Opinion
DOCKET NO. A-5385-11T4
01-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROY W. HARTE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-0084. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Roy Harte was convicted of second-degree conspiracy to distribute and possess with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(10)(a), and 2C:5-2 (count one); three counts of first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(10)(a), 2C:35-5(c) and N.J.S.A. 2C:2-6 (counts two, four, and five); two counts of first degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(10)(a), 2C:35-5(c), and 2C:2-6 (counts three and six); and third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7; 2C:2-6 (count seven). After merging count three with count two, and count six with count five, the judge imposed concurrent sentences resulting in an aggregate sentence of twelve years imprisonment with six years of parole ineligibility.
On appeal, defendant raises the following issues for our consideration:
POINT ONE
THE TRIAL COURT'S ERRONEOUS JURY CHARGES DEPRIVED MR. HARTE OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. Const. Amends. V, VI, and XIV: N.J. Const. (1947), Art. I, Pars. 1, 9, and 10.) (Not raised below).
A. The trial court failed to charge the jury that the weight of the marijuana was an essential element as to all the offenses, and that omission constituted reversible error.
B. The trial court failed to charge the jury on accomplice liability with respect to lesser included offenses.
C. The trial court failed to charge the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957), regarding the oral statements allegedly made by Mr. Harte.We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. We remand the matter solely for reconsideration of the sentence imposed.
POINT TWO
THE ADMISSION OF EVIDENCE OF BAD ACTS WHICH OCCURRED OUTSIDE THE DATES OF THE ALLEGED CONSPIRACY VIOLATED N.J.R.E. 404(b) AND DEPRIVED MR. HARTE OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR. (Not Raised Below).
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
I.
Defendant was indicted along with four other people, including Sharon Vanessa Phillips, who pled guilty and testified against defendant at trial. The State contended that the five co-defendants were engaged in the interstate shipment of massive amounts of marijuana from Arizona to New Jersey. Phillips, who lived in Arizona, would help package the drugs and ship them to a business in Fairfield, New Jersey, where defendant was employed. He in turn would accept delivery of the packages and load them into a car driven by a co-defendant, who would further distribute the marijuana.
Philips testified that in June 2007, co-defendants Gary Brown and Tyrone Johnson approached her and offered to pay her rent if she agreed to ship the marijuana. She did, and the three prepared the marijuana for shipment in Philips' home, packaging the drugs in cardboard boxes sealed with distinctive black bands of duct tape and sending them via United Parcel Service (UPS) or Federal Express (FedEx) to New Jersey. Philips shipped three such packages on June 27, four more on June 28 and four on July 3.
On June 27, a confidential informant who worked at UPS contacted Scott Dodd, a narcotics detective with the Arizona State Police, and informed him of a suspicious transaction involving Philips. Dodd went to the UPS shipment hub, located the packages, and, after a trained narcotics dog identified the boxes, Dodd phoned Sergeant Mark Primarano with the New Jersey State Police. The packages were permitted to proceed, and Dodd provided Primarano with the delivery information, including the Fairfield business that was the destination. New Jersey authorities set up a surveillance of the business on the anticipated delivery date of the first shipment, July 5.
Primarano testified that on that day, he saw a UPS truck arrive at the location and proceed to the back of the warehouse. Detective Christopher Wright was stationed at the rear and observed the UPS driver approach defendant. While most of the shipment went into the warehouse, defendant placed three boxes with black bands of duct tape next to the loading dock doors. Defendant remained on the loading dock and made a phone call on his cell phone.
Two hours later, Primarano and Wright saw a car driven by an individual, later identified as co-defendant James McKoy, drive to the rear of the business. Defendant was later identified as the registered owner of the car. Wright saw defendant and McKoy load the boxes into the car, after which McKoy drove away. Primarano and another officer stopped the vehicle, arrested McKoy, and seized the boxes, which contained large amounts of packaged marijuana. Defendant was later arrested at the business.
After his arrest, defendant told Primarano "he had received a call earlier that day from . . . McKoy that several boxes were going to come and that he would accept them [and] . . . get a hold of [McKoy] when they came." Defendant said he was a longtime friend of McKoy's, and "McKoy told him that the[re] were tee shirts in the boxes that were coming." Defendant also acknowledged that he had been accepting packages for McKoy for "about a year," and that he had loaned his car to McKoy, who had no transportation.
Analysis of defendant's phone records revealed frequent calls made to McKoy and Tyrone Johnson in the months and days prior to his arrest. Additionally, a search of defendant's wallet revealed a bank deposit slip in the amount of $4000. Defendant claimed that the monies were gambling winnings, but the parties stipulated that a search of the Casino Control Commission's records failed to reveal that defendant had claimed any casino winnings.
The parties also stipulated that in total, eleven similarly packaged boxes of marijuana destined for the Fairfield business were recovered. Along with the three boxes recovered on July 5, four were seized by Dodd at an Arizona FedEx store on July 3, two were seized from a Parsippany UPS facility by Wright on July 9, and two boxes were seized by Fairfield police on July 6, after they were informed by the owner of the business that two additional boxes had arrived. The parties also stipulated to the admission of lab reports prepared by the New Jersey State Police Office of Forensic Sciences, indicating that the specimens examined were marijuana and the total weight exceeded five hundred pounds.
Defendant did not testify or call any witnesses.
II.
In Point One, defendant asserts errors in the jury instructions. He contends the judge "failed to charge the jury that the weight of the marijuana was an essential element as to all the offenses, and that omission constituted reversible error." Defendant next argues that the judge "failed to charge the jury on accomplice liability with respect to lesser included offenses." Lastly, defendant contends that the judge committed reversible error by failing to provide any instructions regarding the oral statements he made to Primarano. Because in each instance there was no specific request to charge and no objection to the charge as given, we assess the claims under the plain error standard. 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 . . . .").
The Court has said that
[i]n 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) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42-23 (2008) (internal quotation marks omitted). In this case, none of the alleged errors amount to plain error requiring reversal.
A.
N.J.S.A. 2C:35-5(c) provides that "[w]here the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact." Indisputably, the weight of the controlled dangerous substance is an essential element of the offense. See State v. Florez, 134 N.J. 570, 595 (1994) ("[T]he weight of the controlled dangerous substance is a material element of the crime of first degree possession with intent to distribute . . . ."); State v. Torres, 236 N.J. Super. 6, 13 (App. Div. 1989) ("[I]n prosecutions under N.J.S.A. 2C:35-5 the jury must find that defendant manufactured, distributed, dispensed or possessed the relevant quantity or quality of C.D.S. by proof beyond a reasonable doubt.").
We have, in the past, reversed a defendant's conviction based on the failure to instruct the jury on the necessity to make a specific finding as to the weight of the CDS involved. In State v. Roberson, 246 N.J. Super. 597 (App. Div.), dismissed as moot, 126 N.J. 330 (1991), the defendant was convicted of "second-degree unlawful possession of more than one-half ounce but less than five ounces of cocaine, which included at least 3.5 grams of pure free base, with intent to distribute." Id. at 600. We reversed because the trial court did not instruct the jury to "determine whether the amount of cocaine defendant possessed included at least 3.5 grams of pure cocaine, . . . . even though the State's evidence [wa]s uncontradicted." Id. at 607.
In contrast, in State v. Montesano, 298 N.J. Super. 597 (App. Div. 1997), we concluded that reversal was not required even though the trial court "did not specifically state that the weight of the marijuana was an element of the crime that the jury had to determine." Id. at 616. Our holding recognized that at trial, "[t]here was never any contest as to . . . the quantity of marijuana." Ibid. More importantly, because the verdict sheet required the jury to answer a specific interrogatory regarding the weight of the marijuana, ibid., we found it "readily apparent the jury determined the weight of the marijuana beyond a reasonable doubt." Id. at 617.
In this case, the judge did not specifically instruct the jury of the need to make a specific finding as to the weight of the marijuana. However, the quantity of marijuana was never at issue; the essential defense asserted was that defendant had no knowledge that the boxes contained any marijuana. Accordingly, the lab reports were admitted into evidence through stipulation, and they proved the State's contention as to weight. Moreover, as in Montesano, the jury verdict sheet explicitly required the jury to find on each count that defendant conspired to possess or distribute a specific amount of marijuana. In short, it is "readily apparent the jury determined the weight of the marijuana beyond a reasonable doubt," ibid., and the failure to provide a specific charge provides no grounds for reversal.
B.
As noted above, the indictment charged defendant in counts two, four and five with distribution of marijuana, identifying in each count the specific marijuana involved by reference to the UPS or FedEx tracking numbers and by its weight. However, only two corresponding counts, i.e., counts three and six, charged defendant with the offense of possession with intent to distribute the same referenced marijuana. As to those two counts, the Deputy Attorney General requested the judge provide the jury with instructions on the lesser-included offense of simple possession. Defense counsel stated, "I don't see how it's necessary but I don't have a problem with it." The judge instructed the jury on simple possession of marijuana as to counts three and six.
The judge also provided the jury with instructions that tracked Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice Charge # One" (1995). However, when a "defendant is charged as [an] accomplice and [the] jury is instructed as to lesser included charges," version two is preferred because it includes the following additional language:
Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice . . . . with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charges(s).
If, however, you find the defendant not guilty of acting as an accomplice . . . on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice . . . but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.The judge failed to give this part of the charge.
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's.
Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge . . . .
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.
[Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice Charge # Two" (Revised May 22, 1995).]
Defendant argues that, pursuant to our holdings in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), and subsequent cases, this omission requires reversal. We disagree.
We recognize that "[p]arties who participate in a criminal act may be guilty of different degrees of offense, depending on their own actions and culpability." State v. Franklin, 377 N.J. Super. 48, 55 (App. Div. 2005) (citing Bielkiewicz, supra, 267 N.J. Super. at 531-33). "In addition, when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). However, we have also recognized that instructions required by Bielkiewicz are unnecessary when the evidence in the case does not support a finding of guilt as to only the lesser-included offense. State v. Rue, 296 N.J. Super. 108, 115 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997).
Here, given the packaging and weight of the drugs involved, the State's request to charge on simple possession was indeed perplexing. However, as to each of the three shipments, the jury found defendant guilty of distributing the marijuana, so its consideration of the offense of possession with intent to distribute the same marijuana, much less simple possession of the same marijuana, was superfluous. In short, we are convinced that the instructions taken as a whole did not confuse the jury, causing it to reach a verdict it would not otherwise have reached on the evidence. The failure to provide the additional language contained in version two of the Model Jury Charge was harmless beyond a reasonable doubt.
C.
As noted, certain statements defendant made to Primarano were admitted into evidence. Defendant claims that the judge's failure to provide instructions regarding the statements was plain error requiring reversal.
In Hampton, supra, 61 N.J. at 272, the Court held that when a defendant's confession is admitted in evidence, a jury "shall be instructed that they should decide whether . . . the defendant's confession is true," and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders." See also N.J.R.E. 104(c) ("If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible."). A trial court should provide a Hampton charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not." State v. Jordan, 147 N.J. 409, 425 (1997).
In a similar vein, when any witness testifies regarding oral statements made by a defendant, the judge should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Kociolek, supra, 23 N.J. at 421 (internal quotation marks omitted). "[T]he Kociolek charge should be given whether requested or not." Jordan, supra, 147 N.J. at 428. Model Jury Charge (Criminal), "Statements of Defendant" (2010), encompasses the holdings in Hampton and Kociolek.
However, the failure to provide a Hampton charge is not "reversible error per se." Jordan, supra, 147 N.J. at 425. Rather, a reviewing court will only reverse if the "omission is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). Similarly, the "failure to give the [Kociolek] charge is not reversible error per se." Id. at 428. "There may be a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error . . . . Ultimately, whether the failure to give a Kociolek charge is capable of producing an unjust result will depend on the facts of each case." Ibid.
The failure to provide instructions in this case was not plain error. Separate and apart from defendant's statements to Primarano, there was substantial evidence of defendant's guilt. Id. at 425-26. Moreover, defendant essentially "acknowledged the truth of his statement," id. at 426, since the defense's contention, stressed repeatedly in counsel's summation, was that defendant was innocently duped by his friend McKoy and had no knowledge of any broad conspiracy to distribute marijuana.
Apparently, statements defendant made to Primarano while in custody were not recorded. See R. 3:17(a) (providing that with certain exceptions, "all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with . . . violations of Chapter 35 of Title 2C that constitute first or second degree crimes"). Defendant did not request that the judge provide Model Jury Charge (Criminal), "Statement of Defendant (When Court Finds Police Inexcusably Failed to Electronically record Statement)" (2004), see R. 3:17-1(e) ("In the absence of any electronic recordation required under paragraph (a), the court shall, upon request of the defendant, provide the jury with a cautionary instruction."), and the issue is not raised on appeal.
III.
The indictment alleged that defendant conspired with and committed the substantive crimes with his co-defendants "between on or about June 27, 2007, and on or about July 6, 2007." Defendant contends that certain evidence, including his phone and bank records, and his statements to Primarano, involved events that occurred prior to the starting date of the conspiracy. Defendant claims this evidence ran afoul of N.J.R.E. 404(b), and the judge failed to properly analyze the evidence in accordance with State v. Cofield, 127 N.J. 328 (1992), or give the appropriate limiting instructions.
There was no objection to any of this evidence at trial, and so we "review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2). The judge sua sponte concluded that evidence of defendant's bank deposits should be limited to only the single cash deposit made during the dates alleged in the indictment. Although he did not provide the jury with a limiting instruction, the judge told the prosecutor to avoid commenting on any other cash deposits made to defendant's bank account. The judge indicated that he was not going to limit the prosecutor's comments regarding the phone records, and defense counsel specifically assented to that ruling.
It is debatable whether any of the evidence was subject to Rule 404(b), which prohibits the admission of "evidence of other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." We need not decide, for example, whether evidence of the phone calls defendant made to his co-conspirators prior to June 27, 2007, fits, in the first instance, within Rule 404(b)'s exclusionary reach.
We agree with the State that the evidence of events occurring prior to the first date charged in the indictment was evidence that was "intrinsic" to the charged crimes. Evidence that is "intrinsic" to the charged crime, is not "other crimes" evidence, and therefore not subject to Rule 404(b). Evidence may be intrinsic to the charged crime in two ways. "First, evidence is intrinsic if it 'directly proves' the charged offense." Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010)) (internal quotation marks omitted). "Second, uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." Ibid. (quoting Green, supra, 617 F.3d at 249) (internal marks omitted). However, even "intrinsic evidence" is subject to N.J.R.E. 403, which permits exclusion of "relevant evidence . . . if its probative value is substantially outweighed by the risk of . . . undue prejudice." Rose, supra, 206 N.J. at 177.
Defendant was accused of knowingly conspiring to distribute marijuana. Phone calls between defendant and others in the conspiracy were evidence of the planning of the operation and defendant's awareness of such plans. The deposits evidenced defendant's knowledge that the boxes contained high value narcotics rather than t-shirts. Defendant's statements to Primarano rebutted any claim that he lacked knowledge of the specific deliveries charged in the indictment. We find no error in admitting any of this evidence.
IV.
At sentencing, the judge found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("The need for deterring . . . defendant and others from violating the law"), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant's lack of "prior delinquency or criminal activity"). The judge concluded: "[t]he lone aggravating factor substantially outweighs the lone mitigating factor in this particular case and there is no question [defendant] needs to be sentenced to State prison . . . ." The judge imposed the sentence we referenced earlier.
Defendant contends the sentence was manifestly excessive. In particular, he argues the judge erred in finding aggravating factor nine and in failing to find multiple mitigating factors.
"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 20) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "'were based upon competent credible evidence in the record.'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bienek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
"In weighing the applicability of aggravating factor nine, the sentencing court accordingly focuses on the need to deter the individual defendant 'from violating the law.'" State v. Fuentes, 217 N.J. 57, 79 (2014) (quoting N.J.S.A. 2C:44-1(a)(9)). The judge clearly explained the need to deter defendant from trafficking in huge amounts of marijuana, but he emphasized "there's also an equally, if not greater need to deter the public." Defendant focuses upon the judge's statement that it was unlikely "we're ever going to see [defendant] in this courtroom or any other criminal courtroom again" as somehow contradictory of a finding as to this aggravating factor. However, at another point, the judge made clear, "I can't imagine that [defendant] will not have learned his lesson after fulfilling the sentence in this case." (Emphasis added). Aggravating factor nine was supported by the evidence.
Next, plaintiff argues the judge should have found mitigating factors eight, N.J.S.A. 2C:44-1(b)(8) ("[D]efendant's conduct was the result of circumstances unlikely to recur."); nine, N.J.S.A. 2C:44-1(b)(9) ("[T]he character and attitude . . . of defendant indicate that he is unlikely to commit another offense."); eleven, N.J.S.A. 2C:44-1(b)(11) ("[T]he imprisonment of . . . defendant would entail excessive hardship to himself or his dependents."); and twelve, N.J.S.A. 2C:44-1(b)(12) ("The willingness of . . . defendant to cooperate with law enforcement authorities). All were urged upon the court at sentencing.
"[M]itigating factors 'supported by credible evidence' are required to 'be part of the deliberative process.'" Case, supra, (slip op. at 19-20) (quoting State v. Dalziel, 182 N.J. 494, 505 (2005)). The judge did not specifically address any of these mitigating factors. See State v. Blackmon, 202 N.J. 283, 297 (2010) ("[T]hose mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record"); but see Bieniek, supra, 200 N.J. at 609 ("[T]he trial court [need not] explicitly reject each and every mitigating factor argued by a defendant").
The judge recognized that defendant was fifty-two years old, was gainfully employed after his arrest, had been married for twenty-nine years and had "no prior record of any sort." According to the judge, defendant and his wife had done "a wonderful job" in raising two daughters, who were now adults.
Clearly, mitigating factor twelve did not apply because defendant did not cooperate with law enforcement. However, the judge's failure to specifically address the various mitigating factors suggested by these factual findings and specifically urged by defense counsel somewhat hampers our review. See Case, supra, (slip op. at 20) ("To facilitate meaningful appellate review, trial judges must explain how they arrived at a particular sentence.").
We note that Case was not decided until after defendant was sentenced, and as already noted, the jurisprudence regarding the trial court's need to address mitigating factors urged at sentencing was somewhat unclear. Our decision should by no means be viewed as critical of the trial judge, who obviously carefully considered the sentence he imposed.
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Although defendant was sentenced to an aggregate term of twelve years, i.e., at the lower end of the sentencing range for first-degree offenses, we cannot say whether the presence of other mitigating factors may change the sentencing calculus. We note that the sole aggravating factor was the need to deter. While that might qualitatively continue to outweigh any and all mitigating factors, the judge also specifically noted the equal "if not greater" need for general, as opposed to specific, deterrence. In Case, the Court took special note of the difference as it relates to "how much weight should be given to [aggravating factor nine]." Id. at 25.
Additionally, defendant argues that the judge mistakenly exercised his discretion by imposing periods of parole ineligibility on all but the school-zone conviction, which required a mandatory period of parole ineligibility. See N.J.S.A. 2C:35-7(a). ("[T]he term of imprisonment shall include the imposition of a minimum term . . . during which the defendant shall be ineligible for parole.") "[W]hen 'clearly convinced that the aggravating factors substantially outweigh the mitigating factors,' [the court] may sentence a defendant to 'a minimum term not to exceed one-half of the term' allowed by the statute." Case, supra, (slip op. at 21) (quoting N.J.S.A. 2C:43-6(b)). This different standard — clear and convincing as opposed to a preponderance — "reflects the fact that periods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace." Id. at 22 (quoting State v. Kruse, 105 N.J. 354, 359 (1987)) (internal quotation marks omitted).
We might justifiably presume that imposition of a discretionary period of parole ineligibility on most of the counts in the indictment meant the judge implicitly applied this standard. However, defense counsel made a point in arguing that mandatory minimums should not be imposed because the evidence was not clear and convincing, and our careful review of the record indicates that the judge never expressly said he was clearly convinced that the single aggravating factor substantially outweighed the single mitigating factor.
In short, we are compelled to remand the matter to the trial court to reconsider defendant's sentence in light of the Court's most recent pronouncements in Case, both as to the need to explicitly address proposed mitigating factors and to the balancing of sentencing factors, and also whether the single aggravating factor clearly and convincingly outweighs any mitigating factors. We express no particular opinion as to the result of the remand.
The judgment of conviction is affirmed. The matter is remanded for reconsideration of the sentence imposed. 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