STATE OF NEW JERSEY v. ROGELIO M. CHAPARRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5246-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGELIO M. CHAPARRO, a/k/a ELLIOTT

CHAPARRO, EDINELSON GONZALEZ, LUIS

R. MENDES,

Defendant-Appellant.

_______________________________________

May 24, 2012

 

Submitted March 19, 2012 - Decided

 

Before Judges Sabatino and Ashrafi.

 

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

09-04-0462.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Lora B. Glick, Designated

Counsel, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor,

attorney for respondent (Paula C. Jordao,

Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury, defendant Rogelio Chaparro appeals from a judgment of conviction for distributing cocaine and the court's sentence of imprisonment. We affirm.

I.

Defendant was charged in a ten-count indictment with the following crimes: (Count One) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (Count Two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); (Count Three) third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; (Count Four) second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1a; (Count Five) third-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2a; (Count Six) third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), -5b(3); (Count Seven) third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2a; (Count Eight) third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7; (Count Nine) second-degree distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-7.1a; and (Count Ten) fourth-degree obstructing the administration of law by means of flight, N.J.S.A. 2C:29-1a. After a six-day trial at which two persons who had been arrested with defendant testified for the prosecution and implicated defendant in the drug offenses, the jury found him guilty on all counts of the indictment.

At defendant's sentencing, the court granted the State's motion for an extended term sentence. It then merged all the drug charges together and sentenced defendant to sixteen years imprisonment with eight years of parole ineligibility on the second-degree charge of distributing cocaine within 500 feet of public property. The court also sentenced defendant to a concurrent term of fifteen months imprisonment on the fourth-degree charge of obstruction.

On appeal, defendant raises the following arguments:

POINT I

 

THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM CO-DEFENDANTS MOORE AND MILLIRON SHOULD HAVE BEEN GRANTED DUE TO POLICE MISCONDUCT IN CONDUCTING TWO UNCONSTITUTIONAL WARRANTLESS SEARCHES.

 

A. DEFENDANT HAD AUTOMATIC STANDING TO MOVE TO SUPPRESS THE EVIDENCE SEIZED FROM CO-DEFENDANTS MOORE AND MILLIRON.

 

B. DOVER TOWNSHIP DETECTIVE GABRYS' WARRANTLESS SEARCH OF THE APARTMENT LOCATED AT [ ] NORTH SUSSEX WAS UNCONSTITUTIONAL AND VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS.

 

C. DOVER TOWNSHIP POLICE OFFICER THIEL'S WARRANTLESS SEARCH OF CO-DEFENDANT MILLIRON'S MOTOR VEHICLE WAS UNCONSTITUTIONAL AND VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS.

 

POINT II

 

THE EVIDENCE OF ALL COCAINE DISCOVERED AFTER THE POLICE UNCONSTITUTIONALLY AND IMPERMISSIBLY BREACHED THE PREMISES AT [ ] NORTH SUSSEX STREET WAS THE PRODUCT OF THE TWO UNLAWFUL SEARCHES CONDUCTED IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS.

 

POINT III

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO BAR THE TESTIMONY OF THE STATE'S EXPERT AS SAME CONSTITUTED IMPERMISSIBLE BOLSTERING OF FACT WITNESSES AND USURPED THE JURY'S FUNCTION AS FACTFINDER.

 

POINT IV

 

THE ELICITATION OF OFFICER THIEL'S IMPROPER LAY OPINION TESTIMONY CONCERNING A HAND-TO-HAND DRUG TRANSACTION CONSTITUTED PLAIN ERROR SUCH THAT REVERSAL OF DEFENDANT'S CONVICTIONS IS WARRANTED.

 

POINT V

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

 

POINT VI

 

DEFENDANT'S SENTENCE IS ILLEGAL AND MUST BE VACATED.

 

POINT VII

 

THE SENTENCE IMPOSED IS EXCESSIVE AND IS NOT IN CONFORMANCE WITH NEW JERSEY'S CODE OF CRIMINAL JUSTICE.

 

Having reviewed the record and the briefs of counsel, we find no basis to reverse either the jury's verdict or the court's sentence.

 

II.

The testimony at trial and at a pretrial suppression hearing established the following facts.

On June 10, 2007, Detective Justin Gabrys and Officer Timothy Thiel were in a patrol car parked at Dover Township police headquarters. They saw a group of people socializing and barbequing in the parking lot of a nearby building located on Sussex Street. The officers noticed a man, later identified as Mac Moore, leave an apartment at the rear of the building and approach a woman, later identified as Melinda Milliron. Defendant Chaparro stood near Milliron and Moore as they spoke briefly. Milliron then approached defendant and spoke with him. She returned to Moore, and he handed her money. Milliron then entered the back seat of a nearby car and slouched down out of sight. A short time later, Milliron approached Moore again, and, with a cupped hand, appeared to pass something to him. Then, she walked to defendant and handed him a folded bill, which defendant put in his pocket.

The officers believed they had seen an illegal drug transaction. They approached the parking lot on foot and identified themselves. Moore quickly retreated toward the apartment from which he had come, and defendant fled down a nearby alley. Officer Thiel secured Milliron while Detective Gabrys pursued Moore to the doorway of the apartment. Gabrys saw Moore throw something into the apartment and then spotted a yellow corner pull1 on the floor just past the threshold. Without consent of any of the occupants,2 Gabrys stepped past the threshold and retrieved the corner pull. He also arrested Moore.

Next, the police officers went to the car Milliron had entered and looked through its windows. They saw another yellow corner pull in plain view on the back seat. Milliron told Thiel the car belonged to her. Without consent, one of the officers entered the unlocked car and seized the corner pull.

Meanwhile, other officers on patrol received a radio transmission describing defendant Chaparro, and they apprehended him as he was fleeing. The officers found $670 on his person, including a $20 bill. At headquarters, Milliron admitted she was in possession of more cocaine, and the police recovered seven more corner pulls from her undergarments. A New Jersey State Police crime laboratory determined that the nine corner pulls recovered from the apartment, the car, and Milliron all contained cocaine.

Before trial, defendant moved to suppress the cocaine evidence as fruits of unconstitutional searches and seizure. After hearing testimony from the officers, the court denied defendant's motion to suppress, concluding that the police conduct was lawful under the exigent circumstances and automobile exceptions to the warrant requirement of the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7, of the New Jersey Constitution. The court also stated that defendant lacked standing to challenge the searches.

At the trial, Milliron testified against defendant pursuant to a cooperating plea agreement with the prosecution. She testified that she and defendant went to Dover to sell the cocaine, and that her responsibility was to carry out the hand-to-hand sales while defendant held the proceeds. Their plan was to sell the corner pulls for $50 each, but defendant gave her permission to sell Moore a corner pull for only $20. She testified that she gave defendant the $20 bill that Moore had given to her.

Moore also testified under an agreement of cooperation with the prosecution and corroborated Milliron's account. He testified that he only had $20 and that Milliron spoke to defendant and then agreed to sell him a corner pull in exchange for a $20 bill.

Defendant testified in his own defense that he had no involvement in the drug transaction between Moore and Milliron. He testified the cash found on his person was to pay rent.

The jury found defendant guilty of all counts. Before his sentencing, defendant moved for a new trial based on new evidence defendant's brother had come forward more than two years after defendant's arrest with proposed testimony that the brother had given defendant the large sum of cash to pay rent. The court denied defendant's motion for a new trial because it found the new evidence to be cumulative and available to defendant before trial.

In imposing sentence on the second-degree charge of distributing cocaine within 500 feet of public property, the court granted the State's motion for an extended term both because defendant was a persistent offender under N.J.S.A. 2C:44-3a and because he was a repeat drug offender under N.J.S.A. 2C:43-6f. The court did not specify which statute it ultimately applied in sentencing defendant to sixteen years imprisonment with eight years of parole ineligibility.

 

III.

In Points I and II of his brief, defendant contends the police violated his constitutional rights against unreasonable search and seizure by entering the apartment to which Moore fled and seizing the corner pull of cocaine from the floor, and by searching and seizing cocaine from Milliron's car, both without a warrant or consent.

In reviewing a motion to suppress evidence, we defer to the trial court's findings of fact if supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999); accord State v.Robinson, 200 N.J. 1, 15 (2009); State v.Elders, 192 N.J. 224, 243-44 (2007). In particular, we defer to the credibility determinations of the trial court. Locurto, supra, 157 N.J. at 474. However, we need not defer to the trial court's legal conclusions. State v. Brown, 118 N.J. 595, 604 (1990). Here, the trial court credited the testimony of the officers regarding the sequence of events that led to the seizure of the nine corner pulls containing cocaine. The court's conclusions that the police could seize the cocaine without a warrant were amply supported by the evidence.

A.

A warrantless search is presumptively invalid unless the State proves by the preponderance of the evidence that it "falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246 (citation and quotation marks omitted). "[P]hysical entry of the home is the chief evil against which . . . the Fourth Amendment is directed." State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting United States v.U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "Historically, the Court has applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling." State v.Bruzzese, 94 N.J. 210, 217 (1983), cert.denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Consequently, "searches and seizures inside a home without a warrant are presumptively unreasonable." Hutchins, supra, 116 N.J. at 462-63 (quoting Payton v. NewYork, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)). They are "prohibited by the Fourth Amendment absent probable cause and exigent circumstances." Ibid. (quoting Welshv. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984)).

If the State seeks to justify a warrantless entry of a residence because of exigent circumstances, it must also make "a clear showing of probable cause." State v. Lewis, 116 N.J. 477, 486 (1989); see Dorman v.United States, 435 F.2d 385, 392 (D.C. Cir. 1970). Here, before crossing the threshold of the apartment, the police had reasonable suspicion to detain and question Moore immediately after observing what they believed was a hand-to-hand drug transaction. Terry v.Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); State v. Pineiro, 181 N.J. 13, 25 (2004); State v. Arthur, 149 N.J. 1, 10-12 (1997). When Moore retreated quickly to the apartment as the police approached, the officers' reasonable suspicion grew into probable cause to believe that he had in fact engaged in a drug transaction and was in possession of contraband. See State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); State v. Citarella, 154 N.J. 272, 281 (1998).

Exigent circumstances permitted the police to follow Moore in "hot pursuit" and to step past the threshold of the apartment to seize the evidence he threw to the floor. United Statesv. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305-06 (1976); State v. Nikola, 359 N.J. Super. 573, 586 (App. Div.), certif.denied, 178 N.J. 30 (2003); State v.Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986); see also State v.Nishina, 175 N.J. 502, 516-17 (2003) (discussing exigent circumstances); State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990) (factors for analyzing exigency).

The trial court did not err in denying defendant's motion to suppress the corner pull of cocaine seized from the apartment.

B.

"[T]he warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v.Pena-Flores, 198 N.J. 6, 28 (2009) (citing Statev. Cooke, 163 N.J. 657, 667-68 (2000)).

Relevant factors in assessing exigency include preservation of evidence, officer safety, ratio of officers to suspects, existence of probable cause, location, loss of the element of surprise, onlookers' knowledge of the arrest, and existence of confederates who could remove the contraband. Id. at 28-30; Cooke, supra, 163 N.J. at 667-70; State v. Colvin, 123 N.J. 428, 434-35 (1991). The case-by-case inquiry turns on whether under the totality of the circumstances it was impracticable to obtain a warrant. See Pena-Flores, supra, 198 N.J. at 28-29; Cooke, supra, 163 N.J. at 667; Colvin, supra, 123 N.J. at 437.

In Colvin, supra, 123 N.J. 428, the Court applied the automobile exception in circumstances similar to this case. There, the police arrested the defendant after observing him selling cocaine. Id. at 430. Within minutes of the arrest, an informant advised officers that the defendant stashed his drugsin his automobile and that confederates would remove them. Ibid. The vehicle was unlocked, located near the place of arrest, and parked on a public street in a high-crime area. Ibid. The officers searched the vehicle and recovered cocaine. Ibid. In holding that the automobile exception justified the search, the Court reasoned:

Any element of surprise had been lost; the vehicle contained the contraband drugs; there were confederates waiting to move the evidence; [and] the police would need a special police detail to guard the immobilized automobile. In such circumstances, it would often be unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they have probable cause to search the car.

 

[Id. at 434-35 (citations and quotation marks omitted).]

 

Like Colvin, the circumstances of this case demonstrate sufficient exigency to justify the warrantless search of Milliron's vehicle. The police officers had personally observed Milliron enter the vehicle just before the hand-to-hand transaction with Moore. They had personal knowledge of information establishing probable cause that drugs were stashed in the car. On the street, the police were outnumbered by the suspects; they were in the midst of an ongoing investigation; people were socializing in the parking lot and appeared to be companions of the suspects; those people had knowledge of the arrests and presumably the contraband inside the car; and the vehicle was unlocked and accessible to the public. The trial court correctly concluded that the totality of the circumstances demonstrated sufficient exigency to make it impracticable for police to obtain a warrant.

The search was also lawful under the plain view exception. The plain view exception is applicable when (1) an officer is lawfully in the viewing area, (2) the officer has inadvertently discovered the evidence, and (3) it is immediately apparent to the officer that there is probable cause to associate the item with criminal activity. State v. Mann, 203 N.J. 328, 340-41 (2010); State v. Johnson, 171 N.J. 192, 206-08 (2002); Bruzzese, supra, 94 N.J. at 236-38.

In Mann, supra, 203 N.J. at 334, police officers observed a drug transaction in a parking lot. After apprehending a fleeing suspect, an officer approached the suspect's vehicle, saw bags likely to contain drugs on the car's rear seat, and entered the car to seize them. Id. at 334-35. The Court held that the plain view exception applied because the officer lawfully approached the vehicle after making a drug arrest, he lacked advance knowledge that the vehicle contained additional drugs, and, when he saw plastic bags, it was apparent that they likely contained illegal drugs. Id. at 341.

Similarly, in this case the officers lawfully approached Milliron's vehicle after detaining her for a drug transaction that involved the vehicle, there is no evidence the officers approached it under pretext, and it was apparent to them that the yellow corner pull visible on the back seat was contraband. The plain view exception applied and justified the entry into the car to seize the visible contraband.

C.

For completeness, we also address briefly defendant's argument that the trial court erred in stating he lacked standing to challenge the searches because he did not demonstrate a reasonable expectation of privacy in the apartment or the car. We agree with defendant's argument as to the car but reach no decision as to the apartment.

Under our State law applying Article 1, Paragraph 7, of the New Jersey Constitution, a defendant has automatic standing to challenge a search and seizure when "charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt," State v.Alston, 88 N.J. 211, 228 (1981); accord State v. Johnson, 193 N.J. 528, 541-43 (2008). Unlike federal courts applying only Fourth Amendment law, see Rakas v. Illinois, 439 U.S. 128, 133-40, 99 S. Ct. 421, 425-29, 58 L. Ed. 2d 387, 394-99 (1978); UnitedStates v. Salvucci, 448 U.S. 83, 90-95, 100 S. Ct. 2547, 2552-55, 65 L. Ed. 2d 619, 627-30 (1980), "our [State] courts have consistently applied the automatic standing rule to defendants charged with possessory offenses, regardless of whether they had an expectation of privacy in the area searched." Johnson, supra, 193 N.J. at 545. The automatic standing rule applies to cases involving constructive possession of the contraband. Alston, supra, 88 N.J. at 229.

Defendant was entitled to automatic standing to challenge the search of Milliron's car because the State charged him with possession of the cocaine that was seized from that location, and also with possession of the cocaine that was later seized from Milliron's undergarments. Although the car and the clothing did not belong to defendant, the State alleged he had constructive possession of the seized cocaine along with Milliron.

On the other hand, the indictment charged in counts six through nine that defendant distributed the one corner pull of cocaine that was seized from the floor of the apartment. As alleged by the State, defendant and Milliron had already sold that cocaine to Moore and, therefore, had abandoned possession, dominion, and control of that cocaine. The Supreme Court has not expressly decided whether a defendant who has distributed contraband to another retains standing under any circumstances to challenge police conduct toward the buyer, see Arthur, supra, 149 N.J. at 13, and we likewise need not decide the issue in this case. Cf. Johnson, supra, 193 N.J. at 548-49 (no standing to challenge police seizure of abandoned property); State v.Bruns, 172 N.J. 40, 56-59 (2002) (standing may be based on the defendant's "participatory interest" in commission of the crime); State v. Mollica, 114 N.J. 329, 339-40 (1989) (finding standing based on "participatory interest" of the defendant in telephone records of a co-conspirator engaged in a bookmaking operation). Butcf. State v. Baum, 199 N.J. 407, 417-20 (2009) (defendant did not have standing to challenge admission of evidence based on alleged violation of another person's Fifth Amendment rights against self-incrimination).

IV.

In Points III and IV of his brief, defendant contends opinion testimony presented at trial by the State was inadmissible under the recent holding of State v. McLean, 205 N.J. 438 (2011).

A.

Defendant argues he was prejudiced by the testimony of the State's narcotics expert, Captain Jeffrey Paul of the Morris County Prosecutor's Office, because it bolstered the testimony of the factual witnesses and commented on the ultimate issue. We disagree.

A narcotics expert is permitted under N.J.R.E. 702 to testify about the "methods of drug distribution and . . . the roles played by participants in street-level drug transactions" because the significance of the methods and roles is beyond the understanding of the average juror. McLean, supra, 205 N.J. at 450. Particularly, "in the context of a transaction in which [a] defendant did not personally hand over the drugs or accept payment, an expert may be utilized to explain to the jury how [defendant's] actions fit into the scheme of a 'street-level distribution network.'" Id. at 451 (quoting Statev. Nesbitt, 185 N.J. 504, 514-15 (2006)).

By contrast, in the context of a "straightforward" exchange of drugs for money, expert testimony is forbidden because such a transaction is within the jury's understanding and prejudicially contaminates the proofs. Id. at 451-52; Nesbitt, supra, 185 N.J. at 514-16; see, e.g., State v. Boston, 380 N.J.Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v.Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

In this case, Captain Paul described the typical roles of participants in a street-level distribution scheme, including the role of the overseer who controls the operation and holds the proceeds without directly participating in the hand-to-hand transactions. Responding to a hypothetical question over defendant's objection, Paul testified that the subject whose conduct mirrored that of defendant was the overseer of the distribution scheme.

This testimony was admissible under McLean and Nesbitt. The State alleged that defendant controlled the drug sales operation without direct involvement in the hand-to-hand transactions. Expert testimony is an acceptable means to inform the jury "about the nuanced techniques utilized by drug peddlers who seek to shield themselves from liability by concealing or obfuscating their drug possession and distribution activities." Nesbitt, supra, 185 N.J. at 514.

Defendant's argument that the narcotics expert improperly commented on the ultimate issue is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2); seealso N.J.R.E. 704.

B.

Defendant argues he was prejudiced by the lay opinion testimony of Officer Thiel that he had observed a hand-to-hand drug transaction between Moore and Milliron. We disagree that Officer Thiel's testimony was inadmissible.

At trial the prosecutor asked Thiel why the officers exited their vehicle and approached the suspects. Thiel testified: "Based on what we observed we believed it was a hand-to-hand drug transaction."

N.J.R.E. 701 provides that lay testimony in the form of opinion or inference is admissible if it is based on the witness's perceptions and will assist in understanding a fact in issue. A lay police witness who observed a straightforward money-for-drugs exchange cannot offer an opinion under N.J.R.E. 701 that the observed conduct was a drug transaction. McLean, supra, 205 N.J. at 461-63. The Court in McLean prohibited such opinion testimony because the jury does not need the police officer's assistance to understand the implications of factual testimony describing a straightforward drug transaction. Ibid.

The testimony of Thiel, however, can be distinguished from the prejudicial testimony at issue in McLean. In McLean, the Court concluded that the lay opinion testimony might have altered the outcome of the trial because the State had only relied on three fact witnesses. Id. at 444-47. Here, defendant did not participate in a mere straightforward drug transaction but was involved in a more sophisticated drug scheme, and the lay police opinion was offered to establish that the officers had reasonable suspicion to approach and detain the suspects. See id. at 462; State v. Moore, 181 N.J. 40, 47 (2004). Furthermore, the State solicited testimony from defendant's co-conspirators, several officers, and an expert witness. See State v. Chapland, 187 N.J. 275, 289 (2006) (plain error analysis involves consideration of the overall strength of the State's case).

Unlike McLean, supra, 205 N.J. at 445-46, the standard of review in this case is plain error because there was no objection at trial to Officer Thiel's response now challenged on appeal. The disputed testimony was not "clearly capable of producing an unjust result." R. 2:10-2.

V.

In Point V of his brief, defendant contends the trial court erred when it denied his motion for a new trial based on new evidence that the money found in his possession was given to him by his brother to pay rent.

A trial court cannot set aside a jury's verdict and grant a new trial unless "it clearly and convincingly appears that there was a manifest denial of justice . . . ." R. 3:20-1. The limited purpose of post-conviction review based on new evidence is to safeguard against unjust convictions. State v.Afanador, 151 N.J. 41, 49 (1997).

[T]he new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.

 

[Statev. Carter, 85 N.J. 300, 314 (1981).]

Accord State v. Ways, 180 N.J. 171, 187 (2004); State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008). "[A]ll three prongs of th[e] test must be satisfied before a defendant will gain the relief of a new trial." Ways, supra, 180 N.J. at 187.

Defendant testified at trial that the $670 the police found on his person was for rent. The proffered testimony of defendant's brother was intended to corroborate that defense. Defendant provides no explanation as to why his brother's testimony could not have been discovered before trial. Moreover, the new evidence does not "strike[] at the heart of the case" and therefore was unlikely to alter the result. Id. at 189. The State focused on the $20 bill that Moore had given to Milliron and she had turned over to him rather than on the entire $670 seized from defendant.

The trial court did not err in denying the motion for a new trial.

VI.

In Point VI of his brief, defendant contends his sentence is illegal because the court did not state which extended term statute it applied to determine his term of imprisonment.

The State sought an extended term under either the persistent offender statute, N.J.S.A. 2C:44-3a, or repeat drug offender statute, N.J.S.A. 2C:43-6f. The trial court found that both statutes applied to defendant's criminal record, but it equivocated on which it ultimately relied upon in sentencing defendant. Defendant has an extensive criminal record and does not dispute that an extended term was warranted under either statute. Nevertheless, defendant argues that the statutes are different and that "it is highly likely that [he] would receive a different sentence under the appropriate statutory analysis."

The repeat drug offender statute is mandatory. N.J.S.A. 2C:43-6 F. 3 If the sentencing court determines defendant has the predicate prior drug conviction, the statute "requires [it] to impose an enhanced-range sentence when the prosecutor applies for such relief." State v. Thomas, 188 N.J. 137, 149 (2006). Then "the court . . . [determines a] defendant's sentence within the extended-term range based on aggravating and mitigating factors . . . ." Id. at 154.

The persistent offender statute is discretionary. N.J.S.A. 2C:44-3 A. 4 If the court determines defendant has the predicate prior convictions, the permissible range of a sentence "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range . . . ." State v.Pierce, 188 N.J. 155, 169 (2006). The court is not required to sentence defendant within the enhanced range. Ibid.

Although different analyses apply to each statute, defendant was not prejudiced by the omission of which statute determined his sentence. Upon the State's filing a motion for a mandatory extended term under N.J.S.A. 2C:43-6f, and the court's determination that the statute applied, the court was required to sentence defendant within the extended range of ten to twenty years.

Given the highly deferential standard of review from the trial court's discretionary decision on the length of the sentence imposed within that range, State v. Carey, 168 N.J. 413, 430 (2001); State v. Roth, 95 N.J. 334, 364-66 (1984), and from its finding of aggravating and mitigating factors, State v.Bieniek, 200 N.J. 601, 608-09 (2010), we find insufficient merit to warrant discussion of defendant's argument that his sentence was excessive. R. 2:11-3(e)(2).

Affirmed.

1 According to the officer's testimony, a "corner pull" is slang for a method of packaging cocaine for street sale by placing it in the corner of a plastic bag and pulling off and knotting the corner.

2 Two other persons were inside the apartment.

3 N.J.S.A. 2C:43-6f provides:

A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any [controlled dangerous substance (CDS)] . . . or of distributing, dispensing or possessing with intent to distribute on or near school property . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a [CDS] . . . shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.

 

[Emphasis added.]

 

4 N.J.S.A. 2C:44-3 provides:

The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the . . . second . . . degree to an extended term of imprisonment if it finds . . . .

 

a. The defendant has been convicted of a crime . . . and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

 

[Emphasis added.]