STATE OF NEW JERSEY v. LAWRENCE TRAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4448-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE TRAYLOR,

Defendant-Appellant.

_____________________________

December 8, 2011

Submitted November 16, 2011 - Decided

Before Judges Fuentes and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-07-1035.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lawrence Traylor was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)6), and sentenced to a prison term of five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Prior to sentencing, Traylor filed a pro se motion1 seeking leniency due to what he described as the "shameful" conditions of the Passaic County Jail, the penal facility in which he was incarcerated since March 28, 2008. Specifically, he sought to be awarded "an extra day jail credit for every day served in Passaic County Jail." The Law Division imposed a sentence in accordance with the plea arrangement, and awarded 581 days of credit for time spent in custody pursuant to Rule 3:21-8. Traylor now appeals, urging that he was entitled to twice the number of jail credits because his pre-judgment confinement in the Passaic County Jail amounted to cruel and unusual punishment, and that he was entitled to equal treatment with certain federal detainees who were housed in the Passaic County Jail who received such consideration in federal court when they were sentenced in 2007. We find no authority under our State's sentencing framework for the relief sought by Traylor, and we affirm.2

On appeal, Traylor reprises the claims raised in his pro se motion, presenting the following single argument:

POINT I: THE TRIAL JUDGE'S FAILURE TO GRANT DEFENDANT'S MOTION FOR LENIENCY BASED UPON THE DEPLORABLE CONDITIONS AT THE PASSAIC COUNTY JAIL VIOLATED THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST. AMEND. VIII. A REMAND SHOULD BE ORDERED TO PERMIT DEFENDANT TO PROVE THAT HE SHOULD RECEIVE ADDITIONAL JAIL CREDITS OR A LESSER SENTENCE DUE TO THE JAIL CONDITIONS HE WAS FORCED TO ENDURE.

The factual basis for his assertion of the "deplorable conditions at the Passaic County Jail" and his legal authority for a two-for-one jail credit stem from two unpublished and non-precedential opinions3 that emanate from the United States District Court for the District of New Jersey: (1) United States v. Sutton, No. 07-426, 2 007 U.S. Dist. LEXIS 79518 (D.N.J. Oct. 25, 2007), (the district court granted a variance below the federal sentencing guideline range based on conditions in the Passaic County Jail) and (2) United States v. Ortiz, No. 06-858, 2 007 U.S. Dist. LEXIS 87055 (D.N.J. Nov. 27, 2007).4 Clearly, neither we nor the Law Division are bound by such determinations. See Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 270 n.3 (App. Div. 2011) (rejecting the use of five unpublished federal district court opinions, holding that such unpublished opinions do not constitute precedent and are not binding).

Instead, "we are bound to follow the law as it has been expressed by a majority of the members of our Supreme Court." Lake Valley Assocs., LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507) (App. Div.), certif. denied, 202 N.J. 43 (2010). The law of sentencing under New Jersey law is plain:

As we have previously explained, the "[p]ronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done." State v. Roth, 95 N.J. 334, 365 (1984). As we have commented, "[t]he dominant, if not paramount, goal of the [New Jersey] Code [of Criminal Justice] is uniformity in sentencing." State v. Kromphold, 162 N.J. 345, 352 (2000). Most recently, we have explained that the goal of uniformity is "achieved through the careful application of statutory aggravating and mitigating factors." State v. Cassady, 198 N.J. 165, 179-80 (2009); see, e.g., N.J.S.A. 2C:44-1(a) (listing aggravating factors that must be considered); N.J.S.A. 2C:44-1(b) (listing mitigating factors that sentencing court may consider).

In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are "fully supported by the evidence." State v. Dalziel, 182 N.J. 494, 504-05, (2005). Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record. Ibid.; see State v. Bieniek, 200 N.J. 601, 609 (2010) (encouraging judicial practice of explicitly addressing each mitigating factor raised by defendant).

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. See State v. Jarbath, 114 N.J. 394, 401 (1989). In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether "the factfinder [has] appl[ied] correct legal principles in exercising its discretion." Roth, supra, 95 N.J. at 363. Our traditional articulation of this standard uses language that limits a reviewing court's exercise of authority to those situations in which the application of the facts to the law has resulted in a clear error of judgment or a sentence that "shocks the judicial conscience." Id. at 363-65; see State v. O'Donnell, 117 N.J. 210, 215-16 (1989) (outlining principles of appellate review of sentencing decisions). Appellate courts are not permitted to substitute their judgment about a sentence they would have selected for the one imposed by the sentencing court, and we have commented that our trial judges "need fear no second-guessing" when they exercise their discretion in accordance with the statutory mandates and the principles we have established. Roth, supra, 95 N.J. at 365.

[State v. Blackmon, 202 N.J. 283, 296-97 (2010).]

Applying these principles not the inapposite federal sentencing guidelines to Traylor's sentencing, we detect nothing amiss, and conclude that the sentencing judge properly imposed the sentence.

Affirmed.

1 The motion is a pre-printed form, requiring the movant to simply fill in his or her name eight times in the blank spaces provided, and sign and date the form on its last lines before filing. Traylor's motion did not address in what way the general conditions at the Passaic County Jail had affected him during the time he spent in detention there.

2 We also are unable on this scant record to extrapolate the conditions in the Passaic County Jail as of 2007 to Traylor's stay in 2008 and 2009. Consequently, we cannot find that Traylor's constitutional rights were infringed.

3 See e.g., Third Circuit Internal Operating Procedure 5.1, which states: "There are two types of decisions in the Third Circuit: precedential and not precedential."

4 We cite these unpublished opinions pursuant to Rule 1:36-3 to the extent that they comprise Traylor's sub silentio argument that principles of claim preclusion collateral estoppel apply. We note, however, that Traylor does not expressly mention collateral estoppel in any of his arguments.