STATE OF NEW JERSEY v. JERMAINE MOSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5086-02T45086-02T4

A-5495-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE MOSS,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARMAINE DANIELS,

Defendant-Appellant.

 

Submitted October 12, 2005 - Decided

Before Judges Conley, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 01-03-0587-I.

Yvonne Smith Segars, Public Defender, attorney for appellant, Jermaine Moss (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, Charmaine Daniels (Steven M. Gilson, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent, State of New Jersey (Robyn M. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial in January 2003 in which Jermaine Moss and Charmaine Daniels were tried as co-defendants, each was convicted of the following charges: third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), (count one); second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(2), (count two); third-degree possession of a controlled dangerous substance on or within 1,000 feet of a school property with intent to distribute, N.J.S.A. 2C:35-7, (count three); fourth-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(12), (count four); and third-degree possession of a controlled dangerous substance on or within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7, (count five). Before the verdict was entered, the trial judge denied defendants' motions to suppress evidence and for judgments of acquittal.

The trial judge found Moss to be subject to a mandatory extended term under N.J.S.A. 2C:43-7. The court merged count one and count three into count two, and count four into count five. The judge then imposed a ten-year term of imprisonment on count two, with a five-year period of parole ineligibility. On count five, the court imposed a five-year term of imprisonment with a three-year period of parole ineligibility. The convictions triggered violations of Moss's probation and on those, the court imposed two four-year flat terms of imprisonment to run concurrently with one another and with the sentences imposed on counts two and five.

For Daniels, the court merged counts one and three into count two, and count four into count five. On count two, the judge imposed a seven-year term of imprisonment with a three-year period of parole ineligibility, and a concurrent five-year term of imprisonment with a three-year period of parole ineligibility on count five.

On appeal, Moss raises the following points:

POINT I

THE MOTION COURT REVERSIBLY ERRED IN DENYING MOSS' MOTION TO SUPPRESS THE ITEMS SEIZED DURING THE WARRANTLESS SEARCH OF 48 RIDGE AVENUE AS EVIDENCE AGAINST HIM BECAUSE THE STATE FAILED TO ESTABLISH ANY SUFFICIENT LEGAL NEXUS BETWEEN MOSS AND THAT LOCATION AND FAILED TO ESTABLISH ANY LEGALLY SUFFICIENT AUTHORITY OR POSSESSORY INTEREST IN THAT PREMISES IN DANIELS SUFFICIENT FOR HER CONSENT FOR THAT SEARCH. (U.S. Const. Amends 4, 6, 14; N.J. Const. (1947) Art. 1, Para 10).

POINT II

DANIELS' CONSENT TO THE WARRANTLESS SEARCH WAS NOT VOLUNTARILY AND FREELY GIVEN; HER CONSENT WAS THE PRODUCT OF (1) A FALSE STATEMENT BY THE POLICE, (2) OF AN ILLEGAL FIELD INQUIRY WHICH ESCALATED INTO (3) AN IMPROPER INVESTIGATIVE DETENTION AND (4) BECAUSE SHE WAS NOT PREVIOUSLY GIVEN HER MIRANDA RIGHTS. THUS, THE ITEMS SEIZED SHOULD HAVE BEEN SUPPRESSED AS TO MOSS. (U.S. Const. Amends 4, 6, 14; N.J. Const. (1947) Art. I Para. 7) (NOT RAISED BELOW).

POINT III

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO GRANT MOSS' MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO DEMONSTRATE SUFFICIENT EVIDENCE TO WARRANT CONVICTIONS (U.S.Const. Amends 6, 14; N.J. Const.(1947) Art. I, Para. 10).

POINT IV

IT WAS REVERSIBLE ERROR WHEN THE TRIAL COURT PERMITTED PATRICK SALERNO TO TESTIFY BEFORE THE JURY TO HEARSAY STATEMENTS ALLEGEDLY MADE BY MOSS' GIRLFRIEND THAT HE NO LONGER LIVED AT 303 SUNSET STREET, BUT 38 RIDGE AVENUE WHERE THE CONTRABAND WAS SEIZED BECAUSE THE EXTREME PREJUDICE TO MOSS FAR OUTWEIGHED ANY PROBATIVE VALUE FROM THAT STATEMENT. (U.S. Const., Amend. 6; N.J. Const. (1947), Art. I, Para. 10) (Not Raised Below).

