STATE OF NEW JERSEY v. SALAHUDIN ABDUS-SALAAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0387-05T40387-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALAHUDIN ABDUS-SALAAM,

Defendant-Appellant.

________________________________

 

Submitted March 14, 2007 - Decided April 9, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-12-01543-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven Brizek, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury in absentia, defendant Salahudin Abdus-Salaam was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). On the State's motion, he was sentenced to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), of seven years with a two-and-one-half year period of parole ineligibility. Defendant appeals, and we affirm.

According to the State's proofs, on August 29, 2002, as part of a narcotics investigation, a team from the Passaic County Sheriff's Office was conducting surveillance in the area of Godwin Avenue and Carroll Avenue in Paterson, known for high drug trafficking. The area is residential with a bodega on the corner and a nearby parking lot and church. At approximately 10:55 p.m., Detective Roger Cameron, from an undisclosed location, observed Travis Leary standing on the corner. Cameron then saw William Christmas approach Leary on foot, briefly converse with Leary, exchange currency for "one small object" that Cameron suspected was a controlled dangerous substance (CDS), and walk away. Almost immediately thereafter, Cameron observed defendant approach Leary, talk, and "things were exchanged".

Cameron observed these transactions from approximately 100 feet away and from a elevated position using "standard" binoculars. The area was well-lit with one street light, and he had a "clear view". At the time, there was light pedestrian traffic and cars were parked on the street. Cameron, however, refused to disclose the exact elevation of his position: whether he was in a building, residence, car, or on foot; whether he was looking through a window or screen; whether he was indoors or outdoors; from which side of Godwin Street he observed the transactions, and his angle of sight. He said variously that the transactions took place at the northwest or northeast corner of the intersection.

In any event, as soon as he made these observations, Cameron radioed other members of the team, relaying a description of the trio along with their direction of flight. The three men were subsequently arrested. When defendant and Christmas, who were walking close to one another, were stopped, the arresting officer asked them to turn over their drugs. They complied and each handed over one glassine envelope of heroin.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED BY VIOLATING DEFENDANT'S RIGHT TO CONFRONT WITNESSES IN PRECLUDING THE DISCLOSURE OF DETECTIVE CAMERON'S SURVEILLANCE POINT AND BY UNDULY LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS EXAMINE DETECTIVE CAMERON REGARDING THE SURVEILLANCE POINT.

II. THE TRIAL COURT ERRED IN NOT INFORMING THE JURY ABOUT ITS DECISION TO PERMIT THE STATE TO NOT DISCLOSE THE SURVEILLANCE LOCATION.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT TO ATTEMPT TO LOCATE THE DEFENDANT.

IV. DEFENDANT WAS DENIED A FAIR TRIAL BY THE DISCLOSURE OF AN "ALSO KNOWN AS" NAME TO THE JURY AND THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL.

V. THE TRIAL COURT COMMITTED ERROR BY NOT ALLOWING THE JURY TO CONSIDER THE LESSER INCLUDED OFFENSE OF LOITERING FOR PURPOSE OF ILLEGALLY USING, POSSESSING OR SELLING CONTROLLED SUBSTANCES.

VI. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

VII. DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (partially raised below).

VIII. THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS AN ABUSE OF DISCRETION, UNDULY EXCESSIVE, AND VIOLATED DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

We address these issues in the order raised.

(i)

Prior to trial, the court examined Detective Cameron in camera to determine whether the surveillance location was privileged. Based on Cameron's testimony, the court held that the State made its initial showing of a public need to conceal the location and that the defense had sufficient information with which to question the surveilling detective. After defendant's subsequent motion to dismiss was denied, counsel requested a jury instruction specifically advising of the court's decision to allow the State to withhold the surveillance location, arguing that since the court is "essentially taking the [detective's] statements at face value" . . . the jury had a "right to know that it's because the officer is refusing to give up the surveillance point". This request was denied as well. On appeal, defendant contends that the decision not to disclose the exact surveillance site or to advise the jury of this decision was erroneous. We disagree.

The exact location of a surveillance vantage point may be withheld pursuant to N.J.R.E. 515. State v. Garcia, 131 N.J. 67, 73-74 (1993) (applying the "official information privilege" of former Evid. R. 34). Such non-disclosure serves the public interest in that it avoids compromising ongoing secret surveillances, protects police officers and cooperating citizens from reprisal, and encourages citizens to cooperate with police. Id. at 74-75. To invoke the privilege the State must demonstrate "a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Id. at 78. Such a demonstration is made in camera, with defense counsel excluded. Id. at 77-78.

However, "application of the privilege must not deprive a defendant of the right to a fair trial . . . . [T]he surveillance-location privilege must yield when it infringes on a defendant's constitutional right[]" to cross examine adverse witnesses. Id. at 79-80. Thus, the privilege yields where a defendant makes a "substantial showing of need" for the information. Id. at 81; see also State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). The court then balances the negative effect disclosure would have on the public good with the defendant's need for the information and considers the crime charged, the possible defenses, the possible significance of the privileged information and other relevant factors. Garcia, supra, 131 N.J. at 80-81 (defendant failed to show that disclosure of the exact location was essential, or even helpful, to a fair determination of the case where heroin recovered from the scene strongly corroborated the surveilling and arresting officers' testimony); see also State v. Zenquis, 131 N.J. 84 (1993) (defendant's confrontation rights outweighed the State's interest in non-disclosure where only the surveilling officer testified, no drugs were found on defendant or at the scene, and there was no other corroboration); State v. Williams, 239 N.J. Super. 620, 634 (App. Div. 1990) (no disclosure of the location of the surveillance site where it "would only have been of peripheral assistance to the defense"). We will disturb the lower court's determination only for abuse of discretion. Garcia, supra, 131 N.J. at 81.

We discern no abuse of discretion here. The State demonstrated that disclosure of the site would compromise ongoing investigations as well as the site owner's safety. On the other hand, defendant never established a "substantial need" for the official information. See Zenquis, supra, 131 N.J. at 87. Absent was any specific, particularized showing of substantial need to satisfy the defense's burden in this regard. By the same token, disclosure of the surveillance site was, in our view, not material and would have been of only marginal assistance to defendant. In fact, defendant already possessed significant information about the officer's surveillance location, line of sight, elevated position and clear view, including the fact that Detective Cameron used "standard" binoculars. See Garcia, supra, 131 N.J. at 81-82. Contrary to defendant's assertion, the record discloses sufficient opportunity to cross-examine Detective Cameron even without inquiring about the exact surveillance location. Defendant has simply failed to show how the concealment of the precise surveillance site deprived him of effective cross-examination or otherwise prevented a fair determination of his case.

Most significant, there was substantial corroboration of Detective Cameron's observations, rendering the undisclosed information of only peripheral value. State v. Williams, supra, 239 N.J. Super. at 634. Cameron observed what he suspected to be a drug transaction between Leary and defendant and in fact heroin was found on defendant only moments later. It is therefore highly unlikely that disclosure of the precise surveillance site would have shown that Detective Cameron could not have seen what he claimed to have seen. Indeed, it is difficult to imagine what use, if any, defendant could have made of the exact surveillance site. His counsel's cross-examination was effective.

We conclude, as did the trial judge, that the weighing of the factors on each side strongly militate in favor of non-disclosure of the precise surveillance site. The need for confidentiality clearly outweighed the minimal defense need for this information in presenting its case. There was no abuse of the trial court's discretion in deciding not to disclose the official surveillance site.

(ii)

Nor was there error in failing to inform the jury that the surveillance location could not be revealed. Defendant points to no case law in support of his argument, nor is there any. See e.g. Ribalta, supra, 277 N.J. Super. 277 (no suggestion that such an instruction was given or is authorized); Garcia, supra, 131 N.J. 67 (same); Zenquis, supra, 131 N.J. 84 (same); State v. Crudup, 176 N.J. Super. 215 (App. Div. 1980) (same). In fact, in creating the surveillance-location privilege, our courts drew upon the law governing disclosure of the identity of confidential informants, see e.g. Garcia, supra, 131 N.J. at 77-79, and similarly, no decisions can be found there in support of such a jury instruction. See e.g., State v Milligan, 71 N.J. 373 (1976). Thus, for the same reasons which support upholding the privilege, we find no error in refusing to charge the jury, as defendant requested, that the surveillance location could not be revealed.

(iii)

On February 24, 2003, after rejecting a plea offer, defendant was apprised of the July 21, 2003 trial date and was warned that the trial would be held in his absence and a warrant would issue for his arrest if he did not attend. Thereafter, he received written notice of this fact and also signed a notice to this effect. On May 12, 2003, the court again reminded defendant of the consequences of failing to appear for trial on July 21, 2003 and asked defendant if he understood, to which he responded "yes". Defendant did not appear on July 21 and the court gave defense counsel one day to locate him. Defendant again failed to appear on July 22. Defense counsel described her attempts to get in touch with defendant, including a letter of July 17 sent to his address of record, which did not come back returned, and phone calls to his mother and his cell phone which was disconnected. Additionally, counsel sent an investigator to the residence of defendant's mother, who reported that she had not seen defendant "in a bit of time". The investigator also tracked down defendant's former girlfriend, who had not seen him either. Defense counsel also acknowledged that defendant was an abscond in Bergen County, where he had failed to appear for a plea hearing on another matter and an arrest warrant had issued. It was against this factual backdrop that the court denied counsel's request for an additional adjournment, finding that defendant was given sufficient notice pursuant to State v. Hudson, 119 N.J. 165 (1990). We are satisfied that the court's decision to proceed in absentia was proper.

It is within the court's discretion to try defendant in absentia where defendant has actual notice of his trial date, and there is no information to suggest that his failure to appear was not voluntary and unjustified. State v. Givens, 353 N.J. Super. 280, 285 (App. Div. 2002) (citing State v. Finklea, 147 N.J. 211, 218-19 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997)). "We cannot allow crowded court calendars to be disrupted by defendants who knowingly and voluntarily absent themselves from trial, and then seek reversal of their convictions on the ground that the trial date could conveniently have been rescheduled." State v. Hudson, supra, 119 N.J. at 183 (conviction in absentia upheld where trial had been adjourned once and defendants had actual notice of the trial date).

Here, defendant received actual notice of his trial date in conformance with Hudson, and the court permitted counsel additional time to locate her client when he failed to appear on the scheduled trial date. Yet this allowance produced no information to support a claim that defendant's absence was not voluntary or otherwise justified. To the contrary, defendant later admitted at time of sentencing more than two years later that he decided not to appear for trial to avoid arrest on another matter. Under the circumstances, there was no abuse of discretion in trying defendant in absentia.

(iv)

During his direct examination, the arresting officer, Sergeant Tucker, was asked to identify codefendant Christmas and his pedigree information. With regard to defendant, who was not present in the courtroom, the following exchange took place:

Q. Okay, I now show you what's been previously marked S-6 for identification, a photograph. Can you please tell me who that is?

A. That's the other suspect [defendant].

Q. Apparently. And I will show you now what's been marked S-7 for identification. Do you see what this is and recognize what this is?

A. Yes, sir. That's the pedigree information for Alan Riddick who is also [defendant].

Defense counsel objected to the reference to defendant's other, or former, name. She noted that on the first line of the arrest report the name typed in was defendant's name, where an alias could be entered the word "none" was typed in, and the name "Riddick, Alan" was hand-written in pen. She argued that revealing this other name was prejudicial and therefore moved for a mistrial. The court denied the motion, reasoning:

It is clear [the officer] had to have had that information somewhere. If [defendant] is, in fact, using an alias and he gave that name to the police officer on the night in question, it was written on the arrest report. And he's asked what name was on that report and he reads the name that was given to him on the report.

I should add that [defendant] . . . whatever his correct name is, is an abscond from Bergen County. A warrant was issued for his arrest back on June 16 of 2003. According to the information supplied to me yesterday from my court clerk who looked it up on the computer, he's indicted in Bergen County under the name of Alan Riddick, so it's obviously a name that he has been using.

The [officer] was given certain information which he read and he wrote on his report. He is asked what is the name of the person he arrested. The name is Alan Riddick. He also uses a second name. I don't see how that could be prejudicial to this defendant when he is the one who chose to give those names.

The prosecutor added that both names were written on the back of the arrest photograph and that the use of both is "not something that was only pertaining to this one arrest sheet. It's obviously been part of defendant's criminal history". We agree with the reasoning of the trial judge and find no undue prejudice to defendant.

In general, an alias should be kept from the jury unless it is relevant for some purpose, to avoid creating an implication that defendant belongs to the criminal class. State v. Salaam, 225 N.J. Super. 66, 72-73 (App. Div.), certif. denied, 111 N.J. 609 (1988). However, revealing of an alias is not grounds for reversal unless defendant shows some tangible form of prejudice, such as where the alias is intentionally offered as "indicia of guilt". Id. at 73. Where a reference to an alias "crept into the proceedings, the situation on appeal will not be controlled by the application of any abstract principle, but by a concrete appraisal of the significance of the incident in relation to the processes of the trial as a whole." Id. at 74 (quoting Petrilli v. U.S., 129 F.2d 101, 104 (8th Cir.), cert. denied, 317 U.S. 657, 63 S. Ct. 55, 87 L. Ed. 528 (1942)).

Thus, reference to an alias must be prejudicial in context to warrant reversal. For example, no prejudice warranting reversal was found where a prosecutor announced defendant's alias to the jury despite the fact that the court had stricken it prior to trial, and also stated that "people with nothing to hide do not use aliases", because of the strength of the evidence against defendant. Id. at 74 (citing United States v. Wilkerson, 456 F.2d 57, 59 (6th Cir.), cert. denied, 408 U.S. 926, 92 S. Ct. 2507, 33 L. Ed. 2d 337 (1972)). And where the judge himself stated defendant's name and the name he was "also known as" three times before the jury, even these references were not considered sufficiently prejudicial to warrant reversal because they were made "sparingly", "did not suggest an element of criminal association or bad character on the part of defendant", and "the trial court did not insinuate or expressly instruct the jury that defendant's name change could be considered a factor in determining guilt." Id. at 76.

Here, the testifying officer made a fleeting, singular reference to defendant's other name, which defendant himself had apparently given to police in prior arrests and had used in prior court proceedings. We find this isolated remark considerably more "sparing" and comparatively more insignificant than the non-prejudicial references in Salaam and the cases cited therein not warranting reversal.

(v)

At the charge conference, defense counsel requested a charge on the lesser-included offense of loitering, claiming that the jury may conclude that there was one buy, not two. The court denied the request, noting that the detective who observed the drug purchases stated that there were two drug transactions, and that the arresting officer testified that both defendant and codefendant each handed over one glassine envelope of heroin. We agree, as there was no rational basis in the record for such an instruction.

If "there is a rational basis for a verdict on a lesser-included offense, the judge must grant a defendant's request for a jury charge on that offense." State v. Singleton, 290 N.J. Super. 336, 341 (App. Div. 1996) (citing N.J.S.A. 2C:1-8e); see also State v. Brent, 137 N.J. 107, 116-17 (1994). A judge's failure to grant defendant's request where the evidence reasonably supports a lesser-included charge is reversible error. State v. Cristanos, 102 N.J. 265, 276 (1986) (citing State v. Bohannan, 206 N.J. Super. 646 (App. Div. 1986)).

The lesser-included offense requested is codified at N.J.S.A. 2C:33-2.1 which provides, in relevant part,

b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.

c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog includes, but is not limited to, conduct such as the following:

(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;

(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;

(3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.

d. The element of the offense described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.

"It is apparent . . . that [this] statute was enacted to protect the quality of life in public places by interdicting persons who linger or circulate there for the specific purpose of engaging in drug transactions." State v. Kazanes, 318 N.J. Super. 421, 425 (App. Div. 1999). Kazanes is an analogous case where the arresting detective observed defendant making a hand-to-hand exchange with a known drug dealer and leave the scene. We vacated a conviction under N.J.S.A. 2C:33-2.1 because there was no evidence that defendant was "wandering" or "prowling" about looking to purchase drugs prior to the transaction observed. Kazanes, supra, 318 N.J. Super. at 426 ("the 'wandering' element . . . require[s] more than the mere going from point A to point B, engaging in a drug transaction and leaving").

Here, there is no evidential support for the "wandering" element of the crime of loitering. Defense counsel argued that the jury may be persuaded, if it did not find the arresting officer's testimony credible, that there was only one drug buy and that the two glassine envelopes of heroin were actually found on codefendant, with one being planted on defendant by the arresting officer. However, this argument is purely speculative, and not founded of any evidence that defendant was wandering or prowling for drugs in the area prior to the exchange. To the contrary, there was testimony that defendant, like the defendant in Kazanes, left the scene of the drug transaction immediately thereafter and was arrested nearby. Thus, we find no merit to defendant's claim that a charge on the lesser-included offense was warranted.

(vi)

At the close of the State's evidence, defendant moved for judgment of acquittal pursuant to Rule 3:18-1. The motion was denied because of overwhelming evidence of guilt. We agree.

In considering a defendant's motion for judgment of acquittal, the trial court considers the totality of the evidence in a light most favorable to the State and whether such evidence would enable a reasonable jury to find the accused guilty beyond a reasonable doubt. State v. Perez, 177 N.J. 540, 549 (2003) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). Although the State is entitled to all reasonable inferences, this does not lessen the State's burden to prove all elements of the charge beyond a reasonable doubt. State v. Martinez, 97 N.J. 567, 572 (1984).

Here, the judge properly found that there was sufficient evidence to convict defendant of possession of heroin pursuant to N.J.S.A. 2C:35-10a(1), if that evidence were believed. There was testimony that defendant actually possessed the glassine envelope containing drugs, handed that envelope to an officer, and that testing revealed those drugs to be heroin. Thus, the trial court did not err in denying defendant's motion.

(vii)

During her summation, defense counsel stated: "drug sellers, drug dealers, are really the bigger evil in society" than drug buyers. The prosecutor's objection was overruled. Defense counsel then went on to state that the officers were "in a drug area" and "predisposed to finding drugs", suggesting codefendant Christmas "has two bags on him", one of which was planted on defendant. Although the prosecutor objected, defense counsel was permitted to continue, asserting that the officer is "predisposed to thinking that they have drugs. He finds drugs. It's not a big deal to put them on the two of them. And [the other officer] will go along with that".

During his summation the prosecutor said,

I just want to briefly address Investigator Russell from the Public Defender's Office.

The prosecutor further stated:

Counsel alleges that selling drugs is more of an evil than buying drugs. Well, I disagree. I think they are both wrong. They are both against the law and that is very clear. Because as I said, without buyers, you don't have sellers. And without sellers, you don't have buyers.

. . . .

This goes to that issue which was suggested by counsel that possibly [the detective] had taken two of the envelopes [of drugs] off of [codefendant] and that [] defendant had [none]. I don't see why [the detective] would have any reason to plant evidence or suggest that evidence was taken from someone when, in her own closing, the defense counsel has said, in her opinion, that buyers are less evil than sellers.

If the detectives are going to plant drugs in this case, they are going to plant it on . . . the seller. And all the detectives acknowledged they did not find any drugs on him.

After the jury was charged and out of earshot, defendant moved for a mistrial on the basis of the "inadvertent" reference to the Public Defender's Office, citing State v. Moore, 111 N.J. Super. 528 (App. Div.), certif. denied, 57 N.J. 210 (1970). The motion was denied because the reference was "fleeting" and not made with "malice", but was a "slip".

On appeal, defendant reiterates his argument about the reference to the Public Defender and additionally complains for the first time about the remaining comments, arguing that the cumulative effect of these remarks prejudiced his right to a fair trial. We disagree.

The mention of the Public Defender's Office was singular, fleeting, inadvertent and not a direct reference to defendant's legal representation. It did not call for the grant of a mistrial. See State v. Moore, supra, 111 N.J. Super. at 533.

The remaining remarks were not objected to below, suggesting that counsel did not consider them prejudicial at the time they were made, State v. Wilson, 57 N.J. 39, 50-51 (1970); State v. Robinson, 266 N.J. Super. 268, 281 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476 (1994), and therefore cognizable now only as plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. But the remarks complained of now for the first time are not even error, much less plain error. Rather, they constitute fair comment on the evidence and are responsive to the attack by defense counsel on her summation. Contrary to defendant's argument that the prosecutor improperly asserted his personal opinion on summation, State v. Rose, 112 N.J. 454, 519 (1988), the prosecutor was simply refuting defense counsel's expressed personal belief that buying drugs is a lesser evil than selling them. And while the prosecutor did opine that "they are both wrong", he merely restated the criminal proscription against both types of illegal conduct, as evident in his follow-up statement: "They are both against the law." There is no error in such commentary.

Nor did the prosecutor err in responding to defense counsel's suggestion on her summation of "drug-planting." See State v. Hill, 47 N.J. 490, 499 (1966). The prosecutor was entitled to refute the accusation and his remarks did not denigrate defense counsel. Unlike the name calling and unjustified aspersions in State v. Acker, 265 N.J. Super. 351, 356 (App. Div.), certif. denied, 134 N.J. 485 (1993); State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992); and State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988), here the prosecutor simply disagreed with and refuted the likelihood of the occurrence of defense counsel's alternative drug-planting scenario. Such remarks were a permissible response to the accusation of drug-planting and therefore we find no error.

(viii)

At sentencing, the court noted that defendant, age 46, "has as an adult 15 arrests. This will be his eighth indictable conviction":

It is quite clear from what I have before me that this defendant is a career criminal. He has spent the vast majority of his life in prison. As soon as he's released, he commits crimes again. If anybody fits the mold of persistent offender, it is this defendant. . . . I cannot and will not turn blind eyes to . . . these type of offenses because he has lived his life of crime. That's all he seems to do - commit crimes.

The judge found that aggravating factors six (N.J.S.A. 2C:44-1(a)(6) (prior criminal record, seriousness of the crime); nine (N.J.S.A. 2C:44-1(a)(9) (deterrence of defendant and others); and three (N.J.S.A. 2C:44-1(a)(3) (risk of recidivism), applied and found no mitigating factors existed. Upon the State's motion for an extended term as a persistent offender under N.J.S.A. 2C:44-3, the judge sentenced defendant to an extended prison term of seven years with two-and-one-half years of parole ineligibility. Defendant claims this sentence is excessive. We disagree.

There is no constitutional bar to imposing extended terms based upon prior convictions. See State v. Pierce, 188 N.J. 155, 172-73 (2006) (where an extended term may be imposed upon a persistent offender, judicial fact-finding is permitted to determine a sentence within that extended term range, but such findings may not result in a sentence greater than the statutory maximum for the extended term); see also State v. Thomas, 188 N.J. 137, 141, 151-52 (2006). Here, there is no dispute that defendant qualifies as a persistent offender under N.J.S.A. 2C:44-3(a). At age 43, defendant had prior adult convictions in excess of the two crimes on two separate occasions required, and defendant committed this crime on August 29, 2002, only fifty days after he was released from prison on July 10, 2002, and well within the ten-year recidivism period.

Once a defendant meets the statutory criteria, whether to impose a discretionary extended sentence is determined thus:

First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.

[State v. Pennington, 154 N.J. 344, 354 (1998) (quoting State v. Dunbar, 108 N.J. 80, 89 (1987)).]

Under the Dunbar standard, the court decides whether an extended term is necessary to protect the public from future offenses by defendant through deterrence. Dunbar, supra, 108 N.J. at 90-91 ("Serious, harmful and calculated offenses typically call for deterrence"); but see State v. Burton, 306 N.J. Super. 280, 290-91 (App. Div.) (to protect the public, the maximum extended term with the maximum period of parole ineligibility was imposed upon a habitual drug offender, having no prior convictions for violent crimes, for his tenth indictable conviction), certif. denied, 156 N.J. 407 (1998). "When a defendant is eligible for an extended term based on his status as a persistent offender, the need for deterrence is enhanced." Pennington, supra, 154 N.J. at 354 (citing Dunbar, supra, 108 N.J. at 91).

Here, the trial court reasonably determined that deterrence was necessary and therefore an extended term was warranted considering defendant's previous convictions for larceny, burglary (3), robbery (2), possession of a CDS, possession of a CDS with intent to distribute, and possession of a CDS with intent to distribute within 1000 feet of school property; that defendant was an abscond, admitting to the court at sentencing that he failed to attend trial in the instant matter to avoid arrest for subsequent crimes committed in a neighboring jurisdiction; that defendant, at the time of sentencing, was incarcerated and awaiting sentencing on a subsequent conviction for possession of a CDS with intent to distribute within 1000 feet of school property.

As to the third prong of the Dunbar standard, the judge found three aggravating factors that are each well-supported by the record, and further found no mitigating factors, rendering a weighing of factors unnecessary. See Burton, supra, 309 N.J. Super. at 291. In any event, defendant's seven-year term falls midway in the extended-sentencing range for third-degree crimes, N.J.S.A. 2C:43-7a(4), and the two-and-one-half parole bar is authorized as less than half the term imposed, N.J.S.A. 2C:43-7b.

And finally, although defendant's dealer, codefendant Leary, received only a five-year term with a three-year parole bar, the disparity is well-explained by significant differences in their criminal histories. Simply put, defendant's sentence was well within the judge's discretion and we find no warrant for our interference.

Affirmed.

 

(continued)

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A-0387-05T4

April 9, 2007