Opinion
DOCKET NO. A-5084-09T2
05-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRELL N. MOORE, Defendant-Appellant.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel on the briefs). Richard E. McKelvey, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. McKelvey, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-2551.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel on the briefs).
Richard E. McKelvey, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. McKelvey, of counsel and on the brief). PER CURIAM
Following a trial by jury, defendant Darrell N. Moore appeals from his March 12, 2010 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); and third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) (count three). Following merger, the judge imposed an extended-term sentence on count three, consisting of a seven-year term of imprisonment, subject to a three-year period of parole ineligibility. We reject defendant's contentions that the trial judge committed reversible error by allowing improper opinion testimony from a police officer and by mishandling prior bad act evidence. We do, however, accept defendant's argument that the judge erred by treating defendant's addiction to cocaine as an aggravating factor for purposes of sentencing. We affirm defendant's conviction and remand for resentencing.
I.
On September 11, 2008, Sergeant Rodney Ruark of the Atlantic City Police Department was conducting a drug surveillance operation in the area of Florida and Pacific Avenues in Atlantic City. From an undisclosed surveillance location approximately thirty yards away, Ruark observed defendant engage in a brief conversation with a man in black pants and a white shirt. The man in the white shirt handed defendant paper currency, and defendant reached into the front of his pants, removed a small object and handed it to the man in the white shirt. The man then entered a taxicab, and the cab drove away. Asked what he did next, Sergeant Ruark answered:
I radioed for my arrest team to come into the area because I just -- what I believed I observed, a C.D.S. transaction [sic]. I wanted them to be closer to my location.
[(Emphasis added).]
Before the backup team arrived, Ruark observed defendant engage in a second transaction. According to Ruark, the second man -- later identified as co-defendant Brian Parker -- was present when defendant engaged in the hand-to-hand transaction with the man in the white shirt. Ruark explained that Parker walked up and stood behind defendant and the man in the white shirt as though "he was waiting for them to complete their transaction." Ruark observed defendant hand Parker an object. Again, defendant pulled a small object from his groin area and handed it to Parker, at which time Parker handed defendant currency. It was at that point that Ruark called for the arrest team to move in to arrest defendant and Parker. The unidentified man in the white shirt who fled in the taxi was never located, and no drugs were recovered from that sale.
Before the trial commenced, defendant moved to exclude evidence concerning the first transaction between defendant and the unidentified man in the white shirt. Defendant argued that the evidence was "within the purview of [N.J.R.E.] 404(b), [and was] a prior bad act, [which] should be analyzed under Cofield," and "would be way more prejudicial than it would be probative."
State v. Cofield, 127 N.J. 328 (1992).
The judge conducted a Cofield analysis, and found that evidence of the first transaction was admissible:
In Cofield, supra, 127 N.J. at 338, the Court articulated a four-part test for determining if evidence of uncharged misconduct can be admitted at trial despite the general prohibition against the admission of such evidence. Under this test, a court must determine, in a hearing outside the presence of the jury, whether the other crime is 1) "relevant to a material issue"; 2) "similar in kind and reasonably close in time to the offense charged"; 3) "clear and convincing"; and 4) possesses a "probative value" that is "not . . . outweighed" by its capacity for prejudice.
[The] first transaction is almost simultaneous with the second. They're seconds apart. The nature of the events . . . are identical--hand-to-hand drug transactions--there's no difference at all between them.
In terms of prejudicial versus probative, . . . [i]t's not some distant act that is brought in to show that the defendant has a propensity to do these things. . . .
And as to whether or not the so-called first transaction occurred, that would be for the jury to decide and they'll give whatever weight they give to [Sgt.] Ruark's testimony.
Even though the judge had already conducted a Cofield analysis, the judge stated "I'm not [even] certain that a [N.J.R.E.] 404(b) analysis [is required] because [the transactions] . . . occurred seconds apart and [the second transaction] was identical in nature to the first transaction. So I'm going to permit the testimony." After the judge ruled that evidence of the first drug transaction was admissible, defendant did not request a limiting instruction.
At trial, in addition to Ruark, the State presented the testimony of co-defendant Parker, and Detectives Paul Petinga, Kevin Fair and Alexus Smith. All three detectives were part of the arrest team. Detectives Fair and Petinga both testified that they were told by Sergeant Ruark that he had witnessed defendant engaging in what Ruark believed was a drug transaction. In particular, Detective Fair testified as follows:
The State presented other witnesses, whose testimony is not relevant to the issues on appeal.
[Prosecutor]: . . . Do you recall receiving a phone call from Sergeant Ruark in reference to a male later identified as Brian Parker and a male later identified as [defendant]?
[Det. Fair]: Yes, he advised us over the radio.
. . . .
[Prosecutor]: Once you received the call from him, what did you do?
[Det. Fair]: Sergeant Ruark advised us that he had witnessed what he believed to be a drug transaction. He gave a description of the two males to be stopped at Florida and Pacific Avenue[s]. I immediately went to the area and observed the two males standing on the corner of Florida and Pacific.
[(Emphasis added).]
Detective Petinga's testimony was similar:
[Prosecutor]: At some point that evening, did you become involved as part of what has been referred to as the arrest team in a case involving . . . [defendant]?Defendant did not interpose an objection to the testimony of Sergeant Ruark or Detectives Fair and Petinga that Ruark believed he had observed a CDS transaction.
[Det. Petinga]: Yes.
[Prosecutor]: How did your involvement come about?
[Det. Petinga]: . . . We were on a surveillance [radio] channel. Sergeant Ruark advised us there was C.D.S. activity at Florida and Pacific Avenue. He just witnessed a drug transaction. At that point, he told us to move in.
[(Emphasis added).]
Parker testified that on September 11, 2008, he purchased cocaine from an African-American male who was standing in front of a liquor store on Pacific Avenue in Atlantic City. Although Parker was unable to recall what the seller looked like, he was able to remember that the seller was wearing "a baby-blue sweatsuit." Parker also testified that he was arrested immediately after purchasing the cocaine from the man. When the prosecutor showed Parker an item that had been previously marked as State's Exhibit 1, Parker looked at the yellow bag and said "yes, yellow. Yeah, that's it." He reiterated that the small yellow package of cocaine was "the cocaine that [he] purchased from the male in the . . . powder-blue sweatsuit" on the day in question.
Petinga, who testified that he was part of the arrest team that responded to Sergeant Ruark's radio call stating that "there was C.D.S. activity at Florida and Pacific Avenue," explained that he and Detective Alexus Smith were only a block and a half away at the time Ruark directed them to respond to the area, and they did so immediately. Petinga explained that Ruark had provided "a description of a black male in a powder[-blue] velour sweatsuit and a matching kanga hat [standing next to] . . . a white male." As Petinga and Smith "roll[ed] up" to Florida and Pacific Avenues, they immediately observed the two males standing next to a liquor store. Petinga and Smith emerged from their vehicle, identified themselves as police officers and took defendant into custody. Asked to describe defendant's attire, Petinga stated defendant was the male dressed in the "blue-powder suit, a velour sweatsuit." When the prosecutor asked Petinga if "Mr. Moore [was] in the courtroom today," Petinga identified defendant. Like Detective Petinga, Detective Fair also identified defendant at trial as the man he observed standing with Parker on Pacific Avenue.
Next, the State presented the testimony of Detective Alexus Smith, who arrived with Detective Petinga at Florida and Pacific Avenues in an unmarked vehicle in response to Sergeant Ruark's radio call. Upon arrival, Detective Smith observed two males who "fit the description which Sergeant Ruark gave [them]; one being a black male with a powder-blue velour suit on and the other being a white male." Asked whether the male wearing the powder-blue velour suit was in the courtroom, she answered yes, pointing to defendant. She explained that along with Detective Fair, she was able to apprehend Parker in the liquor store after she observed him make a "throwing motion his hand" to discard what was later identified as State's Exhibit 1, a bag of cocaine.
After the State rested, defendant presented three witnesses: Whitley Molley, a friend of defendant's who testified that she never saw defendant use or sell drugs and that defendant commonly used a "fist bump" as a greeting; Jasmine Ridley, a friend of defendant's who testified that she was "chillin'" with defendant prior to his arrest and stated that he often greeted people by "clap[ping] . . . [l]ike shak[ing] your hand"; and Michael Thomas a friend of defendant's who had a four-minute encounter with him on the day of the arrest and testified that he "shook hands with [defendant]," and that defendant did not sell him drugs. Defendant did not testify.
At sentencing, the judge denied defendant's motion for a new trial and for admission to Drug Court. See N.J.S.A. 2C:35-14. The judge also accepted defendant's guilty plea to count one of an unrelated indictment; and granted the State's motion to sentence defendant to an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f). The judge observed that an extended term sentence was mandatory in light of defendant's prior drug distribution convictions.
In imposing sentence, the judge found three aggravating factors: N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense"; N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses for which he has been convicted"; and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]" The judge found no mitigating factors.
Before imposing sentence, the judge considered a letter written by defendant's fiancée Shaquana Gilmore, who was then four-months pregnant. Gilmore also addressed the court, stating that she was "currently living in a shelter," had "no income," and could not raise a baby alone. The judge then considered a letter from defendant in which he stated:
I have a drug problem and I need help. . . . I have a problem in reality, so please consider that as well for me to get Drug Court so I can help myself. . . . I believe I can do better . . . [w]ith an inpatient program.
Defendant also addressed the court, stating that a term of imprisonment would impede his attempt to recover from drug addiction because "you can get more [drugs] in the jail than you get out on the street," and "all the time I'm thinking about how to get high." Defendant stated: "I'm only asking for help because I know I need help. And it's not only for me. It's for the only two people I'm going to have in my life anyway, [my fiancée] and the baby."
In imposing sentence, the judge explained that because he viewed defendant's cocaine addiction as a factor justifying a lengthier sentence, he planned to impose a seven-year term of imprisonment rather than a five-year term. On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN ALLOWING LAY OPINION TESTIMONY WHICH INVADED THE FACT-FINDING PROVINCE OF THE JURY. (Not Raised Below)
II. THE TRIAL JUDGE'S DECISION TO ADMIT TESTIMONY REGARDING ALLEGED PRIOR BAD ACTS, BASED ON A FLAWED [N.J.R.E.] 404(b) ANALYSIS, AND FAILURE TO GIVE A LIMITING INSTRUCTION DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
A. The Testimony About [Defendant's] Prior Bad Acts Was Not Relevant To A Material Issue In Dispute And [Was] Therefore Inadmissible Under [N.J.R.E.] 404(b).III. [DEFENDANT'S] SENTENCE IS MANIFESTLY EXCESSIVE WARRANTING A REMAND FOR RESENTENCING.
B. The State Did Not Prove [Defendant's] Alleged Prior Bad Acts By Clear And Convincing Evidence.
C. The Prejudicial Effect Of The Alleged Prior Bad Act Testimony Substantially Outweighed Its Probative Value.
D. The Lower Court Failed to Give Any Limiting Instruction Whatsoever As To The Permissible And Prohibited Uses Of the [N.J.R.E.] 404(b) Evidence.
A. The Judge Improperly Considered [Defendant's] Drug Addiction In Adding an Additional Two Years to His Sentence.
B. The Judge Failed to Consider an Applicable Mitigating Factor in Sentencing [Defendant].
II.
In Point I, defendant argues that Sgt. Ruark, who testified as a lay witness, improperly expressed a "belief" that drug transactions occurred after observing two hand-to-hand "exchanges" between defendant and two men. Defendant asserts that this testimony "was essentially a hybrid of lay opinion and expert testimony," which impermissibly invaded the fact-finding province of the jury.
In particular, defendant contends Ruark's testimony -- that he radioed his arrest team to come into the area "because [he] . . . believed . . . [he had] observed, a C.D.S. transaction" -- was inadmissible and violated the ground rules established in State v. McLean, 205 N.J. 438, 449 (2011). Defendant further asserts that the unfair prejudice resulting from Ruark's testimony was compounded when Detectives Fair and Petinga parroted Sergeant Ruark's remark that he believed he had witnessed a drug transaction involving defendant and the male in the white shirt.
The State disagrees, arguing that Sergeant Ruark's testimony was proper lay opinion testimony that was based on Sergeant Ruark's observations; and that police officers in a criminal trial may testify to the facts they have observed without improperly "convey[ing] information about what the officer 'believed.'"
Because defendant did not object to this testimony at the time of trial, we will not reverse on this ground unless the error was "clearly capable of producing an unjust result." R. 2:10-2.
Since its seminal decision in State v. Odom, 116 N.J. 65, 70-71, 76 (1989), the Court has held that expert opinions in narcotics prosecution cases are limited to relevant subjects that are beyond the understanding of the average juror. McLean, supra, 205 N.J. at 450. Expert testimony is generally inadmissible if the alleged drug transaction occurred in a straightforward manner that the average juror can readily understand. Id. at 452 (noting that a jury could understand, without expert testimony, that the exchange of currency for a small object constitutes the illegal sale of narcotics). Where factual testimony is sufficient to potentially enable the jury to draw the inference of distribution, further comment in the form of expert opinion is improper. Ibid.
Here, consistent with those principles, Sgt. Ruark and Detectives Fair and Petinga testified as lay witnesses. The State did not seek to offer them as experts. Doing so would have been improper, ibid., as the transactions here were "straightforward" hand-to-hand exchanges of drugs for money, and were not beyond the understanding of the average juror. See id. at 449-52.
Even though expert opinion testimony is inadmissible in the context of a "straightforward" hand-to-hand exchange of drugs for money, ibid., lay opinion testimony, as defined in N.J.R.E. 701, is nonetheless admissible when offered to describe "what was directly perceived by the witness[.]" Id. at 460. The "personal observations and perceptions of the lay witness" are admissible so long as the police officer is not offering an opinion," id. at 459, provided that the factual testimony is limited to setting forth "what [the officer] perceived through one or more of the senses," id. at 460. Such testimony is "an ordinary fact-based recitation" that does not "convey information about what the officer 'believed,' 'thought' or 'suspected[.]'" Ibid. A "description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, [and] accepted paper currency" are examples of proper lay opinion testimony. Ibid.
We agree with defendant that when Ruark testified that he "believed" he had "observed a CDS transaction" his testimony encompassed far more than a neutral recitation of what he saw, because, as the Court explained in McLean, such "neutral" testimony must be confined, for example, to simply restating that the officer observed a defendant reach into a bag and hand another person an item after receiving paper currency. Ibid. Here, Ruark did more. He embellished his testimony by adding his "belie[f]" that the exchange constituted a drug transaction. Such testimony clearly exceeded the bounds of lay opinion as described in McLean. Id. at 456.
On the other hand, the testimony offered by Ruark and repeated by Detectives Petinga and Fair, did not contain all of the elements that rendered the testimony inadmissible in McLean. In particular, in McLean, after the detective testified to his fact-based observations, and stated that "he saw [the defendant] engage in two suspected hand-to-hand drug transactions," the prosecutor repeatedly referred to the detective's "experience." Id. at 462-63. The prosecutor in McLean then posed the following question:
So based on your own experience sir, and your own training, what did you believe happened at that time?The Court deemed such references to the officer's "experience" improper. Id. at 461-62.
[Id. at 446.]
Unlike in McLean, where the officer's answer was immediately preceded by testimony about his two decades of experience in law enforcement, id. at 446, 463, here, Ruark's testimony about his twenty-three years of experience with the Atlantic City Police Department came at the very beginning of his testimony. Ruark's experience was not included in his testimony that he "believed" he had observed a drug transaction.
For all of these reasons, we agree with defendant that Ruark's testimony on this subject was, in effect, a "hybrid," composed of legitimate lay opinion testimony combined with the type of testimony the Court deemed inadmissible in McLean because it expressed the officer's "belief" as to what he observed.
