STATE OF NEW JERSEY v. TODD DORN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TODD DORN,

Defendant-Appellant.

_____________________________________

September 26, 2016

 

Submitted April 25, 2016 - Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-06-1524.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).

Defendant filed a pro se supplemental brief.

The opinion of the court was delivered by

NUGENT, J.A.D.

Tried to a jury, convicted of six controlled dangerous substance (CDS) offenses, and sentenced to an aggregate twenty-six-year prison term, defendant Todd Dorn appeals. He argues the following points

POINT I.

The defendant's right to be free from unreasonable searches and seizures as guaranteed by the fourth amendment to the United States Constitution and aRT. I, pAR. 7 of the New Jersey Constitution was violated by [AN] unlawful warrantless search and seizure.

A. The police lacked probable cause to arrest the defendant.

1. The State Never established either a track record or by police investigation that the information provided by a source from the criminal milieu was reliable.

2. The State failed to prove that the informant from the criminal milieu had provided her information implicating the defendant prior to his arrest.

B. the consent search was invalid.

1. The police already commenced the search by entering the residence and securing it prior to the defendant's purported consent.

2. The CONSENT was the result of coercion.

point ii.

The defendant's right to due process of law as guaranteed by the fourteenth amendment to the United States Constitution and art. I, par. 1 of the New Jersey Constitution was violated by the admission of identification evidence resulting from a hyper-suggestive out-of-court identification procedure.

(Not Raised Below).

A. the corruptive effect of the hyper- suggestive procedure outweighed the non-existent reliability factors.

B. the police failed to record and document the out-of-court identification procedure.

point iii.

The defendant's right to due process of law, as guaranteed by the fourteenth amendment to the United States Constitution and art. I, par. 1 of the New Jersey Constitution, was violated by the absence of an accomplice-witness instruction notwithstanding the state's exclusive reliance on the co-defendant to implicate the defendant.

(Not Raised Below).

point iv.

The defendant's right to confrontation as guaranteed by the sixth amendment to the United States Constitution and art. I, par. 10 of the New Jersey Constitution was violated. (Not Raised Below).

A. showing the arrestee a single photo of the defendant established that there was information outside the record implicating the defendant in the commission of drug crimes.

B. the trial court erroneously admitted hearsay paper evidence prepared by the government to prove an essential element of the crime.

point v.

The defendant's right to due process of law, as guaranteed by the fourteenth amendment to the United States Constitution and art. I, par. 1 of the New Jersey Constitution, was violated by the trial court's failure to define the elements of the offense of possession with the intent to distribute within 500 feet of a housing project.

(Not Raised Below).

point vi.

The defendant's motion to recuse the trial judge should have been granted.

point vii.

The defendant's right to due process of law, as guaranteed by the fourteenth amendment to the United States Constitution and art. I, par. 1 of the New Jersey Constitution, was violated by the trial court's failure to grant the defendant's reasonable request for an adjournment and substitute counsel.

point viiI.

The defendant should be afforded an opportunity to accept the plea offer of five years with a two-and-one-halF-year period of parole ineligibility because he was misinformed concerning the consequences of going to trial.

(Not raised below).

point ix.

The defendant's right to a grand jury indictment was violated by the trial court's amendment increasing the defendant's criminal liability.

point x.

The sentence is excessive.

A. the trial court erroneously imposed an extended term for distribution within 500 feet of a public housing/public park offense.

B. The trial court improperly balanced the aggravating and mitigating circumstances.

C. The [ten]-year sentence for two ounces of marijuana should run concurrently, not consecutively, to the [sixteen]-year sentence.

D. the court made findings of fact to enhance the sentence.

E. The imposition of a [twenty-six]-year term is wholly disproportionate and is cruel and unusual in violation of the eighth amendment to the United States Constitution.

In his pro so supplemental brief, defendant argues these points

POINT I.

The warrantless search [,] seizure and ARREST of the appellaNT was unlawful and requires a reversal of the conviction and the fruits of the unlawful search should [HAVE] been suppressed.

POINT II.

The consent was unlawful and defective, because the state lacked probable cause to search or arrest the appellaNT. In addition, the consent was unlawful where the officer asserted [THAT] he or members of his department were in the process of getting a search warrant.

POINT III.

The informant's statements to police that she purchased drugs from the appellaNT included [AN] affidavit submitted to court in connection with requests for [A] search warrant for appellaNT'S resideNCE.

POINT IV.

Deliberate bypass of the search warrant requirement and the unlawful bypass of the search warrant entitled appellaNt to suppression of the evidence obtained in the search.

POINT V.

Prosecutor[IAL] misconduct [AND] malicious prosecution[.] [Rule] 3.8 provides that prosecutors shall refrain from prosecuting a charge that the prosecutor KNOWs is not supported by probable cause. In addition, the appellant[']s constitutional rights to a fair trial were violated with the knowing use of perjured testimony to obtain a conviction.

POINT VI.

the prosecutor's expert who testified as to distribution and the indictments of intent to distribute and distribution.

POINT VII.

Judicial misconduct.

For the reasons that follow, we affirm the convictions. We also affirm the sentence imposed on count two of the superseding indictment; however, we vacate the sentence imposed on count one and remand for re-sentencing.

I.

A.

After an Atlantic County grand jury indicted defendant on various CDS offenses, defendant moved, unsuccessfully, to suppress evidence police had seized from his person and his home. Thereafter, another Atlantic County grand jury charged defendant in a superseding indictment with the following offenses: second-degree possession with intent to distribute a CDS, heroin, within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count one); third-degree possession with intent to distribute a CDS, marijuana, within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count two);1 third-degree distribution of a CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three); third-degree possession with intent to deliver a CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count four); third-degree possession with intent to distribute one ounce or more of a CDS, marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11) (count five); and fourth-degree possession of more than fifty grams of a CDS, marijuana, N.J.S.A. 2C:35-10(a)(3) (count six).

Following the superseding indictment, the court granted the State's motion to amend the indictment to designate count two a second-degree offense, thereby correcting the erroneous designation of the crime as a third-degree offense. Trial began on July 2, 2013. On July 9, 2013, the jury found defendant guilty on all counts.

On July 31, 2013, at sentencing, the court merged counts three through six. On count one, possession of heroin with intent to distribute, within 500 feet of a public housing facility, park, or building, the court sentenced defendant to a sixteen-year extended prison term with eight years of parole ineligibility. On count two, possession of marijuana with intent to distribute, within 500 feet of a public housing facility, park, or building, the court sentenced defendant to a consecutive ten-year prison term with five years of parole ineligibility. The court also imposed applicable fines and assessments. Defendant appealed.

B.

The State developed its proofs at the suppression hearing through the testimony of three Atlantic City police officers: Officer Stereling Wheaten, Detective Jeremy Nirenberg, and Sergeant James Sarkos.2 Sergeant Sarkos testified he was working the 5:00 p.m. to 1:00 a.m., plain clothes, narcotics detail on March 22, 2011. When the shift began, he was working with Sergeants Hall and Andrews, and he received the following information.

Sergeant Andrews had seen a vehicle pull up to a house on Green Street, later identified as defendant's residence. A young woman exited the vehicle and entered the house. The vehicle's driver was "looking all over the place," conduct Sergeant Sarkos described as something the police see "commonly," because "[a] lot of people who pull up in these areas will scan the area for police." Sergeant Andrews believed the driver spotted him, because the driver drove around the block, circling it a couple times. Sergeant Andrews repositioned his vehicle and saw the young woman exit the house and get into the car that had circled the block, which drove off. Police eventually stopped the car for investigation and a motor vehicle violation.

The young woman was found to be in possession of fifty bags of heroin, a "brick." Another bag of heroin was found in the vehicle, torn open. The young woman told police she purchased the heroin inside the Green Street residence from a male. She described the male. Police believed the male was defendant. They showed defendant's photograph to the young woman, and she identified the photo, stating "that was the individual who she had referred to as Ty and . . . he was the one who sold her [fifty] bags of heroin."

The police placed the Green Street residence under surveillance for several hours, beginning "right after the stop of [the young woman]." The purpose of the surveillance was to "locate [defendant] and see if he was leaving the residence." The surveillance officers notified Sergeant Sarkos when they saw defendant exit the residence, accompanied by a female companion, and drive off in a white Honda. Patrol officers were directed to stop the Honda. According to police records, officers stopped the Honda at 5:58 p.m.

Officer Wheaten, part of the Tactical Operations Team, testified he was informed by other units that the Honda, which had come from the Green Street residence, was involved in an ongoing CDS investigation. Officer Wheaten was told to pull the car over and arrest defendant for drug distribution. The officer conducted the motor vehicle stop, arrested defendant, searched defendant incident to the arrest, and found $3913 on his person.

Detective Nirenberg, a member of the Narcotics Task Force, was working in uniform and a marked patrol car when defendant was arrested. He testified that he and his partner backed up Officer Wheaten but did not interact with defendant or the Honda's other occupant. Detective Nirenberg recalled the stop of defendant's vehicle occurred at approximately six o'clock in the evening. A short time later, he and his partner were dispatched to defendant's residence to secure it in anticipation of the issuance of a search warrant.

After arriving at defendant's residence, Detective Nirenberg and his partner sat in their patrol vehicle and observed the residence. After a while, they noticed some juveniles going in and out of the back door. The officers walked to the front door, knocked, and told the juvenile who answered they were securing the residence. The officers walked inside the front door where they remained until defendant arrived with detectives, at which time Detective Nirenberg and his partner left. During the time they remained at the residence, a mother of one of the juveniles came and picked up the children. That occurred at about the same time detectives arrived with defendant. No one searched the residence while Detective Nirenberg was there.

Meanwhile, after officers stopped the white Honda, Sergeant Sarkos telephoned an assistant prosecutor seeking approval to apply for a search warrant. The assistant prosecutor told him to have a drug-certified dog take a run around the Honda and sniff the money police had seized from defendant; if the dog had a positive reaction, the warrant would be authorized.

Sergeant Sarkos drove to the location where officers had detained defendant. The Sergeant arrived at 7:40 p.m., one hour and forty-two minutes after police first stopped the Honda. The drug dog had not yet arrived. Sergeant Sarkos introduced himself to defendant, read him his Miranda rights,3 and had defendant read the Miranda form. Defendant waived his rights. According to Sergeant Sarkos, defendant was alert but anxious. The sergeant advised defendant he was under arrest for distributing drugs and informed defendant he "was in the process of making [an] application for a search warrant and that's what we [are] waiting for." Defendant volunteered there was no need for the sergeant to do that, because "he doesn't have much in the house and he would take [the sergeant] to it." Sergeant Sarkos prepared an Atlantic City Police Department consent to search form, read it to defendant, and defendant consented to the search of his residence and executed the form. Sergeant Sarkos prepared a second consent form for the search of the Honda, which defendant also signed.

The police recovered no evidence when they searched the Honda. Sergeant Sarkos had defendant transported to his residence. Upon the sergeant's arrival, several juveniles between the ages of eleven and fourteen were present, but the mother of two of the children arrived and removed them all.

Defendant told the sergeant there was heroin in a robe in the bedroom and pointed out the robe, where thirty-five bags of heroin were found. The heroin was in green wax bags, which was rare, but the bags were the same kind that had been seized from the young woman, who said she bought the heroin from defendant. Defendant also told police a green duffle bag in the bedroom closet contained marijuana. The police searched it and seized a large bag of green vegetation that field-tested positive for marijuana. During their search of the residence, police also seized from locations in the bedroom Ziploc baggies, a straw containing a white powdery residue, two black digital scales, and mail addressed to defendant at that residence.

Defendant testified at the hearing. He said he was returning a rental car, a Honda, to a car dealership at 4:00 p.m. on March 22, 2011, when police stopped the Honda, which his girlfriend was driving. The police did not say why they stopped him. They searched him and removed $3913 from his wallet. He produced a stub for $4200 from an insurance check he had received that morning. The police made him wait in his car, but would not permit him to use his cell phone, despite his daughter's attempts to call him. Several hours later, after 7:00 p.m., they released his girlfriend and placed him under arrest.

While defendant was handcuffed and confined to the back seat of the police car, Sergeant Sarkos opened the door, told other officers to loosen the handcuffs, and informed defendant a search warrant was on the way from the prosecutor's office. According to defendant, Sergeant Sarkos said if defendant signed a consent form permitting police to search his residence, the police would release him on a summons. Defendant was tired. He was taking blood pressure medication, which made him drowsy, and for that reason he was not driving the Honda. He had fallen asleep in the back of the police car before Sergeant Sarkos arrived. His main concern was for his kids. He "wasn't really a hundred percent on what's going on. [He] wasn't like real alive and aware of things."

Defendant did not recall signing a waiver of his Miranda rights or the consent form to search the car, but did remember signing the consent form permitting the police to search his house. Defendant denied reading anything to Sergeant Sarkos. He also testified the police searched the Honda hours before he signed any forms. The reason he signed the consent form permitting the police to search his house even though the form said he could refuse and wait for a warrant was because the police had arrested him for drug distribution, yet found no drugs, so it did not seem to him he would be free to go if he did anything other than what they wanted. He explained, "they had me whatever was going on. There was nothing I could do about it. I had no rights once I was cuffed and thrown in the back of that car."

During cross-examination defendant admitted he resided at the Green street house. When he and his girlfriend left the house to return the Honda and pick up his car from an Audi dealership, his son and daughter remained, along with his daughter's friend. Defendant believed his daughter's other friend came to the house later. His children were fourteen and eleven years old, and one of his daughter's friends was fifteen years old.

Defendant testified that before leaving his house to return the Honda, he had been home all day, except for going to the bank to cash the insurance check. His girlfriend had been with him, but no male occupants were in his house with him. When the prosecutor showed defendant the consent form permitting the search of his residence and the Miranda form, defendant identified his signature on each form.

The court found the officers credible but rejected defendant's testimony, determining defendant was not telling the truth. The court noted defendant had produced no documentary evidence to support his testimony that the cash seized from his person was insurance money. The judge concluded defendant knowingly and voluntarily signed the consent and Miranda forms. Lastly, the judge concluded the consent search was lawfully conducted.

C.

The State's proofs at trial centered around defendant's sale of CDS to the young woman and defendant's possession of the CDS seized from his home during the consent search. The young woman testified against defendant. She recounted how on the afternoon of March 22, 2011, at approximately 2:00 or 3:00 p.m., her child's father drove her to Atlantic City. She telephoned her dealer, who had been in court but was on his way home. He told her to come to his house. Her dealer's name was Ty. She had known him for two months and had previously seen him in person four or five times, though on those prior occasions she never got a clear picture of what he looked like. This was the first occasion on which she actually entered Ty's house. She went to Ty's Green Street house and entered it. Defendant was present as was his girlfriend or wife.

While the young woman waited inside her dealer's home, her child's father, who had parked outside, telephoned her. He said there was a cop sitting at the corner. He also said he had pulled up behind the cop to try to make him move and then drove around the block. The young woman informed her dealer, Ty, who said she was paranoid. She and Ty walked to his bedroom where she purchased a brick, fifty bags, of heroin from him for $350. The bags were stamped "Thriller." She exited the house, entered the car, and drove off with her child's father.

Before the young woman and the driver got out of Atlantic City, they were stopped by police. The police asked the occupants to exit the car and they complied. The young woman, who had attempted to stuff the heroin in her bra, realized an officer could see the CDS. He asked her what she "was . . . doing there" and if she had anything on her. She pulled the heroin out and gave it to him. He asked what it was, and she replied it was heroin. The police arrested her and transported her to the station.

The young woman was placed in a cell at the station. When police took her out, an officer showed her a photograph, which she identified as defendant. Another officer, Rodney O'Ruark, interviewed her and showed her the photograph again. She identified and initialed the photograph. During her trial testimony, she authenticated the photograph, said it was Ty, and identified defendant as Ty, the person in the photo. The young woman testified defendant's hair might have been "a little different" from the hair in the photo, but she recognized his face more than anything else because defendant had a very distinct look about him. She also testified she was "absolutely positive" defendant was the person from whom she bought drugs. She said she never would have identified "somebody that I wasn't sure who it was. It's the same person who I spoke with on the phone, it's the same voice I heard. It's the same person."

Several Atlantic City police officers testified and corroborated the young woman's account of entering defendant's home, returning to the car, being arrested, giving a statement, and identifying defendant's photograph. Several other police officers recounted the events culminating in the motor vehicle stop of the white Honda, defendant's arrest, and the seizure of money from his person. One officer authenticated a copy of a "public zone" map and testified the 600 block of Green Street fell within overlapping public zones for a park and a school.

Sergeant Sarkos testified consistently with the testimony he gave at the suppression hearing, recounting, among the other events, the search of defendant's residence and the seizure of thirty-five bags of heroin, marijuana, scales, baggies, and a straw with a white powder residue. He explained that the individual baggies were stamped with a caricature of Michael Jackson and the word "Thriller." He also authenticated a map that was moved into evidence depicting public parks and public housing in Atlantic City. The sergeant had worked in Atlantic City for nearly thirteen years. He testified defendant's residence was "well within 500 feet" of a public housing complex.

The State qualified Detective Darren Talavera as an expert on narcotics distribution and posed a hypothetical question that incorporated most of the facts the State had developed through the testimony of the young woman buyer and the police. The officer opined defendant possessed the thirty-five bags of heroin seized from his residence for purposes of distribution rather than personal use.

Defendant then elected to testify. Defendant stated he had lived at the Green Street residence since 2009. He disclosed his criminal record for various CDS offenses. On the morning of March 22, 2011, he was in drug court. While there, he had in his possession an insurance check, which he had received for property damage to a car. He showed the check to his probation officer that morning. He left drug court at approximately three o'clock in the afternoon, intending to cash the check and pick up his car from the dealership. He cashed the check on his way home and arrived at his residence at approximately 3:20 p.m. His twenty-two year-old son, Tyrell, was at the house. Before defendant left to go to the car dealership, a young woman came to see his son and then left. Defendant's son also left before defendant and defendant's girlfriend left the house at approximately 3:55 p.m. to go to the dealership. Defendant identified the woman who stopped by to see his son for a few minutes as the young woman who had testified about purchasing drugs at his house.

Defendant recounted how police stopped him and his girlfriend shortly after they drove away from his home. He said the stop took place between 4:00 and 4:15 p.m., not at 6:00 p.m. as testified to by the police. He also testified, consistent with his testimony at the suppression hearing, about the police taking his insurance money, his falling asleep in the car, and Sergeant Sarkos arriving several hours later.

Admitting that he signed a Miranda form and a consent form for the search his residence, defendant claimed he did so only because Sergeant Sarkos said he had been approved for a search warrant. The only way defendant could go home and check on his two children, ages fourteen and eleven, was to sign the forms. Sergeant Sarkos informed defendant he was under arrest for CDS distribution, but promised to release him on a summons if he signed the forms. Defendant signed the forms but never read them, nor did Sergeant Sarkos read the forms to him.

Defendant denied telling Sergeant Sarkos where the CDS in his home was located. He claimed the police confined him to a dining room chair while they searched the house. A police dog was outside barking, and defendant remained seated, fearing the police would bring the dog into the house. Defendant denied any knowledge of the existence of heroin, marijuana, or scales in his house.

Defendant's parole officer testified and confirmed defendant had shown him an insurance check on the morning of March 22, 2011. The parties stipulated defendant was in court at 1:22 p.m. on March 22, 2011.

The jury found defendant guilty on all counts of the indictment. Following his sentence, defendant appealed.

II.

We begin by addressing the points raised in defendant's merits brief. In Point I defendant contends he was arrested without probable cause because the State did not prove the reliability of the young woman who said he sold her heroin and did not prove by a timeline the young woman gave her statement before police arrested defendant. He also contends his consent to search his home was given after police commenced the search and, in any event, was coerced. These arguments are unavailing.

When reviewing an order granting or denying a motion to suppress evidence, we accept those of the trial court's findings of fact that are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We must, of course, consider the suppression motion solely on the record presented at the hearing before the motion judge. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). Our review of the trial court's legal conclusions is plenary. State v. Rockford, 213 N.J. 424, 440 (2013).

A.

Defendant first asserts the police lacked probable cause to arrest him. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." State v. Novembrino, 105 N.J. 95, 106 (1987) (quoting Henry v. United States, 361 U.S. 98, 100-02, 80 S. Ct. 168, 170-71, 4 L. Ed. 2d 134, 137-38 (1959)) (internal quotation marks omitted).

Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other.

[State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).]

For those reasons, "[i]n determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J. 570, 585 (2010) (citations omitted). If the totality of circumstances viewed from the standpoint of an objectively reasonable police officer provide "a 'well grounded' suspicion that a crime has been or is being committed," Sullivan, supra, 169 N.J. at 211, then probable cause exists. Ibid. (citation omitted).

In this case, a police officer observed a car stop in front of defendant's Green Street residence in Atlantic City and saw a young woman exit the car, enter the residence, and emerge from the residence a short time later. She had remained in the residence for just about the length of time it took the driver, who was acting suspiciously, to circle the block. When police stopped the car they found her in possession of a brick of heroin, which she said she bought at the Green Street house from "Ty." She identified a photograph of defendant as Ty, the man from whom she bought the heroin. The police placed the residence under surveillance and eventually observed defendant exit.

The police officers' observations corroborated the young woman's statements. The totality of the circumstances, viewed from the standpoint of an objectively reasonable police officer, established a well-grounded suspicion that a crime had been committed and defendant had committed it. Sullivan, supra, 169 N.J. at 204. It is difficult to discern what conclusion could have been deduced from the circumstances, other than defendant had sold the young woman the heroin.

The suppression hearing record belies defendant's contention the State did not establish the police had received the information from the young woman buyer before arresting defendant. The chronology of events developed by the State demonstrated the young woman told police who stopped her she had purchased heroin from Ty at the Green Street residence. After she was arrested she identified a photograph of defendant as Ty, who sold her the heroin. Sergeant Sarkos learned this information when he started his 5 p.m. shift. According to the sergeant, defendant was arrested at 5:58 p.m. The court found the sergeant's testimony credible. The testimony established the woman had given her statement to police and identified defendant before he was arrested.

B.

Defendant also contends in Point I he consented to the search of his residence only after police had commenced the search by entering and securing his residence. The record belies defendant's contention. Defendant presumably is referring to Detective Nirenberg and his partner knocking, speaking to a juvenile, and waiting just inside the doorway. Detective Nirenberg and his partner did not "commence the search." They secured the residence.

To the extent defendant's argument can be construed as challenging the right of the police to secure the residence pending a warrant, we decline to address the issue. Defendant did not raise the issue at the suppression hearing and has not developed the argument on appeal. Rather, he has merely asserted in a single paragraph the police commenced the search and seizure before receiving consent to do so. Our rules require that an appellant identify and fully brief any issue raised on appeal. R. 2:6-2(a). Consequently, a failure to brief an issue will be deemed a waiver. 539 Absecon Blvd., LLC v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div.), certif. denied, 199 N.J. 541 (2009); see also State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (reiterating attorneys are required to support arguments with appropriate record references and justify their positions with specific references to legal authority).

Defendant also argues his consent to search was involuntary. He asserts he was illegally arrested without probable cause, the police had entered his premises before he signed the consent form, and issued the coercive and false statement a search warrant would be obtained, which was further aggravated by the fact he was under arrest.

We have rejected defendant's argument the police lacked probable cause to arrest him. We have also rejected defendant's argument that police had begun to search his home before obtaining his consent. Defendant's third argument, namely, he was coerced because police told him they were in the process of obtaining a warrant, is equally without merit.

Defendant was arrested and detained at the location of the motor vehicle stop for more than one and one-half hours. These factors suggest coercion. On the other hand, Sergeant Sarkos read defendant his Miranda rights and defendant signed a waiver before defendant signed the consent form. Sergeant Sarkos read the consent-to-search form, which included a statement that defendant had the right to refuse to give consent. Lastly, Sergeant Sarkos was in the process of attempting to obtain a warrant. Sergeant Sarkos did not mislead defendant. Moreover, Sergeant Sarkos had probable cause to obtain the warrant, even without the police dog.

We will uphold a trial court's factual findings if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Here, the trial court's factual determination that defendant knowingly and voluntarily consented to the search of his home was supported by sufficient credible evidence in the record. Accordingly, we reject defendant's argument that his consent was coerced.

III.

Defendant did not raise Points II through V before the trial court. When a party argues for the first time on appeal that evidence the party did not object to at trial requires a retrial, we review the argument under the plain error standard. R. 2:10-2. Under this standard of review, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). We find no plain error in any issue defendant raises in these points.

A.

In Points II and IV, defendant argues the State's introduction of the photograph the young woman identified was unduly suggestive and suggested information outside the record, thereby implicating defendant in the commission of drug crimes. Additionally, defendant asserts the police did not record and document this out-of-court identification procedure.

The factual premise underlying defendant's argument is "[t]he lone eyewitness . . . told the police after her arrest that the seller was a kid she knew as Ty." Defendant argues that because he was a middle-aged father, the identification procedure could not have been any more suggestive. The factual premise is flawed.

The young woman's reference to a "kid" was not to Ty, the man who sold her the heroin on the day she was arrested. Defendant has taken her reference to a kid out of context. When asked at trial how many times she had seen Ty in person before the date she bought the heroin from him, the young woman replied that she didn't meet him originally. Rather she met someone who would take her to buy CDS, "and then probably like a couple of times I went up there and the kid would get it for me, and come back to the car and I'd have to give him some of it for getting it for me." The young woman testified the first couple of times she drove to Atlantic City someone else, a kid, completed the drug transaction from the dealer and gave her the drugs. Defendant's argument that the dealer from whom she bought drugs on the day she was arrested was a kid has no merit.

Defendant also argues that showing a single photograph of defendant to the young woman was unduly suggestive. Even if such were the case, those circumstances did not constitute plain trial error. The woman who purchased the drugs from defendant had entered his home, interacted with him face-to-face, and purchased fifty bags of heroin from him. According to her trial testimony, the only other person in his house at the time was another woman. In addition, the woman who purchased the drugs had seen defendant, though not close-up, on previous occasions.

Moreover, when the police conducted surveillance following the arrest of the woman who purchased drugs from defendant, it was defendant, not his son, who emerged from the house. Lastly, Sergeant Sarkos testified defendant voluntarily led him to the CDS in defendant's bedroom, where police also found documentary evidence with his name. Considering the strength and totality of the State's proof, the failure to record the circumstances of the young woman's identification of the photo and any alleged error in conducting the identification are rejected as sufficient to raise a reasonable doubt as to whether they led the jury to a result it otherwise might not have reached. McGuire, supra, 419 N.J. Super. at 106-07.

In view of the strength of the State's proofs, we also reject defendant's argument in Point IV that the State's references at trial to the photograph and the alleged implication defendant was involved in other drug offenses constituted plain error.4

B.

Defendant asserts in Point III he is entitled to a new trial because the trial court did not, sua sponte, give an accomplice-witness instruction and failed to define the elements of the offense of possession with intent to distribute within 500 hundred feet of a housing project.

We have previously explained that "to speak of the 'accomplice rule' with reference to the testimony of the buyer in cases such as this is illogical and leads to confusion, for the buyer was not the defendant's 'accomplice' unless the defendant was indeed guilty of selling him the narcotics." State v. Mengrella, 86 N.J. Super. 404, 407 (App. Div. 1965). Nonetheless, "in any case, civil or criminal, even a non-accomplice witness may occupy a special position which a trial judge may conclude warrants comment in his charge." Id. at 408. Although "a judge may give such a charge without a request. . ., the judge need not give such a charge unless requested." Id. at 408-09.

C.

Equally unavailing is defendant's argument in Point V, where he alleges the court failed to define the elements of possessing CDS within 500 feet of a public housing project. The court properly instructed the jury the State was required to prove beyond a reasonable doubt that when defendant possessed a CDS with intent to distribute

he was within 500 feet of any public housing facility . . . . A public housing facility means any dwelling, complex of dwellings, combination building, structure of facility and real property of any nature or pertinent thereto, and used in connection therewith, which is owned by or leased by a local housing authority in accordance with the local redevelopment and housing authority law . . . .

Defendant asserts the jury "must be given express guidance on the Housing Redevelopment law." We disagree that a jury must be instructed on the housing redevelopment law. The instruction that the facility must be "owned by or leased by a local housing authority in accordance with the local redevelopment housing authority law" is sufficient. But in this case, even if the instruction were insufficient, the error would be harmless beyond a reasonable doubt. The State proved defendant possessed CDS with intent to distribute within 500 feet of public park, as well as within 500 feet of a housing authority. Distribution within 500 feet of either the housing facility or the park established the elements of the offense.

IV.

The arguments defendant makes in Points VI through IX of his brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Defendant's recusal motion (Point VI) was based upon the trial court's fact-finding and credibility determinations at the suppression hearing, and the court's ruling on a scheduling matter. Defendant has demonstrated no bias or impartiality on the part of the trial court, and has offered no other bona fide reason requiring the court to recuse itself.

Equally without merit is defendant's argument in Point VII, where he contends the trial court should have adjourned the trial and permitted him to obtain new counsel. Two days before trial, defendant sought an adjournment to obtain telephone records he believed would have supported his defense. Defendant also expressed dissatisfaction with his attorney because of this attorney's inability to obtain the records.

The attorney had subpoenaed phone records from Comcast, but Comcast responded by identifying a probable "subcarrier." When counsel attempted to contact the subcarrier, he received information suggesting the subcarrier had gone out of business. Counsel had also subpoenaed cell phone records. A search for those records was pending. More significantly, defendant has not specified how the phone records, if found, would somehow contradict the State's proofs. Consequently, defendant has not demonstrated that either the denial of his request for adjournment, or the denial of his request to substitute counsel due to counsel's inability to obtain phone records, caused defendant a "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (citation omitted).

Defendant contends in Point VIII he should be permitted to accept the State's plea offer because the judge misinformed him of the maximum sentence he could receive if convicted. During a conference at which the State's plea offer was discussed, the court informed defendant he could receive a maximum sentence of twenty years with ten years of parole ineligibility. The court did not consider defendant would be subject to an extended term. The State's offer was five years with two and one-half years of parole ineligibility.

Defendant's argument is unpersuasive. The transcript of the plea conference discloses defendant was obstreperous and obstructed the proceedings. Nothing in the transcript suggests defendant was prepared to discuss a plea, regardless of whether the court accurately or inaccurately stated his maximum sentence. Following that hearing, defendant did not request the opportunity to reconsider his previous rejection of the State's plea offer. Rather, defendant maintained his innocence. At trial, defendant implied his adult son sold the young woman the heroin. We discern nothing in the record to demonstrate defendant would have accepted any plea, regardless of the maximum possible sentence.

In Point IX, defendant argues the court erred in permitting the State to amend the indictment to reflect that possession of marijuana with intent to distribute near public property was a second-degree offense, rather than a third-degree offense. The grand jury had specified in count five of the indictment that the amount of marijuana was one ounce or more. The specified quantity placed defendant on notice of precisely what the State intended to prove at trial.

An indictment must be sufficiently specific to inform a defendant of the particular charges against him, and to prevent the jury from considering any other charges. State v. LeFurge, 101 N.J. 404, 415 (1986). A court may not permit a jury to convict a defendant on an offense the grand jury had not intended to charge, and for which the indictment did not "fairly warn[]" the defendant. State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988).

Here, count five of the indictment accused defendant of possessing with intent to deliver marijuana in a quantity of one ounce or more, and count six charged him with possessing more than fifty grams. The indictment fairly apprised defendant of the amount of marijuana he was charged with possessing and intending to deliver. The error in designating count two a third-degree offense was administrative or clerical. Defendant was fully informed that the State intended to prosecute him for possessing with intent to deliver one ounce or more of marijuana within 500 feet of a public housing facility, a public park, or a public building. We find no error in the court permitting the State to amend the indictment to accurately reflect the grading of the crime charged in the indictment.

V.

Lastly, defendant attacks his sentence as excessive. He argues the court erroneously imposed an extended term for possession of CDS within 500 feet of a public housing complex or a public park, improperly balanced aggravating and mitigating circumstances, erroneously imposed consecutive instead of concurrent sentences, made findings of fact to enhance the sentence, and imposed a sentence that constitutes cruel and unusual punishment. We agree the court imposed an illegal sentence on count one, charging him with possession with intent to distribute a CDS within 500 feet of a public housing zone. We also agree the court's conclusory statement that it had "reviewed all the criteria set forth in State [v.] Yarbough"5 was inadequate to permit appellate review of the court's rationale for imposing an extended-term sentence and a maximum sentence on two second-degree crimes under the circumstances of this case.

During the sentencing proceeding, the court noted defendant had "two prior convictions for possession of CDS with intent to distribute[,] pursuant to N.J.S. 2C:35-5. Accordingly, pursuant to N.J.S. 2C:43-6(4)(f) [sic] the defendant is mandatory extended term eligible since the prosecution has made application for an extended term for this defendant." The court found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense), (6) (extensive prior criminal record and seriousness of offenses), and (9) (need for deterrence), and no mitigating factors.

Later, the court noted defendant was a persistent offender and that

N.J.S. 2C:43-7(a)(3) requires an extended term for a person who has been convicted of a crime of the second-degree which shall be fixed by the court between [ten] and [twenty] years in prison. Additionally, N.J.S. 2C:43-6(f) requires a minimum period of parole ineligibility that shall be fixed at or between one-third and one-half of the sentence imposed by the court, or three years, whichever is greater.

The court then sentenced defendant to a consecutive extended sixteen-year term, explaining that it had reviewed the criteria in Yarbough and determined "it is appropriate to impose consecutive sentences." Following a discussion with the prosecutor, the court reconsidered the sentence on the count involving marijuana and imposed the ten year maximum for that second-degree offense, rather than an extended term.

The court improperly imposed an extended term under N.J.S.A. 2C:43-6(f) for defendant's conviction of possession with intent to distribute a CDS within 500 feet of a public housing facility or public park under N.J.S.A. 2C:35-7.1. Distributing CDS within 500 feet of public housing facility or public park is not an offense enumerated in N.J.S.A. 2C:43-6(f). Accordingly, the court imposed an illegal sentence. State v. Patterson, 435 N.J. Super. 498, 515, 518 (App. Div. 2014).

The State argues the extended-term sentence should be upheld because the court also sentenced defendant as a persistent offender under N.J.S.A. 2C:44-3(a). However, both the transcript of sentencing and the judgment of conviction make clear the court sentenced defendant under N.J.S.A. 2C:43-6(f), not under N.J.S.A. 2C:43-7(a)(3). Moreover, the trial court erroneously stated that the persistent offender statute required an extended term. Imposition of an extended term under the persistent offender statute is discretionary, not mandatory. Further, the persistent offender statute does not require a minimum period of parole ineligibility, whereas N.J.S.A. 2C:43-6(f) requires a minimum term. Because the extended term sentence was illegal, we vacate the sentence on count one and remand for resentencing on that count.

We find no error in the court's determination that three aggravating factors and no mitigating factors existed. Nonetheless, on remand, should the court impose consecutive sentences and we do not suggest it either should or should not it should articulate its reasons for doing so, rather than simply making a blanket statement that it has considered the Yarbough factors.

We have considered the arguments in defendant's supplemental brief and found they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

VI.

To summarize, we affirm defendant's convictions and his sentence on count two. We vacate his sentence and remand both for re-sentencing on that count one and a determination as to whether the sentences should be consecutive or concurrent.

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

1 Although the indictment designated this offense as a third-degree crime, an offense under N.J.S.A. 2C:35-7.1 is "a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana." Ibid.

2 Sergeant Sarkos was promoted to Lieutenant sometime after the suppression hearing but before trial.

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

4 For the same reasons, we reject defendant's argument in IV B that the State did not lay a proper foundation for introduction into evidence of the "public zone" map, and that the evidentiary use of the map violated defendant's right to confront the witnesses against him.

5 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).