STATE OF NEW JERSEY v. MUSTAFA MUHAMMAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2650-05T42650-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUSTAFA MUHAMMAD,

Defendant-Appellant.

________________________________

 

Submitted: August 16, 2006 - Decided August 22, 2006

Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 03-01-0127.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the letter brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Byron L. Wambaugh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant of a single count of third-degree burglary, N.J.S.A. 2C:18-2, charged in indictment no. 03-01-0127. After granting the State's motion to impose an extended term on persistent offender grounds, N.J.S.A. 2C:44-3a, the trial court ordered a ten-year term of imprisonment with five years of parole ineligibility, to be served concurrently with a sentence on another crime that defendant was then serving. Appropriate statutory assessments, fees and penalties were also ordered.

On appeal, defendant advances one argument addressed to the conviction and two arguments addressed to the sentence:

POINT I THE ADMISSION OF TESTIMONY FROM PATROLMAN O'HALLORAN AND REPEATED BY PATROLMAN CAMPANA, THAT O'HALLORAN "THOUGHT" THAT THE DEFENDANT WAS "INVOLVED" IN THE BURGLARY, CONSTITUTES PLAIN ERROR IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below)

POINT II THE DEFENDANT'S MAXIMUM SENTENCE OF TEN YEARS WITH FIVE YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

POINT III THE DEFENDANT'S DISCRETIONARY PERSISTENT-OFFENDER-EXTENDED-TERM SENTENCE OF TEN YEARS WITH FIVE YEARS OF PAROLE INELIGIBILITY VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS. VI AND XIV. (Not Raised Below)

Based on our review of the record in the light of the arguments advanced by the parties and prevailing legal standards, we reject these arguments and affirm.

The testimony of two police officers, which defendant now argues should not have been admitted, elicited no objection at trial. Defendant asserts that one feature of each officer's testimony must be taken as an expression of opinion about defendant's guilt, and that such opinion testimony is impermissible. See State v. Jamerson, 153 N.J. 318, 340 (1998); State v. Hightower, 120 N.J. 378, 426-28 (1990); State v. Landeros, 20 N.J. 69, 74-75 (1955); State v. Pasterick, 285 N.J. Super. 607, 620-22 (App. Div. 1995). In each instance, however, the record discloses that the testifying officer was not commenting upon defendant's guilt, but was merely explaining the reasons for the action taken in stopping defendant's vehicle, i.e., because a gas station break-in in the vicinity had been reported moments earlier and a general investigation was being conducted, and because the vehicle had no rear lights. The stop of defendant's vehicle was not inappropriate in the circumstances described, and the challenged testimony was not prohibited. Defendant was convicted on the basis of the physical evidence discovered following the stop, not because of any testimony given by the police officers. Defendant has not satisfied plain error standards in this regard. See State v. Macon, 57 N.J. 325, 333 (1971).

The sentencing arguments defendant makes are, likewise, without merit. Defendant was, manifestly, a persistent offender by reason of his lengthy criminal record. The trial court's choice to use aggravating factor six, "the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6), as one of the considerations in selecting the term imposed, reflected the extent and quality of his criminal record beyond the factors that rendered him extended-term eligible. Thus, there was no "double-counting," as defendant contends.

The arguments raised on appeal do not establish a violation of constitutional standards in the trial court's selection of the length of the term to be served based on the extent and quality of defendant's criminal record. There were no questions of fact reserved for jury determination. See State v. Pierce, ___ N.J. ___ (2006); State v. Thomas, ___ N.J. ___ (2006); State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005). In accordance with the Court's instructions in Pierce and Thomas, however, we remand for reconsideration of the sentence in the light of Pierce, Thomas, Natale and Abdullah.

The conviction is affirmed. The matter is remanded for sentencing reconsideration. Additionally, for the sake of accuracy, on remand, the trial court should correct the judgment of conviction to reflect that its entry resulted from a jury trial, not a guilty plea as currently stated.

 

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A-2650-05T4

August 22, 2006