Opinion
DOCKET NO. A-4059-12T3
05-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE KEARSE, a/k/a KEARSE ANDRE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-01-0068. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Andre Kearse appeals from the denial of his motion to suppress, his conviction for drug offenses, and his sentence to a twenty-year prison term with ten years of parole ineligibility. Counsel for defendant argues:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S IMPROPER USE OF THE DEFENDANT'S ALLEGED BAD CHARACTER TO PERSUADE THE JURY TO CONVICT HIM. (Not Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A LIMITING INSTRUCTION. (Not Raised Below)
A. THE TRIAL COURT ERRONEOUSLY ADMITTED OTHER-CRIME EVIDENCE.
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS ON THE PERMISSIBLE AND IMPERMISSIBLE USES OF THE OTHER-CRIME EVIDENCE.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OPINION EVIDENCE BY A LAY WITNESS. (Not Raised Below)
A. THE WITNESS DID NOT HAVE FIRST-HAND KNOWLEDGE OF THE FACTS.
B. THE STATE'S KEY LAY WITNESS RENDERED A HIGHLY PREJUDICIAL EXPERT OPINION WITHOUT PROVIDING NOTICE OF HIS EXPERTISE, WITHOUT PROVIDING AN EXPERT WITNESS REPORT, AND WITHOUT QUALIFYING AS AN EXPERT AT TRIAL.
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, INCOMPLETE, AND PREJUDICIAL INSTRUCTIONS ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Not Raised Below)
POINT VI
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION OF THE DEFENDANT.
POINT VII
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
In his pro se supplemental brief, defendant contends:
POINT IHaving considered these arguments in light of the applicable law and facts, we affirm.
THE COURT ERRED IN AMENDING A DEFECTIVE INDICTMENT [WHERE] THE GRAND JURY COULD NOT INDICT AS A SCHEDULE II CONTROLLED DANGEROUS SUBSTANCE IN ACCORDANCE TO N.J.S.A. 2C:35-5(b)(3), WHERE SUBSECTION OF [STATUTE] DOES NOT INCLUDE PHENCYCLIDINE THUS IN VIOLATION OF DEFENDANT'S RIGHT TO INDICTMENT BY GRAND JURY IN VIOLATION OF N.J. CONST. ART. I ¶ 8 AND U.S. CONST. AMENDMENT 14 DUE PROCESS.
POINT II
POLICE OFFICER LACKED REASONABLE AND ARTICULABLE SUSPICION THAT DRIVING WHILE ON A CELL PHONE WAS A MOTOR VEHICLE VIOLATION 4-YEARS PRIOR TO N.J.S.A. 39:4-97.3 TAKING EFFECT ON JULY 1, 2014, THUS RENDERING THE STOP ILLEGAL AND THE EVIDENCE MUST BE SUPPRESSED AS FRUITS OF THE [POISONOUS] TREE AND IN VIOLATION OF THE N.J. CONST. ART. I ¶ 7, AND U.S. CONST. AMEND 4TH AND 14TH. (Not Raised Below)
I
We discern the following facts from the record. On October 5, 2010, at approximately 11:20 p.m., New Brunswick police officers Daniel Mazan and Brandt Gregus were patrolling in a marked police cruiser in the vicinity of Lee Avenue and Redmond Street, a high crime area known to be "an open air drug market." The officers witnessed defendant's vehicle cross in front of their patrol car while defendant was talking on his cell phone, in violation of N.J.S.A. 39:4-97.3. Based on that observation, the officers conducted a motor vehicle stop.
After pulling defendant's vehicle to the side of the road, the officers exited their vehicle, and approached defendant. Within moments, Mazan smelled the odor of phencyclidine (PCP); he noticed that the scent grew stronger as he got closer to defendant's vehicle. Mazan was familiar with the odor of PCP from his training and experience working on narcotics investigations. Both Mazan and Gregus approached the driver's side, where they encountered defendant, nervous and sweating. Familiar with the dangerous effects of PCP, such as violence, incredible strength, and an increased tolerance to pain, Mazan asked defendant to step out of the vehicle in order to perform a pat-down search for weapons. Defendant complied, and Mazan recovered a bottle containing nineteen grams of PCP from defendant's waistband. Defendant was placed under arrest, and the search incident to arrest revealed a bag containing 1.91 grams of marijuana and $28 in defendant's pants pocket. The arrest took place near the New Brunswick Public Library and the Roosevelt Elementary School.
Middlesex County Indictment No. 11-01-0068 charged defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of less than one-half ounce of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession of CDS with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-7.1 (count four).
On April 20, 2012, the motion court took testimony, allowed cross-examination, and heard argument on defendant's motion to suppress. Prior to doing so, at the State's request and with no objection from defendant, the court clarified a clerical error in the indictment: count two was amended from charging defendant with a violation of N.J.S.A. 2C:35-5(b)(3), which does not involve PCP, to a violation of N.J.S.A. 2C:35-5(b)(6), which does involve PCP.
The court also heard argument on defendant's motion to compel discovery. The motion was denied, and is not an issue on appeal. --------
The State's sole witness, Mazan, testified that he knew of defendant's reputation for violence, which, combined with what he knew about the effects of PCP, increased his caution and concern for his personal safety so as to explain his patting-down defendant for weapons. Defendant did not present any witnesses. The court reserved decision.
On May 25, 2012, the judge issued an oral opinion denying the motion. Citing State v. Cargill, 312 N.J. Super. 13, 17 (App. Div.), certif. denied, 156 N.J. 408 (1998), she determined the search was legal. The judge found Mazan had probable cause to stop defendant because defendant violated a motor vehicle offense by talking on his cell phone while driving, and when Mazan smelled PCP as he approached and arrived at defendant's vehicle, Mazan had the right to conduct a pat-down search, finding PCP in defendant's pants pocket.
A jury trial was scheduled to start after a pre-trial conference on October 15, 2012. When defendant did not appear at the pre-trial conference, the judge stayed the proceedings, giving defense counsel twenty-four hours to find his client. In addition, with the consent of defense counsel, the court granted the State's request to amend count two of the indictment from "PCP in a quantity of less than one-half ounce" to "PCP in a quantity of more than 10 grams" in order to reflect the statutory amendment made to the charge at the motion hearing.
After defendant could not be located, the trial proceeded in his absence on October 17 and 18. The State called Mazan to testify, and he reiterated the facts noted above. On cross-examination, Mazan stated that the $28 found on defendant were drug proceeds, based upon the denominations of the bills. The State also presented Investigator Rodney Blount as an expert witness in the field of street-level distribution, packaging, and sales of narcotics. Blount testified as to the effects of PCP, and that in his opinion, someone with the volume of PCP and marijuana, and the amount of cash retrieved from defendant, possessed CDS with the intent to distribute. The defense presented no witnesses.
At the close of the State's case, defense counsel made a motion for a judgment of acquittal of all counts, which was denied. During closing arguments, defense counsel referenced the small amount of currency found on defendant, explaining that defendant was not a drug dealer, but was in fact a drug addict - that the drugs found on defendant were for his personal use, and therefore, he did not possess CDS with the intent to distribute. To the contrary, the State argued that defendant's possession of marijuana, over ten grams of PCP, and the currency, was proof that he had the intent to sell drugs.
Following summations, the trial court instructed the jury. The jury unanimously found defendant guilty of all counts.
On November 30, 2012, the trial judge granted the State's motion to sentence defendant to an extended term of imprisonment as a prior drug distribution offender pursuant to N.J.S.A. 2C:43-6(f). The judge found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3) (the risk to commit another offense); -1(a)(6) (prior record and seriousness of offense); and -1(a)(9) (need for deterrence). Defendant did not argue for any mitigating factors, and the judge did not find that any applied. Concluding that the aggravating factors substantially outweighed the mitigating factors, the judge merged counts one, three, and four with count two, and sentenced defendant to a twenty-year term of imprisonment with a ten-year period of parole ineligibility. In sentencing defendant, the judge rejected the State's request for a forty-year period of incarceration with a twenty-year period of parole ineligibility. This appeal followed.
II
Initially, we note that the majority of the arguments raised by defendant were not raised below. Consequently, our standard of review requires that we find plain error, meaning that defendant must demonstrate that an error was "clearly capable of producing an unjust result." R. 2:10-2. In other words, the error was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997)(citation omitted).
Based upon our review of the record, none of defendant's claims constitute plain error. We address the arguments in the order presented.
Reference to Defendant as a Drug Dealer
In Point I, defendant asserts that the prosecutor's multiple remarks in summation that defendant was a drug dealer was plain error, because by using a character trait to prove defendant had the intent to distribute CDS, he violated N.J.R.E. 404(a). We disagree.
N.J.R.E. 404 governs the admissibility of character evidence. Subpart (a) generally prohibits "[e]vidence of a person's character . . . including a trait of care or skill or lack thereof . . . for the purpose of proving that the person acted in conformity therewith on a particular occasion[.]" N.J.R.E. 404(a). However, the prosecution presented no testimony or evidence that defendant was a drug dealer or that defendant had dealt drugs in the past. It was the prosecutor's closing remarks, not a witness's testimony, which referred to defendant as a drug dealer.
In essence, defendant's argument is that the prosecutor's conduct prejudiced his right to a fair trial by contending that he was guilty because he was a drug dealer. To warrant reversal of defendant's conviction, "'the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." State v. Smith, 212 N.J. 365, 407 (2012). Yet, where "a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" Smith, supra, 167 N.J. at 178 (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).
We conclude there was no prejudice to defendant's right to a fair trial. First, defendant's failure to object suggests that the prosecutor's comment was not considered prejudicial. Next, when placed in the context of responding to defense counsel's summation that defendant was a drug addict and the nineteen grams of PCP was for personal use, the prosecutor's remarks were fair comment. Furthermore, the trial judge instructed the jury that the argument by counsel was not evidence.
Other Crimes Evidence
In Point II, defendant contends that the trial court committed plain error when it violated N.J.R.E. 403 and 404(b) by improperly allowing Mazan's testimony that the $28 recovered from defendant were drug proceeds. Defendant maintains that the testimony prejudiced him because he was not charged with selling CDS and it implies that he had committed prior drug sales. Moreover, defendant argues that the trial court failed to instruct jurors on the limited purpose for which other-crime evidence was admitted. We are not persuaded.
Here, not only was there no objection to Mazan's testimony, but it was defendant who elicited the testimony that the seized money was proceeds from the sale of drugs. On direct examination, Mazan merely stated that the money was seized incident to defendant's arrest. It was during defense counsel's cross-examination that Mazan was prompted to provide the disputed testimony. The colloquy was as a follows:
Q: And in your report, you wrote that the currency was confiscated because it was drug money. Right?To further attempt to undermine Mazan's assertion that defendant had sold drugs or intended to do so, defense counsel reaffirmed Mazan's testimony in his summation when he argued, "I found it interesting when Officer Mazan put into his report, which he testified to there on the stand, that he found $28 [on defendant] which was the proceeds of drug money."
A: Drug proceeds, right.
Q: Drug proceeds from distribution and selling of drugs?
A: Yes.
Q: Right. And I forgot, how many thousands was it?
A: It was $28,000.
Q: $28,000?
A: $28.
Q: $28?
A: Yes.
Q: $28. And it was your determination that that was a result of selling PCP?
A: Yes, due to the denominations of the bills.
Given that defendant elicited the testimony, his claim is barred by the doctrine of invited error. "Under that settled principle of law, trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987) (citation omitted)). As our Supreme Court held in State v. Williams, "[t]he doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify — hopefully to his advantage — and then when the strategy does not work out as planned, cry foul and win a new trial." 219 N.J. 89, 101 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).
Mazan's Inadmissible Testimony
Defendant contends in Point III that since Mazan was not qualified as an expert in drug trafficking and never witnessed defendant conduct a drug transaction, Mazan's testimony that the seized $28 represented drug proceeds was inadmissible opinion evidence pursuant to N.J.R.E. 602. In support, defendant cites State v. Odom, 116 N.J. 65 (1989), and State v. McLean, 205 N.J. 438 (2011), for the proposition that Mazan was not qualified as an expert to opine there was a connection between the money seized and a drug transaction. Defendant further argues that Mazan's testimony regarding the effects of PCP and its overpowering odor should have been excluded as impermissible lay opinion testimony.
Having concluded defendant's challenge to Mazan's testimony regarding the seized $28 was invited error, we similarly reject his contention that the testimony was improper lay opinion for the same reasons. Besides, defendant's reliance on Odom and McLean are misplaced.
In Odom, our Supreme Court held that under N.J.R.E. 702, only an expert could opine as to whether a person was distributing CDS if the question was presented as a hypothetical. Odom, supra, 116 N.J. at 81-83. In McLean, the Court held an arresting police officer conducting surveillance was not qualified to testify that a transaction between two individuals was a suspected drug sale. McLean, supra, 205 N.J. at 463.
In this case, Mazan, testifying as a fact witness, did not testify that he observed defendant sell CDS, or that defendant had the intent to distribute CDS. Consequently, his testimony was not contrary to N.J.R.E. 602, which provides that a witness can only testify regarding his personal knowledge of a particular matter. It was the State's expert, Blount, who opined that defendant had the intent to distribute CDS based upon an hypothetical question involving the same amount of PCP and money possessed by defendant. Thus, the requirements of both Odom and McLean were satisfied through Blount's testimony.
As for Mazan's testimony regarding PCP, he related his knowledge concerning the odor and effects of PCP with his observations. As Mazan approached defendant's car, his smell of PCP explained his actions leading to defendant's arrest. See State v. Bealor, 187 N.J. 574, 589-90 (officer may testify concerning observational evidence, such as demeanor and smell of alcohol, to establish basis for arrest). Mazan, therefore, gave permissible testimony.
Moreover, defendant did not object to Mazan's testimony. Accordingly, we conclude Mazan's testimony was not plain error. R. 2:10-2.
Intent to Distribute Jury Charge
In Point IV, defendant argues that because the trial court instructed the jury that defendant could be found guilty of intent to distribute CDS based upon an attempt to transfer CDS, it was necessary to provide the jury the definition of attempt. Defendant maintains that the trial court violated State v. Rhett, 127 N.J. 3 (1992), by allowing jurors to convict the defendant of intent to attempt distribution of CDS based upon a knowing, rather than, purposeful, state of mind. Therefore, under State v. Federico, 103 N.J 169, 176 (1986), even absent defendant's request, the failure to give such instruction amounts to prejudicial error.
We are mindful of some well-settled principles. "'[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citation omitted), aff'd, 158 N.J. 149 (1999). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to 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." Ibid. (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (alteration in original) (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).
Defendant's reliance on Federico to support reversal is misplaced. In Federico, our Supreme Court rejected the defendant's objections that the jury instructions were missing required elements. The defendant contended that the trial court did not instruct the jury that the State had the burden to disprove the unharmed release of the victim, an element of first-degree kidnapping, N.J.S.A. 2C:13-1(c). Federico, supra, 103 N.J. at 176. The Court reversed the conviction, reasoning that to "mold the verdict to constitute a conviction for second-degree kidnapping" would "force [it] to speculate about how the jury would have determined the matter if it had been properly charged." Id. at 176-77 (citation omitted).
Here, the court gave the proper model jury charges regarding possession of CDS with the intent to distribute. As there was no allegation that defendant distributed or attempted distribution of CDS, it was not necessary to instruct the jury regarding the law of actual or attempted distribution. Unlike the situation in Federico, we are not forced to speculate as to what the jury would have decided if it had been given the definition of attempt. Furthermore, defendant's possession of marijuana and nineteen grams of PCP, in an area where open drug sales was prevalent, were more than sufficient evidence to support a verdict of possession with the intent to distribute.
Cumulative Errors
In Point V, defendant contends that the cumulative effect of the impermissible testimony served to unduly prejudice defendant and requires reversal. We disagree.
When multiple errors are alleged, "the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." Wakefield, supra, 190 N.J. at 538. Given our conclusion that there were no errors with respect to the disputed testimony, the argument of cumulative prejudice fails.
III
In Point VI, defendant contends the court erred in denying his motion to suppress evidence based upon an unlawful stop of his motor vehicle by the police. Specifically, defendant argues that only under N.J.S.A. 39:3B-25, which prohibits talking on a cell phone while driving a school bus, could he be subjected to a motor vehicle stop. Additionally, in his pro se supplemental brief, defendant asserts that N.J.S.A. 39:4-97.3 did not take effect until July 1, 2014, nearly four years after he was stopped for using a cell phone while driving, and therefore did not justify the stop. We disagree.
We begin by noting our standard of review. It is well understood that when considering a trial court's ruling on a motion to suppress evidence, "[w]e conduct [our] review with substantial deference to the trial court's factual findings, which we 'must uphold . . . so long as those findings are supported by sufficient credible evidence in the record.'" State v. Hinton, 216 N.J. 211, 228 (2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "When . . . we consider a ruling that applies legal principles to the factual findings of the trial court, we defer to those findings but review de novo the application of those principles to the factual findings." Ibid. (citing State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)).
In this case, the parties agree that the sole issue is a question of law: whether the police had the right to stop defendant because he was talking on his cell phone while driving. Thus, our review is de novo.
The stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). At the time defendant was stopped for talking on his cell phone while driving, N.J.S.A. 39:4-97.3(a) provided: "the use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free[.]"
Here, there is no challenge to the trial judge's finding that there was reasonable and articulable suspicion that defendant was talking on his cell phone while operating a motor vehicle. Thus, we conclude the motion to suppress was properly denied as there was a lawful detention of defendant's motor vehicle followed by a subsequent legal search and seizure.
IV
Turning to defendant's challenge to his sentence, he argues that the record does not support an extended-term sentence, and that his sentence was excessive. Specifically, defendant contends that the trial court improperly balanced the aggravating and mitigating factors, and made findings of fact to support the imposition of an enhanced sentence not found by the jury. Defendant also argues that the court performed no psychological risk analysis test nor cited any evidence other than the instant conviction and defendant's prior record to indicate support of aggravating factor three, and that since factor nine is applied in all sentencing courts, it has lost its value as a meaningful factor. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); and -1(a)(9) (the need for deterrence). Further, defendant contends that mitigating factors one and twelve should have been applied. N.J.S.A. 2C:44-1(b)(1) (conduct neither caused nor threatened serious harm); and -1(b)(12) (willingness of the defendant to cooperate with law enforcement authorities).
We begin by noting that review of a criminal sentence is limited. A reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (citation omitted). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).
We are not persuaded that the court erred in sentencing defendant. First, we address defendant's argument concerning his extended-term sentence. Upon the State's motion, a trial court shall impose an extended-term sentence in accordance with N.J.S.A. 2C:43-6(f) which provides:
A person convicted of . . . possessing with intent to distribute any . . . controlled substance . . . under N.J.S.A. 2C:35-5, . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.A. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.In sentencing a defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f), the court may impose a prison term between twenty years to life for convictions of first-degree crimes. N.J.S.A. 2C:43-7(a)(2). In this case, the judge granted the State's extended-term motion for possession with the intent to distribute PCP based upon defendant's three prior CDS distribution convictions in 1989, 1993, and 2002. The judge exercised her discretion to impose the minimum prison term of twenty years with a ten-year period of parole ineligibility. In doing so, she rejected the State's request for twice the amount of prison time.
In accord with the record, the judge appropriately weighed the aggravating and mitigating factors. We find support for the aggravating factors that were applied, and no basis for the mitigating factors asserted by defendant. The sentence does not shock the conscience. Therefore, we shall not second-guess and disturb the trial court's findings. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
V
Lastly, defendant contends in his pro se supplemental brief that the court erred in amending the indictment because N.J.S.A. 2C:35-5(b)(3) does not include PCP as a CDS, and by doing so, the court elevated the offense from a third-degree offense to a first-degree offense. We disagree.
On the return date of the motion to suppress, the court agreed, with no objection from defendant, to the State's request that the indictment be amended to correct a typographical error. Although count two stated the offense being charged was first-degree, it erroneously stated defendant was charged with a violation of N.J.S.A. 2C:35-5(b)(3), a third-degree offense which does not include PCP, instead of the correct N.J.S.A. 2C:35-5(b)(6), a first-degree offense which does include PCP. The amendment did not elevate count two from a third-degree crime to first-degree, as it was clear that defendant was charged with a first-degree offense. Such correction was in conformity with Rule 3:7-4, which provides in part that a court "may amend" an indictment
to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits.
Thereafter, when defendant failed to appear at trial, defense counsel agreed with the State's request that count two be further amended to reflect that defendant was in possession of "more than 10 grams" of PCP as set forth in N.J.S.A. 2C:35-5(b)(6), rather than possession with intent to distribute PCP "less than one-half ounce," the language of N.J.S.A. 2C:35- 5(b)(3), which had been deleted from the indictment. Permitting the late amendment of the indictment, the trial court explained:
Since there is no objection and the [c]ourt finds that the fact that the wording indicates or should reflect more than 10 grams as opposed to the fact that it reflects less than one-half ounce, that it does not impact or [change] the degree of the crime or in any way increases any penalty or anything of that nature.
So that even though [defendant], again, is not here today, his [a]ttorney is here. He is schooled in the ways of the legal profession[,] and I see no reason why his non-objection to the amending of the wording of the statute should not be given credence.
Both amendments reflect the facts alleged against defendant. See, e.g., State v. Witte, 13 N.J. 598, 607 (1953) ("The critical inquiry is whether the amendment would charge an offense not presented by the grand jury."), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Thus, we conclude that the amendments were consistent with Rule 3:7-4.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION