Opinion
DOCKET NO. A-3090-12T2
05-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY M. FERNANDEZ a/k/a ANTHONY MIGUEL FERNANDEZ, CHIQUITO, Defendant-Appellant.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs). Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Haas. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-12-0173. Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs). Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant Anthony M. Fernandez of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35-5(b)(1) (count one); first-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1) (count three); third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11) (count four); and second-degree child endangering, N.J.S.A. 2C:24-4(a) (count seven). At sentencing, the trial judge merged counts one and three, and imposed a fifteen-year custodial term subject to five years parole ineligibility. The other sentences were to be served concurrent to count three: three years imprisonment on count four and seven years on count seven. Appropriate fines and penalties were also imposed. Defendant appeals, and we affirm.
Only co-defendant Brad Toby was named in counts two and five. The jury acquitted defendant of count six, which charged him with second-degree possession with intent to distribute controlled dangerous substances within 500 feet of certain public property, N.J.S.A. 2C:35-7.1.
At the suppression hearing conducted before trial, New Jersey State Police Detective Sergeant First Class Cesar Huaman, who worked with the United States Drug Enforcement Agency (DEA) and functioned as the administrator of the High Intensity Drug Trafficking Area Task Force, testified. Huaman said in early September 2011 he received information from two confidential informants, CW1 and CW2, who had provided substantial leads to the DEA on four prior federal cases. This was, however, the first State investigation involving CW1 and CW2. Huaman assigned the case to Detective Christopher Wright, then a member of the Drug Trafficking Unit of the New Jersey State Police.
CW1 told Wright that an individual named "Chiquito," who worked at a barber shop in Woodbridge, was able to sell "bulk quantities of cocaine." CW1 described Chiquito as a Hispanic male of average build and CW1 also gave the officer Chiquito's phone number. After confirming that the description matched defendant, the State Police conducted surveillance at defendant's place of employment and home.
While in Huaman and Wright's presence, CW1 called defendant to arrange a drug buy. CW1's brief conversation was in Spanish, understood only by Huaman. At the officers' instruction, CW1 later placed a second call to defendant, and told him he had a buyer interested in purchasing two kilograms of cocaine at a cost of $32,000 or $35,000 per kilogram. The transaction was scheduled for September 22, 2011.
That day, police initially kept both defendant's home and workplace under surveillance, as they were unsure of where the sale would occur. CW1, in the officers' presence, called defendant and confirmed the sale. During that call, defendant directed CW1 to his home.
Prior to entering defendant's house, both CW1 and CW2 were searched for money and contraband, fitted with wires, and introduced to the putative buyer, an undercover officer. A signal that the informants would use to indicate the delivery of the drugs was agreed upon.
CW1 and CW2 entered the house while the undercover officer waited in a car out front. The informants were inside for approximately an hour. Because the wires did not work, CW1 and CW2 communicated with the officers via text messages and phone calls, explaining that the transaction was delayed because defendant's first supplier was not able to deliver the drugs, and he had to find another person to bring the cocaine to the house. While police waited, a taxicab dropped off a woman and small child later identified as defendant's girlfriend and two-year-old son.
Eventually, the informants communicated that "a third party came with a [duffle] bag that contained the drugs." The officers did not see the person enter the house.
Approximately fifteen minutes later, defendant and CW1 walked outside to verify that the buyer actually had the cash necessary for the purchase. As prearranged, CW1 took off his baseball cap and ran his fingers through his hair to signal that he had actually seen the cocaine.
The team, consisting of nineteen police officers and two canine officers, arrested CW1 and defendant outside the house. The undercover officer "fled" the scene. CW1 and defendant told the officers that there were two other men in the house — the third-party supplier and CW2 — in addition to defendant's girlfriend and his son. Once outside of defendant's hearing, CW1 confirmed that a man had brought a duffle bag containing the drugs into the residence.
The officers decided to "clear" and "secure" the premises before obtaining a search warrant because of their concern that others remained in the home along with the drugs. Before entry, officers positioned in the back of the house saw a man, later identified as Toby, attempt to escape through the side entrance of the house. He was immediately arrested. The officers removed CW2, defendant's girlfriend, and his son from the residence.
Toby entered a guilty plea to first-degree drug distribution after the trial court's denial of the motion to suppress. We address his appeal by separate opinion.
At 9:07 p.m., having secured the premises, Wright and a deputy attorney general applied for a telephonic warrant to a Superior Court judge. They sought authorization to search "any enclosure located within" defendant's home that "may reasonably contain" drugs or drug paraphernalia. Wright, under oath, testified that he had probable cause to search the premises because he had arranged through a confidential informant to purchase a bulk quantity of cocaine from defendant. Wright said he saw the informant enter the residence, and that the informant confirmed he saw the cocaine on the premises. The informant then accompanied defendant outside to speak with the prospective buyer, the undercover officer. Wright stated that the informant was someone he had worked with in the past.
The State Police recorded the application for a search warrant, essentially the deputy attorney general's questioning of Wright. The application was granted. The record does not indicate if the judge kept notes of the proceedings, or later compared his notes with the transcript. See R. 3:5-3(b).
While executing the warrant, the officers located a gray and white duffle bag, as described by the informants, behind the door of the master bedroom. It contained approximately one kilogram of cocaine. Within the living room and kitchen, officers located a digital scale in addition to several small bags of marijuana and cocaine, and packaging material. Police found a bag containing approximately fourteen ounces of marijuana in a toy chest in defendant's son's bedroom.
After the search, defendant was brought back inside the home and administered his Miranda warnings, which he stated he understood. He then waived his right to remain silent and took "full responsibility" for the drugs in the house, including the cocaine. When asked about his girlfriend, defendant said "[e]verything in the house is mine. Nothing is anybody else['s], it's all mine."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
When questioned, Toby said only that he was in the house to visit defendant, whom he described as "a Spanish guy." He denied knowing about any bag, and referred all questions about it to defendant.
After the search, defendant was taken to the State Police barracks for a formal, video recorded interview. As the interview began, he was reread his Miranda rights. When asked to explain what had happened, he said only that there was "coke" and "weed" at his house. When asked how the cocaine got into his house, he said "it was theirs." He then asked, "I can't talk to a lawyer?" and said, "I would like to talk to a lawyer." An officer explained that defendant's girlfriend could be charged, at which point defendant said words to the effect that he had already taken responsibility. After that, he again asked to speak with an attorney, and the interview stopped.
During the trial, defendant testified that he began using marijuana after painful surgery, and later sold the drug to friends. He said that he bragged to CW1 about his ability to get him marijuana but never intended to follow through with any sale. Defendant claimed to have been surprised and fearful when CW1 showed up at his home in New Jersey because their prior contacts had all taken place in New York. He had not thought that CW1 would come back to his house to buy drugs, and when CW1 subsequently called to arrange for a purchase, he declined. Defendant said CW1 and CW2 made him feel scared and uncomfortable. On cross-examination, he said that he contacted Toby to obtain cocaine only because he was afraid if he did not, his family would be killed.
We describe the prosecutor's comments during summation in detail in the section addressing defendant's claims of prosecutorial misconduct.
On appeal, defendant raises the following points:
POINT I
THE PHYSICAL EVIDENCE DISCOVERED IN FERNANDEZ'S HOUSE, AS WELL AS THE STATEMENTS HE MADE AFTER HIS ARREST, SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND THE NEW JERSEY STATE CONSTITUTION. (raised below)
POINT II
FERNANDEZ'S CUSTODIAL STATEMENT THAT THE DRUGS RECOVERED FROM HIS HOUSE BELONGED TO HIM SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS MADE IN RESPONSE TO A COERCIVE THREAT AGAINST HIS FAMILY. (not raised below)
POINT III
REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR IMPROPERLY COMMENTED ON FERNANDEZ'S SILENCE DURING POLICE INTERROGATION. (raised below)
POINT IV
THE TRIAL COURT'S INSTRUCTIONS WERE INADEQUATE BECAUSE THEY FAILED TO DEFINE AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSES. (not raised below)
POINT V
DEFENDANT'S 15-YEAR SENTENCE WAS IMPOSED AFTER THE TRIAL COURT FAILED TO PROPERLY CONSIDER AN APPLICABLE MITIGATING FACTOR, AND IT WAS UNDULY HARSH IN LIGHT OF FERNANDEZ'S COMPLETELY UNBLEMISHED CRIMINAL HISTORY.
In his pro se brief, defendant adds the following:
POINT ONE
NEW EVIDENCE WAS ADMITTED AT TRIAL FROM DETECTIVE WRIGHT AND SGT HUAMAN TESTIMONIES. DEFENDANT SEEKS FOR REVERSAL OF THE SUPPRESSION MOTION DUE TO A VIOLATION UNDER, NEW JERSEY WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT, N.J.S.A. 2A:156A-1 AND TO DISMISS THE INDICTMENT DUE TO THE STATE INVADING THE GRAND JURY FUNCTION.
POINT TWO
THE EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT ISSUED BY JUDGE [DALEY] MUST BE SUPPRESSED DUE TO THE STATE[']S FAILURE TO COMPORT WITH ESTABLISHED PROCEDURAL REQUIREMENTS IN THE APPLICATION PROCESS, WHICH DENIED THE DEFENDANT DUE PROCESS OF LAW AND NEEDS REVERSAL[.]
POINT THREEWe address defendant's points of error in order.
THE WARRANTLESS ENTRY AND SEIZURE OF THE PREMISES KNOWN AS [. . .] WOODBRIDGE TWP. NEW JERSEY BY TASK FORCE MEMBERS WAS UNWARRANTED UNDER THE CIRCUMSTANCES; AND, EVEN PERMITTING A FINDING OF PROBABLE CAUSE BY THIS COURT, ANY EXIGENT CIRCUMSTANCES FLOWING FROM THE SEIZURE OF THE RESIDENCE WERE POLICE CREATED AND WARRANTS SUPPRESSION OF EVIDENCE SEIZED.
POINT FOUR
THE SEARCH WARRANT [WAS] ISSUED IN THE ABSENCE OF PROBABLE CAUSE AND REQUIRES SUPPRESSION OF ANY EVIDENCE SEIZED IN CONNECTION THERETO, U.S.C.A. CONST. AMEND 4, N.J. CONST., ART. 1, PAR. 7[.] THIS WAS ESTABLISHED IN THE DETECTIVE['S] TESTIMONY AT TRIAL.
I.
"[S]earch warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). When issuing a search warrant, a court must consider the totality of the circumstances to determine whether probable cause exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
If the information included in the application is based on an informant's tip, a court must consider the "'veracity and basis of knowledge' of the informant," as well as the ability of law enforcement to corroborate the tip. Keyes, supra, 184 N.J. at 555-56 (quoting State v. Jones, 179 N.J. 377, 389 (2004)). In deciding if probable cause existed, a reviewing court must consider only the "four corners" of the affidavit and any sworn testimony presented before the issuing judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant bears the burden to show the absence of probable cause. Keyes, supra, 184 N.J. at 554.
With these standards in mind, we turn to defendant's claims of error. Clearly Wright's statement to the judge that he had prior experience with the confidential informants was not correct. In his counseled and uncounseled briefs, defendant for that reason challenges the validity of the warrant. The agency that had prior experience with these informants was the DEA, not the State Police. But this error is not significant in the context of this operation.
The confidential informants in this case did far more than just convey a tip. The information they supplied formed the basis for an arranged buy. Not only did they call defendant at least twice while in the officers' presence, they went to his home. Once there, the informants eventually signaled that the drugs had been delivered. They were present when the police made their arrests and entered the home, and knew they would be present when it occurred.
Arrangements for the purchase of cocaine were initiated based solely on the confidential informants' tip. But everything that occurred thereafter happened in the officers' presence, or while they were surveilling defendant's home. It defies common sense to suggest that the confidential informants' actual presence and participation was not itself a significant assurance of their veracity.
Indisputably, officers must demonstrate probable cause prior to the issuance of a search warrant. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J. 40, 46 (2004) (alterations in original) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)).
Ample probable cause was clearly established through other than an informant's tip standing alone. Wright stood on the street, testifying in front of defendant's home, where a duffle bag filled with drugs had just been delivered and he had seen defendant behave like a seller of drugs. The actual circumstances established probable cause regardless of the misstatement.
II.
The burden is on the State to prove, beyond a reasonable doubt, in this as in every other case, that the confession was a product of the defendant's own will, rather than any police coercion. State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003). To determine the voluntariness of a confession, a court examines "the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." State v. Knight, 183 N.J. 449, 462 (2005) (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). Defendant now contends that his custodial statement was coerced.
"[T]he use of psychological coercion including trickery and deceit by police has received judicial sanction." Patton, supra, 362 N.J. Super. at 29. The United States Supreme Court has held that confessions are voluntary where police lied about evidence against the defendant and where police were dishonest in stating that a defendant had been implicated by a co- defendant. Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). But psychological techniques may be just as coercive as the use of force. Chambers v. Florida, 309 U.S. 227, 238-39, 60 S. Ct. 472, 478, 84 L. Ed. 716, 722-23 (1940).
We review defendant's claim for plain error, as the issue was not previously raised. 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, but the appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial or appellate court.")
At trial, defendant testified that while at the scene he told police that "[e]verything is mine" because he felt "it's all kind of my fault, I have to take responsibility." He had the impression that the police "were going to lock [his girlfriend] up and take [his] son away." But it was not until defendant's later station house interview that Wright said to him "[y]ou and your girlfriend will both be charged, okay? So if you're not saying anything then that's what's going to happen. You understand?" In other words, defendant's confession was made before anyone said anything to him about his girlfriend being taken into custody. Even on the stand, he did not dispute possession, only claiming that he felt intimidated and coerced, entrapped, by the confidential informants.
Moreover, when Wright told defendant that his girlfriend could be charged with drug possession as well, it was not a misstatement of the law. She was in the house with the drugs after they arrived. She lived with defendant in a house where a quarter of a pound of marijuana was hidden in her son's toy box. In any event, Wright's "threat," proper or not, resulted in no further admissions. Defendant's argument ignores his freely made confession at the scene. No "threats" of any sort had been made at that point, whether lawful or not, regarding his girlfriend. Defendant's defense theory at trial was entrapment, not denial of possession. Defendant's videotaped statement, made after his initial on-the-scene confession, was not coerced. The State has met the burden of proving that the inculpatory statement was freely given.
Lastly, defendant's alleged motivation to shield his girlfriend did not automatically render his statement involuntary. "The mere fact that promises are made to a defendant does not render the statement involuntary." State v. Roach, 146 N.J. 208, 227 (1996). That principle applies when the police promise favorable treatment of a relative or close friend. "That defendant's statement was given not to shed his inner burden, but rather in an attempt to minimize his exposure and protect his relatives from prosecution does not make it per se involuntary." State v. Boyle, 198 N.J. Super. 64, 72 (App. Div. 1984), superseded by statute on other grounds as recognized in State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996). Ultimately, whether the statement is voluntary "depends on the circumstances of a particular case." Roach, supra, 164 N.J. at 227. This is in accord with the majority view of other jurisdictions that whether a promise to release a relative from custody renders a confession involuntary must be assessed based on the totality of circumstances. Caroll J. Miller, Annotation, Voluntariness Of Confession As Affected By Police Statements That Suspect's Relatives Will Benefit By The Confession, 51 A.L.R. 4th 495, §2 (2008).
III.
Defendant also contends that the prosecutor improperly commented upon his silence. She cross-examined him regarding his entrapment defense, asking him for the reason he did not communicate to the authorities his fear of CW1 and CW2 at the first opportunity. The State responds that the questioning properly focused on inconsistencies between defendant's statements to police and his trial testimony.
"It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J. 442, 456 (2008) (citations omitted). "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005). Our courts have reversed for prosecutorial comment on post-arrest silence when the prosecutor uses the defendant's silence as substantive evidence of guilt. Id. at 573.
It is equally clear, however, that "[a] defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial." State v. Tucker, 190 N.J. 183, 189 (2007) (citing Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 226 (1980)). When a defendant "voluntarily speaks after receiving Miranda warnings" he or she has not been induced to remain silent. Ibid. Although "two inconsistent descriptions of events may be said to involve 'silence' insofar as it omits facts included in the other version," the Anderson court did not adopt such a "formalistic understanding of 'silence.'" Anderson, supra, 447 U.S. at 409, 100 S. Ct. at 2182, 65 L. Ed. 2d at 227.
The prosecutor's initial phrasing of questions regarding the subject was immediately objected to by defense counsel, and the objections were sustained by the court. The cross-examination continued:
Prosecutor : Prior to you asking about a lawyer, you were asked by the State Police, "How did that cocaine get in your residence?" Do you remember that?The prosecutor's questioning focused on inconsistencies between defendant's statements to police and his testimony at trial. Hence, the examination came squarely within the Tucker paradigm and was therefore not error. See Tucker, supra, 190 N.J. at 190.
Defendant : Yes.
Prosecutor : And you said, "It was there." Correct?
Defendant : Yes
Prosecutor : And you testified before that that wasn't true?
Defendant : Correct.
Prosecutor : That was a lie to the State Police.
Thereafter, in the next question you were asked, "Was it there all day?" Do you remember that?
Defendant : Yes
Prosecutor : At that point you could have told the State Police, "No, it wasn't there all day. I was forced to bring this cocaine to my house because of these two individuals I was afraid of." Correct?
Defendant : Yes
IV.
Defendant contends for the first time on appeal that the judge's instruction defining possession with intent to distribute was erroneous. Pursuant to Rule 1:7-2, a party may not assert a jury charge was flawed unless the objections are raised prior to the jury's consideration of its verdict. Thus we review the claim for plain error. State v. Wakefield, 190 N.J. 397, 472-73 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); R. 2:10-2.
In order to convict defendant on the indictment, the State must establish the following elements to prove possession with intent to distribute: (1) a controlled dangerous substance; (2) in defendant's possession; (3) which he intended to distribute; and (4) while acting knowingly or purposely with respect to his or her possession. N.J.S.A. 2C:35-5(a). The judge's instruction failed to define "distribution."
The court conducted on-the-record charge conferences before instructing the jury. After instructing the jury, the judge elicited comment from the attorneys and made minor corrections to the verdict sheet on points unrelated to his omission of any definition for "distribution." At the end of that colloquy, he asked the attorneys, "Are you satisfied?" and according to the transcript, neither replied. Nonetheless, the jury was sent out to begin deliberations — indicating that at a minimum, counsel silently acquiesced to the charges as the judge gave them.
The judge mistakenly omitted the definition of the term "distribute," i.e., the "transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance[.]" Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance With Intent to Distribute."
The current version of the model jury charge was revised on June 8, 2015. However, for our analysis, we cite to the version in effect at the time of trial and which was read to the jury. --------
Viewing the instruction as a whole, however, the omission was not error. The term in ordinary usage does not vary from the definition found in the charge. There is no reason to believe that the jury would have misunderstood the import of the instruction or the meaning of the term. The failure to define it did not have the "clear capacity to bring about an unjust result." See Burns, supra, 192 N.J. at 341.
V.
The final point in defendant's counseled brief is his contention that the court's sentence was excessive. We review sentencing decisions, however, not to substitute our own judgment, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). The result will be upheld if a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience. Ibid.
In this case, the trial judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9). The judge found a slight risk that defendant would reoffend because of defendant's minimal contacts with the system, an ordinance violation and a driving while intoxicated, N.J.S.A. 39:4-50, while also finding a basis for mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), because defendant had no prior criminal history. The judge stressed that he accorded aggravating factor nine, deterrence, great weight because of the harm done to society as a result of drug usage. See N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), because defendant's imprisonment would be a hardship for his child. In balancing the factors, the judge sentenced defendant to the mid-point of the range for the most serious offense and imposed concurrent terms for the possession of marijuana and child endangerment.
Defendant's attorney argued that the confidential informants pressured defendant, and that therefore mitigating factors three and four should be applied. N.J.S.A. 2C:44-1(b)(3) and (4). Although the judge did not explicitly reject the argument, neither did he find the factors. The judge did not conclude the record suggested those factors. We agree.
We therefore affirm the sentence. The aggravating and mitigating factors were supported by the record, and therefore were not an abuse of discretion. The sentence complies with the Code and does shock our conscience.
VI.
In his uncounseled brief, defendant first contends that the motion to suppress should have been granted because the State violated New Jersey's Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, in arranging for the confidential informant to record their conversation. This argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
VII.
Defendant also contends that the evidence should have been suppressed because the deputy attorney general and not the judge recorded Wright's sworn testimony, and because Wright did not specify the exigency justifying a telephonic search warrant.
"A Superior Court judge may issue a search warrant upon sworn oral testimony of an applicant who is not physically present. . . . If a recording is made, the judge shall direct that the testimony be transcribed as soon as practicable." R. 3:5-3(b). The "transcribed record shall be certified by the judge." Ibid. The court rule states that a "judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate longhand notes summarizing what is said shall be made by the judge." Ibid. In the absence of bad faith, where noncompliance with the warrant rules is insubstantial, it is tolerated. State v. Valencia, 93 N.J. 126, 134 (1983); R. 3:5-7(g).
Here, the State Police prepared the transcription, not the judge. However, there is no evidence of bad faith.
"A warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown." R. 3:5-3(b). Although Wright did not articulate the exigency, it was self-evident. This was an arranged buy of a significant quantity of drugs with two suspects in custody. It was nighttime, the officers had every reason to believe the drugs were in the home, and the house was occupied by people other than defendant. This point does not require any further discussion in a written opinion. R. 2:11-3(e)(2).
VIII.
Finally, defendant argues that the officers entered his home unlawfully because any exigency was police-created. But no evidence was seized during that initial entry. The contraband was seized after a valid search warrant was issued. Therefore no further discussion of this point is warranted in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION