STATE OF NEW JERSEY v. VINCENT C. OGLESBY

NOT FOR PUBLICATION WITHOUT THE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-3280-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VINCENT C. OGLESBY,
a/k/a OGLESBY C. VINCENT,

     Defendant-Appellant.
__________________________

                   Submitted December 12, 2019 – Decided March 4, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 16-04-1240,
                   and Cape May County, Indictment No. 16-05-0518.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   briefs).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen Anderson Pickering,
                   Senior Assistant Prosecutor, of counsel and on the
                   brief).
PER CURIAM

       Defendant Vincent C. Oglesby appeals from an aggregate sentence of nine

years in prison with four-and-one-half years of parole ineligibility for violating

special Drug Court probation.  N.J.S.A. 2C:35-14(a). He argues the violation of

special probation hearing violated his due process rights and that the trial court

abused its sentencing discretion.1 We affirm.

                                      I.

       Defendant was charged in Camden County indictment 16-04-1240 with

third-degree possession of a controlled dangerous substance (CDS),  N.J.S.A.

2C:35-10(a)(1); second-degree possession with the intent to distribute heroin,

 N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A. 2C:35-5(b)(2); and second-degree

conspiracy to possess CDS with intent to distribute CDS,  N.J.S.A. 2C:5-2,

 N.J.S.A. 2C:35-5(a)(1), and  N.J.S.A. 2C:35-5(b)(2). A month later, defendant

was charged in Cape May County indictment 16-05-0518 with third-degree

possession of cocaine,  N.J.S.A. 2C:35-10(a)(1); third-degree possession of

heroin,  N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent

to distribute,  N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A. 2C:5-(b)(3); and third-degree




1
    An issue involving jail credits was withdrawn by defendant.
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possession of heroin with the intent to distribute,  N.J.S.A. 2C:35-5(a)(1) and

2C:5(b)(3).

      Defendant pleaded guilty to all four counts of the Cape May indictment.

In the plea hearing, defendant acknowledged he intended to sell the heroin and

cocaine that the police found in the search of his residence. The State opposed

defendant's request for special Drug Court probation and gave no

recommendation to the court on an alternative sentence.

      Two weeks later, defendant pleaded guilty under the Camden County

indictment to one count of second-degree possession of heroin with intent to

distribute. Defendant acknowledged he intended to share, sell or distribute the

heroin found in the vehicle he was occupying with others.            The State

recommended "a term of five years special probation, with the condition that

. . . [d]efendant complete the Drug Court Program" and payment of financial

fines and penalties. The State advised defendant's plea would be an "open plea."

It consented to consolidation for sentencing in Cape May.

      In August 2017, defendant was sentenced to five years special probation

to complete the Drug Court program. The trial court found aggravating factors

three—the risk defendant will commit another offense; six—defendant's prior

criminal record; and nine—deterrence; and mitigating factor ten—likely to


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respond to probationary treatment.  N.J.S.A. 2C:44-1(a)(3), (6) and (9);  N.J.S.A.

2C:44-1(b)(10). The trial court determined mitigating factor ten outweighed the

aggravating factors "for the purposes of getting him into drug court."

      The trial court noted there needed "to be [a] stiff alternative sentence . . .

to keep [defendant] mindful of the importance of his succeeding in drug court."

On the Cape May indictment, it imposed an alternative sentence of four-year

terms of incarceration to be served concurrently on counts three and four

(possession with intent to distribute), with two-year periods of parole

ineligibility. The other two counts were merged. On the Camden indictment,

the trial judge imposed an alternative sentence of five years' incarceration with

a two-and-one-half-year period of parole ineligibility to be served consecutively

to the Cape May charges. Thus, the aggregate alternative sentence was a nine -

year term with a four-and-one-half-year period of parole ineligibility, and

financial fines and penalties.

      Defendant was transferred to a long-term in-patient drug treatment

program. Within two months in the program, defendant was charged with

violating special probation because he was terminated from the in-patient

program for failing to "cooperate in examination/tests/counselling treatment."

He also did not pay a court imposed financial obligation. The violation summary


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provided that after defendant's transfer to the in-patient facility "in a little more

than a month [defendant] began to exhibit gang behavior which posed enough

of a risk to the program that [he] was discharged as a risk." It explained his

behavior "creates a risk to both the public and other participants in the Drug

Court Program and cannot be tolerated."

      At the special probation violation hearing, a letter from the in -patient

facility, signed by the facility's director and by a counselor, was included in

evidence. The letter alleged defendant "engaged in gang activity with other

residents in the program" and that he was part of the "[B]loods gang." It

explained that defendant was seen "displaying gang handshakes with other

members of the gang" and wearing red beads around his neck that "represent

membership to the gang." There was tension between rival gangs posing "a

safety concern." The letter reported defendant may have been involved in

"physical assaults and threatening remarks[,]" and other students at the facility

"fear[ed] retaliation and retract[ed] their statements."       The letter reported

defendant allegedly went into the rooms of those residents to confront them and

"may have gotten physical with them." The letter explained "the code of silence

and fear of retaliation is preventing . . . other residents" from giving their names

or writing reports. Defendant was discharged from the program. The letter


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recommended defendant have a "higher level of structured care where security

presence [could] be enforced."

      A probation officer testified at the special probation violation hearing,

based on the letter, that defendant engaged in gang-affiliation conduct, including

handshakes and wearing beads, and was terminated from the program due to

those "behaviors that they deemed to be dangerous[.]" He testified defendant's

successful completion of the drug treatment program was a condition of his

special probation. The probation officer acknowledged he did not have first -

hand knowledge about the gang handshakes or the accuracy of the facility's

letter. However, he testified the facility was not made aware of defendant's

gang-affiliation when he was admitted, but it had come to the same conclusion.

      Defendant testified he was not a Bloods gang member.            He denied

knowledge about gang handshakes, but acknowledged he shook hands with his

workout team to celebrate after a "grueling workout." He testified that when he

was younger, he was jumped and his arm was broken for wearing his favorite

color red among "rival gang people wearing blue." He testified his cousin sent

him the red beads he was wearing at the facility. These were Buddhist beads

and were "supposed to teach [him] peace and serenity." Because his birthday

was in December, defendant testified his favorite colors were red and green.


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Defendant testified he saw people at the facility wearing "[a]ll types of things

that indicate gang membership." He claimed there almost was a riot between

the gangs on the first day he was there. He testified when they all were told to

give up their beads, he gave his up first because he did not want to be mistaken

for a gang member. Defendant testified a counselor asked him to speak with

two other people at the facility, who he knew from prison, but who were

"wildin'," and he did that, but he denied assaulting or threatening anyone.

Defendant testified he was denied Drug Court probation on account of alleged

gang affiliation because he was not "paying attention" to his red beads or

handshakes. Defendant sent a letter to the judge stating much of the same

information.

      The Cape May County Drug Court coordinator testified it was not likely

defendant would be placed in another residential treatment program in light of

his experience at this facility.   She denied the facility was advised about

defendant's gang affiliation.

      The trial court found defendant violated the terms and conditions of his

probation because completion of the in-patient program was a condition of

special probation, but he was terminated from the program. In sentencing

defendant to special probation, the court noted it previously found aggravating


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factors three, six and nine were outweighed by mitigating factor ten, but that

mitigating factor ten "no longer pertains." The trial court imposed the alternate

sentence, finding that mitigating factor ten no longer existed, and also

recommended drug treatment for defendant while he is in prison.

      On appeal, defendant raises these issues:

            POINT I

            A NEW VIOLATION OF PROBATION HEARING
            SHOULD OCCUR BECAUSE MR. OGLESBY'S DUE
            PROCESS RIGHT WAS VIOLATED BY THE
            COURT'S ACCEPTANCE OF HEARSAY AS PROOF
            THAT HE INEXCUSABLY FAILED TO COMPLY
            WITH A SUBSTANTIAL CONDITION OF
            PROBATION. (U.S. CONST. AMEND. XIV; N.J.
            CONST. ART, I, PARA. 1.).

            POINT II

            THE COURT ABUSED ITS SENTENCING
            DISCRETION BY: 1) IMPOSING A SENTENCE
            BASED NOT ON THE AGGRAVATING AND
            MITIGATING FACTORS, BUT LARGELY BASED
            ON A DESIRE TO INCENTIVIZE DEFENDANT TO
            COMPLETE DRUG TREATMENT; 2) IMPOSING A
            DISCRETIONARY     PERIOD    OF   PAROLE
            INELIGIBILITY   WITHOUT    MAKING   THE
            STATUTORILY REQUIRED FINDING THAT THE
            AGGRAVATING FACTORS SUBTANTIALLY (sic)
            OUTWEIGH THE MITIGATING FACTORS; AND 3)
            BY IMPOSING CONSECUTIVE SENTENCES
            WITHOUT REASONS.



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            POINT III

            THE MATTER SHOULD BE REMANDED TO
            REIMPOSE 26 DAYS OF JAIL CREDIT
            ERRONEOUSLY    REMOVED     FROM    THE
            JUDGMENT OF CONVICTION ON IND. NO.16-05-
            00518.

                                     II.

      Our review of a sentencing determination is limited. State v. Roth,  95 N.J. 334, 364-65 (1984). We review a judge's sentencing decision under an

abuse of discretion standard.     State v. Fuentes,  217 N.J. 57, 70 (2014).

"[A]ppellate courts should not 'substitute their judgment for those of our

sentencing courts[.]'" State v. Cuff,  239 N.J. 321, 347 (2019) (quoting State v.

Case,  220 N.J. 49, 65 (2014)).

      The Comprehensive Drug Reform Act of 1987,  N.J.S.A. 2C:35-1 to -31,

provides for special probation to Drug Court. "Special probation is designed to

divert otherwise prison-bound offenders into an intensive and highly specialized

form of probation designed to 'address in a new and innovative way the problem

of drug-dependent offenders caught in a never-ending cycle of involvement in

the criminal justice system.'" State v. Bishop,  429 N.J. Super. 533, 540 (App.

Div. 2013) (quoting State v. Meyer,  192 N.J. 421, 434-35 (2007)). If special

probation is violated, a court may permanently revoke the probation and then


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"shall impose any sentence that might have been imposed, or that would have

been required to be imposed, originally for the offense for which the person was

convicted or adjudicated delinquent."  N.J.S.A. 2C:35-14(f)(4).

      Defendant argues the trial court abused its discretion in sentencing him,

arguing the sentence was not based on a weighing of aggravating and mitigating

factors nor based on appropriate findings.       Defendant does not allege the

sentence violated sentencing guidelines. The sentence of four years for the

third-degree offenses and five years for the second-degree offense fell within

those guidelines. See  N.J.S.A. 2C:43-6(a)(2) and (3).

      In sentencing defendant initially, the trial court found three aggravating

factors (factors three, six and nine) and one mitigating factor (factor ten). In

support of aggravating factors three and six, the trial court noted that while only

twenty-three years old, defendant had "[seventeen] juvenile adjudications" and

"three prior municipal court convictions and three prior superior court

convictions" as an adult, concluding defendant "got off to a pretty terrible start

in the drug world and the criminal world." After the violation finding, the trial

court found that mitigating factor ten no longer applied, but continued to find

the same aggravating factors. Therefore, the aggravating factors by definition

outweighed the non-existing mitigating factor. Defendant does not contend the


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aggravating factors were improper or that mitigating factors should have been

found. There also was nothing about the sentence that was shocking to the

judicial conscience.

      Defendant argues the court erred in finding a violation of special probation

because it was based on hearsay testimony rather than personal knowledge

testimony. Our Supreme Court recently addressed the use of hearsay testimony

at probation violation hearings. In State v. Mosley,  232 N.J. 169, 187 (2018),

the Court held that "hearsay generally is admissible in [violation of probation]

hearings. The devil is in the detail of avoiding trenching on the due process

confrontation rights of a defendant." The Court delineated the factors trial

courts are to use in determining whether the proofs are sufficiently reliable. Id.

at 190. Mosley was decided shortly after the hearing at issue here. Id. at 169.

Even prior to Mosley, it was clear hearsay could be used if it was reliable. See

State v. Reyes,  207 N.J. Super. 126, 139 (App. Div. 1986), superseded by

statute,  N.J.S.A. 2C:35-14.

      The successful completion of the in-patient drug treatment program was a

condition of defendant's special probation. Defendant was terminated from the

program at the inpatient treatment facility. Defendant takes issue with the

reasons the facility terminated his participation. However, he acknowledged


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using various handshakes. He wore colors that he knew from past experience

were identified with gangs. He did not deny going into the room of another

resident described as "his" person to defuse a situation involving gang activity.

Although he denied that any of this was gang related, his testimony in many

ways corroborated information in the facility's letter to the court. There was no

abuse of discretion by the trial court in finding the condition of drug court

probation—his participation in the in-patient program—was not met because he

was terminated from the program.

      Defendant argues the trial court did not provide an explanation for

sentencing defendant to consecutive terms. In State v. Yarbough,  100 N.J. 627,

643 (1985), the Court stated that "the reasons for imposing either a conse cutive

or concurrent sentence should be separately stated in the sentencing decision[.]"

And in State v. Carey, 168, N.J. 413, 424 (2001), the Court provided that where

a court "fails to give proper reasons for imposing consecutive sentences at a

single sentencing proceeding, ordinarily a remand should be required for

resentencing."

      Although the judge here "did not carefully articulate the [required]

standards," the separate indictments left no doubt there were separate crimes and

it was that which supported the consecutive sentences imposed. See State v.


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Jang,  359 N.J. Super. 85, 97-98 (App. Div. 2003) (affirming consecutive

sentences when the "facts and circumstances leave little doubt as to the propriety

of the sentence" even though the sentencing court did not "carefully articulate

the standards."); see also State v. D'Amato,  218 N.J. Super. 595, 608 (App. Div.

1987) (finding no reason to disturb maximum and consecutive sentences

imposed by the trial court). As in Jang, "we need not modify the sentence or

remand for further reasons where there is no showing that the sentence is 'clearly

mistaken.'" Jang,  359 N.J. Super. at 98 (quoting State v. Krophold,  162 N.J.
 345, 355 (2000)).

      Defendant also contends the court did not make adequate findings in

determining to impose periods of parole ineligibility. "After determining the

sentence, the court must decide, in accordance with [N.J.S.A. 2C:43-6(b)],

whether to impose a period of parole ineligibility." State v. Kruse,  105 N.J. 354,

359 (1987). Parole ineligibility can be imposed "when the sentencing judge is

clearly convinced that the aggravating factors of  N.J.S.A. 2C:44-1(a)

substantially outweigh the mitigating factors under N.J.S.A. 2C:44-1(b)." State

v. Brown,  384 N.J. Super. 191, 194-95 (App. Div. 2006).

      In sentencing defendant, the trial court found there were no mitigating

factors, only aggravating factors. The terms of parole ineligibility imposed


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reflected the trial court was clearly convinced the aggravating factors were not

counterbalanced by any mitigating factors. There was no abuse in discretion by

sentencing defendant to a custodial sentence within the sentencing range with a

period of parole ineligibility in light of the absence of mitigating factors. Again,

we need not modify or remand the sentence when there is no showing it is clearly

mistaken. See Jang,  359 N.J. Super. at 98.

      We conclude that defendant's further arguments under his point headings

I and II are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

      Affirmed.




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