STATE OF NEW JERSEY v. RAFAEL GONZALEZ-SANTANAAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
October 9, 2014
Argued May 28, 2014 Decided
Before Judges Espinosa, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-06-1626.
Martin S. Goldman argued the cause for appellant (Harkavy, Goldman, Goldman & Gerstein, attorneys; Mr. Goldman and Brian M. Gerstein, on the brief).
Frank Muroski, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Muroski, of counsel and on the brief).
The opinion of the court was delivered by
Defendant appeals from his convictions for second-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A.2C:5-2 and N.J.S.A.2C:35-5(a)(1); third-degree possession of cocaine, N.J.S.A.2C:35-5(a)(1); first-degree possession of five ounces or more of cocaine with the intent to distribute, N.J.S.A.2C:35-5(a)(1), (b)(1); and third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A.2C:35-7; and his sentence. For the following reasons, we affirm his convictions and sentence.
On the morning of March 27, 2009, the Essex County Sheriff's Department received information from "a reliable confidential informant" that a Hispanic male known as "Rafael" was making large deliveries of cocaine throughout the North Ward of Newark. The informant provided extensive details about Rafael. He gave a physical description of him as approximately 5'9" to 5'10" tall, weighing approximately 190 to 200 pounds and gave a specific street address in Newark where Rafael "possibly resides." According to the informant, Rafael often made deliveries in a white Honda Accord with New Jersey registration UUG-13Y, which was equipped with a secret compartment located in the center console that Rafael used to conceal cocaine during his deliveries. The informant further stated that Rafael was going to meet his cocaine supplier and pick up a large quantity of cocaine between 12:30 p.m. and 1:30 p.m. that day. A motor vehicle check of the license provided by the informant revealed that a 1998 white Honda Accord was registered to defendant.
Officers located the white Honda in the vicinity of the address provided by the informant and set up surveillance. Around 11:55 a.m., Detective James Bradley observed a person, who fit the description the informant gave the police, later identified as defendant, leave an apartment building at the address provided by the informant and walk to a black Nissan Maxima, where he had a brief conversation with co-defendant Carlos Ventura-Villanueva (Villanueva). The officers maintained surveillance of defendant, who then entered the white Honda Accord and proceeded to a car wash nearby. Defendant parked his car and went into the car wash, where he remained for approximately ten to fifteen minutes. When defendant returned to the street, he was on his cell phone. He walked down the block to a restaurant, M & R Quisqueya.
Defendant sat at a table near a picture window, allowing the officers to continue to observe him. Detective Ignacio Mendez testified that defendant did not appear to order anything, but sat there, looking at his phone. Approximately fifty minutes later, a black SUV arrived at the restaurant, driven by co-defendant Maiquer Mateo. Defendant immediately stood up from the table, walked out of the restaurant and got into the SUV.
The SUV drove back to the car wash. Detective Mendez testified that defendant left the SUV, carrying a blue and white bag and appearing nervous. He walked rapidly into the car wash. Mateo drove away.
Detective Mendez testified that when defendant came out of the car wash, he was still carrying the white bag with blue markings. He said defendant "came out quickly . . . looking around and at a rapid pace, he jumped into" the black Nissan Maxima driven by Villanueva.
The police followed the Maxima for about one mile and then pulled it over. Detective Bradley testified that as he approached the driver's side of the car, he ordered the occupants to "stop moving their hands," and saw a "white bag" near the center console. When he moved to the front of the car, he observed a "green cellophane wrapping . . . of a rock in that bag." He alerted the other detectives that there was "CDS in the vehicle."
Defendant and Villanueva were ordered out of the Maxima. Bradley then "went inside the vehicle and opened up the bag" and found "numerous rocks of white . . . of green cellophane wrapped around like white -- white rock." The State Police certified laboratory report stated the gross weight of the cocaine seized was 10.5 ounces.
Defendant and Villanueva were placed under arrest. Although Mateo was also arrested, the arresting officer testified that he "observed nothing on [Mateo's] person, or in his vehicle, which would have given [him] cause for suspicion[.]"
All three vehicles - the Honda Accord, Nissan Maxima, and the Suzuki SUV driven by Mateo - were towed to the police station and a K-9 unit was called in to "conduct an olfactory search of the vehicle" to see if the dog gave a positive reaction for narcotics. Following these searches, search warrants were obtained for each of the vehicles. The searches failed to result in the recovery of additional drugs from any of the vehicles. Defendant, Mateo and Villanueva were all charged in a five-count indictment.