In the final analysis, because the testimony here did not encompass all of the features that rendered such testimony inadmissible in McLean, we are not prepared to say that Ruark's testimony violated the teaching of McLean, although we conclude that Ruark's testimony came perilously close to crossing the line.
Furthermore, even if Ruark's testimony, as repeated by Detectives Petinga and Fair, was inadmissible, it was not, as required by Rule 2:10-2, "clearly capable of producing an unjust result." We so conclude because of the strength of the State's case. As we have noted, the jury heard Parker's uncontroverted testimony that he purchased cocaine from an African-American male wearing a powder-blue sweatsuit. Such attire is unquestionably distinctive and unusual. Ruark testified that defendant, the man he arrested, was wearing clothing that matched the clothing description provided by Parker. Ruark explained that what initially drew his attention to defendant "was the way he was dressed. He was wearing a powder-blue like jogging suit and he was wearing a matching powder-blue kanga hat, so he kind of stood out a little bit." Thus, Parker's testimony describing the clothing of the man who sold him the cocaine precisely matched the description provided by Sergeant Ruark of the man who engaged in a hand-to-hand transaction with Parker.
For that reason, the unmistakable inferences to be drawn from such testimony were as follows: the man in the powder-blue sweatsuit sold cocaine to Parker; and the man in the blue sweatsuit, who was observed by Ruark engaging in the transaction and who was immediately apprehended at the scene, was defendant. Sergeant Ruark's testimony unambiguously established that it was defendant who engaged in the hand-to-hand transaction with Parker, and Parker's testimony then supplied the missing ingredient, namely, that the item purchased was in fact cocaine.
So viewed, any error resulting from Ruark's testimony that he believed he witnessed a CDS transaction was rendered harmless by the powerful evidence in the record demonstrating that defendant sold cocaine to Parker. Unquestionably, the jury could have reached such a conclusion entirely independently of Ruark's testimony that he believed he had witnessed a CDS transaction. For that reason, any error in the admission of Ruark's testimony on that subject was not plain error, and was not clearly capable of producing an unjust result. See R. 2:10-2. We reject the claim defendant advances in Point I.
III.
In Point II, defendant argues that the judge erred by admitting evidence of the first drug transaction between defendant and the unidentified man in the white shirt, because narcotics were recovered only from the second transaction involving Parker. Defendant argues that Sergeant Ruark's testimony concerning the first transaction was inadmissible under N.J.R.E. 404(b), as evidence of "prior bad acts," and that, even if it was admissible, the judge's failure to issue a limiting instruction denied defendant a fair trial.
Defendant's argument in Point II depends for its success on the premise that the testimony involving defendant's alleged sale of CDS to the first buyer was an extraneous act not encompassed within the indictment, and was, for that reason, a prior bad act that was inadmissible under N.J.R.E. 404(b). We do not accept this underlying premise. The indictment does not name the individual or individuals to whom defendant sold cocaine on the day in question, nor does it specify the number of such transactions in which defendant engaged.
In particular, count two merely specifies that on the day in question, defendant "unlawfully and knowingly or purposely possess[ed] with intent to distribute cocaine; contrary to the provisions of [N.J.S.A. ] 2C:35-5(a)(1) and 2C:35-5(b)(13), and against the peace of this State, the government and dignity of the same." Count three is phrased in a similar manner, stating that on the day in question defendant "did unlawfully and knowingly or purposely distribute cocaine." Consequently, the indictment does not support defendant's assertion that the evidence of the purported sale of cocaine to the unidentified man in the white shirt was a prior bad act that lay outside the four corners of indictment and therefore constituted inadmissible evidence of a prior bad act.
Count one charges defendant with unlawful possession of cocaine.
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Moreover, although the pretrial discovery is not part of the record on appeal, defendant does not allege that the first sale was excluded from the police reports that were provided to him as part of the pretrial discovery. Because the first sale would have been included in the police reports, and because the indictment did not confine the allegations against defendant to the second sale involving Parker, we reject defendant's claim in Point II that the evidence of the first transaction was inadmissible pursuant to N.J.R.E. 404(b).
IV.
In Point III, defendant asserts that the sentence imposed was excessive as it resulted from the finding of an improper aggravating factor. In particular, defendant maintains that his sentence of seven-years imprisonment with a three-year parole disqualifier was "manifestly excessive," and that the judge improperly "added two additional years to [his] term because [he] admitted that he was addicted to drugs." Defendant also asserts that the judge erred by concluding that "no mitigating factors applied." Defendant maintains the judge should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) ("imprisonment of the defendant would entail excessive hardship to himself or his dependents"), because defendant's fiancée was pregnant and was "desperately in need of his support."
The State argues that the sentence of seven years was "more than reasonable," because it was "slightly less than midway through the second-degree range," which requires between five and ten years imprisonment. The State asserts that defendant has misinterpreted the judge's statement concerning defendant's drug addiction, and argues that the judge did not consider defendant's admitted addiction as an aggravating factor, but instead considered this circumstance to defendant's "benefit" in declining to impose a lengthier sentence.
In support of the argument that the judge used defendant's addiction as an aggravating factor that justified increasing defendant's sentence to a seven-year term, defendant points to the judge's remarks during the sentencing proceeding:
The reason for the seven-year term is that I believe and accept [defendant's] contention that he is addicted. I don't believe that the seven-year term will result in him serving significantly any more time than a five-year term; however, it will relieve him [sic] on parole after he's paroled.
He's going to have a struggle, as does every addict, in getting clean and staying clean and I believe that the additional two years of what I believe will be parole supervision and not incarceration will assist in staying clean. It's my understanding that he'll be eligible for parole after he completes the three-year stipulation and that the difference between the five-year and seven-year will not . . . add significantly more incarceration[] [time], but will result in an additional two years parole supervision, which I believe will help Mr. Moore stay clean if he leaves the jail clean.
I understand that addiction is a powerful force. . . . You're a young man, you're 24 years old and unless you get off this road by the time you're released from prison or shortly thereafter, there's nothing pleasant in your future. I want to see you get clean. I hope you do. I hope you stay clean.
And the reason for the extra two years is to provide you with two more years of parole supervision, during which you will know that if you use again, you're going to have to go back in. So this is not intended to extend your time in initially, but to give you more time on parole.
[(Emphasis added).]
"Appellate review of sentencing decisions is . . . narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009).
However, in determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court must confine its finding of the aggravating factors to those that are enumerated in N.J.S.A. 2C:44-1(a). A sentencing court "lacks the power to import aggravating factors that are not contained within the Criminal Code's sentencing guidelines." State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002) (citing State v. Roth, 95 N.J. 334, 363-64 (1984)). By relying on defendant's addiction as an aggravating factor -- when such an addiction is not encompassed within the list of aggravating factors set forth in N.J.S.A. 2C:44-1(a) -- the judge ran afoul of the admonition of Thomas that a judge may not "import" aggravating factors not contained within the Criminal Code. See also State v. Ikerd, 369 N.J. Super. 610, 618 (App. Div. 2004) (disapproving a judge's finding that the defendant's pregnancy was an aggravating factor that required her to serve a term of imprisonment long enough to keep her in prison for the duration of her pregnancy, so she would not be able to use drugs and endanger the baby).
We reject the State's contention that the judge's reliance on defendant's cocaine addiction served as a "benefit" to defendant rather than a detriment. The judge's remark that he was adding an "extra two years" onto defendant's sentence belies any argument that defendant's addiction resulted in a shorter, rather than a lengthier, sentence. We agree with defendant's argument that the judge improperly increased defendant's sentence based upon defendant's cocaine addiction. While we have no doubt that the judge's approach was well-meaning and well-intentioned, the judge's conclusions nonetheless depart from the principles articulated in both Thomas and Ikerd.
We vacate the sentence and remand for resentencing, during which the judge shall not rely on defendant's addiction as a basis for enhancing the sentence. On remand, the judge shall also reconsider his refusal to find mitigating factor eleven, in light of the information provided by defendant's fiancée. We intimate no view on whether a finding of mitigating factor eleven was required.
The conviction is affirmed. Remanded for resentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION