STATE OF NEW JERSEY v. KIRK B. FEINSTEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIRK B. FEINSTEIN,

Defendant-Appellant.

___________________________________

November 22, 2016

Submitted October 27, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-03-0592.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kirk B. Feinstein appeals from a February 20, 2015 amended judgment of conviction (JOC)1 following his guilty plea to third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(3). Pursuant to a negotiated plea agreement, the State agreed to dismiss the eleven other charges against defendant and recommend the trial court impose a seven-year term of incarceration, subject to thirty-eight months of parole ineligibility, and a $50,000 Anti-Drug Profiteering Act (ADPA) penalty. The court accepted defendant's guilty plea to distributing heroin and sentenced him in accordance with the plea agreement.

On appeal, defendant argues

POINT I

THE IMPOSITION OF A $50,000 ANTI-DRUG PROFITEERING PENALTY AND THE RESULTANT SENTENCE ENHANCEMENT WERE UNCONSTITUTIONAL AS APPLIED TO DEFENDANT.

A. Excessive Fines and Cruel and Unusual Punishment

B. The Separation of Powers Doctine

POINT II

DEFENDANT WAS NOT ELIGIBLE FOR THE IMPOSITION OF THE ANTI-DRUG PROFITEERING PENALTY.

Following our review of the arguments advanced, in light of the record and applicable law, we affirm.

I.

On January 16, 2014, a confidential informant told Lacey Township police detectives that Jason Fiorvante was gathering money to buy heroin from defendant. The detectives knew Fiorvante and defendant from previous narcotics investigations. They knew the make, model, and license plate number of Fiorvante's car, and they had been investigating defendant for distributing heroin from his house.

The detectives went to defendant's house and waited for Fiorvante to arrive. On his way to defendant's house, Fiorvante briefly stopped at a nearby address but then continued to defendant's house. There, he exited his car and entered the house. After a short time, Fiorvante exited the house and got back in his car. The detectives saw Fiorvante return to the nearby address, where he handed something to another man.

After Fiorvante left, a detective approached the man, who identified himself as Joshua Taylor and admitted he had bought five suboxone films from Fiorvante for $50. The detective arrested Taylor. At the police station, Taylor admitted he had called Fiorvante to buy the suboxone. Taylor said he had done this once before.

Another detective followed Fiorvante and eventually stopped his car. Fiorvante denied possessing any controlled dangerous substances and signed a form consenting to the detective searching his car. He then told the detective heroin was under the front passenger seat, where the detective found nine heroin packages. The detective arrested Fiorvante. After he arrived at the police station, Fiorvante admitted he had bought fourteen bags of heroin from defendant for $110. He denied selling anything to Taylor.

On January 23, 2014, a judge granted a search warrant for defendant's house and a truck on the property. The next day, the detectives went to defendant's house, and saw defendant and a woman leave. The detectives followed the pair to a local convenience store, where they approached defendant, informed him of their search warrant, and placed him under arrest.

During their search of defendant, they found nine packages of heroin in his left pants' pocket and sixteen packages of heroin in his right pants' pocket. He also had approximately $2,844 in cash. The police brought defendant to the station. After searching defendant further, the police found fifty packages of heroin and one clonazepam pill.

A police officer spoke with the woman, who identified herself as Tiffany Remington. She denied involvement with defendant's activities, but admitted she had hypodermic syringes in her purse. The police arrested Remington and brought her to the station.

Remington said defendant sold heroin and suboxone. She admitted she had purchased heroin from defendant and sold drugs approximately five to ten times with him. She said defendant usually kept his heroin and money on his person because he was afraid someone might steal from him.

While detectives followed defendant to the store, a detective stayed near his house to conduct surveillance. The detective observed a car pull onto defendant's property. The driver, later identified as Scott Speck, exited the car and walked to the truck on the property. Speck opened the driver's side door of the truck and sat in the seat. He opened the center console, took something out of it, and exited the truck.

The detective then approached Speck and asked him what he had taken from the truck. Speck said it was suboxone and handed it to the detective. He also admitted defendant had arranged for him to retrieve the suboxone from the truck.

Detectives subsequently executed their search warrant for defendant's house and the truck. They found five pills of buprenorphine, seven packages of white powder, and seventeen pills of alprazolam.

Defendant was charged under Ocean County Indictment No. 14-03-592, with the following third-degree offenses: possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts one, four, seven, nine, and twelve); possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(3) (counts two and eight); distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(13) (counts five and ten); and distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), (b)(13) (counts six and eleven).

At defendant's plea hearing held on December 1, 2014, the court recited the terms of the plea agreement, including the $50,000 penalty. Defendant stated he accepted the terms. He further admitted he had knowingly shared heroin, which he knew was illegal, with another person in Lacey Township on January 16, 2014.

At the sentencing hearing held the following month, the court asked defendant's counsel whether she had reviewed the presentence report. She replied, "I have had the opportunity to review the presentence report, and there are no additions, corrections or deletions." The presentence report stated, "[Defendant] advised he was selling drugs for approximately 3 to 4 months to support his habit." The court proceeded to sentence defendant in accordance with the plea agreement.

II.

The United States and New Jersey Constitutions prohibit excessive bail and fines as well as cruel and unusual punishment. U.S. Const. amend XIII; N.J. Const. art. I, 12. The New Jersey Supreme Court has "developed a three-part test for determining whether a criminal penalty constitutes cruel and unusual punishment." State v. Johnson, 166 N.J. 523, 548 (2001) (citing State v. Maldonado, 137 N.J. 536, 556 (1994)). "We consider, first, whether the punishment conforms with contemporary standards of decency; second, whether the punishment is grossly disproportionate to the offense; and third, whether the punishment goes beyond what is necessary to accomplish any legitimate penological objective." Ibid.

"Given the strength and virtual unanimity of society's conviction to eradicate drug abuse, . . . 'contemporary standards of decency' tolerate, if not mandate, stern punishment of drug manufacturers and distributors whose drugs prove deadly." Maldonado, supra, 137 N.J. at 558. Consistent with this pronouncement, the Court in Maldonado upheld the defendant's sentence of fifteen years in prison with seven years of parole ineligibility. Ibid. It also noted the United States Supreme Court had recently upheld a life sentence for merely possessing cocaine. Ibid. (citing Harmelin v. Michigan, 501 U.S. 957, 995-97, 111 S. Ct. 2680, 2702, 115 L. Ed. 2d 836, 865 (1991)).

The Court has also held, "Fines alone can amount to cruel and unusual punishment under certain circumstances but the situation is rare. Generally the fines are found to be proportionate and fair." Twp. of Pennsauken v. Schad, 160 N.J. 156, 184 (1999) (quoting State in Interest of L.M., 229 N.J. Super. 88, 100 (App. Div. 1988)). The Court consequently upheld the defendant's fines totaling $95,920 for violating an ordinance regulating signs. Ibid. It explained the Township had reasonably fined the defendant for each day he violated the ordinance. Ibid.

The United States Supreme Court has held some fines to be excessive. In United States v. Bajakajian, 524 U.S. 321, 324-25, 118 S. Ct. 2028, 2031-32, 141 L. Ed. 2d 314, 323 (1998), the defendant failed to report he had $357,144 in cash as he tried to board a plane to Italy. The Court overturned the forfeiture of the $357,144 because "full forfeiture of [the defendant's] currency would be grossly disproportional to the gravity of his offense." Id. at 324, 118 S. Ct. at 2031, 141 L. Ed. 2d at 323. "Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country." Id. at 339, 118 S. Ct. at 2039, 141 L. Ed. 2d at 332.

In State v. Lagares, 127 N.J.20, 35-36 (1992), our Supreme Court upheld the defendant's $1,000 Drug Enforcement and Demand Reduction penalty for committing a third-degree drug offense. The Court explained, "For a penalty to amount to cruel and unusual punishment it must be found to be grossly out of proportion to the severity of the underlying crime." Id. at 36-37 (citing State v. Ramseur, 106 N.J. 123, 169 (1987)). "Absent a 'substantial showing' that a penalty is disproportionate, the punishment will stand." Id. at 37 (citing State v. DesMarets, 92 N.J. 62, 82 (1983)). "[A] defendant's inability to pay a penalty does not render the punishment excessive or improper." Ibid.

The Legislature enacted the ADPA because "it has become increasingly difficult for law enforcement agencies to establish to the required degree of certainty that a given asset or interest in property is subject to forfeiture." N.J.S.A. 2C:35A-2(c). The Legislature also sought "to eliminate to the greatest extent possible the economic incentives inherent in commercial drug distribution activities at all levels within the drug distribution chain." N.J.S.A.2C:35A-2(b). Although rehabilitation justifies criminal restitution, State v. Newman, 132 N.J.159, 173 (1993), the Legislature did not establish ADPA penalties to rehabilitate drug dealers. SeeN.J.S.A. 2C:35A-2.

The ADPA applies in many different circumstances. N.J.S.A. 2C:35A-3. Two are relevant to this case: (1) "the person has knowingly engaged in the illegal manufacture, distribution or transportation of any controlled dangerous substance, controlled substance analog or drug paraphernalia as a substantial source of livelihood," N.J.S.A. 2C:35A-3(b)(2); and (2) the person "has at any time, for pecuniary gain, unlawfully distributed a controlled dangerous substance, controlled substance analog or drug paraphernalia to three or more different persons, or on five or more separate occasions regardless of the number of persons to whom the substance or paraphernalia was distributed," N.J.S.A.2C:35A-3(b)(4).

The State must establish one of these grounds by a preponderance of the evidence. N.J.S.A.2C:35A-3(a).

The findings of the court shall be incorporated in the record, and in making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings and shall also consider the presentence report and any other relevant information.

[N.J.S.A.2C:35A-3(a).]

"Where the prosecutor has established one or more grounds for imposing an [ADPA penalty] pursuant to section 3 of this chapter, the court shall assess a monetary penalty [of] . . . $50,000.00 in the case of a crime of the third degree . . . ." N.J.S.A.2C:35A-4(a).

Here, defendant does not challenge the factual basis found by the judge that the facts satisfy the criteria set forth in N.J.S.A. 2C:35A-3(b), making him subject to the penalty. Nor does he show the penalty imposed is excessive or amounts to cruel and unusual punishment, which is an attack on the statute as it sets the amount of the penalty at $50,000 for a third-degree conviction the default penalty provision.

Contemporary standards of decency still mandate stern punishment for drug dealers. See Maldonado, supra, 137 N.J. at 558. Defendant has not made a substantial showing he agreed to a penalty disproportionate to the severity of his underlying crime. See Lagares, supra, 127 N.J. at 37. The trial court asked defendant's counsel whether she had read the presentence report. She said she had reviewed it, and it was correct. She even referenced defendant's admission during the sentencing hearing.

At the time of his offense, defendant was a drug addict. He sold drugs to support himself and his habit, which was a substantial part of his livelihood, satisfying N.J.S.A. 2C:35A-3(b)(2). Defendant's admission along with his nine to fourteen specifically documented drug transactions two drug transactions with Fiorvante, six to eleven with Remington, and one with Speck also satisfied N.J.S.A. 2C:35A-3(b)(4). Defendant had $2,844 in cash when the police arrested him. Defendant did not need this money to go to the store; he needed it to sell and buy drugs each day, which he admitted to doing for approximately 90 to 120 days. The fine was reasonably related to defendant's 90 to 120 days of drug dealing. See Schad, supra, 160 N.J. at 184.

Although the United States Supreme Court found a $357,144 fine was excessive for simply not reporting the physical transfer of cash out of the country, Bajakajian, supra, 524 U.S. at 321, 118 S. Ct. at 2028, 141 L. Ed. 2d at 314, defendant's offense is much more serious. His fine is not the rare exception to the rule that "[g]enerally, . . . fines are found to be proportionate and fair." Schad, supra, 160 N.J. at 184. Defendant's claimed trouble paying the penalty "does not render the punishment excessive or improper." Lagares, supra, 127 N.J. at 37.

Defendant also argues the trial court did not further the rehabilitative purpose of the ADPA when it imposed the penalty on him; however, defendant's argument ignores "the overriding objective" of the ADPA, which is "to eliminate to the greatest extent possible the economic incentives inherent in commercial drug distribution activities at all levels within the drug distribution chain." N.J.S.A.2C:35A-2(b).

Defendant further argues the BrimageGuidelines, as applied to him, allowed the use of the ADPA penalty to increase the prison sentence imposed.2 Thus, defendant argues the BrimageGuidelines in this case resulted in an unconstitutional violation of the separation of powers doctrine. We disagree.

"[T]he BrimageGuidelines . . . were promulgated by the Attorney General to address negotiated-sentence agreements under N.J.S.A.2C:35-12 . . . ." State v. Thomas, 392 N.J. Super. 169, 175 (App. Div.), certif. denied, 192 N.J.597 (2007). We have held the guidelines do not violate the separation of powers doctrine of the New Jersey Constitution. Id.at 177-78. "To satisfy the constitutional requirements of the separation of powers doctrine, N.J. Const. art. III, 1, . . . prosecutorial discretion . . . must be subject to judicial review for arbitrary and capricious action." State v. Brimage, 153 N.J.1, 3 (1998) (citing State v. Vasquez, 129 N.J.189, 195-96 (1992)). "Arbitrary and capricious action . . . means willful and unreasoning action, without consideration and in disregard of circumstances." Worthington v. Fauver, 88 N.J.183, 204 (1982) (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super.184, 199 (Ch. Div. 1973)). "The test is essentially one of rational basis." Ibid.

The fact the ADPA penalty increased defendant's period of parole ineligibility does not show the BrimageGuidelines lack a rational basis. Eligibility for an ADPA penalty is reasonably related to the following statutory aggravating factors: one (nature and circumstances of the offense), N.J.S.A.2C:44-1(a)(1); three (risk of recidivism), N.J.S.A.2C:44-1(a)(3); five (organized crime), N.J.S.A.2C:44-1(a)(5); six (criminal history and seriousness of conviction),N.J.S.A.2C:44-1(a)(6); seven (payment for crime), N.J.S.A.2C:44-1(a)(7); nine (deterrence), N.J.S.A.2C:44-1(a)(9); and eleven (fines as a cost of doing business), N.J.S.A.2C:44-1(a)(11).

"Once a court accepts a negotiated guilty plea, . . . it is 'bound by the specific terms and conditions of that negotiated agreement' for the purpose of imposing sentence." Thomas, supra, 392 N.J. Super.at 180 (alteration in original) (quoting State v. Bridges, 131 N.J.402, 409 (1993)). Given the trial court's factual basis for accepting the constitutional plea agreement between defendant and the State, the trial court was "bound by the specific terms and conditions of that negotiated agreement." Thomas, supra, 392 N.J. Super.at 180.

Finally, we reject defendant's argument he was not eligible for the imposition of the ADPA penalty. The record shows the trial court properly relied on defendant's plea colloquy and the presentence report to establish its factual basis for accepting defendant's plea agreement. N.J.S.A. 2C:35A-3(a). Defendant admitted to distributing heroin for 90 to 120 days, and he essentially stipulated he was subject to the ADPA penalty when he agreed to pay it during his plea colloquy. Moreover, the record clearly shows defendant committed the predicate acts under the statute, because he sold controlled dangerous substances to "three or more different persons," on "five or more separate occasions." N.J.S.A. 2C:35A-3(b)(4). Defendant was eligible for the penalty, and he pled guilty to a third-degree crime, resulting in a $50,000 penalty. N.J.S.A. 2C:35A-4(a)(1).

Affirmed.

1 The court entered defendant's original JOC on February 6, 2015. The court entered the amended JOC on February 20, 2015 to reflect that his "sentence is to run concurrent with the State Prison sentence [d]efendant is presently serving."

2 The Guidelines consider profiteering to be an aggravating factor which increased defendant's period of parole eligibility.