POINT V

MOSS' SENTENCES SHOULD BE REVERSED AS ILLEGAL, EXCESSIVE AND UNCONSTITUTIONAL (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para. 10).

In her appeal, Daniels raises the following two points:

POINT I

DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE CONSENT SEARCH VIOLATED ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION, IN THAT THE POLICE LACKED A REASONABLE AND ARTICULABLE SUSPICION THAT A SEARCH WOULD PRODUCE NARCOTICS BEFORE REQUESTING AND OBTAINING DEFENDANT'S CONSENT TO SEARCH HER RESIDENCE. (Partially Raised Below).

POINT II

DEFENDANT'S BASE SENTENCE WAS EXCESSIVE AND, THEREFORE, MUST BE MODIFIED. (Not Raised Below).

We have carefully reviewed the record in light of these contentions and the applicable law. We affirm each defendant's conviction. We affirm Moss's sentence under count two, but vacate his five-year sentence under count five. We also vacate Daniels's sentence. Consequently, we remand for resentencing consistent with this opinion.

We begin with the facts as they relate to both defendants' motions to suppress evidence. We take those facts from the suppression hearing on September 14, 2001.

The challenged evidence, cocaine and marijuana, a titanium digital scale and other drug-related items, was found during a search of 48 Ridge Avenue in Asbury Park on September 14, 2000. On that date, Officer Marshawn Love of the Asbury Park Police Department received a call to assist Sergeant Terrence Fellenz with the arrest of Moss at that address. Sergeant Fellenz had received information that a male with an active fugitive warrant would be leaving a house at 48 Ridge Avenue in possession of possibly a handgun and a large amount of narcotics. When Love arrived, officers already surrounded the house. Moss was arrested after "fleeing" the house.

As Officer Love approached Moss, he observed Daniels coming out of the house. She asked Love, "What's going on?" He told her Moss had an outstanding warrant; he was arrested for that warrant; and the officers had received additional information that narcotics and possibly a weapon were located inside the house. Daniels told Love that she lived at 48 Ridge Avenue with her mother and Moss. Officer Love asked her if she would consent to a search of the house. He did not ask Moss for consent to enter the premises.

Love advised Daniels that she had the right to refuse to consent to the search and she could stop the search at any time. Daniels told him that Moss only had access to the bedroom, and she gave her oral and written consent to search that room.

While Love talked to Daniels, Moss asked to give his keys to her. After the officers gave him permission, Love watched Moss hand the keys to Daniels. Then, Moss was placed in a police car and taken from the scene.

After Daniels signed the consent form, she accompanied the officers into the house and upstairs to the bedroom that she shared with Moss. Upon entering the bedroom, Love smelled the odor of burnt marijuana, and asked Daniels if anyone had been smoking marijuana in the room, to which she stated "no." Love then began his search of the bedroom.

He found recently smoked marijuana blunts in the corner of the room. When asked again about the marijuana, Daniels replied, "I don't know anything about that." As he continued his search, Love discovered a razorblade with a white powdery substance on it sitting on top of a dresser.

After finding the razorblade, Love searched the dresser drawers. The dresser contained four drawers: three unlocked drawers on the bottom, and a locked drawer on the top. In the three bottom drawers, Love found miscellaneous men's and women's clothing. Because the top drawer was locked, he asked Daniels if she could open it. She agreed. She used a set of keys that were in her hands to unlock the drawer. At the suppression motion hearing, Love was unsure if Daniels used a key from the set Moss had given to her. At trial, he testified that Daniels did in fact use a key from the set of keys that Moss had given her earlier.

Inside the locked drawer, Officer Love found a plastic container with a white rocklike substance, which he suspected to be a rock of crack cocaine. A subsequent laboratory test revealed that it consisted of .99 ounce of cocaine. He also found marijuana and a titanium digital scale.

The following facts were elicited during the trial. After the cocaine and marijuana were discovered, Sergeant Fellenz arrested Daniels. The officers continued their search and recovered the box for the digital scale; additional marijuana wrappers; another cutting device; and a cell phone. Daniels remained in the room until the search was complete.

