Opinion
DOCKET NO. A-0621-12T1
11-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHIE ARIAS, a/k/a RICH ARIAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-03-0217. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury convicted defendant Richie Arias of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), (b)(2). Defendant claims that he was deprived of a fair trial due to erroneous evidentiary rulings, a prejudicial response to a jury request for a read-back of testimony, and prosecutorial misconduct in jury selection. He also claims that the judge abused his discretion in sentencing defendant to six years in prison, close to the minimum period allowable for a second-degree crime. After a careful review of the record, we reject these claims and affirm.
During a 2009 police investigation of illegal gambling and narcotics distribution, the lead detective, David Cruz, obtained a wiretap. While serving as a police officer for approximately seventeen years, Cruz had been involved in hundreds of narcotics investigations, many involving wiretaps. He also received training in narcotics investigations. Based on his experience and training, the judge qualified Cruz as an expert in the area of narcotics distribution.
As an expert, Cruz explained that cocaine was normally sold by big suppliers in "bricks." Distributors would use cutting agents such as lactose, baking soda, or roach powder to dilute the narcotics, add acetone to enhance the scent and harden the product, and then re-sell the cocaine at a profit. Normally, wood and vise grips would be used to compress the diluted cocaine into a rock again, giving it the appearance of a pure brick of cocaine. When sold, narcotics would be packaged in a knotted-up corner of "little sandwich bags," containing anywhere between one and twenty grams. Scales would be used to weigh the amount put into the bag.
Cell phones were used as a tool to facilitate the distribution of narcotics and avoid police detection. Conversations were kept short and the participants used coded language "to impede law enforcement" in case of a wiretap. Cruz explained, for example, that if a person requested "five" or "five dollars," that person was requesting five grams of cocaine.
Cruz testified that the majority of the wiretapped conversations that he monitored on the suspect's phone were drug-related, with people calling the suspect to order narcotics. Typically, the calls were very short. The caller would give the suspect a number or "give a code word which would be either a chimie, a peso, a dollar," and the two would arrange to meet at a specified location.
One of the detectives, who had known defendant for at least twenty years, was able to identify defendant as one of the voices on a number of phone calls with the suspect. In Cruz's opinion, defendant was one of the individuals who called the suspect for the purpose of ordering cocaine. Cruz testified:
Q. And did you have an occasion yourself to listen to calls in which the defendant Richie Arias spoke with Tricky-Tricky?
A. Yes, I did.
Q. And those conversations, what were the nature of those conversations?
A. They were narcotics related and where Mr. Arias was ordering cocaine from Tricky-Tricky a.k.a. [the suspect].
A transcript of phone calls from the wiretap was prepared and translated from Spanish to English. The transcript of defendant's phone calls with the suspect reflected several short calls, in which defendant requested items at various locations.
In one call, defendant warned the suspect to "not fix cars" at the shop because "the people were around there again." In another call, the suspect said, "Don't you see that they're coming this way? What do you want? For us both to get nailed?" During another conversation, the suspect told defendant to buy more at a time "so that [he's] not around here all the time, because it's hot there." In other calls, defendant urged the suspect to rush to the designated location because he had "a good client" waiting for him and the "people [were] going to leave."
Cruz stated that conducting physical surveillance of the suspect's phone calls was difficult, as the police could be easily spotted. Thus, only two surveillance operations were conducted with respect to defendant's dealings with the suspect.
On September 2, 2009, three detectives observed the area surrounding a bar. Cruz ordered the surveillance after he monitored a call in which defendant told the suspect "I'm around the bar, bring me $10." During this surveillance operation, a detective observed the suspect and defendant meet, have a short conversation, and engage in a quick, hand-to-hand transaction. After the transaction, a vehicle pulled around the corner and the suspect got in the passenger side, while defendant walked back toward the bar. Since the investigation was ongoing, they did not follow the vehicle, nor did they arrest defendant at that time.
Thereafter, on September 10, 2009, Cruz ordered surveillance in the areas surrounding a laundromat and the residence of the suspect's assistant. Cruz gave the order after monitoring a series of phone calls in which defendant stated that he was at the laundry and requested a quantity of dollars from the suspect, to which the suspect responded that the suspect had to speak with his friend because his friend had it at his home.
A detective observed defendant inside the laundromat. The detective saw defendant exit the laundromat and walk to his home. Next, another detective observed the suspect and another man travel to defendant's residence and meet with defendant at the doorway. The suspect gave something to defendant in exchange for what appeared to be paper money. The transaction was very quick, lasting five or ten seconds, after which defendant immediately went back into his house, while the other two men drove away.
On September 30, 2009, at the conclusion of the wiretap investigation, Cruz obtained search warrants for the mini-mart, the residence of the suspect's assistant, and the suspect, whose home was later searched by consent.
More than half an ounce of cocaine was found in the three searches, as well as considerable paraphernalia for the distribution of drugs.
No cocaine or paraphernalia was found on defendant when he was arrested.
Defendant raises the following points on appeal:
POINT I: EXPERT TESTIMONY ON NARCOTICS THAT CHARACTERIZED THE WIRETAP COMMUNICATIONS AT ISSUE IN THIS CASE AS DRUG TRANSACTIONS WENT TO THE ULTIMATE ISSUE OF GUILT IN AN AREA NOT BEYOND THE KEN OF THE AVERAGE JUROR, THEREBY IMPERMISSIBLY INVADING THE PROVINCE OF THE JURY.
POINT II: DEFENDANT'S CONVICTION MUST BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL BECAUSE DEFENDANT SUSTAINED HIS BURDEN OF PROVING THAT THE STATE EXERCISED PEREMPTORY CHALLENGES TO EXCLUDE POTENTIAL JURORS ON THE BASIS OF THEIR HISPANIC ORIGIN.
POINT III: THE COURT'S RESPONSE TO THE JURY'S REQUEST FOR A READ BACK OF THE TESTIMONY OF A KEY STATE WITNESS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BECAUSE IT IMPROPERLY DISCOURAGED THE JURY FROM OBTAINING THE READ BACK AND LED THE JURY TO CONVICT WITHOUT BENEFIT OF THE REQUESTED READ BACK. (Not Raised Below).
POINT IV: THE TRIAL JUDGE ERRONEOUSLY RULED THAT DEFENDANT'S REMOTE CONVICTIONS COULD BE INTRODUCED BY THE STATE TO IMPEACH DEFENDANT'S CREDIBILITY IF DEFENDANT TESTIFIED IN HIS OWN DEFENSE.
POINT V: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A SIX-YEAR TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
I
In Point I, defendant contends that the judge erred by allowing Cruz to answer the prosecutor's hypothetical questions, which were drawn directly from the transcript of defendant's conversations with the suspect, and characterize the wiretapped communications as drug transactions. According to defendant, this improperly allowed Cruz to testify as to defendant's guilt. Defendant claims that Cruz's testimony was particularly harmful for two reasons. First, Cruz testified both as a fact and as an expert witness. Second, before defense counsel objected, some of the prosecutor's questions to Cruz were not in the form of a hypothetical question and used defendant's name.
While the State admits that the prosecutor initially asked improper questions, it contends that the judge "cured any potential prejudice by striking the questions from the record and by providing the jurors with proper limiting instructions on expert testimony." The State also argues that any error was harmless in light of the significant evidence of defendant's guilt.
Cruz identified defendant as an individual who called the suspect. When the prosecutor asked Cruz about the nature of defendant's conversations with the suspect, Cruz responded that "[t]hey were narcotics related and where Mr. Arias was ordering cocaine from Tricky-Tricky a.k.a. [the suspect]." Defense counsel did not object to that question or answer.
The prosecutor asked Cruz to identify the transcript of defendant's conversations with the suspect. She questioned Cruz about a specific conversation between defendant and the suspect, as follows:
Q. Now during the phone call it states there, "Bring me five -- five little dollars before it rains."
A. Correct.
Q. Based on your training and experience in the investigation that was conducted here, do you have an opinion as to what five dollars -- 'five little dollars' means?
A. Yes, five grams of cocaine.
Q. And when it's further followed up with "Bring me five -- five little dollars before it rains," again, based on your training and experience what was Mr. Arias asking for there?
Before Cruz could answer the last question, defense counsel objected to the question and requested a mistrial. Defense counsel alleged that the prosecutor improperly asked Cruz to directly interpret defendant's calls with the suspect, without posing a hypothetical question.
The judge found the questions to be improper and charged the jury:
After reviewing law and considering the arguments in this matter, I'm sustaining defense counsel's objection to the last question.
I'm also on my own motion going a step further with regard to the question before it - and this applies to call 35 which you were looking at at the time -- I'm striking the previous question and answer. What that means and the reason I'm doing so is because the question was asked in improper form. I'm directing even if you remember the question and the answer given to you, you are to disregard it. It won't be part of the evidentiary record in the event that you ask for a read back later on during your deliberations and that testimony must not be considered by you.
I am not prohibiting the State from asking questions of the witness in this area with regard to call 35 and other calls. I am striking that question and answer solely
because of the form of the question and hence the form of the answer in effect. And that is all in that regard.
When Cruz's testimony resumed, the prosecutor posed hypothetical questions and did not use defendant's name. Defense counsel asserted no objections to this line of questioning.
In the final charge, the judge instructed jurors that they were not bound by the opinions given by any experts and that "[t]he ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt is to be made only by you, the jury."
Evidentiary rulings are reviewed for an abuse of discretion, State v. Nantambu, 221 N.J. 390, 402 (2015), as are rulings on motions for a mistrial, State v. Jackson, 211 N.J. 394, 407 (2012). To the extent defendant complains about the hypothetical questions posed by the prosecutor, we use the more stringent plain error standard of review because defense counsel did not object to those questions below. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ."); see also State v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.) (stating that "a claim of error which could have been but was not raised at trial will not be dealt with as would a timely challenge"), certif. denied, 170 N.J. 206 (2001).
Pursuant to N.J.R.E. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." With respect to drug distribution, our Supreme Court has stated:
Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson. [State v. Odom, 116 N.J. 65, 81 (1989).] Odom also permits the State to ask a narcotics expert a hypothetical question mirroring the facts of the case, even though the hypothetical may be "expressed in terms of ultimate issues of fact." Ibid.
[State v. Nesbitt, 185 N.J. 504, 507 (2006).]
The judge did not abuse his discretion in finding that Cruz's expert testimony would assist the jury in understanding the wiretap evidence, particularly in understanding the coded language used by defendant and the suspect. This case is distinguishable from the cases cited by defendant in that it did not involve a straightforward transfer of drugs between two individuals, as to which expert evidence is unnecessary. See, e.g., State v. Sowell, 213 N.J. 89, 100-02, 104-06, 108 (2013).
II
In Point II, defendant contends his conviction should be vacated and his case remanded for a new trial because he sustained his burden of proving that the State exercised peremptory challenges to exclude potential jurors on the basis of their Hispanic origin.
The State exercised six peremptory challenges, with three exercised against Hispanic jurors: (1) one's step-brother had been "in and out of prison" for drug crimes committed in Passaic County, while the family was living in Passaic; (2) another's father and uncle had been convicted of drug distribution, and drug distribution was a part of his "environment" in his community in Paterson, his cousin was serving a life sentence for murder, and the same uncle who had been convicted of drug crimes also had been accused of domestic violence; and (3) the third's nephew had been charged in the Central Park jogger case and later exonerated.
None of the selected jurors had family members who had been convicted of drug crimes, or who had been falsely accused of crimes. However, one juror's presently deceased brother had served time for robbery in the 1970s. Also, many years earlier, when another juror was in the third grade, his second cousin had committed murder in Clifton. A third juror's ex-husband, against whom she had obtained a restraining order, had used cocaine.
At least one of the selected jurors was Hispanic; and two of the other selected jurors spoke Spanish, with Spanish being the first language of one of them.
After the prosecutor used her first four peremptory challenges, defense counsel made a motion pursuant to State v. Gilmore, 103 N.J. 508 (1986), arguing that the State had excluded two individuals because they were Hispanic. The prosecutor responded:
Judge, there were very specific reasons especially for those two jurors and, quite honestly, in this case it's the opposite. I would like to have Hispanic jurors, I would like to have those who speak the language because, as Your Honor knows, the bulk of the evidence in this case are wiretap recordings in Spanish.
But both individuals had extensive
family relations that were charged with very serious crimes, that went to prison. In fact I believe both individuals, and I - -- I have my notes, I can go through in detail, but both individuals had relatives that were convicted of the same similar offenses, drug offenses.
Number 13 indicated that he had a father who was involved in drug cases, went in and out of prison. He had an uncle, same type of charges. So there was no reason whatsoever or no basis whatsoever for me to excuse those two based on their nationality, their - their race, the fact that they speak Spanish or that they are Hispanic. It had nothing to do with that.
It had to do with the background and the relationship of their family members, that they have been convicted, they have gone to prison, and I felt they could not be a fair juror, and that was my only reasoning.
We note that jurors are cautioned not to use their knowledge of a foreign language, but accept the interpretation of the court-certified interpreter. Model Jury Charge (Criminal) "Instructions After Jury Is Sworn" (October 15, 2012) ("A witness or witnesses may testify in this case with the assistance of a certified court interpreter. Even if you understand the language spoken by the witness, you must accept the interpretation of the testimony and you must not provide any translation of your own to the jurors. Every juror is bound by the translation provided by the interpreter, whether or not the juror agrees or disagrees with the interpretation, because every juror must consider the same evidence during deliberations.").
The judge denied the motion, finding that it was reasonable for the prosecutor to use a peremptory challenge to dismiss a juror whose family member had drug convictions.
At the end of jury selection, the defense renewed its motion based upon the State's use of peremptory challenges to strike three Hispanic jurors. The prosecutor explained that she had stricken one because the juror's nephew was falsely accused in the Central Park jogger case, and because she anticipated that the defense would use a similar "rush to judgment" argument in this case.
The judge denied the motion, finding the State's reasons credible. Both the federal and state constitutions prohibit ethnic discrimination in the use of peremptory challenges. U.S. Const. amend. XIV, § 1; N.J. Const. art. I, ¶¶ 5, 9, 10; see Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82-83 (1986); State v. Osorio, 199 N.J. 486, 492 (2009); State v. Fuller, 182 N.J. 174, 185-87, 192-97 (2004); Gilmore, supra, 103 N.J. at 529; see also State v. Andrews, 216 N.J. 271, 292 (2013) ("With respect to the use of peremptory challenges in a constitutionally impermissible manner, a remedy within the discretion of the trial court is to alter the procedure for exercising challenges so that the challenges occur outside of the jurors' presence at the first suggestion of improper use of peremptory challenges."). When a prosecutor's selection of jurors is discriminatory, not only is a particular defendant harmed, but "the very integrity of the courts is jeopardized." Miller-El v. Dretke, 545 U.S. 231, 237-38, 125 S. Ct. 2317, 2323-24, 162 L. Ed. 2d 196, 212 (2005).
The burden is on the defendant to prove purposeful discrimination based on the totality of the relevant facts. Batson, supra, 476 U.S. at 93-94, 106 S. Ct. at 1721, 90 L. Ed. 2d at 85-86; Gilmore, supra, 103 N.J. at 534. A three-part test is used. First, the challenger has the burden of "showing that the peremptory challenge was exercised on the basis of race or ethnicity." Osorio, supra, 199 N.J. at 492. If the challenger meets its burden, the burden shifts in step two to the party making use of the peremptory challenge "to prove a race- or ethnicity-neutral basis supporting the peremptory challenge." Ibid. (requiring the trial judge to determine whether the party provided "a reasoned, neutral basis for the challenge or if the explanations tendered are pretext"). Step three is only triggered if the party exercising the peremptory challenges satisfies this burden. See id. at 492-93. Pursuant to step three, the trial judge must weigh the proofs provided by the challenger in step one with the proofs presented by the user in step two. Id. at 492. The trial judge must determine, based on a preponderance of the evidence, whether the challenger has proven that the user exercised the peremptory challenge "on unconstitutionally impermissible grounds of presumed group bias." Id. at 493.
In determining whether a defendant has met his burden, the judge should consider such factors as: whether the prosecutor struck most or all of the members of an identified ethnic group from the venire; whether the prosecutor used a disproportionate number of peremptory challenges against a particular ethnic group; whether the struck jurors shared only one characteristic-their membership in a particular ethnic group-and in all other respects, they were as heterogeneous as the community as a whole; whether the prosecutor engaged in the same type of voir dire of the struck jurors as he or she did with respect to other jurors; whether defendant is a member of the same ethnic group as the struck jurors; and whether the victims are members of the ethnic group to which the majority of the remaining jurors belong. Osorio, supra, 199 N.J. at 503-04.
Assuming defendant established a prima facie case by noting that three of the six peremptory challenges were used to exclude Hispanic jurors (step one), the prosecutor provided a reasoned, neutral basis for excluding the Hispanic jurors that was factually supported by the record (step two). The judge considered the arguments of both sides and found no constitutional violation (step three).
The struck Hispanic jurors shared more similar characteristics than just their ethnicity. Two of the three jurors had family members with convictions for drug crimes, with those convictions occurring in Passaic County, the same jurisdiction as the present case. The third had a family member who was falsely accused of a sensational crime. These neutral factors supported the prosecutor's use of her peremptory challenges. See Osorio, supra, 199 N.J. at 505 (stating that peremptories may be justified if reasonably relevant to case being tried).
Defendant does not claim that the prosecutor engaged in a different voir dire of the struck jurors as compared to other jurors, and the judge's credibility finding as to the prosecutor's explanation is entitled to deference. See State v. Locurto, 157 N.J. 463, 474 (1999) ("Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.").
III
In Point III, defendant contends that "the court's response to the jury's request for a read-back of the testimony of a key state witness deprived defendant of his right to a fair trial because it improperly discouraged the jury from obtaining the read back and led the jury to convict without benefit of the requested read back." As this issue was not raised below, our review is for plain error. See R. 2:10-2.
During deliberations, the jury requested a read-back of Cruz's testimony. The judge conferred with counsel regarding the appropriate response to the jury's question, with defense counsel suggesting that the jury be asked "what areas they are looking for."
The judge then requested that the jurors narrow the focus of their inquiry. Thereafter, the jurors left the courtroom and returned less than an hour later with a guilty verdict.
The rules governing a jury's request for a read-back of testimony were set forth in State v. Wilson, as follows:
It is well-established that "the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court."
. . .
[I]f the scope of the jury's request is unclear or if something occurs during the read-back to raise a question about the extent of the testimony sought, the obligation of the trial court is to ascertain the will of the jury. . . .
[165 N.J. 657, 660-61 (2000) (emphasis added) (citations omitted).]
The parties agreed that the scope of the jury's request was unclear, and that the judge should inquire as to whether the jury wanted a read-back of all of Cruz's testimony or merely a portion of it. Thus, there was no error in the judge's so inquiring. See Wilson, supra, 165 N.J. at 661-62; see also State v. Middleton, 299 N.J. Super. 22, 31 (App. Div. 1997) ("[O]rdinarily a judge should accede to a jury's request to have testimony read back to it.").
The judge did not improperly discourage the jurors from pursuing a read-back of Cruz's testimony, or coerce them to reach a verdict they might not otherwise have reached. See, e.g., State v. Rodriguez, 234 N.J. Super. 298, 311 (App. Div.) ("The court acted within its discretion when it provided various read-backs of testimony requested by the jury but directed the jury to rethink its request for a read-back which would have required approximately two days."), certifs. denied, 117 N.J. 656 (1989); State v. Reddy, 137 N.J. Super. 32, 37 (App. Div. 1975) (finding that the judge did not abuse its discretion in advising jurors that they could have read-back of testimony, but that read-back could not be accomplished until the next day because it would require calling back reporter who was on military reserve duty). Presumably, if that had been the import of the judge's language, or tone, defendant's trial counsel would have objected. See, e.g., R. 1:7-2; State v. Frost, 158 N.J. 76, 83 (1999) (stating that defense counsel's failure to object to prosecutor's comments "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made").
IV
Defendant contends in Point IV that the judge erred by ruling that if defendant chose to testify at trial, the prosecutor could use defendant's 1998 conviction for impeachment purposes. He claims this was error because: (1) the conviction was remote; (2) the conviction was not for an offense that reflected poorly on his credibility; and (3) in the interim period between his 1998 conviction and the instant offense, he had only one municipal judge conviction for which he had not been imprisoned. We review this evidentiary ruling under the abuse of discretion standard. See State v. T.J.M., 220 N.J. 220, 233-34 (2015).
Defendant had two prior convictions: (1) a conviction in 1991 for unlawful possession of a weapon, for which defendant was sentenced to two years of probation; and (2) a conviction in 1998 for eluding, for which defendant was sentenced to three years in prison. At a pretrial hearing, the judge considered the possible use of defendant's prior convictions should defendant testify. Defense counsel objected on the ground that the convictions were remote in time. The judge initially reserved decision, although noting that the second conviction was not remote since defendant's parole eligibility occurred in 2001 and the date of the present offense was 2009. Ultimately, the judge ruled that the 1998 eluding conviction could be used for impeachment purposes, but the 1991 unlawful possession of a weapon conviction could not.
The governing law is well-established. Subject to the judge's discretion, limiting instructions, and any necessary sanitization, criminal defendants may be impeached with evidence of a prior conviction. See N.J.R.E. 609(a); see also T.J.M., supra, 220 N.J. at 233; State v. Harris, 209 N.J. 431, 439-45 (2012); State v. Hamilton, 193 N.J. 255, 262-70 (2008); State v. Brunson, 132 N.J. 377, 383-92 (1993); State v. Sands, 76 N.J. 127, 147 (1978). In weighing a prior conviction's probative value against the risk of undue prejudice, the trial judge should consider: the remoteness of the prior offense; the seriousness of the prior offense; whether the prior offense involves a crime of dishonesty; and any intervening convictions. Sands, supra, 76 N.J. at 144-45, 147.
This case was tried in 2012. The following year, N.J.R.E. 609 was amended, effective July 1, 2014, to address the use of prior convictions where more than ten years have passed between trial and the prior conviction or release from confinement (whichever is later). See generally N.J.R.E. 609(b). --------
Defendant's 1998 conviction was fourteen years old at the time of trial in 2012. However, defendant's sentence for the 1998 conviction was three years, and he only became eligible for parole in 2001. Moreover, in the interim, defendant had been convicted of a municipal court offense, which "bridge[d] the gap" between the two offenses. See Harris, supra, 209 N.J. at 436, 444-45 (finding no abuse of discretion in permitting the use of two prior convictions that were approximately thirteen years old at time of trial, since the disorderly persons offenses defendant had committed in the interim "bridge[d] the gap").
The trial judge did not abuse his discretion in ruling that defendant's prior conviction could be used for impeachment if he testified.
V
In Point V, defendant contends the judge abused his discretion in sentencing him to six years in prison. See State v. Robinson, 217 N.J. 594, 603 (2014) ("Appellate review of a sentence is generally guided by the abuse of discretion standard.").
At the sentencing hearing, the judge acknowledged both defendant's conceded addiction to cocaine, marijuana, and alcohol, and the likelihood that he was involved in dealing cocaine, in part, to feed his addiction. Defendant appeared to be a "mid-level player in this operation." But defendant's addiction was not a mitigating factor, nor was defendant's love for his children, whom he had not been supporting financially.
Ultimately, the judge found three aggravating factors: (1) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record, and the seriousness of the offense of which he had been convicted, N.J.S.A. 2C: 44-1(a)(6); and (3) the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found that these aggravating factors outweighed the non-existent mitigating factors. Nevertheless, the judge sentenced defendant to only six years in prison, at the low end of the five-to-ten year spread available for second degree crimes, N.J.S.A. 2C:43-6(a). The judge explained his decision as:
[B]oth because of the very significant additional consequence of deportation and the fact that I do think quite, quite likely that at least part of Mr. Arias's involvement in this was as a result of his own addiction, which while not . . . a defense, must be taken into account in some sense, in the scheme of things.
The judge's sentence was not an abuse of discretion. The judge followed the sentencing guidelines, the judge appropriately weighed the aggravating and mitigating factors, and the sentence does not shock the conscience. See State v. Case, 220 N.J. 49, 63-65 (2014) ("In determining the appropriate sentence to impose within the range, judges first must identify any relevant aggravating and mitigating factors . . . ."); State v. Bolvito, 217 N.J. 221, 228 (2014) (limiting appellate review to an abuse of discretion standard); State v. Hudson, 209 N.J. 513, 528 (2012) (requiring "compliance with statutory sentencing authority and stated parameters"); State v. Roth, 95 N.J. 334, 365-66 (1984) (requiring "the correct sentencing guidelines" to be followed).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION