STATE OF NEW JERSEY v. TERRANCE CLYBURN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1480-05T41480-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE CLYBURN,

Defendant-Appellant.

________________________________

 

Submitted October 29, 2007 - Decided

Before Judges S. L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1143 and 05-05-0551-A.

Kevin G. Byrnes, attorney for appellant.

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

PER CURIAM

On December 22, 2003, a Passaic County Grand Jury charged defendant under Indictment No. 03-12-1143 with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (Count One); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3), and N.J.S.A. 2C:2-6 (Count Two); third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6 (Count Three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Four).

Tried to a jury, defendant was convicted on all counts. On June 17, 2005, defendant was sentenced on the conviction on Count Three to a mandatory extended term, pursuant to N.J.S.A. 2C:43-6f, of ten years of imprisonment with a five-year period of parole ineligibility. On the conviction on Count Four, defendant was sentenced to eighteen months of imprisonment with a nine-month period of parole ineligibility, to run consecutive to the sentence imposed on Count Three. Counts One and Two were merged with Count Three.

On June 17, 2005, defendant also pled guilty to an unrelated charge of third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. On this conviction, defendant was sentenced to five years of imprisonment with a three-year period of parole ineligibility, to run concurrent with the sentence imposed on Count Three under Indictment 03-12-1143. All appropriate fines and penalties were also imposed. Defendant appeals from the convictions under Indictment No. 03-12-1143 only. We affirm the judgment of conviction but remand for re-sentencing in accordance with State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006). Because defendant does not contend that the verdict was against the weight of the evidence, we need only state the core facts to place the appeal in context.

On August 31, 2003, Paterson Police Department narcotics officers, Detective Sergeant Thomas Trommelen, Detective Vaughn Patterson, Detective William Palomino, and Patrolman Ronald Altmann, conducted a drug investigation in the area of a multi-family dwelling located at 151 Temple Street, in Paterson. The building is located within 1000 feet of a school.

The police officers divided themselves into two teams. Altmann and Trommelen acted as surveillance officers, while Palomino and Patterson formed the arrest team. The surveillance team's duty was to not only identify individuals to be arrested, but also to relay that information to the arrest team. Based on the relayed descriptions, the arrest team would apprehend the suspects.

Upon arriving at the scene, the officers positioned themselves at different locations. Trommelen and Altmann remained in their parked, undercover vehicles, with an unobstructed view of the building. The surveillance officers observed defendant, who was standing at the top of the steps leading to the front door of the building, talking to a second male, who was standing at the foot of the stairs. The second male was wearing blue jeans, a white T-shirt, and a Lakers hat.

At about 5:00 p.m., an unidentified third male approached the second male on a bicycle. After speaking briefly, the second male held up two fingers. The second male walked to defendant, who then removed a clear, plastic baggie from his pants, and handed the second male several small items. The second male handed the items to the bicyclist, who in turn, after presenting paper money to the second male, left the scene. Based on these events, Altmann and Trommelen believed that they had just observed a "hand-to-hand drug transaction." After the bicyclist left, Trommelen attempted to follow him, but lost sight of him. Trommelen then returned to the scene to set up a second surveillance point.

About twenty minutes after the transaction with the bicyclist, a white Jeep Cherokee operated by a female arrived in the area. The second male jogged across the street, conversed with the female driver, and returned to defendant, holding up one finger. Again, defendant removed a clear, plastic baggie from his pants and gave the second male an item. The second male returned to the Jeep, and exchanged the item for money with the driver. The second male then returned back to defendant, handing defendant money, which defendant again placed into his pocket.

At the conclusion of the transaction, the Jeep left the area. Trommelen, after radioing a description of the Jeep and its license plate, then pursued the Jeep. The Jeep pulled into a gas station, whereupon Patterson and Palomino pulled up behind it, while Trommelen parked in front of it. The officers approached the Jeep, asking the female driver to exit. After Palomino saw the operator throw a plastic bag onto ground, the officers arrested the driver. One plastic baggie of suspected crack cocaine was recovered at the scene. The seized substance later tested positive for cocaine.

Shortly after the arrest of the female driver, Detectives Patterson and Palomino returned to the building at 151 Temple Street, having received in the interim a description of defendant and the second male involved in the drug transactions. When the detectives arrived, defendant ran into the building. The detectives yelled, "Stop, Police," but to no avail. Defendant ran up the stairs, locked himself in an apartment, and turned on a radio or television loudly. The detectives forced the apartment door open, found defendant walking out of a bathroom, and heard water flowing into the toilet tank. A clear, empty, wet plastic baggie was found on the bathroom floor. At the time of arrest, defendant had $385 in his possession. However, no drugs were either found on him or in the apartment.

At trial, defendant neither testified, nor presented any witnesses on his behalf. After hearing the testimony of the four police officers, the jury found defendant guilty on all counts.

On appeal, defendant argues:

POINT I.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION. (NOT RAISED BELOW).

POINT II.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF DISTRIBUTION OF CDS.

A. THE INSTRUCTION WAS SO VAGUE, CONFUSING, AND CONTRADICTORY THAT A REASONABLE PERSON WAS INCAPABLE OF UNDERSTANDING AND APPLYING THE LAW. (NOT RAISED BELOW).

B. THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AN ATTEMPT TO DISTRIBUTE CDS WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE. (NOT RAISED BELOW).

POINT III.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, USING THE TACTIC OF CHARACTER ASSASSINATION TO PROVE HIS CASE. (NOT RAISED BELOW).

POINT IV.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S WITNESSES RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (NOT RAISED BELOW).

POINT V.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE ACTIONS. (NOT RAISED BELOW).

POINT VI.

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM. (NOT RAISED BELOW).

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

C. THE TRIAL COURT MADE FINDINGS OF FACT TO IMPOSE AN EXCESSIVE SENTENCE.

D. THE TRIAL ERRED BY IMPOSING CONSECUTIVE SENTENCES.

We have reviewed defendant's arguments presented under Points I through V. Because defendant raises these arguments for the first time on appeal, we consider the issues under the plain error rule. R. 2:10-2. We will reverse on the basis of unchallenged error, only if the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 336 (1971). After considering these arguments in light of the record and applicable law, we determine the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We find no error, much less plain error. Accordingly, we affirm the judgment of convictions.

We now address defendant's challenge to his sentences. Defendant argues that the mandatory, extended-term sentence should be vacated. Defendant contends that the prosecutor's decision to seek the enhanced sentence, pursuant to N.J.S.A. 2C:43-6f, was an arbitrary and capricious exercise of prosecutorial discretion. Defendant asserts that the sentence is excessive and that he should only be sentenced to a term of five years of imprisonment. Defendant argues that the judge's finding of aggravating sentencing factors, N.J.S.A. 2C:44-1a(6) (the defendant has a prior record); and N.J.S.A. 2C:44-1a(9) (that there is a need to deter defendant and others from committing crimes), constituted double counting because the judge had previously considered defendant's record in granting the State's motion for a mandatory extended-term sentence. Defendant also contends that the judge erred in not finding mitigating factors, N.J.S.A. 2C:44-1b(1) (defendant's conduct did not cause serious harm), and N.J.S.A. 2C:44-1b(11) (incarceration will entail excessive hardship on his children). Lastly, defendant asserts that the judge erred by imposing consecutive sentences on the convictions on Counts Three and Four.

When reviewing a trial court's sentencing decision, "'[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). An appellate court's review of a sentence includes a determination of whether the trial court violated the sentencing guidelines. Johnson, supra, 118 N.J. at 15. However, an appellate court may "review and modify a sentence only when the trial court's determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Accordingly, appellate courts are "bound to affirm a sentence, even if [they] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors and are supported by competent, credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

The judge granted the State's motion to impose a mandatory extended-term sentence based on defendant's three prior convictions for possession of a CDS with intent to distribute within 1,000 feet of school property. After finding aggravating factors (6) and (9) based upon defendant's extensive criminal record, the trial judge sentenced defendant on Count Three to a ten-year term of imprisonment, with a five-year period of parole ineligibility. Defendant was sentenced on Count Four to an eighteen-month term of imprisonment with a nine-month period of parole ineligibility, to run consecutive to the sentence imposed on Count Three.

Defendant contends that the mandatory extended-term sentence should be vacated, asserting that the prosecutor's decision to seek the enhanced sentence was arbitrary and capricious, citing: State v. Lagares, 127 N.J. 20, 30 (1992); State v. Kirk, 145 N.J. 159, 168-69 (1996), and the Attorney General's Directive No. 1998-1, Prosecuting Cases Under the Comprehensive Drug Reform Act. We disagree.

"The extended sentence imposed by N.J.S.A. 2C:43-6(f) is mandatory." State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.), certif. denied, 165 N.J. 562 (2000). A "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 . . . ." Ibid. Because the imposition of "an extended sentence for repeat offenders [is] the norm," Lagares, supra, 127 N.J. at 33, the defendant must meet the heavy burden of proving "that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion . . . ," ibid., "before judicial intervention is warranted in overturning the prosecutor's decision to seek an extended term under the Guidelines." Irrizary, supra, 328 N.J. Super. at 204. Based on defendant's prior convictions for possession of a CDS with intent to distribute within 1,000 feet of school property, we discern no abuse of discretion by the prosecutor in applying for the extended-term sentence. Nor did defense counsel, who at time of sentencing stated that, "[i]n light of the prior record, I have no defense to that extended term."

Defendant argues next that the judge improperly considered aggravating sentencing factors (6) and (9), when imposing the extended-term sentence. Defendant also contends that the judge failed to consider mitigating factors (9) and (11). We disagree. The judge properly determined the aggravating and mitigating factors in imposing the extended-term sentence. A court must determine a defendant's sentence "within the extended-term range based on aggravating and mitigating factors found to be present." Thomas, supra, 188 N.J. at 154. In fulfilling its sentencing obligation, a court is required to consider all statutory aggravating and mitigating sentencing factors and determine which ones are applicable, that is, supported by credible evidence in the record. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A trial judge's consideration of aggravating factors (6) and (9) does not constitute a form of double counting. A judge may consider those two aggravating factors in determining the appropriate extended-term sentence. Thomas, supra, 188 N.J. at 153-54. Moreover, defendant's pre-sentence report discloses that in addition to his prior convictions for possession of a CDS with intent to distribute within 1,000 feet of school property, defendant had an extensive history of juvenile delinquency, including adjudications for burglary, robbery and theft, and a conviction for attempting to elude police as an adult.

Nor do we discern any reason to conclude that the judge erred by not finding mitigating factors (1) and (11). As to mitigating factor (1), that defendant's conduct did not cause serious harm, see State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) (holding that the "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm"). As to mitigating factor (11), that incarceration would impose an excessive hardship on defendant's two children, the record does not support defendant's argument that the length of his sentence would be an excessive hardship. The record is devoid of evidence that defendant contributed to the support of the two children, having last worked in 2002 for six months. Dalziel, supra, 182 N.J. at 505.

Defendant argues next that the trial judge erred by imposing consecutive sentences on Counts Three and Four. Defendant contends that "the imposition of consecutive sentences is excessive, as all the crimes were the result of the same criminal episode." We find no reason to disturb the imposition of consecutive sentences. The judge correctly concluded that the act of resisting arrest was a separate criminal act from the unlawful distribution of a CDS. The objectives of each crime are predominantly independent of each other. One involves the sale of a CDS, and the other involves physical force against an officer attempting to make an arrest. State v. Yarbough, 100 N.J. 627, 644 (1985); State v. Casimono, 250 N.J. Super. 173, 177 (App. Div. 1991).

Lastly, defendant contends that the sentences imposed were illegal because the judge imposed sentences above the then presumptive, mandatory extended term on Count Three and above the then presumptive, ordinary term on Count Four, based on aggravating factors determined by the judge, not the jury, contrary to Natale II and Thomas. We agree.

Defendant was sentenced to a term of ten years of imprisonment on Count Three, three years above the then-presumptive term for an extended-term sentence on a third-degree conviction. Defendant was sentenced to a term of eighteen months of imprisonment on Count Four, nine months above the then-presumptive, ordinary term for a third-degree conviction. Because defendant was sentenced prior to the Court's decisions in Natale II and Thomas, and "we have no confidence that any [defendant] . . . sentenced above the presumptive sentence on the basis of aggravating factors . . . (6), or (9) were sentenced exclusively on the mere judicial fact-finding of the existence of a prior conviction," Thomas, supra, 188 N.J. at 153, we remand for re-sentencing on Counts Three and Four.

 
The convictions are affirmed; and the sentences on Counts Three and Four are remanded to the trial court for a new analysis, pursuant to Natale II and Thomas.

The Guidelines in effect at the time defendant was sentenced in Irrizary were the Guidelines referenced in the Attorney General's Directive Implementing Guidelines for Determining Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6f, issued April 20, 1992. The 1992 Guidelines were amended by the 1998 Directive, pursuant to the Supreme Court's mandate in State v. Brimage, 153 N.J. 1 (1998). Irrizary, supra, 328 N.J. Super. at 203 n.1.

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A-1480-05T4

December 6, 2007