STATE OF NEW JERSEY v. PATRICK R. MULDROW

NOT FOR PUBLICATION WITHOUT THE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.

PATRICK R. MULDROW, a/k/a

PATRICK R. MUDROW, PM,

PAT MO,

Defendant-Appellant.

_______________________________

October 10, 2014

Submitted: September 23, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-10-01506.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Patrick R. Muldrow appeals from his June 8, 2012 judgment of conviction (JOC) for second-degree conspiracy to distribute marijuana, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1), and fourth-degree conspiracy to possess marijuana, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(3). He also appeals from the aggregate sentence of nine years in prison, half to be served without parole.

On this appeal, defendant raises the following points of argument for our consideration

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S OBJECTION TO CHARGING CONSPIRACY AS THERE WAS INSUFFICIENT NOTICE THAT THIS CHARGE WOULD BE INCLUDED AS A LESSER OFFENSE.

II. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

III. THE DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDITS UNDER STATE V. HERNANDEZ, 208 N.J. 24 (2011).

Having reviewed the record, we find no merit in Points I and II, and we therefore affirm the conviction and the nine-year sentence. However, as the State candidly concedes, defendant is entitled to additional jail credits pursuant to State v. Hernandez, supra, 208 N.J. at 47-48. Therefore, we hereby amend the judgment of conviction to provide that defendant is entitled to an additional 833 days of jail credit. The trial court shall sign and enter an amended JOC consistent with this opinion. We remand solely for that limited purpose.

I

In light of the limited issues raised, a brief summary of the trial evidence will suffice. Based on a tip from an informant, the police sought permission to search a house in Lakewood. One of the tenants, Angela Ramos, consented to the search. During the search, the police found two bales of marijuana. While the police were conducting the search, Ramos called someone on her cell phone and the police could hear a man's voice yelling at her to get the police out of the house. Ramos admitted to the police that she had called defendant and gave them the cell phone number she had called. She also told the police the drugs belonged to defendant.

A week later, the police located defendant, directed dispatch to call the phone number Ramos had given them, and then heard a cell phone in defendant's pocket start to ring. When defendant answered the phone, the police arrested him. Ramos pled guilty to conspiracy and agreed to testify against defendant at his trial.1

Defendant was indicted and tried for first-degree marijuana possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and fourth-degree marijuana possession, N.J.S.A. 2C:35-10(a)(3). Relying on N.J.S.A. 2C:1-8(d), and State v. LeFurge, 101 N.J. 404 (1986), the trial judge also charged the jury on conspiracy to commit those offenses. Defendant was acquitted of the greater possessory offenses and convicted of conspiracy.

II

On this appeal, defendant argues that the defense had no notice that the trial court would charge the jury as to conspiracy and he was thus denied a fair trial. We reject that argument substantially for the reasons stated by Judge Stephanie M. Wauters in her oral statement of reasons issued on February 21, 2012. Defendant's contentions warrant no further discussion beyond the following brief comments. R. 2:11-3(e)(2).

As LeFurge makes clear

The legislative intent, as expressed in N.J.S.A. 2C:1-8(d)(2), is to permit a jury to convict for conspiracy as an included offense even though the grand jury did not allege the existence of a conspiracy in its indictment.

[LeFurge, supra, 101 N.J. at 413-14.]

Therefore, it is irrelevant that defendant was not indicted on charges of conspiracy. The record also does not support his argument that the jury charge as to conspiracy was an unfair surprise to the defense. Not only is conspiracy an included offense of every crime, N.J.S.A. 2C:1-8(d)(2), but the facts presented to the grand jury clearly lent themselves to a finding that defendant conspired with Ramos to possess twenty-five or more pounds of marijuana. See LeFurge, supra, 101 N.J. at 422-24.

Moreover, the conspiracy issue did not come up for the first time at the final charge conference, as defendant contends. Defense counsel raised the issue during the 2006 motion to suppress, more than five years prior to the trial. Immediately prior to the trial, on February 1, 2012, defense counsel asked the judge to take judicial notice of the conspiracy statute. During the State's case, defense counsel cross-examined Ramos concerning her guilty plea to conspiracy to possess and distribute marijuana. And on that same trial day, the judge preliminarily put both counsel on notice that she intended to include conspiracy in the jury charge.

The charges of conspiracy were plainly warranted by the evidence, and were in no way unfair to the defense, and we find no error in the trial court instructing the jury as to conspiracy. See State v. Choice, 98 N.J. 295, 299 (1985). Accordingly, we affirm the conviction.

We find no abuse of discretion or other error in the nine-year sentence or the four and one-half year period of parole ineligibility. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Kruse, 105 N.J. 354, 359 (1987); State v. Roth, 95 N.J. 334, 365 (1984). We affirm for the reasons cogently stated by Judge Wauters on June 6, 2012. Defendant's arguments on this point are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed as to the conviction and sentence; modified and remanded as to jail credits only.

1 Ramos and the other woman arrested in the house both testified against defendant at the trial.