Opinion
DOCKET NO. A-2852-11T3
02-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HARRY L. CAVER, a/k/a ROBERT CAVER, ROBERT L. CAVER, HARRY CAVER, ROBERT CAVE, ROBERT LOUIS, and HARRY CARVER, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs). Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1132.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs).
Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief). PER CURIAM
Defendant Harry L. Caver appeals his August 31, 2011 judgment of conviction (JOC) for distribution of drugs and related charges stemming from a street sale of heroin in Plainfield. He raises as plain error testimony by the police officers involved in his arrest that they observed defendant engage in narcotics transactions in a high-crime area. He also appeals the length of the sentence imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
We were not provided defendant's original JOC. Although defendant was sentenced on August 22, 2011, the earliest amended JOC that was provided was signed on August 31, 2011. The JOC was amended on two subsequent occasions, March 8, 2012 and July 5, 2012.
In December 2009, defendant was charged under Indictment No. 09-12-1132, with: third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count one); second-degree distribution of CDS within 500 foot of public housing, N.J.S.A. 2C:35-7.1 (count two); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count three); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count four). Defendant was found guilty of all counts and sentenced to an aggregate term of twenty years with ten years of parole ineligibility.
Defendant did not attend his trial nor did he present any witnesses. The State's witnesses testified to the following facts. On August 5, 2009, Det. Michael Black, of the Plainfield Police Department's Narcotics Bureau, was conducting undercover surveillance of an area surrounding Liberty Street. He had a back-up team that included Sergeant Kevin O'Brien, Det. Joseph Mulligan and Det. Ronald Fusco. None of them was in a marked police car.
Dets. Black, Mulligan and Fusco, and Sergeant O'Brien, who each had at least nine years of experience working at the Plainfield Police Department, testified at trial. When asked about the surveillance area, Det. Black testified that it was "considered a high crime narcotic area where narcotics are sold at street level[,]" and a "high gang crime area." He stated that "[w]e've conducted numerous search warrants throughout that area[]" and have "arrested people with guns and drugs in that area." When asked a similar question, Sergeant O'Brien stated that "[i]t is a high crime, high drug area."
The police saw three completed hand-to-hand transactions. At approximately 8:15 a.m., Det. Black saw defendant, on a bicycle, and Cecil Young, on foot, talk and then separate. Next, a blue minivan, driven by George Byrd, stopped at the corner of Liberty and West Fourth Streets, at which time Young approached the driver's side of the vehicle on foot. Young waved defendant over and then walked away. Defendant made an exchange with the driver, handing over a small item and receiving money. Defendant rode away on his bike. Det. Black testified that, "due to the nature of my investigation, the area, the problem area, their brief meeting between Caver, Young, and the driver of the vehicle and Caver receiving money from the driver, I believe I observed a narcotic transaction."
Det. Mulligan testified that at first the blue minivan did not stop. When the vehicle pulled over, and while approaching Byrd, Det. Mulligan witnessed him "placing small items in his mouth." Det. Mulligan believed Byrd put CDS in his mouth, and he saw Byrd "swallow[] several items. Then [Byrd] refused to get out of the van [and] had to be forcibly removed from the van." Byrd was transported to Muhlenberg Hospital and then to police headquarters.
Det. Mulligan testified that he was unable to recall how long Byrd was at the hospital. No additional information about Byrd's hospital visit was provided.
At approximately 8:45 a.m., Det. Black witnessed the second transaction. He observed a black Chevy Blazer park at the intersection of Fifth and Liberty Streets. Ari Bachelor exited his vehicle and walked towards Young, who directed Bachelor to walk and meet with defendant. Det. Black witnessed defendant hand Bachelor something. Afterwards, Bachelor walked away and defendant rode away on his bike. Det. Black saw that Bachelor had a clenched, tight fist and "placed a small item into his right front pant pocket."
Det. Black testified that based on "the nature of my investigation of the area[,] my prior observation with Caver, Young, and that other car and this quick meeting, I believe I [] observed a narcotic transaction."
Det. Fusco testified that he pulled over the Chevy Blazer and detained Bachelor who was already exiting the vehicle. Det. Fusco searched Bachelor, finding two bags of heroin in his right front pants pocket.
Defendant rode his bike out of Det. Black's view and Sergeant O'Brien picked up the surveillance of defendant, seeing a third transaction. Sergeant O'Brien testified that at approximately 9 a.m., he saw defendant exchange small items with Tyrone Baker. Sergeant O'Brien stated, "[b]ased on what was going on I believed that they possibly engaged in a narcotics transaction."
Sergeant O'Brien testified that Baker was stopped later as "we were coordinating the detaining [of] Mr. Caver." No evidence was presented regarding Baker's possession of drugs.
Next, Sergeant O'Brien observed defendant ride his bike across the street where he met with Andrea Garra who was holding money in her hand. Before a fourth transaction was completed, vehicles known in the area to belong to the police arrived at the scene and, according to Sergeant O'Brien, "Mr. Caver abruptly left Ms. Garra, [and] began riding his bike through the park . . . ."
Det. Fusco stated that "[a]s Mr. Caver observed our vehicle he immediately[,] with his right hand[,] placed several items into his mouth and then rode away [on his bike] from the female." Det. Fusco testified that "[b]ased on the totality of the circumstances and the investigation I believe that [defendant] placed heroin inside his mouth."
Defendant ran beneath a fence that surrounds the community pool, and a foot chase ensued, which ended when Det. Fusco tackled defendant to the ground. Police recovered two small rubber bands that are typically used in packaging heroin, and $308 from defendant's pocket.
Defendant raises the following issues on appeal:
POINT I: THE TESTIMONY OF THE STATE'S WITNESSES THAT THE NEIGHBORHOOD WAS A "HIGH CRIME AREA," A "HIGH GANG AREA," AND PROLIFERATE WITH GUNS AND DRUGS, WAS IRRELEVANT AND UNDULY PREJUDICIAL, IMPLYING "GUILT BY ASSOCIATION," AND REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. U.S. CONST., AMENDS. V, XIV; N.J. CONST. ART. I, PARA 1. (Not Raised Below)
A. BLACK'S AND O'BRIEN'S TESTIMONY VIOLATED N.J.R.E. 401.
B. BLACK'S AND O'BRIEN'S TESTIMONY VIOLATED N.J.R.E. 701.
C. BLACK'S AND O'BRIEN'S TESTIMONY VIOLATED N.J.R.E. 403.
POINT II: THE OFFICER'S OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN BY NOT REFERRING TO THE EVIDENCE IN THE FORM OF A HYPOTHETICAL QUESTION, BY SPECIFICALLY TESTIFYING THAT MR. CAVER WAS DISTRIBUTING DRUGS AND BY THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY. ADDITIONALLY, THE OPINION TESTIMONY WAS UNNECESSARY TO THE STATE'S CASE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403, AS ITS PROBATIVE VALUE WAS FAR OUTWEIGHED BY THE PREJUDICE CREATED. []U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PAR[A]S. 1, 9, 10[]. (Not Raised Below)
A. THE OFFICERS' TESTIMONY EXCEEDED THE PERMISSIBLE BOUNDARIES OF OPINION TESTIMONY IN VIOLATION OF STATE V. MCLEAN.
B. THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY WITH REGARD TO THE OPINION TESTIMONY OFFERED BY THE STATE IN VIOLATION OF MR. CAVER'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT III: THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. CAVER A FAIR TRIAL. (Not Raised Below)
POINT IV:
A. GIVEN THAT, AT MR. CAVER'S RE-SENTENCING, [THE] JUDGE [] PROPERLY MERGED THE DISTRIBUTION OF CDS WITH THE DISTRIBUTION OF CDS WITHIN 500' OF PUBLIC HOUSING, STATE V. GREGORY WAS COMPLIED WITH AND MR. CAVER WITHDRAWS POINT IV OF HIS PLENARY BRIEF AS THAT ISSUE IS NOW MOOT. (Raised Below By The Sentencing Court)
B. IN PLACE OF THE NOW WITHDRAWN POINT IV OF MR. CAVER'S PLENARY BRIEF, MR. CAVER SUBMITS AS A NEW POINT IV THAT THIS MATTER MUST BE REMANDED TO CORRECT THE JUDGMENT OF CONVICTION. (Raised Below by Appellate Counsel)
POINT V: THIS MATTER MUST BE REMANDED TO CORRECT THE JUDGMENT OF CONVICTION. (Not Raised Below)
POINT VI: MR. CAVER'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
As he explains in his point headings, defendant provided a supplemental letter brief to be substituted for his original Point IV argument.
336 N.J. Super. 601 (App. Div. 2001) (requiring merger of a third-degree conviction for possession of CDS with intent to distribute with second-degree possession of CDS with intent to distribute within 500 feet of public property).
In Points I and II, defendant argues that certain police testimony should not have been admitted at trial. As defense counsel did not object when the testimony was presented, we review these arguments pursuant to the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).
I
Defendant argues in Point I of his brief that the testimony of Det. Black and Sergeant O'Brien describing the neighborhood as a "high crime" or a "high gang crime area" was irrelevant, constitutes improper lay opinion evidence and its probative value is outweighed by its prejudicial effect.
A
Defendant concedes that no objection was made to the introduction of this testimony, but argues that pursuant to N.J.R.E. 401, the testimony was irrelevant, should have been struck from the record, and the case should be reversed and remanded. The State argues that the testimony is relevant to explain why the police were conducting surveillance in the neighborhood.
Under N.J.R.E. 401, relevant evidence is proof "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See also State v. Wilson, 135 N.J. 4, 13 (1994). Furthermore,
Relevancy is tested by the probative value the evidence has with respect to the points at issue. The true test is the logical connection between the proffered evidence and a fact in issue, i.e., whether the thing sought to be established is more logical with the evidence than without it.
[State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990) (citations omitted).]
Defense counsel, not the prosecution, discussed the neighborhood where defendant was arrested in his summation, stating: "[w]e know that it is a tough neighborhood, to say the perhaps kindest thing about it. It's an area of drug use, drug sales, violent activity. It's a tough part of town, the west end of Plainfield."
The evidence that the neighborhood was a high-crime area is relevant because, as suggested by the State, "it explained the officers' presence in the neighborhood."
B
Defendant also argues that Det. Black's and Sergeant O'Brien's testimony about the neighborhood constituted impermissible opinion testimony. He asserts that since the State failed to produce the purported buyers at trial, did not find drugs on defendant's person and the officers only saw defendant distribute "something," he should be granted a new trial. The State asserts that the lay testimony was proper and was based on the officers' personal experience.
N.J.R.E. 701 states, "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." "Lay opinion testimony, therefore, when offered either in civil litigation or in criminal prosecutions, can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function." State v. McLean, 205 N.J. 438, 456 (2011).
Det. Black worked for the Plainfield Police Department for twelve years, while Sergeant O'Brien worked for the department for eleven years. Thus, Det. Black and Sergeant O'Brien were familiar with that area of Plainfield and can describe the level of criminal activity based on that experience. Admission of their testimony characterizing the area as a high-crime, high-drug location was not plain error. Additionally, since the officers possessed sufficient experience to be expert witnesses about the nature of the neighborhood, any error in allowing into evidence lay opinion testimony on this subject is harmless. State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).
C
Defendant argues further that even if Det. Black's and Sergeant O'Brien's testimony is found relevant and considered permissible opinion testimony, it should still be excluded as its probative value is greatly outweighed by its prejudicial effect. Defendant provides an extensive review of how Florida courts have handled references to high-crime areas in testimony and argues that such Florida standards should apply here. The State asserts that a new trial is not warranted because the testimony in question was brief, did not include impermissible hearsay, and was not discussed in the prosecutor's summation.
Defendant cites the following Florida cases: Fleurimond v. State, 10 So. 3d 1140, 1145 (Fla. Dist. Ct. App. 2009); Morgan v. State, 15 So. 3d 17 (Fla. Dist. Ct. App. 2009); Wheeler v. State, 690 So. 2d 1369, 1371 (Fla. Dist. Ct. App. 1997).
N.J.R.E. 403(a) states that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of [] undue prejudice . . . ." Therefore, "evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Whether such evidence is admissible is a decision within the judge's broad discretion. Id. at 568-69.
In State v. Summers, 176 N.J. 306, 315 (2003), a detective qualified as an expert in narcotics responded to a hypothetical question in which she expressed her belief that the drugs in question were possessed for the purpose of distribution. Her testimony in part characterized the neighborhood as a high-crime area. Ibid. Such testimony was not objected to at trial and no error was found in admitting the expert's testimony. Id. at 316. Rather, our Supreme Court found the testimony "help[ed] jurors to understand how drugs are packaged, priced, concealed, and sold consistent with distribution in high-crime areas." Id. at 317. Although not qualified as experts in this case, the officers' testimony characterizing this section of Plainfield as a high-crime neighborhood was factual in nature. Defendant acknowledges that no reported New Jersey case holds that such testimony is improper. We are not persuaded by the Florida cases cited by the defense that these comments constitute plain error.
II
Defendant also argues as plain error that the officers offered improper expert opinion testimony as to the drug nature of the transactions they witnessed. Additionally, he argues that the judge compounded the prejudice to defendant by failing to properly instruct the jury in how to consider expert testimony.
A
Defendant asserts that "Black, O'Brien, and Fusco impliedly presented themselves as experts," although they were fact witnesses, and their testimony exceeded the boundaries of McLean, supra, 205 N.J. at 461-62, requiring a new trial. He argues that Det. Black and Sergeant O'Brien offered lay opinions that were impermissible, in that they expressed a belief in defendant's guilt; gave opinions on matters that were not beyond the jury's understanding; were not asked questions in proper hypothetical format; and offered testimony that referred to defendant by name. Alternatively, defendant argues that if they were qualified as experts, Det. Black and Sergeant O'Brien overstepped their authority as experts pursuant to State v. Odom, 116 N.J. 65 (1989) and McLean, supra. The State asserts that "[a]lthough the officers' testimony may have exceeded their role as fact witnesses, no plain error occurred, and any error was harmless." Additionally, the State argues that the complained-of testimony from Det. Black that defendant was a "runner" and that co-defendant Young was "higher in authority" was only elicited by defense counsel on cross-examination.
Experts have been permitted to testify about "the implications of observed behaviors[,]" "the roles played by multiple defendants in a drug distribution scheme" and they "may offer an opinion about the implications of the behavior that was observed by the fact witness." McLean, supra, 205 N.J. at 460-61 (citations omitted). The officers, however, were not qualified as expert witnesses. They were questioned about their length of service at the police department, not about their specific training or education. Therefore, the rules about expert testimony are inapposite.
N.J.R.E. 701 does permit lay opinion evidence under certain circumstances. Examples in which lay opinion has been deemed permissible include testimony about: the speed of a car, State v. Locurto, 157 N.J. 463, 471-72 (1999), the distance of a car from an intersection at the scene of an accident, State v. Haskins, 131 N.J. 643, 649 (1993) and behavior indicative of a person's state of intoxication, State v. Guerrido, 60 N.J. Super. 505, 509-11 (App. Div. 1960).
These examples, and additional cases are listed in McLean, supra, 205 N.J. at 457-58.
Limitations have been placed on testimony offered by lay witnesses. "The Rule does not permit a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken . . . and as to which the jury is as competent as he to form a conclusion[.]'" McLean, supra, 205 N.J. at 459 (alterations in original) (citations omitted).
In McLean, supra, a police officer witnessed a defendant engage in behavior the officer believed to be a narcotics transaction, and the officer subsequently testified about this belief. Id. at 443. The Court found that the officer's opinion did not fulfill the necessary requirements to qualify as lay opinion, it "invaded the fact-finding province of the jury," and reversal of the defendant's conviction and remand was necessary. Ibid. When such testimony was offered, the defense counsel objected strenuously. Id. at 446. Similarly, the defense objected when the prosecutor's question referred to the defendant by name. Ibid. Additionally, neither of the purported buyers from the two transactions the officer witnessed were found. Id. at 443-44.
The Court in McLean explained:
In short, the testimony of the police detective, because it was elicited by a question that referred to the officer's training, education and experience, in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. In the final analysis, the approach taken to this testimony by the trial court and the Appellate Division would effectively authorize an officer both to describe the facts about what he or she observed and to opine in ways that we have precluded previously. We decline to permit the lay opinion rule to be so utilized.
[Id. at 463.]
The officers' testimony here also exceeded the bounds as outlined for lay witnesses in McLean. The officers expressed a belief in defendant's guilt by opining that the hand-to-hand transactions constituted a "narcotics transaction" even though what had occurred was not beyond the jury's understanding. Defense counsel, however, made no objection.
According to McLean, if the officers testified to witnessing a hand-to-hand transaction without characterizing it as a narcotics transaction, the testimony would have been permissible. Id. at 460. ("Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag." (citation omitted)).
Given the number of hand-to-hand transactions that took place, the money found on defendant when he was arrested and his swallowing items when tracked down, Byrd's swallowing of items when the police approached him after making an exchange with defendant, and the fact that Bachelor was found with heroin in his pocket after a transaction with defendant, a new trial is not warranted under the plain error standard. Given the overwhelming evidence in the record demonstrating that defendant distributed heroin, we find the error to be harmless.
B
Defendant argues additionally that the court should have charged the jury on the issue of expert testimony and cites Model Jury Charge (Criminal), "Expert Testimony" (2003).
The relevant model jury instruction reads, in part,
As a general rule, witnesses can testify only as to facts known by them. This rule ordinarily does not permit the opinion of a witness to be received as evidence. However, an exception to this rule exists in the case of an expert witness who may give (his/her) opinion as to any matter in which (he/she) is versed which is material to the case. In legal terminology, an expert witness is a witness who has some special knowledge, skill, experience or training that is not possessed by the ordinary juror and who thus may be able to provide assistance to the jury in understanding the evidence presented and determine the facts in this case.
[Model Jury Charge (Criminal), "Expert Testimony" (2003).]
Defense counsel did not request such a charge nor raise the issue of the police offering expert testimony at trial. No attempt was made by the State to qualify the officers as expert witnesses. "'[T]he prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances-including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008) (alteration in original) (citation omitted).
The judge instructed the jury about how they should evaluate the various witnesses' credibility. We cannot find that the failure of the judge to charge the jury on expert testimony constitutes plain error under these circumstances.
III
Defendant claims in Point III of his brief that the trial errors, in the aggregate, constitute a violation of defendant's fundamental constitutional rights, requiring that his conviction be reversed and the case be remanded for a new trial because the aggregate of errors rendered the trial unfair. State v. Orecchio, 16 N.J. 125, 134 (1954). We do not find aggregate error that rises to that level in the conduct of the trial as a whole and therefore cannot agree with this argument.
IV
Defendant argues in Point IV of his brief that the JOC is inaccurate and should be amended further. He argues that the section "Prior Service Credit" is incorrectly left blank. He asserts that this omission is not corrected by the "Sentencing Statement," which reads, "[i]n addition to the jail credits as indicated on the original JOC defendant shall be given credit for time served on this indictment while in the custody of the Department of Corrections." Accordingly, he argues that the JOC should be updated to reflect defendant's imprisonment from August 22, 2011 until February 24, 2012. Defense counsel asserts that although the judge explained that the language was sufficient, defense counsel was advised by "members of classification and parole" that the JOC should reflect this credit.
At oral argument, the State indicated that it did not oppose this request by defendant. Accordingly, we remand for this purpose.
V
Finally, we reject defendant's excessive sentence argument. The State moved for an extended term on count one, pursuant to N.J.S.A. 2C:43-6(f), which makes an extended term mandatory if timely requested by the State. The judge denied this application, in part because it was untimely. The State also moved for a discretionary extended term on count two, pursuant to N.J.S.A. 2C:44-3. On August 22, 2011, the judge found defendant to be a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), which defendant does not contest, and sentenced defendant to an extended term on count two.
Initially, the judge found that none of the charges should be merged. He determined that no mitigating factors applied, but identified the following aggravating factors: three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal history and seriousness of the offense); eight, N.J.S.A. 2C:44-1(a)(8) (that defendant committed the offense against a police officer in the performance of his duties); and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others from violating the law).
The judge indicated that he gave this factor "little weight" and defendant does not maintain that this factor constitutes "double counting." See State v. Kromphold, 162 N.J. 345, 353-55 (2000). Therefore, we do not address this issue. Pressler & Verniero, Current N.J. Court Rules, comments 1 & 4 on R. 2:6-2 (2013).
The judge summarized defendant's criminal background, noting defendant's ten prior indictable offenses and "substantial history with robbery, narcotics distribution, theft, 14 parole revocations, [and] a VOP."
Defendant was sentenced to concurrent terms of five years' imprisonment with two years' parole ineligibility (count one); an extended term of twenty years' imprisonment with ten years' parole ineligibility (count two); five years in prison (count three); and eighteen months in prison (count four).
The August 2011 JOC mistakenly states that defendant's sentence under count three was "for 5 YEARS with 3 YEARS FLAT[.]" The March 2012 amended JOC reflects the five year sentence imposed during sentencing.
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On February 24, 2012, a re-sentencing hearing occurred at the judge's request. The judge then found it appropriate, pursuant to State v. Gonzalez, 123 N.J. 462 (1991), to merge count one into count two.
We are satisfied that the judge correctly identified and applied the relevant aggravating and mitigating factors, and that the overall sentence is not manifestly excessive nor unduly punitive and does not constitute a mistaken exercise of discretion. State v. Roth, 95 N.J. 334, 363-65 (1984).
We remand to correct the JOC in conformity with section IV of this opinion and otherwise affirm. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION