STATE OF NEW JERSEY v. DAVID SHEPPARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0916-08T40916-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID SHEPPARD,

Defendant-Appellant.

________________________________

 

Submitted: December 16, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1833.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Sheppard appeals from two judgments of conviction entered on June 23, 2008, for various offenses. The first judgment convicted him following a jury trial under Indictment No. 07-05-1833 of third-degree conspiracy to possess two controlled dangerous substances (CDS), cocaine and heroin, with intent to distribute, contrary to N.J.S.A. 2C:5-2 and 2C:35-5 (count one); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count three); third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1) (count four); and third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count five). The second judgment convicted defendant pursuant to a plea agreement of third-degree possession of CDS within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. Defendant also appeals the aggregate sentence imposed under both judgments of seven years, of which forty-two months are to be served without parole. We now affirm his convictions, but remand for correction of the judgments of conviction.

I.

The evidence at trial established that on February 1, 2007, at 12:40 p.m. Detective Noel Mendez of the Essex County Sheriff's Bureau of Narcotics was conducting undercover narcotics surveillance in the area of Avon Avenue and South Eleventh Street in Newark. He was in plain clothes in an unmarked vehicle. He was assisted by two back-up teams, one consisting of Detectives James Bradley and Brian Marczewski and the other of Detectives Jason Duncan and Mondasi. The teams were in two unmarked police vehicles that were located out of sight. Sergeant Nash, who was supervising the undercover operation, was in his own vehicle.

Mendez was parked on Avon, an east-west street, two car lengths to the west of its intersection with South Eleventh and was making observations through his rearview and side-view mirrors. He saw defendant and codefendant, Eladio Echerte Vera, standing on the northwest corner. Throughout the entirety of his observations, Mendez was constantly in direct-channel radio contact with the two back-up teams and he gave descriptions of both defendants to the team members. Defendant was wearing a tan, hooded sweater and Vera was wearing a black jacket and cap. Mendez approximated both defendants' height and weight.

Mendez soon observed two men in their forties approach defendant and Vera, and he described those individuals over his radio, including their approximate heights. The taller man had a tan jacket with black pants and the shorter man had a black jacket with blue jeans. The shorter man spoke with defendant, and defendant walked across the street to a vacant lot to the east of an abandoned building at 368 Avon Avenue, which was across the street and on Mendez's left side.

Once in the vacant lot, defendant crouched down by a green trash bag, placed his hand inside the bag, and retrieved an object that looked like a clear, plastic bag. Defendant took an item from the object, put the object back into the bag, stood up, and walked back to the northwest corner. At that point, defendant handed the item to the shorter man in exchange for currency. The two men then left, walked west on Avon, and passed Mendez in his vehicle.

Seconds later, a third man in his twenties came from South Eleventh and walked up to Vera, engaging him in conversation. Mendez described this man to his back-up teams, giving his approximate height. The man was wearing a black, hooded sweatshirt and tan boots. Vera then walked across the street to the vacant lot, knelt down by the green trash bag, retrieved an object from the bag, took an item from the object, placed the object back in the bag, and placed the item in his pocket. Vera then crossed the street, returned to the northwest corner, and handed the item to the third man in exchange for currency. The man walked away, heading north on South Eleventh.

Mendez testified at trial that, based on his training and experience in the field of narcotics, he believed he had witnessed two narcotic transactions utilizing the same stash location. He then identified defendant as the first man who crossed Avon to go to the stash location. Because Vera was not present for the trial, Mendez identified him from a photograph.

Having concluded that he observed two narcotics transactions, Mendez notified the two back-up teams to move in to arrest defendant and Vera. Vera had again crossed to the south side of Avon and began to walk west on Avon toward South Twelfth Street whereas defendant remained on the northwest corner of the intersection of Avon and South Eleventh.

Bradley, with Marczewski driving, was located on South Twelfth parked north of Avon. When notified to move in, they proceeded south on South Twelfth towards Avon. Because Vera was walking toward South Twelfth, Bradley notified the other team he would pick up Vera. When they saw him on the corner, Marczewski pulled their vehicle over and they detained Vera. Nash arrived on the scene during this detention. Duncan and Mondasi were on South Tenth Street when they were instructed by Bradley to detain defendant. They found him standing on the corner and detained him.

After defendants were detained, Mendez directed Bradley to the stash location. Bradley walked east on the south side of Avon and walked through the lot to the east of 368 Avon Avenue. He located the stash in a clear-plastic sandwich bag and took custody of the narcotics, notifying Marczewski and the other team of the recovery. He did not take the green plastic bag because it was full of garbage. The sandwich bag contained forty-nine vials with cocaine and four glassine envelopes of heroin stamped "Dream Girl" in red ink.

When the narcotics were recovered, defendants were placed under arrest. Marczewski conducted a pat-down search of Vera for weapons and drugs. He found a glassine envelope of heroin stamped "Dream Girl" and $81 in Vera's pocket. The money consisted of two ten-dollar bills, eleven five-dollar bills and six one-dollar bills. A search of defendant incident to his arrest produced $193 consisting of three twenty-dollar bills, six ten-dollar bills, ten five-dollar bills, and twenty-three one-dollar bills. No narcotics were found on defendant's person. Duncan identified defendant in court as the person he arrested.

Mendez and the back-up units at the direction of Nash then searched unsuccessfully for the buyers. A chemist at the State Office of Forensic Science tested the vials and glassine envelopes. She testified at trial that she determined the vials contained cocaine and the glassine envelopes contained heroin.

II.

At the close of the State's case, defendant did not make a motion for a judgment of acquittal pursuant to Rule 3:18-1. When advised that defendant did not wish to testify, the judge conducted voir dire of defendant with respect to his right to testify or elect not to do so. The judge asked if defendant wanted the charge respecting his election not to testify read to the jury, and he read the specific language of the charge to defendant. Defendant replied that he wanted the charge read, that he had discussed it with his attorney, and that he wanted that specific charge given to the jury. His attorney then asked to have the language respecting defendant's right to remain silent deleted from the model charge because that language was prejudicial and the charge should be limited to defendant's right not to testify. The State requested that the model charge be given, and the judge stated he was "hesitant to deviate from the model jury charge in this regard." This did not cause defendant to elect to testify. Defendant then rested without presenting any evidence and without making a motion for "a judgment of acquittal after the evidence of all parties ha[d] been closed." R. 3:18-1.

The parties presented their closing arguments and the jury began its deliberations. The jury returned its verdict of guilty on the first five counts of Indictment No. 07-05-1833. Defendant did not file a motion for a judgment of acquittal pursuant to Rule 3:18-2 within ten days after the return of the verdict. He also did not file a motion for a new trial pursuant to Rule 3:20-1. He was scheduled for sentencing on June 24, 2008. Defendant did file a motion to vacate the verdict based on the jury instructions, but withdrew it pending appeal. He was sentenced on June 24, 2008. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE JURY INSTRUCTIONS WERE DEFICIENT IN MULTIPLE RESPECTS. (Partially Raised Below)

POINT II - THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below)

POINT III - DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

POINT IV - DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT V - DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

III.

Defendant's failure to raise issues before the trial judge affects our scope of review. As to Point I:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

"Plain error" must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J. 308, 330 (2005) (citations and quotation omitted); see also State v. Velasquez, 391 N.J. Super. 291, 311 (App. Div. 2007); State v. Lewis, 389 N.J. Super. 409, 419 (App. Div.) certif. denied, 190 N.J. 393 (2007).

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted). We consider alleged error in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006).

[State v. Burns, 192 N.J. 312, 341 (2007); see also State v. Brown, 190 N.J. 144, 160 (2007).]

Error in an instruction that is "crucial to the jury deliberations on the guilt of a criminal defendant" is a "'poor candidate[] for rehabilitation' under the plain error theory." Jordan, supra, 147 N.J. at 422 (citation omitted). "Nevertheless, any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Burns, supra, 192 N.J. at 341 (citing Chapland, supra, 187 N.J. at 289).

Here, defendant contends that the judge erred in failing to include an instruction on identification because "the accuracy of Mendez's identification of defendant and co-defendant was a fundamental and essential issue in the case." To support this claim, defendant relies on some extensive cross-examination done in an effort to impeach Mendez's testimony about his ability to make observations about what defendant was doing. However, in summation, his counsel argued that the police had found the stash earlier in the day and defendant did not do what he was accused of doing. She did not contend that defendant was not the person whom Mendez had been observing from his point of surveillance. Thus, identification was not in issue and defendant has failed to demonstrate that the judge plainly erred in failing to give an identification charge.

Next, defendant contends that the judge plainly erred in instructing the jury with respect to intent to distribute cocaine that it "may consider any evidence as to packaging of [the cocaine and heroin] together with all other evidence in the case to aid you in your determination of the element of intent to distribute." He urges that "the State failed to present any expert testimony from which a jury could establish a link between the manner in which the drugs were packaged and an intent to distribute them." He contends that "the instruction left the jury free to speculate that the packaging was indicative of distributive intent without any basis for such a finding." He asserts that this is especially so because, although the judge sustained his objection to the prosecutor's argument that the jury could infer intent to distribute from the packaging, the judge did not instruct the jury to disregard this comment. He claims he was substantially prejudiced by this instruction.

We have explained that expert testimony respecting packaging of narcotics is not required because our Supreme Court in State v. Odom, 116 N.J. 65 (1989) only:

prescribed the standard for allowing expert testimony about the relationship between circumstances such as drug packaging and the likely intent of the possessor. Id. at 78-80. But Odom does not require the State to produce an expert witness in every intent-to-distribute case. Here there was evidence that the officer himself observed a likely drug transaction and also observed defendant going to and from the very location where the supply of drugs was found within minutes thereafter. No expert was required in order to allow the jury to draw the inference of defendant's intent to distribute those drugs.

[State v. Vasquez, 374 N.J. Super. 252, 264 (App. Div. 2005).]

Thus, there was no plain error in the judge's instruction with respect to intent to distribute.

Defendant's final concern about the charge is subject to our plenary review as the issue respecting defendant's right to remain silent is purely a question of law that was fully explored at the trial. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). This specific instruction was:

As you know, [defendant] has elected not to testify at the trial. It is his constitutional right to remain silent. It is also Mr. Vera's right not to testify and to remain silent. (Emphasis added.)

You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendants did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. Both [defendants] are entitled to have you consider all of the evidence presented at trial. Both men are presumed innocent even though they have chosen not to testify.

The first two sentences in this instruction are identical to the first two sentences in the model charge. See Model Jury Charge (Criminal), 2C.006.

Defendant urges that the emphasized language has "long been associated in the popular mind with the rights which the police read to a criminal when they arrest him and was suggestive that defendant in fact was a criminal." Also, he contends "the words 'to remain silent' are dangerously ambiguous" because they could be interpreted "to imply that defendant had previously chosen to exercise a right to remain silent after his arrest and was continuing to exercise that right." This could lead the jury to draw a negative inference from defendant's post-arrest pretrial silence.

In charging a jury on a defendant's right not to testify, it is certainly sufficient to state that a defendant has such a right and no adverse inferences should be drawn from the exercise of that right. State v. Oliver, 133 N.J. 141, 159-60 (1993) (failure to give no-adverse-inference charge when requested is harmful error). Advising the jury that defendant had a constitutional right to remain silent was hardly necessary. However, in reviewing the charge as a whole, we do not find the included language harmful. It did not go to the elements of the offenses with which defendant was charged, the jury was instructed not to draw any adverse inferences, and, as defendant suggests, most adults serving on a jury are probably fully aware of a person's right to remain silent.

IV.

As to defendant's Point II, our Supreme Court has carefully explained the standard for review of prosecutorial summations:

The standard for reversal based upon prosecutorial misconduct is well-settled in the law. It requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial. We long have held that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial. State v. Chew, 150 N.J. 30, 84 (1997) (Chew I); State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); [State v.] Ramseur, 106 N.J. [123,] 322 [(1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)]. . . .

 
To justify reversal, the prosecutor's conduct must have been "clearly and unmistakably improper," and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. Roach, supra, 146 N.J. at 219; State v. Hightower, 120 N.J. 378, 411 (1990); [State v. Williams], 113 N.J. [393,] 452 [(1988)]. In determining whether the prosecutor's comments were sufficiently egregious to deny defendant a fair trial, we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.) [, certif. denied, 151 N.J. 466 (1997)]. Specifically, the Court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ramseur, supra, 106 N.J. at 322-23, 524 A.2d 188; Chew I, supra, 150 N.J. at 84.

 
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. State v. Irving, 114 N.J. 427, 444 (1989). Failure to object also deprives the court of the opportunity to take curative action. Ibid.

 
Even if defense counsel fails to object,

[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved. . . .

 
[State v. Long, 119 N.J. 439, 483 (1990) (citations omitted).]

[State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 289 (2001).]

With respect to Mendez's surveillance techniques, thoroughly questioned by defense counsel in their summations, the prosecutor said,

I'm not going to really even discuss any comments that were made of Detective Mendez's technique. I think that this is someone who I'm not going to question his word. . . . I'm not in his field of work. He's telling me that in order for his safety[,] to not be seen in a situation where people are dealing drugs, for him not to be seen, he needs to sit with the radio under his leg, that's the way he tells you what's going on.

I don't think that's anything to joke about or mock, nor is it implausible.

Defendant did not object to that remark. Shortly after, the prosecutor remarked, "Detective Mendez told you and quite believable[,] I believe or credible, he told you that the person who he saw sitting here today was one of the individuals he saw making the sales." Again, defendant did not object. On a third occasion, the prosecutor remarked,

This wasn't an identification case. This wasn't a situation where there was any confusion on Detective Mendez's part as to who the sellers were that day. He was close enough to the sellers. He was able to observe them and he made his in[-]court identification to say those are the people that I saw.

Once again, defendant did not object. Defendant did object when the prosecutor began to say, "it's the denominations " after he commented, "Here is where it goes into corroborating evidence." The judge's ruling is not on the record, although from the prosecutor's next remark he apparently overruled the objection. The prosecutor then discussed the various denominations of bills taken from both defendants. He went no further with that train of thought, but began to discuss the packaging of the drugs. Later, the prosecutor remarked, "these drugs that were found in the stash location had one purpose, they weren't for personal use, they weren't something . . . that defendants . . . were going to use for themselves there and you can infer that based on the packaging ." Defendant's objection was sustained, but no limiting instruction was sought or given. Moments later, the prosecutor said that the jury could infer distributive intent from the testimony of Mendez and, "[a]dditionally, you can assume that . . . they weren't for personal use because ." Again, defendant's objection was sustained, but no limiting instruction was sought or given.

With respect to the remarks to which defendant's objections were sustained, we find no error in the failure to give an instruction to the jury. Both remarks were cut off before they were completed and the judge instructed the jury that the comments of counsel were not evidence. Defendant was not prejudiced by these partial remarks.

As to the remarks to which defendant did not object, we do not deem them prejudicial. Timmendequas, supra, 161 N.J. at 575-76 (citing Ramseur, supra, 106 N.J. at 323). Obviously, defense counsel did not consider the remarks prejudicial when made. Id. at 576 (citing Irving, supra, 114 N.J. at 444). The judge was deprived of an opportunity to cure. Ibid. We are satisfied that the prosecutor's remarks were consistent with his duty to ensure that justice was done. Ibid. (quoting Long, 119 N.J. at 483).

V.

As to Point III, defendant did not move for a judgment of acquittal at the close of the State's case, at the close of all of the evidence, or after the verdict was returned. Neither did he file a motion for a new trial. Rule 2:10-1 provides:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

This rule may be relaxed "based on considerations of substantial justice." Pressler, Current N.J. Court Rules, comment 2 on R. 2:10-1 (2010). There may be constitutional restraints on enforcing the rule, Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App. Div. 1998), and the rule is subject to plain-error analysis, State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). Despite the rule, we may entertain a weight-of-the-evidence argument in the interest of justice, particularly in criminal cases. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).

We find no occasion here to relax the rule. The testimony of the three detectives was consistent in all respects. Mendez was relaying all of his observations as he made them, the stash of drugs was recovered after defendants were detained, and Vega was discovered with a glassine envelope bearing the same legend as those from the stash of drugs. Even if we were to consider the weight of the evidence, we could not say that it was inconsistent with the verdict the jury reached.

VI.

Defendant contends that he was deprived of the effective assistance of trial counsel. We generally defer such claims for post-conviction relief because they often entail claims that are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). Such is the case here, at least with respect to his claim that counsel was ineffective in failing to move for a judgment of acquittal and in persuading him to withdraw his motion for a new trial. Accordingly, we defer consideration of all of defendant's claim of ineffective assistance of counsel for presentation in a petition of post-conviction relief.

VII.

Last, defendant contends his aggregate sentence of seven years with a forty-two month parole disqualifier was manifestly excessive. Specifically, he urges that the imposition of a forty-two month parole disqualifier on the seven-year sentence for third-degree possession of cocaine with intent to distribute was manifestly excessive. This is so because N.J.S.A. 2C:43-6f, which provides for mandatory extended terms for certain drug offenders, requires a parole disqualifier of between one-third and one-half of the base term or three years, whichever is greater. He contends his prior record was not egregious and the judge did not find that the aggravating factors "substantially" outweighed the mitigating factors, a finding required for an ordinary discretionary parole disqualifier under N.J.S.A. 2C:43-6b. As a result, he contends that a parole disqualifier greater than three years was manifestly excessive.

We are not persuaded that the limitation on a sentencing judge's discretion found in N.J.S.A. 2C:43-6b has any application to the determination of the parole disqualifier under N.J.S.A. 2C:43-6f. The latter statute removes the imposition of an extended term from the discretion of the sentencing judge altogether. It also greatly limits the judge's discretion with respect to a parole disqualifier, mandating a disqualifier of at least one-third to one-half of the sentence or three years, whichever was greater. N.J.S.A. 2C:43-6b, on the other hand, allows the judge to impose a mandatory period of parole ineligibility of up to one-half the base term, but requires the judge to find that the aggravating factors substantially outweigh the mitigating factors to justify any period of parole ineligibility. Where the statute mandates a period of parole ineligibility, however, the judge is not required to find that the aggravating factors substantially outweigh the mitigating factors in order to impose the longest parole ineligibility period authorized by the statute.

Here, the judge found, and defendant does not dispute, that an extended term was mandated in light of defendant's prior history because he had a prior school-zone conviction for which he was sentenced on December 11, 2001, and a second such conviction for which he was sentenced on the same date, which made defendant eligible for a term of between five and ten years. The judge specifically excluded these two convictions from her consideration of the aggravating factors. She found aggravating factor nine present because defendant had prior convictions for a sexual assault, obstruction of the administration of law, and receiving stolen property, thus establishing a need to deter defendant from violating the law. She also found two non-statutory mitigating factors: his family's support and some showing of remorse based on his plea to the accusation. She concluded "that the aggravating factor, the need to deter people who feel they have so few options that they have to deal drugs[,] from doing that is overwhelming and I find that the aggravating factor outweighs the mitigating, non-statutory factor[s] . . . ."

Sentencing is committed to the judge's sound discretion. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J. 334, 365 (1984). We may not substitute our judgment for that of the sentencing judge. State v. Bieniek, 200 N.J. 601, 611-12 (2010); Roth, supra, 95 N.J. at 365. We find no mistaken exercise of that discretion in imposing a forty-two month parole disqualifier. However, there are errors in the judgments of conviction.

With respect to Indictment No. 07-05-1833, the judge merged count one with count two and count two with count three. On count three, she sentenced defendant to a term of seven years, three and one-half of which were to be served without parole, and suspended his driver's license for six months. Count four merged into count five. On count five, she sentenced defendant to a term of five concurrent years, two and one-half of which were to be served without parole. Thus, defendant's aggregate sentenced was seven years, of which three and one-half were without parole. Both sentences were to run concurrent with the sentence imposed on count three of Accusation No. 08-06-1169. On that accusation, the judge imposed a concurrent sentence of five years on count three, three of which were to be served without parole. Defendant received credit for 197 days time served on the indictment and 166 on the accusation for a total of 363 days.

The judge also imposed a Drug Enforcement and Demand Reduction (DEDR) penalty of $1000 on each third-degree crime; a $150 forensic laboratory fee as an aggregate; a six-month driver's license suspension on each count to run concurrently; a $225 Safe Neighborhood Services Fund (SNSF) assessment, or $75 on each count; a $150 Violent Crime Compensation Board (VCCB) penalty, representing $50 on each count; and two $30 Law Enforcement Officers' Training and Assistance Equipment Fund penalty, one on the accusation and one on the indictment for a total of $60.

Apparently, the sentencing judge was not available to enter the judgments of conviction and they were entered by another judge. Both contain errors. The dates on the judgments of conviction should have been June 24, 2008, not June 23, 2008. The dates must be corrected. Both judgments contain incorrect statements of the aggravating factors, indicating that the sentencing judge found aggravating factors three and six in addition to nine. The judge did not so find, although the record would have supported her finding those additional factors. Again, the judgments of conviction must be corrected. Further, the non-statutory mitigating factors should be reflected therein.

The judgment of conviction on the indictment indicates that defendant was sentenced on count four. It must be corrected to indicate that count four merged into count five. Additionally, the penalties associated with count four of $50 VCCB, $75 SNSF, $50 lab fees, and $1000 DEDR for a total of $1175 must be removed from the judgment of conviction. Finally, the judgment on the indictment erroneously indicates that the judge imposed a forty-two month parole disqualifier on count five when it should have been thirty months. We accordingly remand for correction of the judgments of conviction.

 
Affirmed in part and remanded in part.

Count six charging defendant with fourth-degree hindering his own prosecution, contrary to N.J.S.A. 2C:29-3b(4), was dismissed before the jury deliberated.

N.J.S.A. 2C:44-1a(9).

N.J.S.A. 2C:44-1a(3).

N.J.S.A. 2C:44-1a(6).

(continued)

(continued)

24

A-0916-08T4

March 15, 2010