Opinion
DOCKET NO. A-2474-13T4
03-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HASHIEM MITCHELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-0065. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Hashiem Mitchell was tried before a jury and found guilty of one count of third-degree possession of heroin with intent to distribute within a school zone, one count of second-degree possession of a firearm without permit, and three other offenses. Defendant appeals from the judgment of conviction entered by the trial court on December 16, 2013. He challenges the denial of his suppression motion, his convictions, and the sentences imposed. For the reasons that follow, we affirm.
I.
Defendant was charged, under Essex County Indictment No. 12-01-0065, with second-degree conspiracy to possess cocaine and heroin, controlled dangerous substances ("CDS"), with intent to distribute, N.J.S.A. 2C:5-2 (count one); two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (counts two and three, cocaine and heroin, respectively); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count four); third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count five); second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C39-4.1 (count seven).
We discern the following facts from the record. At the time of this incident, defendant was twenty-eight years old, with an extensive criminal record. He was charged in twelve juvenile petitions, resulting in seven adjudications. His juvenile record generally consists of charges of CDS possession and distribution, but also included two delinquency adjudications for receiving stolen property.
As an adult, defendant had thirteen prior arrests under several different aliases, resulting in three indictable convictions, and two disorderly-persons convictions. Eight of those arrests involved possession or distribution of CDS. On August 7, 2006, defendant was convicted of third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7. Then, on June 17, 2010, defendant was convicted of third-degree eluding police, N.J.S.A. 2C:29-2(b). Defendant was paroled on January 11, 2011, and was still on parole when he was arrested for the offenses under review.
On July 5, 2011, police received an anonymous tip that "two brothers, by the last name of Mitchell, [were] selling drugs out of" a particular address on South Eighteenth Street in Newark. The tip described "a black male, wearing a white shirt with blue jeans or black jeans, . . . selling drugs out in front of that location. They were . . . keeping the stash in the alleyway . . . ."
Defendant's grandmother owned the residence at that address, a multi-unit, three story building, as well as the narrow alleyway running alongside. The alley connected to the rear yards of both defendant's residence and the neighboring multi-unit building. Defendant lived there with his grandmother, his uncle, and two other family members. Defendant's uncle kept three pit bulls in the alley.
On July 27, 2011, at approximately 2:00 p.m., Det. Rubin Torres, along with several other plain-clothes detectives, drove by the residence in an unmarked police vehicle. Det. Torres observed defendant and Darryl Moody in front of the residence. After parking the car around the corner, Det. Torres walked back to an elevated surveillance position with a view of the house. The alleyway next to the residence was blocked off by a chain-link fence and gate, with an unlocked padlock. There was a tall brown dresser in the alley, up against one of the houses, and three pit bulls were loose behind the gate.
At the motion to suppress as well as at trial, defendant introduced several photos of the scene taken in September of 2013. Those photos show a sign on the alley gate that states "PRIVATE PROPERTY NO TRESPASSING[.]" However, the photos were admitted only to show "the structure that was involved and the layout of the area." Accordingly, the record is silent as to whether or not the sign was in place on July 27, 2011.
Det. Torres observed defendant walk down the street and engage Maurice Bishop in conversation. Bishop removed some money from his pocket and handed it to defendant. Defendant pocketed the money, walked into the alley, and approached the dresser, where he opened the top drawer, and removed an object. Defendant then returned to Bishop and handed him the object.
On Det. Torres' signal, police moved in and detained defendant, Moody, and Bishop. Police found thirty glassine envelopes containing heroin in Bishop's hand. Police then waited for backup to arrive and secure the pit bulls.
Despite the fact that defendant's hands were cuffed behind his back, and that police were standing nearby with their badges displayed, Abraham Griffin approached defendant, and asked him for heroin. Police detained Griffin as well.
Meanwhile, a crowd of twelve to fifteen people, including defendant's family, gathered around the alley. At that time, there were six police officers on the scene. The crowd began screaming and cursing at the police officers.
Approximately twenty to thirty minutes later, two members of the emergency service unit ("ESU") arrived. Using specialized equipment, ESU pushed the dogs into the rear yard and secured them. Police then opened the top drawer of the dresser and recovered a .357 caliber magnum revolver and some magazine paper. The gun was operable, and was loaded with three live rounds and one spent shell casing.
Police then transported defendant to the police station. There, they searched him and found a baggie of cocaine and $100, consisting of "three $20 bills[,] [o]ne $10 bill[,] [f]our $5 bills[,] [a]nd ten singles."
Defendant moved to suppress the contents of the dresser, arguing that the warrantless search of the dresser was not lawful. On October 17, 2013, the motion court issued an oral opinion denying the motion. The court found that the police had sufficient probable cause to search the dresser, and that exigent circumstances justified the warrantless search.
The case proceeded to trial before a jury. Defendant stipulated that he did not possess a permit to carry a firearm, that he was within 1000 feet of a public school at the time of the incident, and that the substances seized were heroin and cocaine.
At trial, the State presented testimony from Det. Torres, as well as consistent accounts from Det. Jason West, Det. Whyidi Wilson, Lt. Gerald Buglione, and Officer Lillian Pinero, who were all present at the scene. The State also presented expert testimony from Det. Antonio Badim, a ballistics expert, and Det. Michael Bettin, an expert in street-level drug transactions.
In pertinent part, Det. Torres testified:
Q. What kind of area is South [Eighteenth] Street?
A. It's residential, high narcotics area.
Q. Are you familiar with South [Eighteenth] Street?
A. Yes, I am.
Q. Have you made prior arrests in that area?Det. West, Det. Wilson, Lt. Buglione, and Det. Bettin all gave similar statements, reiterating that they were familiar with the area from prior narcotics arrests, and that the neighborhood was known as a "high drug area" with a "lot of . . . open air . . . drug trafficking." Det. Wilson also added that he had been "advised, by Detective Torres, to place [defendant] under arrest for CDS charges."
A. Yes, around the area, yes.
. . . .
Q. [B]efore you and the other detective approached Mr. Bishop and [defendant], why did you approach them?
A. Because I believe[d] that they were working together in a narcotics incident — transaction, narcotic scene.
Det. Bettin was qualified as an expert in the field of street-level narcotic activity and opined regarding the evidence recovered at the scene. He testified that heroin is stored in glassine packets bundled in magazine paper, and he observed that the magazine paper recovered from the dresser had creases that indicated it had previously been folded in a shape consistent with heroin packaging. The street value of one glassine packet ranged from $5 to $10, depending upon the volume purchased. Therefore, the thirty packets of heroin recovered from Bishop had a total street value of between $150 and $300, and, according to Det. Bettin, would have been intended for distribution instead of personal use.
Defendant presented testimony from his mother, R.M., as well as Luis Acevado, a criminal investigator hired to photograph the scene.
In closing argument, the State expounded on the police testimony concerning the neighborhood:
So, ladies and gentlemen, the detectives responded to that area based upon information they previously received. They are familiar with this area. They made prior arrests in this area. They are trained detectives. They make numerous arrests in this case. Although it's a residential area, it's an area known to be a high drug trafficking area and its location is very important because it's very near and very close to a major intersection. It's right off Springfield Avenue at Avon Avenue. It's right there that brings you back onto Springfield Avenue and it's very close proximity to the Garden State Parkway, making it very convenient for out-of-towners to come there for drugs. The location is very important and the officers are familiar with this area.
Prior to summations, the State amended count one of the indictment to third-degree conspiracy to possess CDS with intent to distribute. The State also amended count one to exclude conspiracy to possess cocaine with intent to distribute, limiting the charge to heroin alone.
On October 16, 2013, the jury returned a unanimous verdict finding defendant guilty of counts one (third-degree conspiracy to possess heroin with intent to distribute), two (third-degree possession of cocaine), five (third-degree possession of heroin with intent to distribute in a school zone), six (second-degree possession of a firearm without permit) and seven, (second-degree possession of a weapon during a CDS offense). The jury found defendant not guilty on counts three (third-degree possession of heroin) and four (third-degree possession of heroin with intent to distribute).
The State moved to find defendant subject to a mandatory enhanced sentence pursuant to N.J.S.A. 2C:43-6(f), and the trial court granted the State's motion. The court sentenced defendant on December 16, 2013. The court merged count one with count five. The court applied aggravating factors three, six, and nine in favor of a greater sentence, N.J.S.A. 2C:44-1(a), and found that mitigating factor two called for a reduced sentence on count two alone, N.J.S.A. 2C:44-1(b).
The trial court imposed consecutive sentences of six years of incarceration with three years of parole ineligibility on count five, and five years of incarceration with three and one-half years of parole ineligibility on count seven, for a total of eleven years of incarceration with six and one-half years of parole ineligibility. The court ordered the sentences on all other counts to run concurrently to the sentence on count five.
This appeal followed. In the brief filed by counsel, defendant argues:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN AND MAGAZINE PAPER FOUND IN THE DRESSER AS NO EXIGENCY PREVENTED THE POLICE FROM SEEKING A WARRANT.
POINT II
THE LAY OPINION TESTIMONY OF THE INVESTIGATING OFFICERS IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1 PARS. 1, 9, 10). (Not Raised Below)
POINT III
THE TESTIMONY OF THE STATE'S WITNESSES THAT THE NEIGHBORHOOD WAS VIOLENT AND NOTORIOUS FOR DRUG USE AND DISTRIBUTION WAS IRRELEVANT AND UNDULY PREJUDICIAL. THE PREJUDICE WAS COMPOUNDED BY THE PROSECUTOR'S CLOSING REMARKS WHICH ALSO CHARACTERIZED THE NEIGHBORHOOD IN SIMILAR VEIN. EACH INSTANCE IMPLIED GUILT BY ASSOCIATION AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. U.S. Const., Amends. V, XIV; N.J. Const. Art. I para 1. (Not Raised Below)
POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTION. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 10.
POINT V
THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED DEFENDANT'S PRIOR RECORD IN IMPOSING AN EXTENDED-TERM SENTENCE. THE COURT ALSO ERRED WHEN CONSIDERING THE RANGE OF SENTENCE FROM WHICH THE BASE TERM COULD BE DETERMINED. (Not Raised Below)
II.
We first address defendant's suppression motion. Defendant does not dispute the State's probable cause to search the dresser, but instead argues that exigent circumstances did not excuse the absence of a warrant.
In reviewing a motion to suppress, we "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We only reverse if the decision was "so clearly mistaken that the interests of justice demand intervention and correction." Id. at 425 (citations and internal quotations omitted). The "trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference[,]" and are therefore "reviewed de novo." Ibid.
Under the Fourth Amendment to the Federal Constitution, the initial burden in a motion to suppress rests on the defendant to show a legitimate expectation of privacy in the location searched by demonstrating: (1) his or her subjective expectation of privacy; and (2) societal recognition that defendant's privacy expectation is reasonable. State v. Hinton, 216 N.J. 211, 230 (2013). Defendant's standing to assert a federal suppression argument is folded into the legitimate expectation of privacy analysis, and is not recognized as a separate inquiry. Id. at 229.
In contrast, Article I, Paragraph 7 of our State Constitution provides greater protection against unreasonable searches than the Federal Constitution. State v. Brown, 216 N.J. 508, 528 (2014). The warrantless search of a home is presumed unreasonable, and the State bears the burden of proving an exception to the warrant requirement. Id. at 516.
Our State Constitution confers automatic standing to bring a suppression motion upon a defendant accused of a possessory crime, and instead recognizes defendant's reasonable expectation of privacy as an element of the suppression analysis distinct from standing. Hinton, supra, 216 N.J. at 233-36. New Jersey also departs from the federal standard in that defendant's subjective expectation of privacy is not considered relevant, meaning that the only inquiry is whether defendant's expectation of privacy was objectively reasonable. Id. at 236.
Areas of a property open to the public and common areas shared by multi-occupancy residences are subject to a diminished expectation of privacy. State v. Johnson, 171 N.J. 192, 209 (2002). Whether police may enter or search such areas depends upon "'whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.'" State v. Domicz, 188 N.J. 285, 302 (2006) (quoting Johnson, supra, 171 N.J. at 208).
Here, defendant sought simultaneously to protect his property, through the use of the gate and the presence of his uncle's pit bulls, and to retain plausible deniability of ownership, through the fact that the fence and dresser were unlocked and accessible to both multi-unit buildings. The alleyway was an open space, shared by two multi-unit residential buildings. Accordingly, it was more akin to the common hallway of an apartment building than the yard of a single-family house. See State v. Smith, 37 N.J. 481, 496 (1962) (holding that warrantless police presence in a common apartment hallway was not unconstitutional), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963); State v. Nash, 74 N.J. Super. 510, 518-19 (Law Div. 1962) (holding that warrantless entry and search of common apartment hallway was not unconstitutional).
Considering the totality of the circumstances, we conclude that defendant lacked a reasonable expectation of privacy in the contents of the alleyway or the dresser. Accordingly, the State's warrantless search of those locations was not improper, and neither Article I, Paragraph 7 of our State Constitution nor the Fourth Amendment to the Federal Constitution bars the admission of this evidence. Therefore, the motion court properly denied defendant's motion to suppress.
While this conclusion is dispositive as to defendant's motion, we also note that the record adequately supports the motion court's finding of exigent circumstances. Even after the ESU arrived, the restive crowd still outnumbered the police presence. Any small detail of officers left to secure the scene would have been at significant risk. Based on the totality of the circumstances, the motion court correctly concluded that the exigencies of the situation rendered the police conduct objectively reasonable. See State v. Walker, 213 N.J. 281, 291-92 (2013) (noting that a warrant is unnecessary where a fact-sensitive analysis of the exigent circumstances shows that police conduct was objectively reasonable). Accordingly, the court properly denied defendant's motion to suppress on these alternative grounds.
We also note that the State's arguments under the plain-view doctrine are inapposite here, where police never observed the contents of the dresser prior to the search at issue.
III.
Defendant next argues that the trial court erred by admitting lay opinion and testimony concerning the nature of the neighborhood, and that these errors individually and cumulatively cast sufficient doubt on the verdict to require a new trial. State v. Jenewicz, 193 N.J. 440, 472 (2008). Defendant concedes that he failed to raise these objections at trial. Therefore, we consider whether the admission of this evidence was erroneous and, if so, whether any error was "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013).
A.
Lay opinion testimony by a non-expert detective concerning the nature of a hand-to-hand transaction is generally not admissible at trial. State v. McLean, 205 N.J. 438, 463 (2011). Such testimony is only admissible if defendant "'opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive.'" State v. Johnson, 421 N.J. Super. 511, 519 (App. Div. 2011) (quoting State v. Branch, 182 N.J. 338, 352 (2005)).
Here, the State elicited two brief statements implying that Det. Torres believed that defendant had performed a narcotics transaction. When asked why he approached defendant and Bishop, Det. Torres stated, "I believe[d] that they were working together in a narcotics incident — transaction, narcotic scene." Det. Wilson later added that, at the scene, Det. Torres instructed him "to place [defendant] under arrest for CDS charges."
As defendant never opened the door to such testimony, the statements should not have been admitted. However, the State later validly introduced extensive expert testimony regarding the same opinion. In light of the brief nature of the comments by Det. Torres and Det. Wilson, their innocuous context as an explanation for police conduct, and the fact that Det. Bettin's expert opinion rendered the statements superfluous, any error in admitting the lay opinion testimony was insufficient to create a reasonable doubt that the jury would have reached a different result if the testimony had been barred. Therefore, we will not reverse on this error. R. 2:10-2.
B.
As to the testimony concerning the high drug-trafficking nature of defendant's neighborhood, such evidence is relevant and admissible in a criminal trial. State v. Summers, 176 N.J. 306, 315-16 (2003). "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" N.J.R.E. 403. "[E]vidence claimed to be unduly prejudicial is excluded only when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." State v. Wakefield, 190 N.J. 397, 434 (2007) (citations and internal quotations omitted), cert. denied, 552 U.S. 1146, 12 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Defendant cites to unpublished case law regarding anonymous tips introduced in violation of Sixth Amendment confrontation. Such case law is not binding on this court. R. 1:36-3. Moreover, they concern factual situations that are inapposite. Defendant also urges us to adopt contrary precedent from Florida state courts, but offers no compelling rationale for why we should depart from our own case law.
Testimony about the high drug-trafficking nature of defendant's neighborhood is especially relevant here, where defendant's intent to distribute is a key element of the crimes alleged. Defendant is far more likely to find customers in a neighborhood already known as a marketplace for open-air narcotics transactions, and therefore his presence and possession of large quantities of narcotics in such a neighborhood demonstrated his intent to distribute.
Given the existing New Jersey precedent, the negligible risk of undue prejudice, the particular relevance to the crimes charged, and the fact that defendant failed to raise this issue in the trial court, we find no error in the admission of testimony about the high-narcotics nature of the neighborhood where defendant was arrested. Given that we perceive no error, we need not address whether this issue accumulates with the improper admission of lay opinion testimony. Accordingly, we affirm defendant's conviction.
IV.
Next we turn to defendant's claims of sentencing error. Defendant argues that the court misunderstood the available range of sentence on count five, and improperly double-counted defendant's prior CDS conviction. Defendant again concedes that he failed to raise these issues at the sentencing hearing, and therefore they also fall under the plain-error rule. R. 2:10-2. We otherwise review sentencing under the deferential abuse of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). However, as always, we address issues of law de novo. Id. at 604.
A.
The sentencing range for a third-degree crime is ordinarily three to five years. N.J.S.A. 2C:43-6(a)(3). However, N.J.S.A. 2C:43-6(f) provides that upon a defendant's second CDS conviction, he or she "shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [N. J.S.A. 2C:43-7(c)]." (Emphasis added). In turn, N.J.S.A. 2C:43-7(c) refers to N.J.S.A. 2C:43-7(a), which provides that the enhanced sentencing range on a third-degree crime "shall be fixed by the court between five and [ten] years[.]" (Emphasis added).
Unlike a discretionary extended term imposed under N.J.S.A. 2C:44-3, the extended term here is mandatory. N.J.S.A. 2C:43-6(f); Robinson, supra, 217 N.J. at 607 ("[A]ccording to N.J.S.A. 2C:43-6(f), a person who has been previously convicted of certain designated drug offenses and who is convicted again of a designated drug offense must receive an extended term of imprisonment if the prosecutor requests such a sentence." (emphasis added)). Discretionary extended sentences, in contrast to mandatory extended sentences, are characterized by the fact that the permissible range of sentencing "reaches from the bottom of the original-term range to the top of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006).
Defendant does not dispute that, due to his prior CDS conviction, he is eligible for an extended sentence. Instead, defendant argues that the trial court applied the incorrect sentencing range. Defendant relies on Robinson, supra, 217 N.J. at 608-09, where our Supreme stated:
[A]ccording to N.J.S.A. 2C:43-6(f), a person who has been previously convicted of certain designated drug offenses and who is convicted again of a designated drug offense must receive an extended term of imprisonment if the prosecutor requests such a sentence. The base term ranges from the minimum term of imprisonment of the ordinary term for the offense to the top maximum term of imprisonment of the extended term.Defendant concludes that the appropriate sentencing range here should have been three to ten years.
[(Emphasis added) (citation omitted).]
We first note that Robinson concerned whether the trial court may impose a mandatory extended term on one offense and a discretionary extended term on a second offense when the court issued both sentences in the same hearing. Id. at 598-99. The length of the mandatory extended term was not at issue. Accordingly, the language indicated by defendant is dicta, and does not constitute binding precedent on this court.
N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7(a), by use of the word "shall," are unambiguously mandatory. "Indeed, the Legislature emphasized that [N.J.S.A.] 2C:43-6(f) required a mandatory extended term by noting its awareness that 'extended terms are ordinarily discretionary with the court.'" State v. Thomas, 188 N.J. 137, 150 (2006) (quoting N.J.S.A. 2C:43-6(f)). "Accordingly, case law implementing N.J.S.A. 2C:43-6(f) uniformly has respected its mandatory nature." Ibid.
Instead, the only discretion in applying N.J.S.A. 2C:43-6(f) rests with the prosecutor. Therefore, we interpret our Supreme Court's dicta in Robinson, supra, 217 N.J. at 608, regarding the range of sentence available under N.J.S.A. 2C:43-6(f) to encompass the prosecutor's discretion in requesting an extended sentence, and does not empower the trial courts with discretion to sentence outside of the mandatory enhanced range.
Here, the State applied for an extended sentence pursuant to N.J.S.A. 2C:4 3-6(f). Thus, the trial court was bound to apply a mandatory extended sentence of five to ten years, and we discern no error in the court's proper application of the same.
B.
As to double-counting defendant's criminal record, defendant's analogy to State v. Vasquez, 374 N.J. Super. 252 (App. Div. 2005), is inapposite. There, defendant Vasquez had one prior CDS conviction and two municipal court convictions. Id. at 268. After his second CDS conviction, the State requested an extended sentence pursuant to N.J.S.A. 2C:43-6(f). Id. at 265-66. The trial court, relying primarily upon the "very conviction which both allowed and required an extended term[,]" sentenced Vasquez to the maximum available extended term of ten years. Id. at 267. We found that this improperly double-counted his prior conviction, and resentenced defendant to the presumptive term of seven years. Id. at 268-69.
Presumptive sentences have since been found unconstitutional. State v. Natale, 184 N.J. 458, 466 (2005).
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Here, as discussed, the trial court relied on defendant's prior CDS conviction to apply an extended sentence on count five. However, unlike in Vasquez, defendant has an extensive criminal record that well exceeds the one prior CDS conviction necessary for an enhanced sentence. Moreover, the court, relying upon defendant's record as a whole, sentenced defendant to six years of incarceration on count five. This was at the low end of the available range of five to ten years, and was one year less than the sentence we imposed in Vasquez. Accordingly, the court did not improperly double-count defendant's prior CDS conviction, and we discern no error or abuse of discretion in defendant's sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION