STATE OF NEW JERSEY v. ALBERT ROBINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1918-06T41918-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT ROBINSON,

Defendant-Appellant.

_______________________________

 

Submitted January 28, 2008 - Decided

Before Judges S.L. Reisner and King.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-08-1089.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Albert Robinson appeals from his conviction on charges of possession of marijuana and possession of marijuana with intent to distribute within 1000 feet of school property, and from the imposition of an extended term sentence.

He raises these four issues on this appeal.

I. THE CONVICTIONS OF DEFENDANT FOR POSSESSION OF MARIJUANA AND POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE ARE INCONSISTENT WITH HIS ACQUITTALS ON POSSESSION OF COCAINE AND POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE.

II. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL (NOT RAISED BELOW)

III. THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE DEFENDANT WOULD BE ADMISSIBLE IF HE TESTIFIED.

IV. THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIAE AND MANIFESTLY EXCESSIVE.

I

This is the procedural history. On August 4, 2005 defendant was indicted on charges of: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with intent to distribute while within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); third-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-10(b)(12) (count four); and third-degree possession of marijuana with intent to distribute while within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count five). Defendant also was charged in complaint number S-2005-112963-1608 with a disorderly persons offense for possession of marijuana, N.J.S.A. 2C:35-10(a)(4).

Defendant was tried before Judge Caposela and a jury on March 21, 22, and 23, 2006. The jury acquitted defendant of counts one, two, and three, and convicted him on counts four and five. As the factfinder, Judge Caposela found defendant guilty of the disorderly persons offense. The State then moved for imposition of a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6(f).

On August 16, 2006 the judge merged count four and the disorderly persons offense into count five, and sentenced defendant to an extended term of nine years with a four-year period of parole ineligibility.

II

These are the facts. On March 19, 2005 Sergeant Anthony Damiano was conducting undercover surveillance in the area of 10th Avenue and East 26th Street in Paterson, known as a heavy drug trafficking area. Damiano had been employed by the Passaic County Sheriff's Department for eighteen years, was part of the Anti-Crime Unit, and had participated in over 1000 narcotics-related investigations and arrests.

At about 3:45 p.m., Damiano parked his undercover vehicle in the parking lot of Sussman's Pharmacy which was within 1000 feet of a school building. From the back seat of his vehicle, Damiano saw defendant sitting on the front steps of the apartment building next to the pharmacy. Damiano described defendant as a black man wearing a black jacket, blue jeans, and a black hat.

According to Damiano, on two separate occasions, he saw an individual approach defendant and engage him in a brief conversation. After each of those conversations, Damiano saw defendant walk over to a parked car in the driveway, reach under the car's rear driver's side wheel well, and retrieve a plastic bag. Defendant then removed smaller items from the plastic bag and returned it under the wheel well. Defendant then handed the smaller items to the two individuals in exchange for money. Believing he had just observed two separate drug transactions, Damiano called for back-up.

A short time later, at about 4:30 p.m., Damiano saw a black woman approach defendant and engage in a brief conversation. Defendant then walked towards the parked car in the driveway; Damiano called his back-up unit and told them to make the arrest. This time, defendant retrieved a plastic bag from the car's front driver's side wheel well, removed a small item from the bag, and returned it back under the wheel well. The back-up team arrived at the scene as defendant started to walk towards the woman. The transaction was never completed because the woman walked away before the police arrived.

Upon arriving at the scene, Detective Thomas Adamo arrested defendant and recovered a plastic bag containing marijuana that defendant dropped from his hand. Once defendant was in custody, Damiano directed Adamo to the parked car in the driveway. Adamo recovered a plastic bag containing four smaller bags of marijuana from the car's front wheel well and a plastic bag containing seventeen smaller bags of cocaine from the car's rear wheel well. Later, at the sheriff's department, the police recovered seventy dollars from defendant.

At trial, defendant's father stated he was with his son prior to and at the time of the arrest. Prior to the arrest, they were on the steps of the apartment building drinking beers for two hours or more. Neither he nor defendant left the steps during that time, and no one approached either of them before the police arrived. When the police arrived, they arrested defendant, searched the area, and then drove off with defendant in the police car. Defendant's father did not see the police recover any drugs at the scene. Though he asked the police why they arrested his son, he did not discover the nature of the charges until the next day.

III

Defendant first argues that his conviction on the counts relating to the possession and intent to distribute marijuana are inconsistent with his acquittal on the counts relating to the possession and intent to distribute cocaine, warranting reversal of his conviction or a new trial. We disagree.

"[A] jury verdict will not be set aside unless it clearly and convincingly appears that there was a miscarriage of justice under the law." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). The principle is well established that "[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (citation omitted). Inconsistent verdicts are permitted and accepted in our criminal justice system; they provide no basis to set aside a jury's determination of guilt. State v. Grey, 147 N.J. 4, 11 (1996); State v. Crisantos, 102 N.J. 265, 272 (1986).

In reviewing a jury verdict, we should not attempt to reconcile the counts on which the jury returned a verdict of guilty or not guilty, State v. Federico, 103 N.J. 169, 176-77 (1986), because "[a]n inconsistent verdict may be the product of jury nullification," which is beyond our power to prevent. State v. Banko, 182 N.J. 44, 54 (2004). See also State v. Ragland, 105 N.J. 189, 204-05 (1986) (acknowledging jury's nullification power that exists "by virtue of the finding of a verdict of acquittal"). Nor should we speculate why a jury acquits, or whether the verdict resulted from leniency, mistake or compromise, "so long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt." Grey, 147 N.J. at 10. The test is whether the guilty verdict is supported by sufficient evidence in the record "independent of the jury's determination that evidence on another count was insufficient." State v. Petties, 139 N.J. 310, 319 (1995).

Contrary to defendant's contentions, the jury's conviction on the marijuana charges was not inconsistent with the acquittal on the cocaine charges. The testimony of Adamo supports the conclusion that defendant had physical possession of one zip-lock bag of marijuana, which matched the four other zip-lock bags of marijuana recovered from the vehicle at the scene. By contrast, there is no evidence in the record to support the conclusion that defendant had physical possession of the cocaine recovered at the scene. Although constructive possession could have been found based upon defendant's actions and the recovery of the cocaine from the vehicle rear wheel well, State v. Lewis, 185 N.J. 363, 374-75 (2005), the jury was not obligated to reach that conclusion.

We may also reject defendant's claim because the jury verdict is supported amply by sufficient evidence in the record. Through the testimony of Damiano and Adamo, the State established that defendant had engaged in various drug transactions and was in physical and constructive possession of the marijuana recovered at the scene. It is not necessary to explain, or even understand, why a jury acquits, so long as the evidence is sufficient to support the guilty verdict. Grey, 147 N.J. at 10.

IV

Defendant argues that the guilty verdict is against the weight of the evidence and he is entitled to a new trial. The State argues that this claim is procedurally barred and substantively without merit. We agree with the State and affirm.

Rule 2:10-1 provides that a weight-of-the-evidence argument is "not cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Defendant did not raise the issue below. Thus he is procedurally barred from raising this issue on appeal. State v. McNair, 60 N.J. 8, 9 (1972); Johnson, 203 N.J. Super. at 133. But this argument is clearly without substantive merit in any event.

"A conviction will not be reversed unless the jury verdict clearly and convincingly constitutes a miscarriage of justice." State v. LaBrutto, 114 N.J. 187, 207 (1989). See also R. 3:20-1. "The responsibility for determining whether the guilt of the accused has been proved beyond a reasonable doubt rests with the jury," and "[a]ppellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function." Johnson, 203 N.J. Super. at 134 (citations omitted). Thus, "a reviewing court should not overturn the findings of a jury merely because the court might have found otherwise if faced with the same evidence." State v. Afanador, 134 N.J. 162, 178 (1993). Indeed, "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice. Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.

Here, the facts clearly support defendant's conviction for third-degree possession of marijuana and third-degree possession of marijuana with intent to distribute while within 1000 feet of school property. Defendant attacks the credibility of Damiano and Adamo. However, "[t]he jury's fact-finding function is all-inclusive and encompasses the evaluation of the credibility of witnesses and the weight and worth of evidence." State v. Ingenito, 87 N.J. 204, 211 (1981). Moreover, it is well established that "[a] jury is not bound to believe the testimony of any witness, in whole or in part." Muhammad, 182 N.J. at 577 (citation omitted). Jurors "may reject what in their conscientious judgment ought to be rejected and accept that which they believe to be credible."

It was for the jury to determine what parts, if any, of Damiano and Adamo's testimony were credible, and the jury's reasonable conclusion on this issue may not be disturbed on appeal.

V

Defendant next argues that the trial judge erred by ruling that his prior convictions would be admissible to impeach his credibility if he chose to testify. He argues that the prior convictions were too remote temporally or did not relate to credibility and should have been excluded under State v. Sands, 76 N.J. 127 (1979). We disagree and affirm.

Before the commencement of the trial, the prosecutor advised the trial judge that if defendant chose to testify, the State would offer evidence of three prior convictions to impeach his credibility, specifically: defendant's conviction of theft on January 31, 1997 for which he was sentenced to four years; defendant's conviction for possession of a weapon on April 6, 2000 for which he was sentenced to four years; and defendant's conviction of possession with intent to distribute drugs within 1000 feet of school property on September 9, 2003 for which he was sentenced to three years with eighteen months of parole ineligibility. The trial judge ruled that those convictions would be admissible for credibility purposes if defendant testified. As a result of the judge's ruling, defendant chose not to testify.

"For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." N.J.R.E. 609. "[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." Sands, 76 N.J. at 144. As such, a trial judge's decision to admit or exclude evidence of a prior conviction should not be reversed unless that decision constitutes an abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).

"Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, 76 N.J. at 144. A conviction is admissible unless it is so remote that, in the circumstances of the particular case, its "probative force" is "significantly outweighed" by the risk that it would lead the jury "to believe the defendant has a criminal disposition." Id. at 141, 147. Remoteness turns not just on the passage of time since the prior conviction, but also on the nature of the underlying crime as serious or as "involving lack of veracity, dishonesty or fraud." Id. at 144. Also, we may "consider intervening convictions" when determining remoteness, because "an extensive prior criminal record" indicates that the defendant "has contempt for the bounds of behavior placed on all citizens." Id. at 145.

Here, while the conduct that led to defendant's earliest prior conviction in 1997 may have occurred approximately nine years before trial, defendant was subsequently convicted twice within a six-year period, with his most recent conviction arising only shortly before the present events. Those intervening convictions provide justification for inclusion of all three prior convictions, and no doubt were considered by the trial judge in determining the remoteness of defendant's 1997 conviction.

Defendant failed to meet his burden of proof to justify the exclusion of such evidence. The record does not support a conclusion that the trial judge abused his discretion by ruling that such evidence was admissible.

VI

In sentencing defendants, trial courts "are given wide discretion so long as the sentence is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). The standard of review is "one of great deference and 'judges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" Id. at 501 (quoting State v. Megargel, 143 N.J. 484, 494 (1996)).

We may not substitute our judgment for the trial judge with respect to sentencing. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). The review of sentencing is limited to a determination of whether there was an abuse of discretion. State v. Gardner, 113 N.J. 510, 516 (1989); State v. Smith, 322 N.J. Super. 385, 401 (App. Div.), certif. denied, 162 N.J. 489 (1999). To determine whether there has been an abuse of discretion, we must consider:

first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[Roth, 95 N.J. at 365-66.]

See also Megargel, 143 N.J. at 493-94 (restating and clarifying the factors set forth in Roth).

When sentencing a defendant, "a trial court should identify the relevant aggravating factors [of N.J.S.A. 2C:44-1(a)] and mitigating factors [of N.J.S.A. 2C:44-1(b)], determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. Sentences that "shock the judicial conscience" will not stand. Id. at 215-16 (citing Roth, supra, 95 N.J. at 364). However, when the sentence imposed is within the sentencing guidelines, "[a]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial judge properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Id. at 215. "[A]n appellate court may review and modify a sentence when the trial court's determination was 'clearly mistaken.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Jabbour, supra, 118 N.J. 1, 16 (1990)).

The jury convicted defendant of third-degree possession of marijuana with intent to distribute while within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count five). The sentence range for a conviction of a crime of the third-degree is between three and five years. N.J.S.A. 2C:43-6(a)(3). However, the State moved for an extended term sentence under N.J.S.A. 2C:43-6(f), expanding the sentencing range to between three and ten years. N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:43-7(a)(3). The judge sentenced defendant to an extended nine-year term with a four-year period of parole ineligibility.

"N.J.S.A. 2C:43-6(f) requires a sentencing court to impose an enhanced-range sentence when the prosecutor applies for such relief." State v. Thomas, 188 N.J. 137, 149 (2006). N.J.S.A. 2C:43-6(f) provides, in pertinent part:

A person convicted of . . . distributing, dispensing or possessing with intent to distribute any dangerous substance . . . under [N.J.S.A.] 2C:35-5, . . . or of distributing, dispensing or possessing with intent to distribute on or near school property . . . who has been previously convicted of . . . distributing, dispensing or possessing with intent to distribute a controlled dangerous substance . . . 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.A.] 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.

When the State makes an application under N.J.S.A. 2C:43-6(f), "the sole determination for the sentencing court is to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing." Thomas, 188 N.J. at 150. No other fact-finding or collateral assessment of the prior convictions is required, and the sentencing judge is not permitted to engage in any further analysis. Id. at 150-51. "Thus, the sentencing court's sole fact-finding in respect of whether a defendant meets the requirements for a mandatory enhanced-term sentence, is based on an objective determination-the existence of prior convictions." Id. at 151.

Here, contrary to defendant's contention, the trial judge did not stray from the principles of State v. Natale, 184 N.J. 458 (2005), in imposing an extended term pursuant to N.J.S.A. 2C:44-6(f). In Thomas, 188 N.J. at 151-152, the Supreme Court explained that "N.J.S.A. 2C:43-6(f) operates as a sentence enhancer on the basis of a judicial fact-finding that is authorized under Apprendi[] and Blakely,[] to wit, the finding of prior convictions." Thus, "no Sixth Amendment violation result[s] from the sentencing court's finding of the fact of defendant's prior convictions, which require[s] imposition of a mandatory enhanced sentence under N.J.S.A. 2C:43-6(f)." Id. at 152.

Here, the trial judge's review of defendant's criminal record revealed a prior conviction for possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school building. Thus, the appropriate sentencing range available to the sentencing judge was the bottom of the original third-degree sentencing range, three years, N.J.S.A. 2C:43-6(a)(3), to the top of the extended third-degree sentencing range, ten years. N.J.S.A. 2C:43-7(a)(3).

In sentencing defendant the judge found two aggravating factors: the extent of defendant's criminal record; and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(6), and (9). The judge found no mitigating factors, and concluded that the "aggravating factors substantially outweigh" the non-existing mitigating factors.

Defendant argues to us that the judge erred in finding aggravating factor (6), the extent of his prior criminal record, claiming that his prior criminal record "was not that bad." However, the record supports the judge's conclusion on this issue.

In addition to the predicate offense for defendant's extended term, defendant had four other criminal convictions, including two separate convictions for possession of a controlled dangerous substance. See State v. Roth, 335 N.J. Super. 536, 543 (App. Div. 2000) (a history of indictable and disorderly persons convictions substantiated trial court's finding that defendant's criminal history constituted an aggravating factor), certif. denied, 167 N.J. 637 (2001). Also, defendant had three disorderly persons convictions and two juvenile delinquency adjudications. See State v. Pindale, 249 N.J. Super. 266, 288-89 (App. Div. 1991) (it was appropriate to consider defendant's prior juvenile record in determining whether his prior criminal history could be considered an aggravating factor).

Defendant also argues the judge erred in applying aggravating factor (9), the need to deter defendant and others, because "this factor exists in every criminal sentencing and is not a unique aggravating factor to the present case." N.J.S.A. 2C:44-1(a)(9). However, the law and the record supports the judge's conclusion on this issue as well.

While "general deterrence unrelated to specific deterrence has relatively insignificant penal value," State v. Jarbath, 114 N.J. 394, 405 (1989) (citing State v. Gardner, 113 N.J. 510, 520 (1989)), "[d]eterrence of others remains a proper sentencing reason." State v. Martin, 235 N.J. Super. 47, 60 (App. Div.), certif. denied, 117 N.J. 669 (1989). See also State in the Interest of C.A.H., 89 N.J. 326, 334 (1982) ("Deterrence has been repeatedly identified in all facets of the criminal justice system as one of the important factors to be taken into account in the treatment of offenders."). Here, defendant's significant criminal history supports this factor.

With regard to the mitigating factors, defendant argues the trial judge failed to consider the fact that he had a child who depended on him for support. However, in light of the fact that defendant was not the child's primary caregiver, and that he was over $8000 in arrears in child support payments, the record supports the trial judge's conclusion that defendant's imprisonment would not impose a substantial hardship on the child.

Finally, defendant argues that the judge "could have and should have . . . considered [defendant's drug problem] as mitigating factor in that it explained his conduct, although not excusing or justifying the conduct." However, the statutory mitigating factors do not include history of drug use. See N.J.S.A. 2C:44-1. The sentencing judge considered the issue and explained that despite defendant's alleged drug problem, he has made no effort to seek treatment on his own or during his incarceration. Nevertheless, the judge advised defendant that he would consider a motion for a change of sentence, pursuant to R. 3:21-10(b), if he wanted to seek treatment for his drug addiction after he served his period of parole ineligibility.

The trial judge properly reviewed the record, made findings regarding the applicable aggravating and mitigating factors, and then balanced those factors. The record supports the judge's conclusion that the aggravating factors substantially outweighed the mitigating. The judge's imposition of a sentence near the top of the mandatory extended term range was proper and we affirm.

Affirmed.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

(continued)

(continued)

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A-1918-06T4

 

February 15, 2008