STATE OF NEW JERSEY v. DIRON CHARLES WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3978-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIRON CHARLES WRIGHT,

Defendant-Appellant.

_________________________________________________

December 8, 2011

 

Submitted October 4, 2011 - Decided

 

Before Judges Payne, Simonelli and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 06-01-0203.

 

Cheryl Haft Picker, attorney for appellant.

 

Paula T. Dow, Attorney General, attorney for

respondent (Teresa A. Blair, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following three sales of crack cocaine to an undercover federal special agent, defendant was charged with three counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), three counts of second-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5b(2), three counts of second-degree distribution of cocaine, N.J.S.A. 2C:35-5b(2), and one count of first-degree maintenance of a drug production facility, N.J.S.A. 2C:35-4. Defendant was convicted by a jury on all charges and sentenced to an extended term of imprisonment of thirty years with a fifteen-year period of parole ineligibility on the first-degree conviction, and to a concurrent aggregate term of ten years with a five-year period of parole ineligibility on the remaining non-merged convictions. The sentence was imposed consecutively to the fourteen-year sentence with a sixty-nine-month period of parole ineligibility that defendant was presently serving for another drug conviction. Defendant has appealed.

On appeal, defendant makes the following arguments:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE PROSECUTOR'S EXERCISE OF THE ONLY PEREMPTORY CHALLENGE THE STATE EXERCISED TO EXCLUDE THE SOLE BLACK JUROR DURING JURY SELECTION BASED ON THE UNCONSTITUTIONALLY IMPERMISSIBLE GROUNDS OF PRESUMED RACE BIAS OVER DEFENSE COUNSEL'S TIMELY OBJECTIONS, THEREBY PREJUDICALLY AFFECTING APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND UNFAIR TRIAL BY PRODUCING AN UNJUST RESULT.

 

POINT II: THE TRIAL COURT ERRED IN PERMITTING DEA SPECIAL AGENT GREGORY HILTON TO TESTIFY AS AN EXPERT WITNESS ON THE "MAINTENANCE OF A PRODUCTION FACILITY" FOR CRACK COCAINE AND HIS TESTIMONY WAS INSUFFICIENT TO PERMIT THE JURY TO CONCLUDE THAT APPELLANT WAS GUILTY OF "MAINTAINING A PRODUCTION FACILITY" OF CRACK COCAINE IN VIOLATION OF N.J.S.A. 2C:35-4.

 

POINT III: APPELLANT CANNOT BE SIMULTANEOUSLY PROSECUTED AND CONVICTED DURING TRIAL OF N.J.S.A. 2C:35-4 AND N.J.S.A. 2C:35-5 WHICH BOTH PROSCRIBE PACKAGING AND REPACKAGING OF CRACK COCAINE EVEN THOUGH N.J.S.A. 2C:35-5 IS NOT A LESSER INCLUDED OFFENSE OF N.J.S.A. 2C:35-4 WHEN NEITHER THE UNITED STATES SUPREME COURT NOR THE NEW JERSEY SUPREME COURT HAS HELD THAT SUCH SIMULTANEOUS PROSECUTIONS ARE CONSTITUTIONAL, THEREBY PREJUDICIALLY AFFECTING THE SUBSTANTIAL RIGHTS OF APPELLANT TO A FAIR TRIAL BY PRODUCING AN UNJUST RESULT.

 

POINT IV: THE ORIGINAL JURISDICTION FOR PROSECUTION OF THIS CASE RESTS WITHIN THE FEDERAL ARENA, SPECIFICALLY THE DISTRICT OF NEW JERSEY'S TRIAL COURT, AND THE DEFENSE COUNSEL'S FAILURE TO REMOVE THIS CASE FROM STATE TO FEDERAL COURT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT V: THE TRIAL COURT SENTENCED DEFENDANT TO AN EXCESSIVE SENTENCE BY THE IMPOSITION OF A THIRTY YEAR MINIMUM WITH A FIFTEEN YEAR PAROLE BAR TO RUN CONSECUTIVE WITH DEFENDANT'S CURRENT SENTENCE.

 

We affirm.

I.

The trial record disclosed that in 2003, the Federal Drug Enforcement Administration (DEA) assigned Special Agent Gregory Hilton to work as an undercover agent with a DEA Mobile Enforcement Team and the Monmouth County Prosecutor's Office's Narcotics Unit in efforts to prosecute drug dealers in the Monmouth County area, particularly, Asbury Park. Hilton testified at trial that, on December 11, 2003, March 11, 2004 and April 1, 2004, he purchased crack cocaine from defendant while posing as a friend of a confidential informant whom defendant had known since childhood.

On the first occasion, Hilton purchased thirty grams of crack cocaine from defendant for $750 while defendant was standing on a stair landing at the rear of defendant's apartment building. On the next occasion, Hilton entered defendant's apartment and purchased sixty-one to -two grams of crack cocaine for $1800. While doing so, he observed defendant retrieve a block of cocaine from his freezer, cut off a piece, weigh it on a digital scale, and package it in plastic. Hilton also observed a glass pot on the stove containing recently boiling water with white residue floating on top, and a large white chunk of what appeared to be crack cocaine drying on a napkin nearby. He testified that what he observed was definitely similar to his prior observations of cocaine being cooked and dried.

Hilton stated that when defendant opened the cabinet to get the scale, there was nothing else in the cabinet. When he opened the freezer to obtain the cocaine, there was nothing else in the freezer. In fact, there was nothing else but the objects that Hilton mentioned present in the kitchen. In the living room area, there was only a mattress on the floor with a sheet over it and a small table with a little radio on it.

On the third occasion, Hilton again entered defendant's apartment and bought for $1800 sixty grams of crack cocaine that defendant obtained, pre-packaged, from a larger bag of crack cocaine stored in his freezer and then weighed before making the sale. Following the sale, defendant placed the $1800 that Hilton had given him in the cabinet from which he had retrieved the scale.

Defendant did not testify on his own behalf, but offered as a character witness the superintendent of his apartment building, Carmen Gonzalez, who testified that defendant was a "good tenant." Additionally, she testified that she had observed him cooking for his son on two occasions.

II.

On appeal from the judgment of conviction entered against him, defendant, an African-American, first challenges the exercise by the prosecutor of only one peremptory challenge, which she used to excuse the only African-American member of the jury panel. During jury selection, that prospective juror, number 273, indicated that she might know a potential witness, Cynthia Weedon, from Asbury Park, a woman in her fifties. The juror stated:

I . . . kind of like grew up with her. For years I lived in Neptune. She used to be at different places I go to. I don't know if it's the same one but her name is Cynthia Weedon.

 

In the juror's presence, defense counsel then responded to the court's question whether this was the same Cynthia Weedon by stating: "I think she was originally listed as a character witness. It's not anticipated that she's going to be called."

The prosecutor thereupon objected to defense counsel's statement, asking counsel to "refrain from saying names of witnesses that were supposed to testify whether they are going to testify as to character."

As jury selection progressed, juror 12 was excused, and juror 273 was called in his place. The prosecutor then approached sidebar and informed the court that Cynthia Weedon had married into defendant's family. Moreover, the prosecutor was concerned that defense counsel had disclosed that Weedon, albeit unlikely to testify, was a character witness for defendant. The prosecutor stated: "I think that has the ability to affect her judgment on this case, knowing that there was a witness out there who was a character witness for this defendant, even if she doesn't testify." The prosecutor therefore asked that the juror be excused for cause. The court denied the request, but stated that if the prosecutor exercised a peremptory challenge to excuse her, "it won't be, I think, not be a basis for an argument that you're striking someone as a result of race. You have a good and justified reason that you've stated on the record."

At the commencement of peremptory challenges, the prosecutor excused juror 273 stating "in light of the fact that there is a potential that she knows one [of] the defense witnesses," she would be excused. Defense counsel objected and requested that a new panel be called, noting that the excused juror was the only African-American on the panel and asserting, pursuant to State v. Gilmore, 103 N.J. 508 (1986), that the court should either get a new panel or declare a mistrial. The prosecutor countered by restating that the juror might know a potential witness and additionally stating that the juror also knew that the potential witness could vouch for defendant's character. The prosecutor stated: "I think that these, both of these things have the ability to taint her and affect her impartiality with regards to the jury." The court rejected defense counsel's application, stating that if all the juror had been told was that the witness was not going to be called, it might decide the application differently. However, she was given additional information regarding the content of the witness' testimony.

Under both the United States and New Jersey Constitutions, a three-step inquiry is required to determine whether a prosecutor has exercised peremptory challenges in a discriminatory manner:

"First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question . . . . Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination."

 

[State v. Osorio, 402 N.J. Super. 93, 101 (App. Div. 2008) (quoting Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 973-74, 163 L. Ed. 2d 824, 831 (2006) (citations omitted)), aff'd, 199 N.J. 486 (2009).]

 

See also Batson v. Kentucky, 476 U.S. 79, 93-98, 106 S. Ct. 1712, 1721-24, 90 L. Ed. 2d 69, 85-89 (1986); Gilmore, supra, 103 N.J. at 535-39.

To establish a prima facie case, defendant must "'produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.'" Osorio, supra, 402 N.J. Super. at 102 (quoting Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129, 139 (2005)); see also Osario, supra, 199 N.J. at 502-03. Factors that may support this finding include:

"(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as a whole; and (5) that the challenged jurors, unlike the victims, are the same race as defendant."

 

[Osorio, supra, 402 N.J. Super. at 103 (quoting State v. Watkins, 114 N.J. 259, 266 (1989)); see also Osario, supra, 199 N.J. at 503-04.]

 

Once prima facie evidence of discrimination had been presented, the burden shifts to the challenging party "'to come forward with evidence that the peremptory challenge[] under review [is] justifiable on the basis of concerns about situation-specific bias.'" Id. at 504 (quoting Gilmore, supra, 103 N.J. at 537). To carry this burden, the challenging party "'must articulate clear and reasonably specific explanations of its legitimate reasons for exercising each of the peremptory challenges.'" Ibid. (quoting Gilmore, supra, 103 N.J. at 537). Once this occurs, "the trial court must engage in a balancing process: it must determine whether the proffered explanations are 'genuine and reasonable grounds for believing that potential jurors might have situation-specific biases that would make excusing them reasonable and desirable, given the aim of empanelling a fair and impartial petit jury, or, on the other hand, "sham excuses belatedly contrived to avoid admitting acts of group discrimination."'" Id. at 504-05 (quoting Gilmore, supra, 103 N.J. at 537-38) (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)).

Application of the factors set forth in Watkins to the present matter is difficult, because only one peremptory challenge was exercised, but it was exercised against the only African-American jury member. Further, it is unclear whether the trial court found that defendant had made a prima facie case that was rebutted or whether it found that a prima facie showing had not been made. However, if we assume the former to have been the case, which appears likely from the record as we have described it, we nonetheless find that the court's ruling did not constitute an abuse of discretion.1

We have held:

An appellate court ordinarily will extend substantial deference to a trial court's determination of whether the defendant has shown that the prosecutor had a discriminatory intent in the exercise of a peremptory challenge. See Snyder v. Louisiana, [552] U.S. [472, 477], 128 S. Ct. 1203, 1207-08, 170 L. Ed. 2d 175, 181 (2008); Gilmore, supra, 103 N.J. at 541 n.12, 545; State v. Clark, 324 N.J. Super. 558, 571 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). The primary reason for this deference is that only the trial judge is in a position to make "first-hand observations" of the demeanor of both the attorney who exercises the peremptory challenge and the juror who is excused. See Snyder, supra, [552] U.S. at [477], 128 S. Ct. at 1208, 170 L. Ed. 2d at 181.

 

[Osorio, supra, 402 N.J. Super. at 105.]

In the present matter, the fact that juror 273 may have known a witness for the defense was placed on the record early in jury selection. When defense counsel stated that the witness was a character witness who was unlikely to be called, the prosecutor immediately objected to defense counsel's disclosure to a prospective juror of the content of a proposed witness' testimony. Thereafter, in exercising her peremptory challenge, the prosecutor cited as justification both the fact that the juror may have known the witness and that she might have been biased by the disclosure that the witness was prepared to testify to defendant's good character. The court found that these reasons, when combined, were race-neutral and not pretextual. We find no procedural irregularity or abuse of discretion in that regard. "[T]he prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause." Batson, supra, 476 U.S. at 97, 106 S. Ct. at 1723, 90 L. Ed. 2d at 88 (citations omitted).

III.

Defendant next contends that the court committed plain error in permitting DEA Special Agent Hilton to testify as an expert witness on the maintenance of a drug production facility. Defendant claims that Hilton's experience only extended to drug distribution and that his experience regarding drug production, which was limited to one laboratory demonstration and three field observations, was insignificant. We disagree that the fact that Hilton had only observed drug production on four occasions disqualified him as a witness. The Supreme Court has held:

courts allow the thinness and other vulnerabilities in an expert's background to be explored in cross-examination and avoid using such weaknesses as a reason to exclude a party's choice of expert witness to advance a claim or defense. That the strength of an individual's qualifications may be undermined through cross-examination is not a sound basis for precluding an expert from testifying as part of a [prosecution], even if it likely will affect the weight that the jury will give the opinion. Rather, a court should simply be satisfied that the expert has a basis in knowledge, skill, education, training, or experience to be able to form an opinion that can aid the jury on a subject that is beyond its ken.

 

[State v. Jenewicz, 193 N.J. 440, 455 (2008).]

 

N.J.R.E. 702 requires for the admission of expert testimony that the subject matter be beyond the knowledge of an average juror; the subject be at a state of the art such that the expert's testimony is sufficiently reliable; and the witness must have sufficient expertise to offer the intended testimony. State v. Kelly, 97 N.J. 178, 208 (1984). Courts take a "generous approach" when qualifying experts on the basis of training and experience. Jenewicz, supra, 193 N.J. at 454 (citing cases). We utilize an abuse of discretion standard in reviewing trial court decisions regarding the sufficiency of an expert's qualifications and the admissibility of his testimony. State v. Torres, 183 N.J. 554, 572 (2005); State v. Summers, 176 N.J. 306, 312 (2003).

We find no abuse of discretion by the trial judge in admitting Hilton's testimony regarding drug production. Defendant argues that Hilton was unqualified to testify in this regard because he lacked demonstrated expertise in the techniques and skills necessary to manufacture controlled dangerous substances. However, whether the crack cocaine in this case was properly cooked was not at issue. The expertise required concerned knowledge of the characteristics of a production facility, and Hilton possessed such knowledge.

Defendant also argues that Shirley George, the DEA forensic chemist who confirmed that the drugs purchased by Hilton were cocaine, should have been proffered by the State as an expert in drug production, not Hilton. However, the record discloses that George's qualifications were limited to the chemical analysis of controlled dangerous substances. Nothing in the record suggests that she had expertise in the recognition of drug production facilities. We thus reject defendant's position.

IV.

Defendant also argues that defense counsel was ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987) because he failed to remove the case to federal court where the constituents of the jury pool arguably would have differed and sanctions would have been less. In support of this position, defendant notes that all three drug purchases were by a federal DEA special agent working jointly for a DEA mobile enforcement team and the Monmouth County Prosecutor's Office Narcotics Unit and the drugs were analyzed in a federal facility. Defendant also claims that Jacquelynn F. Seeley, who prosecuted the case along with Julia Alonso, was an Assistant U.S. Attorney. However, we find no proof of that fact and note that throughout the trial, Seeley identified herself as a Monmouth County Assistant Prosecutor.

We reject defendant's argument, determining that jurisdiction in the Superior Court of New Jersey was proper, N.J.S.A. 2C:1-3a(1), and removal of this case was not statutorily authorized. The right of removal is governed by 28 U.S.C.A. 1441, which defines "actions removable generally" as those that are civil in nature. Sections 1442 to 1445 contain exceptions to 1441 that both expand and restrict the right of removal. "The only exceptions these statutes make for the removal of criminal actions are those brought in state court against officers or agencies (or their agents) of the United States ( 1442), against members of the armed forces ( 1442a), or against defendants whose federal (race-based) civil rights a state court refuses (or is unable) to enforce ( 1443)." Massachusetts v. Azubuko, 616 F. Supp. 2d 174, 177 (D.Mass. 2009). Because defendant's prosecution does not fit within any of these statutory exceptions permitting removal of a criminal matter, counsel cannot be found to have been ineffective in failing to seek that remedy.

 

V.

Defendant additionally claims that he cannot be simultaneously prosecuted and convicted of N.J.S.A. 2C:35-4 and N.J.S.A. 2C:35-5 because both statutes proscribe the "manufacture" of CDS, which is defined in N.J.S.A. 2C:35-2 to include "packaging and repackaging of the substance or labeling of its container." Thus, defendant claims that he is being convicted and punished for the same conduct in separate counts. We disagree.

N.J.S.A. 2C:35-4 provides:

[A]ny person who knowingly maintains or operates any premises, place or facility used for the manufacture of [CDS or any substance classified as a narcotic] or any substance classified as a narcotic . . . is guilty of a crime of the first degree.

 

N.J.S.A. 2C:35-5 makes it unlawful to

manufacture, distribute or dispense, or to possess . . . with intent to manufacture, distribute or dispense, a controlled dangerous substance.

 

Defendant concedes that N.J.S.A. 2C:35-5 is not a lesser-included offense of N.J.S.A. 2C:35-4. Nonetheless, he argues that charges cannot be brought simultaneously under both statutes.

Without doubt, a prosecutor has the discretion to choose whether to charge a defendant under N.J.S.A. 2C:35-4 or N.J.S.A. 2C:35-5 if that defendant's conduct conforms to the elements of both statutes. United States v. Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 2204, 60 L. Ed. 2d 755, 764 (1979); State v. Kittrell, 145 N.J. 112, 127-30 (1996); State v. Saez, 268 N.J. Super. 250, 267-69 (App. Div. 1993), rev'd on other grounds, 139 N.J. 279, cert. denied, 516 U.S. 906, 116 S. Ct. 273, 133 L. Ed. 2d 194 (1995). And if, in fact, the State chose to prosecute the same conduct under both statutes and convictions were obtained under each, the convictions would merge. N.J.S.A. 2C:1-8a. But here, the same conduct did not underlie the State's charges pursuant to N.J.S.A. 2C:35-4 and N.J.S.A. 2C:35-5. An examination of the indictment demonstrates that defendant was charged with second-degree possession of a controlled dangerous substance with the intent to distribute it in violation of N.J.S.A. 2C:35-5b(2) (Second, Fifth and Eighth Counts), second-degree distribution of a controlled dangerous substance in violation of N.J.S.A. 2C:35-5b(2) (Third, Sixth and Ninth Counts), and first-degree maintenance or operation of a controlled dangerous substance production facility in violation of N.J.S.A. 2C:35-4 (Tenth Count). Thus, no overlap requiring a choice of charges or merger exists.

Defendant also argues that the evidence was insufficient to support his conviction under N.J.S.A. 2C:35-4, operation and maintenance of a drug production facility, because he did not utilize sophisticated technologies or operate a laboratory. In his dissent in Kittrell, Justice Stein, joined by Justice Handler, sought to impose such a requirement. 145 N.J. at 135-43. However, their minority position has never been adopted by the Court, and we decline to accept it. Evidence at trial was sufficient for the jury to conclude that, in the period between March 11 and April 1, 2004, defendant was observed cooking, repackaging and weighing cocaine in an apartment that, if the jury credited the State's evidence, appeared to be dedicated solely to that activity. Prior to those dates, on December 11, 2003, defendant was observed to be distributing pre-packaged cocaine from the building in which the apartment was located. That evidence was sufficient to meet the statutory elements of N.J.S.A. 2C:35-4. Id. at 130-33; State v. Reyes, 50 N.J. 454, 458-59 (1967).

In a final argument regarding his conviction for violating N.J.S.A. 2C:35-4, defendant challenges as inadequate the court's jury charge, contending that the court failed to sufficiently explain that there must be some evidence of continuity in his operation of the facility. In this regard, the court instructed, in relevant part:

Count 10 of the indictment charges as follows: That Diron Wright, between December 11th, 2003 and April 1st, 2004 in or about the City of Asbury Park, did commit the crime of maintaining or operating a controlled dangerous substance production facility by knowingly maintaining or operating any premise, place, or facility used for the manufacture of crack cocaine, and/or did knowingly aid, promote, finance or otherwise participate in the maintenance or operation of such a premise, place or facility.

 

Now, the statute reads in pertinent part that's 2C:35-4 any person who knowingly maintains or operates any premises, place or facility used for the manufacture of crack cocaine, or any person who knowingly aids, promotes, finances or otherwise participates in the maintenance or operation of such premises, place or facility is guilty of a crime.

 

So, in order to convict the defendant of this charge, the State must prove each of the following three elements beyond a reasonable doubt: (1) that the defendant maintained or operated or aided, promoted, financed or otherwise participated in the maintenance or operation of a premises, place or facility; (2) that the premises, place or facility was used for the manufacture of crack cocaine; and (3) that the defendant acted knowingly.

 

To maintain means to carry on, to keep up, to continue.

 

In order for the State to prove that the defendant maintained a premises, place or facility, there must be evidence of continuity in the use of the facility to manufacture cocaine. In other words, maintenance involves continuity in the use of 211 First Avenue, Apartment 19, in Asbury Park to manufacture crack cocaine.

 

We find that the instruction, as given, was legally sufficient. Kittrell, supra, 145 N.J. at 122.

We regard defendant's argument that the instruction on the Tenth Count of the indictment should have been given first, because it was the most severe charge, and that more pages of transcript should have been devoted to it to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VI.

We reject defendant's final argument that his sentence was excessive. At the sentencing hearing, the State moved for the imposition of an extended term sentence on defendant's first-degree conviction pursuant to N.J.S.A. 2C:43-6f, basing its motion on defendant's conviction in 1996 of the crime of distribution of CDS and his conviction on August 17, 2007 of the crime of possession of CDS with the intent to distribute it.2 Additionally, the State sought the imposition, pursuant to N.J.S.A. 2C:44-5h, of a sentence consecutive to the fourteen-year sentence imposed for the 2007 crime, noting that the 2007 crime had been committed while defendant was released on bail for the present matter.3

The prosecutor argued that the time span of defendant's convictions indicated a continuing course of conduct by a non-addicted individual whose sales were solely for financial gain. She also argued that the three sales to Hilton were all of second-degree weight drugs, grossing defendant the sum of $4300, and that the combined weight of the drugs almost reached a first-degree level. Additionally, the prosecutor argued that defendant had not been deterred by his arrest in the present matter, since he had committed an additional crime while awaiting trial. The prosecutor conceded that defendant's incarceration would constitute a hardship to defendant's mother and defendant's three children.

After arguments by the prosecutor and defense counsel and a statement by defendant, the court found aggravating factors 3 (the risk of another offense), 6 (the extent of defendant's prior record), 9 (the need for deterrence), and 11 (a non-custodial sentence would be perceived as merely a part of the cost of doing business). N.J.S.A. 2C:44-1a(3), (6), (9), and (11).4 Additionally the court found mitigating factor 11 (family hardship). N.J.S.A. 2C:44-1b(11). It imposed a thirty-year sentence with fifteen years of parole ineligibility, consecutive to the fourteen-year sentence with sixty-nine months of parole ineligibility that defendant was presently serving.

Our review of defendant's sentence satisfies us that, with the one minor error that we have noted, it was properly imposed in accordance with the sentencing statutes and did not constitute an abuse of the court's "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). As such, we decline to disturb it. State v. Bienick, 200 N.J. 601, 607-08 (2010); State v. Ghertler, 114 N.J. 383, 384 (1989).

Affirmed.

1 We note that other courts have considered peremptory challenges directed at a sole African-American juror and have held that the trial court acted within its discretion in rejecting a Batson challenge. See, e.g., State v. Henderson, 843 P.2d 859, 862 (Ore. 1992); State v. Tubbs, 747 P.2d 1232, 1236-37 (Ariz. Ct. App. 1987).

2 At the sentencing hearing, the prosecutor stated that defendant was also convicted in Baltimore of possession of drugs with the intent to distribute. However, because the pre-sentence investigation report is not contained in the record, we cannot verify the date or nature of those charges.

3

It appears that a prior trial for the 2003-04 crimes resulted in a hung jury.

4

This last factor was improperly cited, since the court was not balancing a non-custodial term against a state prison sentence. State v. Dalziel, 182 N.J. 494, 502-03 (2005). However, we are satisfied that its elimination would not affect the sentence imposed.