also gave inconsistent descriptions of his relationship with defendant, stating he was a friend at work; that he instead met defendant through his cousin at a party; and also that defendant was not a close friend, just someone he saw "in the streets."

Rule 3:7-7 allows for joinder of two or more defendants who are "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense." There is a "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Because the disposition of a motion to sever is left to "the sound discretion of the trial judge," State v. Brown, 170 N.J. 138, 160 (2001) (quoting State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985)), we will not reverse the denial of a severance motion "unless there is a clear showing of abuse of discretion." State v. Bass, 221 N.J. Super. 466, 475 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988).

A severance motion requires the judge to balance the interest in economy served by a joint trial against the potential prejudice to a defendant. State v. Brown, 118 N.J. 595, 605 (1990). When, as here, the motion is based upon an assertion that a co-defendant may provide exculpatory testimony if tried separately, see, e.g., State v. DeRoxtro, 327 N.J. Super. 212, 218 (App. Div. 2000), a severance motion should be granted if the following criteria are met:

the court is reasonably certain that (1) the defendant will call his codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the codefendant's proffered testimony will be credible and substantially exculpatory.

[State v. Sanchez, 143 N.J. 273, 293 (1996).]

The motion judge considered each of these factors in deciding the severance motion.

Although Malave testified that he was willing to testify on defendant's behalf, he stated further he was willing to do so at either a joint or separate trial. His rights and the consequences of testifying at a separate or joint trial were repeatedly explained to him by his attorney and the court. Although Malave understood he would inculpate himself if he testified for defendant at a joint trial, he nevertheless stated he would do so.

Malave did not testify at the joint trial that followed. But, as of the time that the severance motion was decided, his expressed willingness to provide exculpatory testimony at a joint trial precluded any finding that the second prong of the Sanchez criteria was satisfied. As a result, the record failed to show that the judicial economy inherent in a joint trial should give way to avoid prejudice to defendant or indeed that defendant would suffer any prejudice at a joint trial.

In addition to weighing the interest of judicial economy against potential prejudice to defendant, the motion judge also noted that Malave's inconsistent statements regarding the nature of their relationship raised issues regarding his credibility.

In light of the motion judge's consideration of the relative criteria within the context of this record, we discern no abuse of discretion in her denial of the severance motion.

II

Defendant also challenges his sentence as excessive. Again, we disagree.

Over defendant's objection, the trial court granted the State's motion to sentence him to an extended term. The court merged his other drug convictions into the second-degree possession of PCP with intent to distribute within 500 feet of a public park set forth in count four of the indictment. After finding defendant eligible for a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the court sentenced him to a twelve-year term of imprisonment with a six-year period of parole ineligibility.

The persistent offender statute "grants the sentencing court discretion to impose an extended sentence when the statutory prerequisites for an extended-term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006). In finding the criteria satisfied here, the trial judge considered that (1) defendant was over twenty-one years of age when he was convicted of second-degree possession of PCP with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1; (2) he was previously convicted on at least two separate occasions of crimes when he was over the age of eighteen; and (3) he was released from prison within ten years from the date of the offense. The court found sufficient evidence for the imposition of a discretionary extended-term sentence.

Defendant argues that the trial court failed to make any finding regarding protection of the public. However, such a finding is not a prerequisite to the imposition of an extended term. Pierce, supra, 188 N.J. at 170. And, the court did consider that "parks and PCP and drugs are problem areas for our society," prompting a legislative response to provide enhanced punishments for drug offenses committed in or near a public park.

After determining the defendant's eligibility for an extended term, the court must next determine whether to impose an extended sentence. Then, the court must "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence." Id. at 164 (quoting State v. Dunbar, 108 N.J. 80, 89 (1987)). The range of available sentences "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. The decision to sentence a defendant within this range lies within "the sound judgment of the court--subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors." Ibid. Finally, the court "must determine whether to impose a period of parole ineligibility." Id. at 164.

Defendant does not contend that any of the statutory prerequisites for an extended term are absent here. He also does not contend that any of the aggravating factors found by the trial court lacked sufficient support in the record. Rather, he contends that the court failed to consider "the minimal nature of the offense" and that he cooperated fully with police, warranting a finding of mitigating factor N.J.S.A. 2C:44-1(b)(12).2 He argues that "a qualitative assessment of the aggravating and mitigating factors mandates the imposition of a 10-year term of imprisonment," particularly since the available range of sentences was from five to twenty years.

Defendant also challenges the six-year period of parole ineligibility as "completely unwarranted." However, as he acknowledges, N.J.S.A. 2C:43-7(b) provides that "the court may fix a minimum term not to exceed one-half of" the extended term.

As we have noted, it is undisputed that defendant met the statutory criteria for eligibility. The statutory criteria for eligibility "determines whether a discretionary extended-term sentence is illegal as a matter of law." Pierce, supra, 188 N.J. at 166. Because the criteria were satisfied here, defendant meets "the standard that [the Supreme Court held] is all that must be present for purposes of identifying, as the top of his sentencing range, the maximum sentence permitted by the discretionary extended-term range." Id. at 171. Defendant was not, however, sentenced to the maximum sentence permitted.

Our standard of review is one of deference. Even if we would have reached a different result, we must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentencing court applied correct legal principles and its findings regarding aggravating and mitigating factors are supported by the record. See State v. Megargel, 143 N.J. 484, 493 (1996). We find no clear error of judgment in the court's application of the facts to the law that would shock our conscience. See ibid. Accordingly, we find no abuse of discretion in the imposition of an extended term or the particular sentence imposed here. See Pierce, supra, 188 N.J. at 166 n.4; see also State v. Hudson, 209 N.J. 513, 526 (2012).

1 Defendant was acquitted on counts five, six, and seven, which charged him with distribution of PCP.

2 There is no factual basis for finding this mitigating factor since defendant's cooperation was limited to providing a statement to police. He did not cooperate in the prosecution of anyone else. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008) (confession that did not assist in identifying other perpetrators or solving other crimes "was not entitled to any substantial weight in determining defendant's sentence.")