STATE OF NEW JERSEY v. JAMES J. SCARBOROUGH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05423-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES J. SCARBOROUGH,

Defendant-Appellant.

_____________________________

February 25, 2015

Submitted February 10, 2015 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-08-00482.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Christopher W. Goodwin, Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his suppression motion, defendant pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The trial court sentenced defendant to five years in prison, three years of which were to be served without parole. Defendant appeals from the order denying the suppression motion, and from the sentence. He presents the following issues for our consideration

POINT I

A VAGUE CLAIM THAT POLICE "DETECTED THE ODOR OF MARIJUANA" CANNOT JUSTIFY SEARCHING A CAR PARKED LEGALLY IN A SECLUDED LOT, EVEN IF THEY ASK FIRST.

A. There Was Not Probable Cause to Search The Car.

B. There Was No Exigency Justifying The Warrantless Search.

C. The Search Was Not Pursuant To Validly Obtained Consent.

POINT II

THE CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT IMPROPERLY RULED OUT THE POSSIBILITY OF A DOWNGRADED SENTENCE UNDER N.J.S.A. 2C:44-1(f)(2), AND COMPLETELY FAILED TO CONSIDER REDUCING THE PAROLE MANDATORY MINIMUM UNDER N.J.S.A. 2C:43-6.2; ALTERNATIVELY, SCARBOROUGH SHOULD BE PERMITTED TO FILE A MOTION UNDER N.J.S.A. 2C:43-6.3 WITH THE ASSIGNMENT JUDGE FOR SUCH A REDUCTION.

For the reasons set forth in the opinion, we affirm the conviction but remand for re-sentencing.

I

We begin by addressing the suppression motion. To summarize, at about 10:45 p.m., the police received an anonymous call advising that a "suspicious" car was parked in the rear parking lot of a recreational complex that was closed at the time. On driving into the lot, Officer Rastelli observed a vehicle parked in a far corner of the lot. He saw two males seated in the driver and front passenger seats. He approached the car intending to ask the men "what they were doing there," and noticed an empty cigar wrapper and loose tobacco on the ground near the car. When the driver rolled down his window, Rastelli detected the smell of burning marijuana, and asked the driver to step out of the car.

After calling for back-up assistance, Rastelli sought and obtained the driver's written consent to search the vehicle. The resulting search revealed a handgun under the front passenger's seat, which is where defendant had been sitting.1 The police also found a magazine containing four bullets "between the front passenger seat and the vehicle door jamb." After being arrested and receiving Miranda2 warnings, defendant made a statement to the police. He told the police that at some point earlier that day, he found the gun and the ammunition while walking through the woods but was afraid to turn them in for fear that he would get in trouble. Therefore, he hid them under the seat of the car.

In a thorough oral opinion, the motion judge declined to suppress either the products of the search or defendant's statement to the police. The judge found that Rastelli lawfully approached the car to conduct a field inquiry, as permitted by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Relying on State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995), and State v. Nishina, 175 N.J. 502, 517 (2003), the judge reasoned that, when Rastelli noticed the smell of marijuana emanating from the vehicle, the officer then had "probable cause to believe that a criminal offense had been committed and additional contraband . . . might be present" in the car. Relying on State v. Carty, 170 N.J. 632, 639-40 (2002), the judge found that Rastelli had a reasonable and articulable suspicion of criminal wrongdoing, sufficient to justify asking Robinson for consent to search the car. The judge found nothing coercive in the police obtaining the consent or defendant's statement.

Having reviewed the record, we find no abuse of discretion or other legal error in the judge's decision, which is supported by sufficient credible evidence. See State v. Diaz-Bridges, 208 N.J. 544, 565 (2011); State v. Elders, 192 N.J. 224, 243 (2007). Defendant's appellate arguments on this point are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by the motion judge.

II

We next address the sentencing issue. Except for two very minor disorderly persons offenses (playing loud music and refusal to assist a police officer), defendant, then age twenty-three, had lived an entirely law-abiding life. He was employed as an auto mechanic and provided daily assistance to his mother, who was stricken with cancer. There was no evidence that he was involved in a gang, or in any violent crime, or that his possession of the gun was anything other than an aberrational, stupid mistake. In the pre-sentence report, the Probation Division opined that defendant would respond well to probation supervision. In short, defendant appeared to be a good candidate for the exercise of the prosecutor's discretion to request the Assignment Judge that defendant be given a more lenient sentence than the Graves Act would ordinarily require. See N.J.S.A. 2C:43-6.2. We note that the Prosecutor's Office did initially extend a plea offer of five years in prison with a one-year period of parole ineligibility, presumably signaling a willingness to support such an application. However, the Prosecutor withdrew the offer after defendant declined it and pursued a suppression motion.

At sentencing, the judge acknowledged receipt of numerous letters from defendant's family, friends, and clergy, attesting to defendant's good character and asking for leniency. Defendant's mother also addressed the court. With no discussion, the judge found one aggravating factor, nine, the need to deter defendant and others from violating the law. The judge gave "some weight" to mitigating factor two (defendant did not contemplate that his conduct would cause or threaten serious harm), and gave "full weight" to factor seven (that defendant led a law-abiding life prior to this offense). The judge gave "some weight" to mitigating factor nine, (defendant is unlikely to commit another offense), reasoning that "[t]his is an unfortunate incident . . . an isolated incident." The judge gave "full weight" to factor ten, finding that defendant would be a "very good candidate for probation" but for the mandatory prison term required by the Graves Act.

Although defense counsel asked the judge to also find mitigating factor eight (the conduct was a result of circumstances unlikely to recur), and factor eleven (imprisonment would cause excessive hardship to defendant's mother), the judge did not mention those factors, nor indicate whether he considered or rejected them.

The judge rejected defense counsel's request that defendant be sentenced one degree lower than the second-degree offense to which he pled guilty. See N.J.S.A. 2C:44-1(f)(2).3 The judge first stated that "the mitigating factors substantially outweigh the aggravating factors." However, the judge then stated, without further explanation, that defendant's facts would not "get over the second prong" of the analysis. Addressing defendant, the judge stated that, while he recognized that the offense "was an anomaly in your life," the court had no discretion to impose a sentence lower than five years in prison with a three-year parole bar. See N.J.S.A. 2C:43-6(c).

Although we owe great deference to a trial judge's sentencing decisions, we are constrained here to remand for reconsideration and re-sentencing here, for several reasons. First, while we owe deference to a trial court's decision whether to find a mitigating factor and what weight to give that factor if found, the court is obligated to consider all applicable mitigating factors and to at least explain why the court has declined to consider any mitigating factor urged by the defense. See State v. Grate, ___ N.J. ___, ___ (2015) (slip op. at 25); State v. Case, 220 N.J. 49, 64-65 (2014); State v. Dalziel, 182 N.J. 494, 504-05 (2005). In this case, perhaps through oversight, the court failed to acknowledge and either accept or reject the application of mitigating factors eight and eleven. Moreover, aggravating factor nine is generally entitled to little weight, particularly in the absence of any explanation as to why it has significance in a particular case. See State v. Fuentes, 217 N.J. 57, 79 (2014).

Additionally, the sentencing court failed to explain why defendant's circumstances did not satisfy the second prong of the test for imposing a downgraded sentence. As our Supreme Court has recently emphasized, in sentencing a defendant, the court must weigh the applicable factors and explain its decision. The mere recitation of a conclusion is insufficient. Case, supra, 220 N.J. at 65; see also State v. Megargel, 143 N.J. 484, 502 (1996).

All of these considerations, taken together, require that we remand for reconsideration of whether aggravating factor nine is entitled to any weight at all in this case, and if so why; and whether mitigating factors eight and eleven are applicable and if so, what weight to give those factors. Additionally, the court must consider defendant as he stands before the court on the day of the re-sentencing hearing, and therefore should consider any other factors that may apply based on the events of defendant's life since he was sentenced. State v. Jaffe, ___ N.J. ___, ___ (2014) (slip op. at 14); State v. Randolph, 210 N.J. 330, 354 (2012). Once having re-considered the mitigating and aggravating factors, the court must consider anew whether to impose a downgraded sentence, providing an explanation as to why the factors found either do or do not satisfy each prong of the standard.

In addition, on remand, defendant may once again apply to the Prosecutor for consent either to file a motion with the Assignment Judge pursuant to N.J.S.A. 2C:43-6.2 supporting imposition of a one-year period of parole ineligibility, or for the Prosecutor's approval of the sentencing judge referring the case to the Assignment Judge to consider a waiver of the imposition of a mandatory minimum term. Ibid.

In remanding, we emphasize that on remand, defendant must be sentenced anew, as though he had never previously been sentenced. While we do not retain jurisdiction, the resentencing hearing (before the sentencing judge or the Assignment Judge, as appropriate) shall take place within sixty days of the date of this opinion.

Affirmed in part, remanded in part.

1 The police also found a small quantity of marijuana, but the charges against defendant related to the marijuana were dropped incident to his guilty plea. The State also dismissed a charge of possession of a handgun for an unlawful purpose.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3"[W]here the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." N.J.S.A. 2C:44-1(f)(2).