Prior to trial, the motion judge1 conducted an evidentiary hearing on the motion brought by defendant and co-defendant Villanueva to suppress the cocaine seized from the Nissan Maxima. The evidence presented by the State was substantially the same as that offered at trial. Villanueva testified at the suppression hearing and contradicted the version of events provided by the officers who testified. He stated that the seized drugs were his; that he immediately put them into a hidden trap in his car after obtaining drugs from a person not charged in this case; that defendant had no drugs in his possession; and that the drugs remained concealed in the hidden trap in his car when he was arrested. The motion judge denied the motions.
The trial judge granted defendant's motions to exclude testimony regarding the existence of a confidential informant and the results of the drug-dog sniff test. The judge also prohibited defendant from arguing that the drugs found in the car belonged to Villaneuva because Villaneuva fled prior to trial and did not appear.
After the State rested, the judge granted Mateo's motion for acquittal on September 22, 2011, but denied defendant's motion to dismiss count four of the indictment. Defendant then presented Mateo as the sole witness in his defense. His testimony on direct examination was brief. He described the encounter with defendant as follows
I came out of work and I passed in front of the business, Quisqueya, and he was standing by the door and he asked me to give him a ride, which was at the carwash.
Mateo explained why he stopped his car at the restaurant
Someone got off and had eaten and when that person was finished getting off, he stood by the door and he asked me to give him a ride to his car at the carwash, that he was very satisfied and he needed a ride.
Mateo testified he knew defendant's parents and defendant because they were from the same country. He had only seen defendant "once in a while" before that day. Mateo testified that on the day of their arrest, he did not have any drugs in his car, did not hand defendant any drugs, and did not see defendant with the bag in evidence.
On cross-examination, Mateo provided the following testimony regarding his reason for parking in front of the restaurant
Q. Why did you park in front of the restaurant?
A. Because ah, the person that had gotten off there had got off there to eat and I didn't get off there to eat because I was in a bit of a hurry.
Q. So you're saying you were driving down the street and you had someone else with you?
A. Yes. The person who got off the -- my friend who said that -- yes, the person who got off there.
He testified that when he was stopped, defendant just walked out of the restaurant and asked him for a ride. According to Mateo, they had no conversation during the ride to the car wash. Mateo testified further that he did not know Villanueva.
Following cross-examination by the prosecutor, the court questioned Mateo as follows
THE COURT: I need a little clarification here, Mr. Mateo.
[MATEO]: Yes, sir.
THE COURT: Is it your testimony that you had another person in the car when you were driving past M & R restaurant?
[MATEO]: Yes. When I got there, a guy from my country got off and that's when [defendant] came out and he asked me for a ride.
THE COURT: All right. So [y]ou didn't -- you weren't driving by; you actually stopped your car at the curb area in front of the restaurant? Is that your testimony?
[MATEO]: Umm, I was passing by but the guy that was in my car asked me to please stop so he could get something to eat there. And that's when Santana came out and asked me for a ride, and I was going a little bit fast. I was in a hurry, so I didn't get off to eat.
THE COURT: All right. And the fellow that was in the car with you was a friend of yours from your country?
THE COURT: And he worked with you?
THE COURT: How long did you know him?
[MATEO]: Since we were little?
THE COURT: And what was his name?
THE COURT: No, his full name?
[MATEO]: No, no. I know him by the name of Onassis.
THE COURT: So you know him all his life, but you only know him by that name?
[MATEO]: Umm, yes because, ah, we grew up together and we just know each other by the name like that; like, how are you? Onassis, how are you? But we weren't friends, like we weren't together-together. We were just raised in the same neighborhood.
THE COURT: Is there any questions based upon my questions?
The prosecutor proceeded to briefly re-cross Mateo, asking him how it could be that Mateo knew defendant his whole life but did not know his name. The trial judge then asked additional questions
THE COURT: Where does this man live?
THE COURT: Si -- the address.
[MATEO]: I think he lives around here
THE COURT: What's his address?
[MATEO]: Umm, I don't know exactly because we just know each other from our country? But here, I don't really hang out with him much.
THE COURT: What's his telephone number?
[MATEO]: No, no. I don't have a telephone number either.
THE COURT: Anything further, counsel?
[PROSECUTOR]: No, your Honor.
Defendant then rested without posing any objection to the questions asked by the trial court. The jury was excused for the evening and the court proceeded to conduct a charge conference with counsel. On the following morning, before summations, defense counsel advised the court he wanted to "put one thing on the record." He argued that, in light of the court's dismissal of the charges against Mateo, a count that alleged defendant and Mateo were in a conspiracy should be dismissed. Noting that there were different members in the conspiracy, the trial court denied the request.
The first defense reference to the trial court's questioning of Mateo came within the context of a motion for a mistrial after summations. Counsel stated he was moving for a mistrial "based upon [the] fact that the jury was not told of Mr. Mateo's case being dismissed by the Court." He contended that this hole in the jury's knowledge about Mateo precluded them from "fairly judg[ing]" his credibility as a witness. In addition to comments made by the prosecutor in summation regarding Mateo's credibility, defense counsel referred to
the manner in which, your Honor, while certainly trying to straighten out facts, appeared to me to cross-examine the witness; more than just to straighten it out, I think to -- that your Honor really cross-examined him very well and that, added to the Prosecutor's comments, certainly affect the credibility of somebody whose case was dismissed against, that the jury thinks was a defendant.
The trial court denied the motion for a mistrial, stating
Two factors are important here: The first factor is that I didn't cross-examine the witness. I questioned the witness for purposes of clarity because it was confusion in his testimony, that's the reason why I posed the questions to him, which I'm permitted to do under the New Jersey Rules of Evidence.
Secondly, the reason why this jury was not informed that there was a Judgment of Acquittal entered . . . in favor of Mr. Mateo is for the exact reason of -- I didn't want to prejudice or bias the jury whatsoever. We wanted them to decide this case on the facts presented, as they pertained to Mr. Gonzalez-Santana. And if I had instructed the jury that he was found not guilty, or it was a Judgment of Acquittal, it would certainly prejudice the state's case severely, and irreparably damage the state's case. And I gave the limiting instructions for the purpose of clarity and purpose of instructing that their main duty here is just to determine the guilt or innocence of this defendant; nothing else.
After the jury was charged, the trial judge supplemented his reasons for questioning Mateo "very briefly," stating in part, that he was "somewhat confused" by the fact that when Mateo first testified, he made no mention of another person being in the car with him and tried to clarify the facts. The judge noted further that there was no contemporaneous objection by defense counsel and that he charged the jury that the fact he had asked questions of a witness "must not influence" the jurors in any way. The charge included, "The fact that I asked such questions does not indicate that I hold any opinion one way or the other, as to the testimony given [by] the witness." The judge said, "and I inserted in that 'I can assure you of that.'"
Defendant was convicted on all four counts in which he was charged. At sentencing, defendant made two motions: to set aside the verdict as against the weight of the evidence and to renew his motion for a mistrial because the jury should have been told that Mateo's motion for an acquittal had been granted. Both motions were denied. The court then sentenced defendant to ten years in prison with a forty-month parole disqualifier and merged counts one, two, and four into count three.
In his appeal, defendant raises the following issues for our consideration
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
A. THE WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE WAS PRIM[A] FACIE INVALID AND NOT JUSTIFIED BY THE RECOGNIZED EXCEPTIONS CREATED BY THE SUPREME COURT.
B. THE PLAIN VIEW DOCTRINE DOES NOT APPLY IN THIS CASE TO JUSTIFY THE SEARCH OF THE VEHICLE AND THE SEZIURE [SIC] OF CONTRABAND.
THE CUMULATIVE EFFECT OF THE ERRORS MADE BY THE TRIAL COURT SERVED TO DEPRIVE DEFENDANT OF HIS CONSTITU[T]IONAL RIGHT TO A FAIR TRIAL.
A. THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE JURY TO BE MADE AWARE OF THE FLIGHT OF CO-DEFENDANT, CARLOS VENTURA-VILLANUVEA, OR THAT CO-DEFENDANT EXCULPATED DEFENDANT AT THE MOTION TO SUPPRESS HEARING.
B. THE TRIAL COURT ERRED BY NOT ADVISING THE JURY THAT CO-DEFENDANT'S MOTION FOR ACQUITTAL WAS GRANTED AS AFFECTING THE JURY'S PERCEPTION OF CO-DEFENDANT'S INCULPATORY TRIAL TESTIMONY.
C. THE TRIAL COURT IMPROPERLY ATTACKED THE CREDIBILITY OF DEFENDANT'S ONLY WITNESS IN VIOLATION OF N.J.R.E. 614 BY CROSS-EXAMINATION OF THE WITNESS.
THE TRIAL COURT ABUSED ITS DISCRETION IN THE SENTENCE IMPOSED ON DEFENDANT.
After carefully reviewing the record to assess these arguments in light of the applicable law, we are satisfied that there is no merit to any of defendant's challenges to his convictions and sentence.
In Point I, defendant argues that the motion judge erred in denying his motion to suppress the cocaine recovered from the Nissan Maxima.
Because warrantless searches are prima facie invalid, the State bears the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the few, narrowly circumscribed exceptions to the warrant requirement. State v. Davila, 203 N.J. 97, 111-12 (2010); State v. Wilson, 178 N.J. 7, 12 (2003); State v. Hill, 115 N.J. 169, 173-74 (1989). Having heard the conflicting testimony of the officers and Villanueva, the motion judge accepted the version of events presented by the State, found there was probable cause for the stop, and concluded that the seizure was justified under the plain view exception to the warrant requirement. Defendant argues that the judge's analysis was flawed and that the warrantless search of the automobile did not fall within any exception to the warrant requirement. We disagree.
In reviewing the denial of a suppression motion, we "defer to the trial court's factual findings 'so long as those findings are supported by sufficient credible evidence in the record.'" State v. K.W., 214 N.J. 499, 507 (2013) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). In addition, we also "defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We review issues of law de novo. Mann, supra, 203 N.J. at 337.
Defendant argues that the "automobile exception," rather than the plain view exception to the warrant requirement, applied here and that, as a result, the State was required to prove both probable cause and exigent circumstances to justify its seizure of the cocaine. See State v. Dunlap, 185 N.J. 543, 549 (2005). However, the fact that the seizure was from an automobile does not mandate an analysis under that exception. In State v. Pena-Flores, 198 N.J. 6 (2009), our Supreme Court examined the development of the automobile exception as one of several exceptions to the warrant requirement. Notably, the Court did not require that the criteria to satisfy the automobile exception be superimposed upon those that will serve to satisfy the plain view exception. We therefore conclude that under the facts of this case as found by the motion judge, an analysis of the seizure under the plain view exception was proper.
For the plain view exception to apply,
[T]he State must show that (1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "'inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure."
[State v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]
These criteria were readily satisfied here.
First, there was evidence of the veracity of the informant, as Detective Mendez testified that two prior arrests had been effected based on information provided in the past. See State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Each of the significant details provided by the informant defendant's first name, his physical description, his address, the description of his automobile complete with the license plate number, the time at which he would leave his residence to meet his source, were all independently verified by the officers. See id. at 94 (stating, "the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source"). The officers observed defendant on his cellphone as he walked to a restaurant, where he sat at a table by the window where he was able to observe the events outside, ordering no food or drink, and keeping track of his cellphone. His immediate departure from the restaurant when Mateo arrived, and his "nervous" demeanor carrying a bag thereafter, further supported an "objectively reasonable belief that the collective circumstances are consistent with criminal conduct," State v. Birkenmeier, 185 N.J. 552, 562 (2006), justifying an investigative stop of the vehicle. Once at the vehicle, there was no impediment to the officers looking inside the vehicle. "[A] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment" because there is no reasonable expectation of privacy in those areas of a car which may be readily observed through the windows. State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.) (quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987), certif. denied, 216 N.J. 367 (2013), cert. denied, __ U.S. __, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014)). Therefore, the first prong that the officers be lawfully present when contraband is observed was met.
The requirement that the discovery be inadvertent is satisfied if "the police did not 'know in advance the location of the evidence and intend to seize it' essentially relying on the plain-view doctrine only as a pretense." State v. Johnson, 171 N.J. 192, 211 (2002) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S. Ct. 2022, 2040, 29 L. Ed. 2d 564, 585 (1971)). Although the police had some information that it was defendant's custom to conceal cocaine in a hidden compartment, there is nothing in the record to support a conclusion that they knew the cocaine would be located outside the compartment between the console and the driver's seat. Further, the facts as found by the motion judge fail to show that the plain view exception was relied upon as a pretext.
Detective Bradley admitted it was not immediately apparent when he first saw the package that it contained drugs. That changed when he moved to the front of the vehicle and was able to see the packaging through the windshield. He observed "a piece of green cellophane wrapper" that "looked like a chunk of a white rock inside of it" between the center console and the driver's seat. He testified at the suppression hearing that, based on his experience coming in contact with cocaine and its packaging "thousands" of times in his career, he recognized this as a common way of packaging cocaine and concluded the item was cocaine. Thus, it was "immediately apparent" that the police had probable cause to associate the object seized with criminal activity. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 1554-55, 94 L. Ed. 2d 347, 355 (1987); State v. Crumb, 307 N.J. Super. 204, 246-47 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).
We are therefore satisfied that defendant's motion to suppress was properly denied.
In Point II, defendant argues that cumulative errors deprived him of a fair trial, focusing on three allegations: (1) the trial judge should have allowed the jury to hear that Villanueva fled prior to trial and exculpated defendant at the motion to suppress; (2) the trial judge should have instructed the jury that Mateo's acquittal motion had been granted; and (3) the trial judge improperly "cross-examined" Mateo when he testified on behalf of defendant. The first two of these arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).
A trial judge is explicitly permitted to question witnesses "in accordance with law and subject to the right of a party to make timely objection." N.J.R.E.614. In State v. O'Brien, 200 N.J.520 (2009), the Court noted that judges have broad discretion to do so and that it is a proper exercise of such discretion to question a witness when "a party's basic rights are being threatened, when expedition is necessary to prevent a waste of judicial time/resources, when testimony requires clarification, or when a witness appears to be in distress or is having trouble articulating his/her testimony." Id.at 534 (internal citations omitted).
Mateo testified with the aid of an interpreter. His direct examination was exceedingly brief and his answers were far from a model of clarity. It was a natural subject of curiosity why he happened to stop at the restaurant and why he gave defendant a ride. In his testimony on direct examination, he stated that, when he passed by the restaurant after he left work, defendant was standing by the door and asked him for a ride. On cross-examination, however, Mateo stated that he went to the restaurant and parked there because he was dropping off a co-worker who wanted to have something to eat.
There was, then, some ambiguity in Mateo's testimony, perhaps because he had trouble articulating his description of events. These are circumstances in which a judge may properly ask questions to clarify the witness's testimony. The question raised here is whether the questioning extended beyond that permissible purpose to convey any partiality on the part of the judge. "[J]udges must take care not to influence the jury by signaling doubt about a witness's credibility." State v. Taffaro, 195 N.J.442, 445 (2008).
As the trial court observed, counsel demonstrated both "perseverance and . . . commitment" in his representation of defendant. He pressed other issues with the trial court, such as his repeated request that the jury be advised that the charges against Mateo were dismissed. However, there was no objection to the trial court's brief questioning of Mateo. When counsel first raised the issue, it was within the context of a motion for a mistrial based on other grounds that the jury was not told that the court had dismissed the charges against Mateo, and not raised until after summations. The failure to object contemporaneously may be viewed as an indication that counsel perceived no prejudice in the court's questioning. SeeState v. Smith, 212 N.J.365, 407 (2012). However, a trial judge's questioning of a witness can rise to the level of plain error. See, e.g., Taffaro, supra, 195 N.J.at 454.
In O'Brien, the defendant did not deny he had killed his parents but claimed he did not remember shooting them or making a confession and presented a diminished capacity defense based on his drug intoxication and depression. 200 N.J.at 525. The trial court vigorously questioned defendant regarding his lack of memory about the incidents, eliciting admissions that he remembered certain facts. Id.at 526. The judge also questioned defendant's expert at length, again on the issue of defendant's alleged "profound memory loss," and, in a second interruption, regarding the duration of the effects of marijuana. Id.at 527-31. The trial judge's questioning was not limited to the defense. The judge questioned two prosecution witnesses and, in the excerpt included in the Court's opinion, interrupted the cross-examination of an investigator to ask questions that can fairly be described as rehabilitating the witness. Id.at 531-33. In short, the trial judge's extensive questioning reflected a skepticism regarding the proffered defense and partiality toward the prosecution, meriting the Court's warning
Although it is within the purview of a trial judge to question a witness to clarify ambiguities, he "cannot assume the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government's proof or to question the credibility of the defendant and his witnesses. A judge's slightest indication that he favors the government's case can have an immeasurable effect upon a jury."
When a judge questions a witness in such a way that he takes over the role of the prosecutor, it can give the jury the impression that the judge does not believe the witness, and that impression can deny the defendant his right to a fair trial. Not showing bias is particularly important when a criminal defendant is testifying, and a judge must scrupulously insure that his questions do not evidence disbelief.
[Id. at 535 (quoting United States v. Bland, 697 F.2d 262, 265-66 (8th Cir. 1983) (internal citations omitted).]
Unlike O'Brien, or Taffaro, supra, 195 N.J. at 448, in which the trial judge's questioning of the defendant was one-half of the length of the entire cross-examination, the trial judge here did not question the defendant. Although Mateo was the only defense witness, the issue the judge questioned him about the identity of the friend he dropped off at the restaurant was not central to the defense. The judge did not question Mateo about his denials that defendant had any drugs or the bag in question.
We conclude that the trial judge's brief questioning of Mateo here did not impermissibly suggest a disbelief of his credibility or deny defendant a fair trial.
Defendant's final argument is that the trial court abused its discretion in imposing the minimum term of incarceration for a first-degree offense. He argues that a proper weighing of the aggravating and mitigating factors required the imposition of a second-degree sentence instead. We disagree.
Defendant does not contend that the court erred by finding any aggravating factor that was not supported by the record. He states the trial judge should have found the following mitigating factors: N.J.S.A. 2C:44-1(b)(1), defendant did not cause serious harm; (2), defendant did not contemplate his conduct would cause serious harm; (7) defendant had no prior criminal history; (8) circumstances that will not likely recur; (9) defendant is not likely to commit another offense; and (11) incarceration would impose a hardship as well.
The trial judge acknowledged that defendant had no prior criminal involvement, was married with children and was "a productive citizen." Accordingly, he found mitigating factor (7). We find no merit in defendant's argument that the trial court erred in failing to find the remaining mitigating factors.
The trial judge also found aggravating factors (3), the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(1), and (9), the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). In explaining his reasons, the judge stated
[T]he facts are the facts. Substantial quantities of drugs, almost a kilo. Number two, cars that had a concealed compartment operated under a particular code in order to open them for purposes of concealing the narcotics leads one to conclude that this is not a street operation. This is somewhat of a large scale effort in terms of drug trafficking and . . . the evidence against Mr. Gonzalez is overwhelming. It is overwhelming.
The quantity of drugs, the nature of the operation, the fact that he's been found guilty under the statute requires a sentencing between twenty years and up to ten years without parole eligibility.
As to the aggravating factors, I find aggravating factor number three, the risk that defendant will commit another offense and why do I say that [counsel]? Because their operation wasn't anchored only in the City of Newark. This operation by virtue of the sophistication and involvement of individuals stretches far beyond Newark. I know there's no evidence to that fact, I understand that, but clearly the way this was done is not a Newark street operation.
Aggravating factor nine, the need to deter the defendant others from violating the law.
The judge concluded that the aggravating factors outweighed the mitigating factors. Counts one, two, and four were merged with count three and a sentence of ten-years imprisonment with a forty-month parole disqualifier was imposed. We note that this is the lowest term of incarceration available for a first-degree offense.
A sentencing judge must state on the record the particular reasons for a given sentence, including the factual basis for any aggravating and mitigating factors. State v. Natale, 184 N.J. 458, 488 (2005); R. 3:21-4(g). This court owes great deference to and should not second guess a sentencing judge's decision. State v. Bieniek, 200 N.J. 601, 608 (2010).
"The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience."
[State v. Megargel, 143 N.J. 484, 493 (1996) (internal citations omitted).]
Although defendant does not challenge the sufficiency of the record to support a finding of aggravating factor (3) or the judge's comments, a brief discussion of those findings is appropriate. In this case, the trial judge admitted that there was no evidence to support his statement that "this operation . . . stretches far beyond Newark." However, this was not the sole basis for his finding aggravating factor (3). In characterizing the drug operation as "clearly . . . not a Newark street operation," he noted the large quantity of drugs, almost a kilo, and the level of sophistication evident in the participants using a car with a concealed compartment and a complex means of accessing the compartment. These facts, which were supported by the record, provide an ample basis for concluding that the operation was not a street level trafficking operation and that, by virtue of his involvement in such an operation, it was likely that defendant would reoffend.
We therefore find no error in the judge's findings as to aggravating and mitigating factors or any reason to disturb the sentence imposed.
1 The motion judge was different from the judge who presided over the trial.
2 At the suppression hearing, Villanueva testified about an elaborate procedure for gaining access to the concealed compartment that required opening the window with a magnet while the seatbelt was on.