STATE OF NEW JERSEY v. RODNEY J. COLEMAN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5208-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RODNEY J. COLEMAN,
Defendant-Appellant.
_______________________________
Argued October 6, 2009 - Decided September 8, 2010
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-08-1983.
Michael J. Hampson argued the cause for
appellant (Yvonne Smith Segars, Public
Defender, attorney; Robert J. Kipnees,
Designated Counsel and on the brief; Mr.
Hampson, Melissa Toner Lozner, and Nicole P.
Crifo, on the brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Lucille M. Rosano,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A grand jury indicted defendant Rodney Coleman and nineteen
other individuals on numerous drug charges stemming from a five-
month undercover investigation. Defendant and codefendants,
Kelly Felder, defendant's wife, Rodney Harris, defendant's son,
and Donald Scott, defendant's neighbor, were tried jointly.
Driver1 hearing the trial judge
Prior to trial, following a
granted the State's motion to admit electronically recorded
wiretap phone conversations and various videotape surveillance.
On defendant's motion at the close of the State's case, the
judge dismissed count twenty-five charging him with second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4a. A jury convicted defendant of second-degree
conspiracy to possess a controlled dangerous substance (CDS)
(cocaine) and/or possession of CDS with intent to distribute,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); two counts of
second-degree manufacturing, distributing or dispensing CDS,
N.J.S.A. 2C:35-5b(2) (counts two and three); third-degree
manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-
5a(1) (count seven); third-degree possession of CDS, N.J.S.A.
2C:35-10a(1) (count nine); third-degree manufacturing,
distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2) (count
ten); third-degree distributing CDS within 1,000 feet of school
property, N.J.S.A. 2C:35-7 (count eleven); and two counts of
third-degree unlawful possession of a weapon (handgun), N.J.S.A.
2C:39-5b (counts twenty-two and twenty-three). The jury
1
State v. Driver,
38 N.J. 255 (1962).
A-5208-06T4
2
acquitted defendant of third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5b (count twenty-four), and second-degree
possession of a weapon while committing a drug offense, N.J.S.A.
2C:39-4.1 (count twenty-six). Following the jury's verdict,
defendant pled guilty under a separate indictment to second-
degree possession of a weapon by a convicted felon, N.J.S.A.
2C:39-7(b).
At sentencing, the trial judge granted the State's motion
for a mandatory extended term sentence. The judge merged count
one with count two and imposed a twenty year term of
imprisonment with a ten-year period of parole ineligibility on
count two. The judge also sentenced defendant to a concurrent
extended term of twenty years with ten years of parole
ineligibility on count three; a concurrent five years on count
seven; merged counts nine and eleven with count ten an imposed a
concurrent extended term of twenty years with ten years of
parole ineligibility on count ten; merged count twenty-two with
count twenty-three and imposed a concurrent five years on count
twenty-three; and a concurrent seven years for the second-degree
possession of a weapon by a convicted felon charge. The judge
also imposed the appropriate fines and penalties, and suspended
defendant's driving privileges for two years.
A-5208-06T4
3
I.
The following facts were presented at trial. In August
2004, Sergeant Detective John Cerefice of the New Jersey State
Police became involved in a narcotics investigation in
Irvington, the target of which was a man whose first name was
"Rodney." During this investigation, Cerefice met Eddie
McElhine, a documented State Police informant, who stated that
"Rodney's" last name was "Coleman," and that Coleman, later
identified as defendant, distributed one to two kilograms of
cocaine per week and kept a handgun in his apartment for
protection. McElhine also gave Cerefice Coleman's cell phone
number.
Defendant maintained two residences: one located on 40th
Street in Irvington, and the other located on Stuyvesant Avenue
in Irvington, which was a one-bedroom apartment with a living
room and kitchen where he and Felder resided. Defendant also
drove a black Acura.
CDS Sales to Undercover Officers
On September 16, 2004, Cerefice and other police officers
began surveillance of the 40th Street apartment in order to
corroborate the information they had received about defendant's
narcotics activities. Cerefice saw defendant's black Acura was
parked outside the apartment at the time of the surveillance,
A-5208-06T4
4
and he also saw "cars pulling up [to the apartment], staying for
a short period of time and then departing[,]" actions he
considered consistent with narcotics distribution.
To initiate contact with defendant, Cerefice gave his cell
phone number to McElhine, who then gave it to defendant. At
approximately 10:00 p.m. on September 16, 2004, Cerefice
received a phone call from a man identifying himself as
"Rodney." Cerefice's caller ID confirmed that the call was from
defendant's cell phone number. Cerefice told defendant that his
name was "John," he was from South Jersey, and he regularly made
a profit of $150 to $200 selling a gram of cocaine. Defendant
told Cerefice that he had "to try [defendant's] product because
it was the best on the market," defendant had been in the
business for approximately twenty-two years, and sold $10,000
worth of cocaine the previous week. Cerefice agreed to call
defendant back the following week to arrange a purchase.
Defendant gave Cerefice his cell phone number.
Following this conversation, Cerefice and State Police
Detective Daniel Connolly directed State Police Detective Peter
Layng to call defendant and arrange a cocaine purchase. During
the week of September 22, 2004, Layng called defendant's cell
phone, identified himself as "Pete," and agreed to purchase one
ounce of cocaine from defendant. Defendant told Layng that the
A-5208-06T4
5
ounce would cost $37 per gram. The two arranged to meet on
September 29, 2004, at the Garden State Parkway service area in
Union.
At approximately 7:30 p.m. on September 29, 2004, Layng
arrived at the service area before defendant. Defendant arrived
in a dark-colored Acura accompanied by McElhine, who was sitting
in the front passenger seat. Layng recognized defendant from a
photo he had seen prior to the meeting. Layng entered the rear
seat of defendant's car, and defendant gave him one ounce of
cocaine in exchange for $1,040, which Cerefice had given Layng.
Layng exited the car and defendant drove away.
In October, 2004, Layng called defendant to arrange another
purchase of one ounce of cocaine. Defendant said the price was
$35 per gram, and the two agreed to meet on October 18, 2004 at
a restaurant in Union located near the service area where the
first drug transaction occurred. Layng arrived at approximately
6:20 p.m. on October 18, 2004. A surveillance team followed
defendant's black Acura from the 40th Street apartment to the
restaurant in order to determine whether the cocaine was coming
from the residence. Defendant arrived at the restaurant at
approximately 6:30 p.m., once again accompanied by McElhine.
Layng entered the rear seat of defendant's car, and defendant
gave him one ounce of cocaine in exchange for $980, which
A-5208-06T4
6
Cerefice had given Layng. Layng exited the car and defendant
drove away. The transaction was captured on videotape, which
was shown to the jury and narrated by Layng.
On December 8, 2004, Cerefice called defendant, identified
himself as "John," and arranged to purchase fifteen grams of
cocaine for $450. Defendant informed Cerefice that if he was
not available his son, Rodney, later identified as Harris, would
conduct the transaction.
The following day, at approximately 11:00 a.m., posing as
"John," Detective Michael Lasalandra of the Parsippany Police
Department called defendant from Cerefice's cell phone and
arranged to meet defendant at the 40th Street apartment about
twenty minutes later. When Lasalandra arrived at the apartment,
Harris admitted the detective into the apartment. After the two
men briefly discussed the cocaine purchase, Harris went into
another room, and returned with fifteen grams of cocaine.
Lasalandra paid Harris $450 and left the apartment.
Electronic Surveillance and Execution of Warrants
On October 19, 2004, the police obtained a dialed number
retriever (DNR) or "pen register" for defendant's cell phone. A
DNR identifies incoming and outgoing calls to the phone number
along with the date, time and length of the calls. The length
of each call is significant because calls of a short duration
A-5208-06T4
7
may indicate the phone owner's involvement in CDS distribution.
The DNR revealed that defendant had over one hundred and fifty
pen register calls with codefendants or clients during the month
the DNR was in place.
In December 2004, the police conducted court-approved
wiretap monitoring of defendant's cell phone conversations in
conjunction with surveillance of his two residences, during
which they observed numerous narcotics transactions. The police
recorded over sixty wiretap conversations, the majority of which
involved narcotics transactions, and one involved defendant's
sale of a gun to Cerefice. There were also two conversations
between defendant and Felder, where defendant told her that
people were coming to their apartment to purchase cocaine or
give her money for previous purchases, and several conversations
between defendant and Harris involving drug transactions. The
jury heard the wiretap conversations and had the transcripts
available for their review.
The police also obtained search warrants for defendant's
two apartments, and arrest warrants for defendant, Felder,
Harris, and two other codefendants. On December 30, 2004, at
approximately 7:00 a.m., the police executed the warrants at the
Stuyvesant Avenue apartment, where they found defendant and
Felder. The police searched the apartment, finding a bag of
A-5208-06T4
8
cocaine in plain view on a kitchen cabinet shelf, a bag of
cocaine inside an entertainment center in the living room, over
forty bags of cocaine and a digital scale inside the pocket of a
black leather jacket located in the living room closet, a
bullet-proof vest in the living room closet, a box of .9 mm
luger ammunition and two loaded magazines in the bedroom, $2,301
under a mattress in the bedroom, and two cell phones in the
bedroom. They also seized defendant's black Acura. The police
arrested defendant and Felder.
The police simultaneously searched the 40th Street
apartment at approximately 7:00 a.m. and arrested Harris and
another codefendant. A search revealed twelve bags of cocaine
behind a picture in the bedroom, a Black Point drug scale on the
floor of a closet, a crusher, sixty-five small yellow glassine
baggies on a shelf in the bedroom, and five cell phones in the
bedroom.
Pursuant to a signed consent, the police searched the
apartment of codefendant Joy Prentiss in Jersey City, where they
found three loaded .9 millimeter handguns above the kitchen sink
cabinet. The police arrested Prentiss.
Prentiss testified at trial that she had dated defendant
for approximately one year, he would come to her residence often
because he had a key, and the guns belonged to him. In early
A-5208-06T4
9 December 2004, Prentiss asked defendant to remove the guns from
her apartment, and she believed he had complied. She claimed to
have no knowledge that the three guns were still in her
apartment at the time of her arrest.
A firearms expert testified that the guns were operable,
and that two magazines confiscated from the Stuyvesant Avenue
apartment fit two of the three handguns found in Prentiss'
apartment. An expert in narcotics and narcotics investigation
and distribution testified that the magazines were possessed for
protection of individuals involved in narcotics distribution,
and that the money confiscated from the Stuyvesant Avenue
apartment was proceeds from narcotics transactions.
Connolly testified as an expert in narcotics distribution.
He summarized the contents and meaning of the wiretap
conversations and explained the narcotic terminology defendants
and co-defendants used in those conversations. He also
testified about pricing the techniques for preparing, weighing
and packaging of the cocaine, and the manner in which purchases
were arranged.
It is against these facts that defendant raises the
following contentions:
I. THE STATE'S NARCOTICS EXPERT PROVIDED
TESTIMONY THAT INVADED THE PROVINCE OF THE
JURY AND UNDULY PREJUDICED DEFENDANT (NOT
RAISED BELOW).
A-5208-06T4
10
II. THE TRIAL JUDGE EXHIBITED A PATTERN OF
MISCONDUCT THAT DENIED MR. COLEMAN A FAIR
TRIAL (NOT RAISED BELOW).
A. The judge demonstrated bias against the
defense by critiquing and chastising defense
counsel in front of the jury.
B. The judge demonstrated bias against the
defense by embarrassing a co-defendant in
front of the jury.
C. The trial judge demonstrated impatience
with the proceedings by commenting to the
jury about the length of the trial.
D. The trial judge engaged in misconduct
by communicating with a juror off the record
outside the presence of the attorneys.
III. THE WEAPONS-RELATED COUNTS SHOULD HAVE
BEEN SEVERED FROM THE NARCOTICS-RELATED
COUNTS IN THE INDICTMENT (NOT RAISED BELOW).
IV. THE STATE FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT THE GOVERNMENT'S
INVESTIGATORY MISCONDUCT DID NOT VIOLATE
DEFENDANT'S RIGHT TO DUE PROCESS (NOT RAISED
BELOW).
V. DEFENDANT RECEIVED AN EXCESSIVE
SENTENCE.
We affirm.
II.
Defendant contends for the first time on appeal in Point I
that Connolly's narration of the wiretap conversations
constituted impermissible expert testimony that encroached on
the fact-finding province of the jury. Defendant concedes that
Connolly did not opine on the ultimate issue of his guilt on any
A-5208-06T4
11
of the drug charges; however, he argues that Connolly summarized
the evidence in the wiretap recordings in a way that
specifically suggested to the jury that he was guilty of
criminal wrongdoing. Because defendant did not raise this
contention below, we review it under the plain error standard to
determine whether the testimony was sufficiently prejudicial to
have the capacity to produce an unjust result. State v.
Nesbitt,
185 N.J. 504, 518-19 (2006).
Expert testimony is admissible where the subject matter at
issue may not be sufficiently familiar to the average juror or
where it would "assist the [jurors] to understand the evidence
State v. Berry,
140 N.J. 280,
or to determine a fact in issue."
289 (1995); N.J.R.E. 702. The requirement that expert testimony
"assist the [jurors]" has been interpreted broadly to encompass
testimony helpful to their understanding of the evidence
at 290-91. The admissibility of expert
presented. Id.
testimony does not depend on "'whether the subject matter is
common or uncommon or whether many persons or few have knowledge
of the matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield
Packing Corp.
4 N.J. 135, 141-42 (1950)). Expert opinion
testimony is permissible even where it embraces the ultimate
issue to be determined by the jury, so long as the testimony
does not express an "'opinion of defendant's guilt but simply
A-5208-06T4
12
characterizes defendant's conduct based on the facts and
evidence in light of [the expert's] specialized knowledge.'"
Summers, supra,
176 N.J. at 314 (quoting State v. Odom,
116 N.J.
65, 79 (1989)); N.J.R.E. 704. The admissibility of such
testimony rests in the sound discretion of the trial court.
Summers, supra,
176 N.J. at 312.
Expert testimony about drug-trade practices is generally
admissible because such information is a specialized subject
matter that is beyond the ken or normal life experience of the
State v. Reeds,
197 N.J. 280, 290 (2009); Odom,
average juror.
supra,
116 N.J. at 76. A narcotics expert is permitted to
assist the jurors to understand how the defendant's statement
and actions, in conjunction with the words and actions of other
drug purchasers and sellers, could be indicative of narcotics
distribution. See, e.g., Nesbitt, supra,
185 N.J. at 515;
Berry, supra,
140 N.J. at 301-02 (expert testimony on the modus
operandi of drug dealers should generally be admitted where it
assists the jury in understanding the evidence and in resolving
material factual issues). However, the expert is not permitted
to opine about the ultimate issue of the defendant's guilt.
Reeds, supra,
197 N.J. at 285.
Connolly did not opine as to whether defendant was guilty
of any of the drug charges, as did the State's narcotics experts
A-5208-06T4
13
in Reeds, supra,
197 N.J. at 287, State v. Boston,
380 N.J.
Super. 487 (App. Div. 2005), certif. denied,
186 N.J. 243
326 N.J. Super. 351 (App. Div.
(2006), State v. Singleton,
1999), and State v. Baskerville,
324 N.J. Super. 245 (App. Div.
163 N.J. 10 (2000), cases on which
1999), certif. denied,
defendant relies. He merely described matters in the wiretap
conversations in order to assist the jury in understanding the
evidence. His testimony did not usurp the jury's function to
determine the ultimate issue of defendant's guilt on any charge,
nor did it in any way suggest that defendant was guilty.
Further, there was other overwhelming evidence of defendant's
guilt, including numerous surveillances of defendant's two
residences, undercover drug purchases, over one hundred and
fifty pen register calls between defendant's cell phone and
other codefendants and drug clients, and over sixty wiretap
conversations detailing defendant's extensive involvement in
illegal narcotics activity. Accordingly, no error, let alone
plain error, occurred as a result of Connolly's testimony.
III.
Defendant contends for the first time on appeal in Point II
that the trial judge demonstrated bias. His first example
involves the following opening remarks by Harris' counsel:
You're going to hear witnesses called by the
State, law enforcement officers, and if
A-5208-06T4
14
there's anything you can be sure of, some of
them -- not all, but some of them are gonna
intentionally try to deceive you,
misrepresent to you and lie to you.
And the judge will instruct you at the
close of this proceeding that if you believe
that they're intentionally trying to deceive
you or lie to you, you can disregard that
portion of the testimony or you can
disregard their entire testimony. And I
suggest to you that if you believe that they
are trying to deceive you under the
circumstances, you should disregard their
entire testimony, for you shouldn't reward
officers that are trying to deceive you by
convicting; you should punish them by
dismissing the . . . charges.
In response to this remark, the judge gave the jury the
following instruction:
Ladies and gentlemen, [Harris' counsel] made
a couple of comments that I feel compelled
to . . . elaborate on. First of all, he
discussed some issues with regard to what .
. . I'm gonna charge you as to the law,
that's improper. We don't know at this
point in the case what I'm going to charge
you as to the law. . . . So to the extent
that he told you that I am gonna tell you
certain things, such as if a witness lies,
you have the right to disregard or accept
that type of remark[]. You have to
disregard those comments.
Defendant's second example involves Felder's counsel's
opening remark that "I know [Felder] is not guilty." The judge
instructed the jury that "[i]t is improper for [Felder's
counsel] to say to you: I know [Felder] is not guilty. He is
not allowed, under our rules of evidence and our court rules, to
A-5208-06T4
15
impose his own personal views to the jury. Accordingly, you are
to disregard that statement[.]"
Defendant's third example involves Scott's counsel's
summation remark implying that Scott refused a plea deal. The
judge instructed the jury that this remark was improper and that
the jury should disregard it.
The fourth example involves the judge's sustaining the
State's objection to Scott's counsel's summation remark that
Prentiss was an exotic dancer, and overruling Scott's counsel's
objection to the prosecutor's summation comment that an
individual named Anthony Deflumeri had contacted Scott seeking
to purchase cocaine.
We first emphasize that none of the above examples involved
defendant, and Felder's, Harris' and Scott's counsel did not
object. Nonetheless, we are satisfied that the judge's
instructions did not have the capacity to produce an unjust
result. Rather, the judge properly exercised his discretion to
State v. Taffaro, 195 N.J.
correct counsels' improprieties.
442, 450 (2008); State v. Tilghman,
385 N.J. Super. 45, 53-54
(App. Div.), remanded on an unrelated issue,
188 N.J. 269
(2006). Harris' counsel's opening remark exceeded the purpose
of opening statements and improperly instructed the jury as to
at 55. Felder's counsel's opening remark
the law. Id.
A-5208-06T4
16
improperly stated his personal belief as to his client's
innocence. RPC 3.4(e). Scott's counsel's summation remark
implying that Scott refused a plea deal, and that Prentiss was
an exotic dancer is not supported by the evidence.2 State v.
Reddish,
181 N.J. 553, 629. The judge also properly overruled
Scott's counsel's objection to the prosecutor's summation remark
about DeFlumer because there was evidence in the record about
DeFlumer's attempt to purchase cocaine from Scott. Ibid.
Defendant also contends that the judge demonstrated bias by
instructing Scott in the jury's presence to cease making facial
and other gestures. During Scott's counsel's cross-examination
of Detective Quaasim Austin of the Irvington Police Department,
the judge said to Scott, "[t]his is a number of occasions now
you've made faces and gestures and I am instructing you . . .
not to do that any more. You understand that?" Scott nodded
his head affirmatively. Scott's counsel did not object.
We discern no bias on the judge's part in this exchange
with Scott. "[I]t is essential to the proper administration of
criminal justice that dignity, order and decorum be the
hallmarks of all court proceedings in our country; that the
2
Prentiss never testified on direct examination that she was an
exotic dancer, and the judge sustained the State's objection to
defendant's counsel's attempt to elicit that information on
Prentiss' cross-examination.
A-5208-06T4
17
flagrant disregard in the courtroom of elementary standards of
proper conduct should not and cannot be tolerated." State v.
Spivey,
122 N.J. Super. 249, 255-56 (App. Div. 1973), rev'd on
other grounds,
65 N.J. 21 (1974). "[T]rial judges confronted
with disruptive, contumacious, stubborn, defiant defendants must
be given discretionary power to meet the circumstances of a
Id. at 256. The judge here properly exercised his
case[.]"
discretion in admonishing Scott for his behavior in order to
maintain order in the courtroom and to insure that Scott's
conduct did not taint the jury.
Defendant also contends that the judge improperly
demonstrated impatience by stating to the jury during the
State's case that
It seems like I'm in an excellent mood
today, don't think it has anything to do
with the fact that this trial is coming to
an end. It's just because it's a beautiful
day.
But seriously, I'd like to thank everyone
for being here on time. We are winding
down, so to speak, and without any further
[ado.]
Defendant argues that this comment suggested to the jury that
they should quickly reach a verdict. He concludes that the
deliberation period of six and one-half hours for a four week
trial demonstrates this comment's improper influence on the
jury. We disagree.
A-5208-06T4
18
Although the trial was lengthy, there was overwhelming
evidence of defendant's guilt, which no doubt contributed to
what defendant characterizes as the jury's short deliberation
period. Moreover, at no time during the trial did the judge
express any kind of impatience. There is no evidence that he
impermissibly curtailed cross-examination, failed to permit
defendants from making motions or presenting arguments, or
coerced the jury into quickly reaching a verdict.
Finally, defendant contends for the first time on appeal
that the judge engaged in misconduct by improperly communicating
with a juror, off the record and outside counsels' presence. At
the conclusion of Connolly's testimony on October 25, 2006, the
judge instructed the jury to return the following morning. At a
juror's request, the judge spoke to the juror privately at
sidebar. All counsel were present in the courtroom, and no one
objected. The record does not reveal the substance of the
conversation between the juror and judge.
We have "repeatedly and clearly condemned judges' ex parte
communications with deliberating juries." State v. Basit,
378 N.J. Super. 125, 131 (App. Div. 2005) (emphasis added).
However, an ex parte communication between a judge and a
deliberating juror does not automatically require a reversal of
the conviction where the record shows affirmatively that the
A-5208-06T4
19
communication had no tendency to influence the verdict. Id. at
134-35.
The jury was not deliberating when the sidebar conversation
occurred here, and defendant cites no authority requiring
reversal of a conviction for an ex parte communication occurring
prior to deliberation.3 Further, although the trial judge should
have stated on the record the substance of his sidebar
conversation with the juror, counsel did not object or request a
statement, there is no reason to believe that anything improper
occurred in that conversation or that the conversation affected
the juror's thought process.
IV.
Defendant's contention in Point III that the weapons-
related counts should have been severed from the narcotics-
related counts, and his contention in Point IV that the State
failed to prove by clear and convincing evidence that the
government's investigatory misconduct did not violate his due
process entrapment rights, lack sufficient merit to warrant
3
Defendant cites to In re Mathesius,
188 N.J. 496 (2006), in
support of his argument that all ex parte communications are
However, Mathesius involved the Supreme Court's
improper.
review of a presentment filed by the Advisory Committee on
Judicial Conduct against a Superior Court judge. Id. at 500.
Therefore, although such conduct may violate the Code of
Judicial Conduct, Mathesius does not hold that such conduct
requires reversal of a conviction.
A-5208-06T4
20
discussion in a written opinion. R. 2:11-3(e)(2). However, we
make the following comments.
Defendant never sought severance of the drug and weapons
charges. A motion for separate trials on counts of an
indictment must be made prior to trial pursuant to Rule 3:10-2.
R. 3:15-2(c). Failure to do so "constitutes a waiver
R. 3:10-2(c).
thereof[.]"
Also, defendant did not raise the defense of entrapment
before trial, as required by Rule 3:12-1, did not present
evidence of entrapment at trial, or seek a judgment of acquittal
or a new trial based on entrapment. In any event, the due
process entrapment defense defendant asserts here requires the
court to determine
(1) whether the government or the defendant
was primarily responsible for creating and
planning the crime, (2) whether the
government or the defendant primarily
controlled and directed the commission of
the crime, (3) whether objectively viewed
the methods used by the government to
involve the defendant in the commission of
the crime were unreasonable, and (4) whether
the government had a legitimate law
enforcement purpose in bringing about the
crime.
[State v. Johnson, 127 N.J. 458, 474
(1992).]
State v. Florez, 134 N.J. 570, 584 (1994); Grubb,
See also
supra,
319 N.J. Super. at 414-15. Defendant failed to establish
A-5208-06T4
21
any of the Johnson factors. Defendant's crimes were not
"primarily police-inspired." Johnson, supra,
127 N.J. at 478.
Defendant initiated the drug-selling activity by calling
Cerefice, he managed all of the undercover buys, and was a
willing participant in the narcotics activity for which he was
convicted. There is no evidence that the police used
unreasonable methods to involve defendant in the commission of
the drug sales, or pressured him into selling narcotics to the
undercover officers, and the government obviously had a
legitimate law enforcement purpose in making the undercover drug
purchases from defendant, who was a known drug dealer. Ibid.;
Florez, supra,
134 N.J. at 578, 589.
V.
Defendant challenges his sentence in Point V, contending
that the judge abused his discretion in failing to find
2C:44-1b(1) (defendant's conduct
mitigating factors N.J.S.A.
neither caused nor threatened serious harm); N.J.S.A. 2C:44-
1b(2) (defendant did not contemplate that his conduct would
cause or threaten serious harm); and N.J.S.A. 2C:44-1b(4) (there
were substantial grounds tending to excuse or justify
defendant's conduct, though failing to establish a defense). He
argues that he sold cocaine to consenting adults, not children,
and never intended any serious harm, and that his heroin
A-5208-06T4
22
addiction caused his actions. Defendant also contends that
given the non-violent nature of the underlying offenses, three
twenty-year extended-term sentences "shocks the judicial
conscience."
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Pierce,
188 N.J. 155, 166 (2006);
95 N.J. 334, 364-66 (1984). We "may not
State v. Roth,
substitute [our] judgment for that of the trial court[.]" State
v. Johnson,
118 N.J. 10, 15 (1990) (citing State v. O'Donnell,
117 N.J. 210, 215 (1989)). However, we may modify a sentence
when the judge's determination was "clearly mistaken." State v.
Jabbour,
118 N.J. 1, 6 (1990) (quoting State v. Jarbath,
114 N.J. 394, 401 (1989)).
In determining the propriety of a sentence, we must make
sure that the trial judge did not violate the sentencing
guidelines and made findings on aggravating and mitigating
factors based on the evidence, and decide whether application of
the guidelines make a particular sentence so clearly
unreasonable that it shocks the judicial conscience. Roth,
supra,
95 N.J. at 364-65; O'Donnell, supra,
117 N.J. at 215.
Applying these factors, we discern no reason to disturb
defendant's sentence. Defendant does not challenge the judge's
findings of aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk
A-5208-06T4
23
that the defendant will commit another offense); N.J.S.A. 2C:44-
1a(6) (the extent of the defendant's prior criminal record and
the seriousness of the offenses of which he has been convicted);
or N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant
and others from violating the law). Indeed, the record supports
these factors. Defendant has three prior convictions (one for
murder and two for possession of CDS with intent to distribute);
he continued his involvement with drug distribution shortly
after his parole on the murder conviction; and he failed to
complete drug treatment resulting in a violation of probation.
The record does not support a finding of mitigating factors
one and two because "[d]istribution of cocaine can be readily
perceived to constitute conduct which causes and threatens
State v. Tarver,
272 N.J. Super. 414, 434-35
serious harm."
(App. Div. 1994). Also, defendant's alleged drug addiction is
See State v.
not sufficient to support mitigating factor four.
Gherlter,
114 N.J. 383, 390 (1989); State v. Towey,
244 N.J.
Super. 582, 595-96 (App. Div.), certif. denied,
122 N.J. 159
(1990).
The sentence does not "shock the judicial conscious." For
defendant's second-degree convictions, the judge was required to
impose a mandatory extended term of between ten and twenty
years. N.J.S.A. 2C:43-7a(3); State v. Thomas,
188 N.J. 137,
A-5208-06T4
24
149-51 (2006). The judge properly imposed the maximum term
based on the evidence before him and his weighing of the
aggravating and mitigating factors, which he articulated on the
record. The judge was also required to impose a parole
ineligibility period of "at or between one-third and one-half of
the sentence imposed by the court or five years, whichever [was]
N.J.S.A. 2C:43-7c.
greater."
Affirmed.
A-5208-06T4
25
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