Detective Barry Graves of the Monmouth County Prosecutor's Office Narcotics Strike Force Unit was qualified as an expert in the field of narcotics. He opined that the drugs found in the bedroom were possessed with the intent to distribute them. That conclusion was based on several factors: the drugs were individually packaged; the scale; the razorblade with white residue; and the cell phone. Graves also testified that a rock of cocaine of the size found would be "too large to get rid of right away," and "you . . . definitely wouldn't find this on the street."

Graves also opined that the marijuana was possessed with intent to distribute because of the way it was packaged: in fourteen individual bags that contained a total of approximately six to eight grams. He explained that if a person was going to possess six to eight grams for personal use, it would be bought in bulk because it would cost less.

Neither defendant testified at trial. Moss called Patrick Salerno, a bail bondsman who was at the scene of the arrest attempting to execute the arrest warrant that had been issued for Moss. He had initially attempted to locate Moss at 303 Sunset Avenue in Asbury Park, the address on the warrant, but was unsuccessful. Salerno subsequently learned that Moss was at 48 Ridge Avenue. Accompanied by police officers, he went to that address and found Daniels outside. He told her he needed to enter the house, but she refused to let him in. When Moss left the house, it was Salerno, not the Asbury Park police, who ordered him to the ground and handcuffed him. Salerno contradicted Love's testimony about the keys: he testified that Moss did not hand Daniels the keys after Moss was arrested.

I. The Suppression Motion

To decide the validity of the search, we examine only the facts from the suppression hearing. State v. Tavares, 364 N.J. Super. 496, 501 (App. Div. 2003). Moss argues the State failed to establish either a sufficient legal nexus between him and 48 Ridge Avenue; or that Daniels had a possessory interest that permitted her to consent to the search of the room and dresser. He also contends that Daniels's consent to the warrantless search was not voluntarily and freely given. Daniels claims the police lacked a reasonable and articulable suspicion that a search would produce narcotics before requesting and obtaining her consent to the search. We are not convinced by any of these arguments.

A warrantless search is per se unreasonable unless it falls within one of a few, well-defined exceptions. State v. Maristany, 133 N.J. 299, 305 (1993). One well-established exception is a search conducted pursuant to consent. Ibid. To justify a search on the basis of consent, the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975).

Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent. Maristany, supra, 133 N.J. at 305. Valid consent "may be obtained . . . from a third party, so long as the consenting third party has the authority to bind the accused." State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985). To determine whether a valid consent to search an area was given by a third party, the State must first prove, by "clear and positive testimony," that the consent was freely and voluntarily given. Id. at 276-77. Next, the State must prove that the consent to search was obtained from the defendant or a person who possessed a sufficient relationship with the property searched to authorize the search. Id. at 276. The third party must have common authority over, or other sufficient relationship to, the premises or the effects sought to be inspected. Ibid.

To determine whether a consenting party has the required nexus with the property to be searched, the court must determine whether the police officer had a reasonable belief at the time of the search "that the consenting party ha[d] sufficient control over the property to consent to its being searched." State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). It is "'appearances of control'" at the time of the search, "'not any subsequent resolution of questions of title or property rights,'" that must be used to assess the validity of the search. State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.), certif. denied, 180 N.J 456 (2004) (quoting State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)).

In reviewing a trial court's denial of a motion to suppress, we defer to "the judge's assessment of credibility." State v. Padilla, 321 N.J. Super. 96, 107 (App. Div. 1999), aff'd, 163 N.J. 3 (2000). The fact-finding of a trial judge may not be disturbed if supported by sufficient, credible evidence in the record. State v. Barone, 147 N.J. 599, 615 (1997). Our task is not to reweigh the evidence, but to determine if sufficient evidence exists to support the motion judge's decision. Ibid.

On the basis of the testimony presented at the suppression hearing, the Law Division judge determined that Daniels's consent to search the bedroom at 48 Ridge Avenue was valid. He relied on a number of factors: the officer informed Daniels that she could stop the search; Daniels was extremely cooperative; and she signed the consent form. Defendants shared a bedroom where both female and male clothes were found. There was an active warrant for Moss, and an informant advised the police that Moss may have had a weapon and illegal drugs. The Law Division judge found that Daniels's authority to consent to the search was objectively reasonable.

The record supports the motion judge's decision that Daniels freely and voluntarily gave the officers consent to search the bedroom at 48 Ridge Avenue, and that she possessed the authority to give her consent. Love saw Daniels leave the house. She volunteered that she and Moss shared a bedroom in the house. Daniels also signed the "Consent to Search" form, which gave the officers permission to conduct "a complete search of [Daniels'] premises located at 48 Ridge Avenue" and to take "any letters, papers, materials or other property which they may desire." The form contained an acknowledgment by Daniels that her consent was voluntary and had been obtained without threats or promises of any kind; that she had been informed of her constitutional right not to have her premises searched without a warrant; and that she had a right to refuse to consent to the search. Love also orally informed Daniels of her right to refuse to consent. These facts justify the court's conclusion.

Moss argues the officers conducted an improper "field stop" of him, based on his race, and the "field inquiry" escalated into an unlawful "investigative detention" of Daniels. These arguments are without merit. First, Moss was arrested pursuant to an active arrest warrant. Second, when Daniels walked out of the house she initiated the discussion with the police. She asked police officers, "What's going on?" It was in response to her inquiry that Love advised her of the information he had. No field stop or investigative detention occurred.

Daniels concedes she consented to the search, but contends the search was unconstitutional because the police had no "reasonable and articulable suspicion that a search of the residence would produce narcotics." She relies upon State v. Carty, 170 N.J. 632 (2002), modified, 174 N.J. 351 (2002), for the proposition that in the absence of a reasonable and articulable suspicion, the police have no basis to conduct a search even with a defendant's consent. Daniels claims that before the police could obtain her consent, Carty required them to have a reasonable and articulable suspicion that a search of her premises would reveal evidence of criminal wrongdoing. While that proposition may apply to an automobile search, the search of the house does not require the same standard.

In Carty, the defendant was a passenger in a motor vehicle operated by his brother when stopped by the state police. Id. at 635. After his brother signed a consent form to allow the police to search the vehicle, a frisk of the defendant uncovered cocaine. Ibid. On those facts, the Court found that consent searches following a lawful stop of a motor vehicle are invalid unless law enforcement officials have a reasonable and articulable suspicion to believe that the motorist had engaged in, or was about to engage in, criminal activity. Id. at 647.

The Carty decision, however, is limited to motor vehicle stops. The Court distinguished its analysis from that needed for the search of a residence. Id. at 639, 644-47. The Court said: "[T]he holding in the present case is limited in that it pertains to consent searches pursuant to a stop for a traffic infraction." Id. at 654. Consequently, Carty is inapplicable to the instant case. Defendants' motion to suppress the evidence was therefore properly denied.

II. Motion for Judgment of Acquittal

The trial court denied Moss's motion for judgment of acquittal. We agree that the factual record was sufficient to support Moss's conviction.

On motion of a defendant for judgment of acquittal, the trial judge must determine whether the evidence is sufficient to warrant a conviction. R. 3:18-1. If in viewing the State's evidence in its entirety, and giving the State the benefit of all reasonable inferences from that evidence, a reasonable jury could find a defendant guilty of the charge, the trial court must deny the motion. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Palacio, 111 N.J. 543, 550 (1988); State v. Reyes, 50 N.J. 454, 458-59 (1967). The trial judge is not concerned with the worth, nature, or extent (beyond a scintilla) of the evidence but only its existence, viewed most favorably to the State. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). On appeal, we apply the same standard. State v. Bunch, 180 N.J. 534, 549 (2004); Reyes, supra, 50 N.J. at 459.

Moss argues that the State failed to introduce evidence from which a reasonable jury could infer that he constructively possessed any controlled dangerous substance with intent to distribute it. Specifically, he claims the only evidence presented by the State to support a conviction for that offense was his mere presence outside of 48 Ridge Avenue.

Criminal "[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time," State v. Davis, 68 N.J. 69, 82 (1975), accompanied by knowledge of its character, State v. Reed, 34 N.J. 554, 557 (1961). Possession can be constructive rather than actual. State v. Brown, 80 N.J. 587, 597 (1979). Constructive possession is defined as possession in which the property, though not physically on one's person, is so located that he is aware of the presence of the property and is able to exercise intentional control over it, go to it and get it and obtain it. Id. at 600.

Testimony elicited during the State's case belies Moss's assertion that his mere presence at the scene was the only evidence to support his constructive possession of the drugs. Officer Love testified that while at the scene, Daniels told him that Moss resided in the house with her and her mother. Daniels gave consent to search "[t]he bedroom that Moss and Daniels shared." Love testified that in expressing her consent, "[Daniels] expressed a concern not to search the entire house because Moss and herself only had access to the bedroom." Love said that when the officers were inside the bedroom, Daniels indicated that "the bedroom was shared by Moss and herself."

During the search of the bedroom, Love found men's clothing in the dresser drawers; some of the clothes were size "XXL." At the time of his arrest, defendant was six feet, three inches tall, and weighed 280 pounds. Moss was seen leaving 48 Ridge Avenue. Love testified at trial that Moss gave Daniels keys to the locked dresser drawer where the contraband was found.

The record also supports the conviction for possession with intent to distribute. Love found a rock of cocaine that weighed almost one ounce; and fourteen bags containing a total of six to eight grams of marijuana. He found a razor blade with white powder residue on the blade and a titanium scale; both can be used to measure and distribute controlled dangerous substances. Detective Graves testified that, based on a hypothetical set of facts identical to those in this case, the drugs were possessed with the intent to distribute them. The record was sufficient to permit a jury to find Moss guilty beyond a reasonable doubt on the statutory elements of possession of a controlled dangerous substance with intent to distribute.

III. Salerno's Testimony

Moss argues that the court erred by admitting Salerno's testimony concerning the reason he went to Daniels's apartment after he learned that Moss was not at 303 Sunset Avenue, the address on the arrest warrant. Moss claims this testimony was hearsay and should have been barred. We disagree.

A trial court's evidentiary rulings are accorded substantial deference on appeal. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The ruling may be reversed only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

On cross-examination, the prosecutor asked Salerno about his call to 303 Sunset Avenue and his conversation with Moss's girlfriend. The prosecutor asked the following: "After you called and spoke to the girlfriend, tell us what information you have." Defense counsel objected on hearsay grounds. The judge overruled the objection on the ground that the State was not seeking to admit the statement for its truth, but to show the reason Salerno went to Daniels's residence at 48 Ridge Avenue.

Salerno testified that he received a telephone call from Moss's girlfriend who said she would have Moss call him. He did not. Salerno then went to 303 Sunset Avenue the following morning, but did not see Moss there. Then, he called 303 Sunset and asked for Moss. He testified that "[t]he woman on the phone became rude and said he was not there." Salerno called back again about twenty minutes later, and Moss was still not there. Then:

Question: Five minutes later, did you receive a call back?

Answer: Yes.

Question: Okay. He didn't live [at 303 Sunset Avenue] anymore, did he?

Answer: According to the woman in the house, no.

Question: Okay. Based on information you received, you learned that he lived at 48 Ridge, correct?

Answer: Yes.

Question: And that's where Charmaine Daniels lives, correct?

Answer: Yes.

. . . .

Question: You then go to 48 Ridge, correct?

Answer: Right.

The trial judge determined that this testimony was not offered for the truth of what was said. We agree. Hearsay is "a statement, other than one made by the declarant while testifying . . . offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). When testimony is not offered to prove the truth of the matter asserted, it is not hearsay. State v. Johnson, 216 N.J. Super. 588, 600 (App. Div. 1987); see also State v. Vandeweaghe, 351 N.J. Super. 467, 484 (App. Div. 2002), aff'd, 177 N.J. 229 (2003) (noting, "a police officer may, without violating either the hearsay rule or defendant's right of confrontation, explain the reasons he either apprehended a suspect or went to the scene of the crime by stating that he did so 'upon information received'").

Here, Salerno's statement that, according to the declarant, Moss no longer lived at 303 Sunset Avenue but lived at 48 Ridge Avenue, was not offered to prove that defendant actually lived at 48 Ridge Avenue, or that he possessed the drugs; rather, it was offered to explain why Salerno left 303 Sunset Avenue and went to 48 Ridge Avenue to look for Moss to arrest him. We therefore agree with the trial court that the challenged testimony was not hearsay.

Moss also claims the testimony should have been excluded because it was not relevant. "'Relevant evidence' means evidence having a tendency to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Whether evidence is relevant "is tested by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). Here, Salerno's testimony was probative as to how he arrived at 48 Ridge Avenue to effectuate the arrest warrant for Moss.

Moss also asserts that the testimony should have been excluded pursuant to N.J.R.E. 403. Again, we disagree.

N.J.R.E. 403 provides: "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of the issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Salerno's testimony was probative as to why he left 303 Sunset Avenue, the address indicated on Moss's bail application, to pursue Moss at 48 Ridge Avenue. That probative value was not substantially outweighed by the risk of undue prejudice to Moss. Salerno's statement did not implicate Moss in the commission of any crime.

Moreover, the same information was elicited by defense counsel on direct examination. Salerno was asked by defense counsel where he went to pursue the arrest warrant that he had for Moss.

Question: Okay. And what address was that?

Answer: 303 Sunset Avenue.

Question: Okay. And did you locate Moss at that address?

Answer: No.

Question: Okay. Did you then go to another location?

Answer: Yes, I did.

Question: Okay. And what location did you go to?

Answer: 48 Ridge Ave., Asbury Park.

Thus, the trial judge did not commit a clear error of judgment in allowing Salerno's testimony to be admitted on cross-examination.

IV. Daniels's Sentence

Daniels received a seven-year sentence for possession of a controlled dangerous substance with intent to distribute; the other terms being lesser and concurrent. She argues that her sentence was "manifestly excessive." The judge balanced the aggravating and mitigating factors and found that "neither the aggravating nor the mitigating factors preponderate." As a result, the judge imposed the presumptive term for the second-degree offense.

The judge properly weighed the aggravating and mitigating factors, and the court did not commit a "clear error of judgment" that shocks our judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984). Nevertheless, in light of State v. Natale, 184 N.J. 458, 487-88 (2005), which found presumptive terms to be unconstitutional, the sentence must be vacated and remanded for resentencing. Daniels's sentence was formulated with reference to the presumptive term. To preserve the constitutionality of our sentencing scheme in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the New Jersey Supreme Court performed judicial surgery, eliminating presumptive terms. Natale, supra, ibid.

Here, after balancing the aggravating and mitigating factors, the trial judge stated: "So we're in this presumptive range . . . ." He then imposed the presumptive seven-year sentence. Sentences formulated in this manner with reference to the presumptive term must be reconsidered pursuant to Natale.

V. Moss's Sentence

On count two, Moss received a ten-year sentence with a five-year period of parole ineligibility for possession of a controlled dangerous substance with intent to distribute; on count five, a concurrent five-year sentence with a three-year period of parole ineligibility. He argues the imposition of an extended term on count two was constitutionally impaired; that it was error for the sentencing court to automatically impose the parole disqualifiers; and it was error to increase the presumptive sentence on count five in the absence of jury fact-finding. We disagree with his arguments concerning count two, but agree that his five-year sentence on count five, a third-degree conviction, exceeded the four-year presumptive term and consequently must be vacated.

In imposing Moss's sentence under count two, the trial judge said:

I have to weigh the factors. The jury spoke. Sentencing is appropriate. I find a repeat of risk. I find the extent of his prior criminal record . . . .

And I will . . . disregard the possession with intent which really kicks it up into the mandatory extended term . . . . There is a need to deter this defendant and others from violating the law. On the mitigating side - perhaps this defendant was substantially influenced by a more culpable person, the co-defendant . . . . I find the defendant is educated with employment history. And he is certainly rehabilitatable. The mandatory extended term provisions of [N.J.S.A.] 2C:43-6 [] boost the range of sentencing now by mandate between ten and twenty years. [N.J.S.A.] 2C:43-7.

. . . .

Having made those findings, it's up to me to balance the sentence, depending on my view and weighing of the aggravated and mitigating factors. Taking into account he has one prior possession and many VPs, taking into account his age, perhaps the culpability of the co-defendant, I find that the low range is the fair range.

To the extent this sentence is inconsistent, I feel it's in the interest of justice. The extended term is mandated by the legislature for a group purpose to deter drug dealing. I understand that. But I've weighed the factors carefully. I've looked at this over and over again and a 20 with any stip is too heavy. But I think a low end with the five stip is right where the case should be. I can get there with the weighing of the factors.

This language suggests that the judge did not rely on the presumptive terms in formulating Moss's sentence; rather his focus was the statutory range. In formulating Moss's sentence for count two, the trial judge found the following aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior 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). After balancing those aggravating factors based on Moss's prior convictions with the mitigating factors, the court sentenced Moss to the lowest end of the range for the mandatory extended term on count two. See N.J.S.A. 2C:43-7(3) (for a crime of the second degree, term shall be fixed by the court between ten and twenty years). That determination was entirely consistent with existing law.

Next, we turn to Moss's mandatory extended term. He was sentenced to a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, the repeat drug offender statute. The statute states:

A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance . . . under N.J.S. 2C:35-5 . . ., or of distributing, dispensing or possessing with intent to distribute on or near school property or buses . . . under N.J.S. 2C:35-7, who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7 . . . . The term of imprisonment shall . . . include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . .

[N.J.S.A. 2C:43-6f.]

Moss was convicted of second-degree possession of a controlled dangerous substance with intent to distribute. N.J.S.A. 2C:35-5b(2). In light of his prior drug conviction, his sentence was elevated to the extended term sentencing range applicable to a second-degree crime, between ten and twenty years. See N.J.S.A. 2C:43-7a(3). Moss challenges the imposition of this extended term. His arguments are without merit. The extended sentence imposed by N.J.S.A. 2C:43-6f is mandatory. Under that provision, "the prosecutor need only apply for the imposition of an extended term and establish eligibility by a preponderance of the evidence to meet the sentencing requirements . . . ." State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.), certif. denied, 164 N.J. 562 (2000). The prosecutor satisfied those requirements. He moved before the trial court for an extended term based on Moss's prior conviction by furnishing the trial court with a certified judgment of conviction. In his written motion, the prosecutor set forth his reasons for requesting the imposition of an extended term; he also indicated his reason at Moss's sentencing hearing - "defendant has a prior for distribution of CDS."

Moss failed to meet his burden to prove that the prosecutor's decision to seek the enhanced sentence was arbitrary and capricious. In State v. Lagares, 127 N.J. 20, 33 (1992) the Court held:

[T]he burden on defendant to prove that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion is heavy. Defendants will have to do more than merely make general conclusory statements that a prosecutorial determination was abusive. Instead, they must show clearly and convincingly their entitlement to relief under the standard established herein. Application of that standard is consistent with the legislative determination to make an extended sentence for repeat offenders the norm.

[Id.]

Moss only argues that the prosecutor failed to state additional reasons for seeking the extended term other than the fact that Moss had previously been convicted. He presents no evidence that the prosecutor's actions were arbitrary or capricious. Accordingly, the trial court's imposition of the extended term was proper.

Moss also argues that the trial court's automatic imposition of an extended term on count two is unconstitutional in light of Blakely, supra. That argument too is without merit.

Here, the mandatory extended-term imposed on count two was based on Moss's prior conviction. "'The fact of a prior conviction' may be used to increase the 'penalty for a crime beyond the prescribed statutory maximum.'" State v. Abdullah, 184 N.J. 497, 506 n.2 (2005) (quoting Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 453-55 (2000)); State v. Franklin, 184 N.J. 516, 538 (2005); see also State v. Vasquez, 374 N.J. Super. 252, 269 (App. Div. 2005) (holding "[d]efendant's sentence to an extended term . . . as a repeat drug offender pursuant to N.J.S.A. 2C:43-6f . . . fell within the Blakely exception for a prior record as an aggravating factor"); State v. Young, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 14) (finding "'prior conviction' exception permits imposition of an extended term under the persistent offender statute"). Thus, the trial court did not err in imposing an extended term under count two.

As to the concurrent sentence on count five, Moss contends that because he was given a five-year term, in light of Blakely, his sentence must be vacated. He has a point. The extended term imposed by the court only appears to have applied to count two; the transcript contains no discussion of an extended term for count five. Consequently, the imposition of a five-year term for a third-degree offense which is higher than the prior four-year presumptive term without the discussion required under Natale, supra, must be vacated.

We affirm both defendants' convictions and the sentence Moss received under count two. We vacate Daniels's sentence and Moss's sentence under count five, and remand for resentencing consistent with this opinion.

 
Affirmed in part, reversed in part, and remanded.

These two cases involve co-defendants who raise substantially similar issues on appeal. Because the facts underlying the common issues are identical, we have consolidated these cases for purposes of this opinion.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-5086-02T4

October 31, 2005