Opinion
DOCKET NO. A-3147-12T2
05-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME J. HOLMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-01-0015. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Jerome J. Holmes was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree possession with intent to distribute a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession with intent to distribute a CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; third-degree distribution of heroin to Guiermo Nieves, N.J.S.A. 2C:35-5(b)(3); third-degree distribution of heroin to Nieves within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree distribution of heroin to Nieves within 500 feet of public housing, N.J.S.A. 2C:35-7.1; and an amended charge of resisting arrest, N.J.S.A. 2C:29-2(a), a disorderly persons offense.
The jury found defendant not guilty of third-degree distribution of heroin to Andre Floyd, third-degree distribution of heroin to Floyd within 1,000 feet of school property, and second-degree possession with intent to distribute heroin to Floyd within 500 feet of a public housing facility.
The trial judge merged all drug convictions with the second-degree distribution of heroin within 500 feet of public housing conviction and imposed a discretionary extended-term of twelve years imprisonment with a six-year period of parole ineligibility to run concurrent to a six-month sentence for the resisting arrest conviction. The judge also imposed the appropriate penalties, assessments, fees and fines.
On appeal, defendant raises the following contentions:
POINT ONEWe reject these contentions and affirm.
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF THE SALE OF NARCOTICS, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF AQUITTAL [sic] ON THOSE COUNTS.
POINT TWO
THE DEFENDANT'S DISCRETIONARY EXTENDED TERM OF A TWELVE-YEAR BASE TERM WITH A SIX-YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE IN THIS CASE. THEREFORE, THE SENTENCE SHOULD BE REDUCED OR THE MATTER REMANDED FOR RESENTENCING.
We derive the following facts from the record. Based on civilian complaints of drug activity, Police Officer Michael Burgess of the Jersey City Police Department conducted surveillance in the area of Myrtle Avenue and MLK Drive, an area known as an open air drug market for cocaine and heroin. The officer saw an African-American man, later identified as defendant, standing on the corner of Myrtle Avenue and MLK Drive. A white or Hispanic man, later identified as Nieves, approached defendant and the two men engaged in a brief conversation. As they walked together up Myrtle Avenue, defendant reached into his right pants pocket, retrieved objects and handed them to Nieves in exchange for money. Defendant counted the money as Nieves walked away from him.
Officer Burgess alerted other officers in perimeter units of the transaction between defendant and Nieves and gave them a description of Nieves, Nieves's location and a directive to stop him. Police Officer Michael Rivera located Nieves and stopped him. Nieves cooperated and surrendered three glassine bags containing heroin and marked with the logo "Ninja."
Officer Burgess saw defendant on the corner of Myrtle and Grant Avenues talking to a man, later identified as Floyd. As the two men began walking north, defendant removed his hand from his right pants pocket and handed Floyd objects in exchange for money. Officer Burgess could not identify the objects and did not actually see defendant place the objects in Floyd's hand; he merely saw defendant's "peeling" motions as he gave objects to Floyd in exchange for cash. The officer testified that defendant's motions were consistent with drug transactions that he had observed during approximately two thousand drug surveillance operations.
Officer Burgess alerted his perimeter units of the transaction between defendant and Floyd and gave descriptions of the two men. Officer Rivera located them and stopped his patrol car. When defendant saw the officer exiting the patrol car, he reached into his right pants pocket, pulled out an object and placed the object in his mouth. Defendant fought with Officer Rivera and resisted arrest. With the assistance of four other officers, defendant was restrained. Following his arrest, he spit out eight glassine bags that were wrapped together in a rubber band. The bags contained heroin and were marked with the logo "Ninja." The officers also recovered twenty-two dollars from defendant.
In the meantime, Police Officer Charles Lugo approached Floyd and saw him discard an object from his left hand to the ground. Officer Lugo immediately identified the object as a glassine bag that was commonly used to package heroin and sold at street level. Officer Lugo arrested Floyd and retrieved the glassine bag from the ground. The bag contained heroin and was marked with the logo "Ninja."
In addition to Officers Burgess, Rivera and Lugo, the State presented an expert in narcotics packaging and distribution methods. The expert testified that the price for a bundle of ten glassine bags of heroin bound together was between seventy to one hundred dollars unless purchased in bulk for fifty to sixty dollars per bundle. The expert noted that in Jersey City, a glassine bag of heroin typically sold for between seven and nine dollars and buyers purchased an average of one to three bags at a time. The expert was unable to explain the significance of the twenty-two dollars recovered from defendant. The State's case ended with the expert's testimony.
Defendant sought a judgment of acquittal at the close of the State's case. He argued there was no evidence that he sold drugs to anyone because the money found on him "[didn't] . . . add up." The judge denied the motion, concluding it was for the jury to resolve the money issue and the State's evidence was sufficient for the jury to conclude that defendant distributed heroin to Nieves and Floyd and possessed additional heroin.
I.
Defendant contends in Point I that because the State's evidence was insufficient to prove beyond a reasonable doubt that he was guilty of distributing heroin, the judge erred in denying his motion for a judgment of acquittal. We disagree.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal at the close of the State's case. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). On appeal, we may not consider any evidence presented after the motion was made at the close of the State's case. Reyes, supra, 50 N.J. at 459.
For this reason, we cannot consider defendant's arguments based on his post-motion testimony and the prosecutor's summation comments.
We are satisfied that the evidence presented by Officers Burgess, Rivera and Lugo, viewed in its entirety and giving the State all favorable inferences therefrom, was more than sufficient to allow a reasonable jury to find defendant guilty of distribution of heroin beyond a reasonable doubt. Accordingly, the judge properly denied defendant's motion for judgment of acquittal at the close of the State's case.
II.
Defendant challenges his sentence in Point II. He does not dispute that he was eligible for a discretionary extended-term sentence. Rather, he argues the judge abused his discretion in imposing a twelve-year sentence with six years of parole ineligibility.
We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.We discern no abuse of discretion here.
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotations marks omitted).]
To impose an extended-term sentence, the court must first review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible and then assess the aggravating and mitigating factors to determine where in the statutory range to sentence the defendant. State v. Pierce, 188 N.J. 155, 168 (2006). The court may sentence a person who has been convicted of a first-, second- or third-degree crime to an extended term if it finds one or more of the following grounds:
Pierce replaced the four-step process in State v. Dunbar, 108 N.J. 80 (1987), on which defendant incorrectly relies.
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.The range of an extended-term sentence for a second-degree crime, such as the crime for which defendant was convicted, is between ten and twenty years. N.J.S.A. 2C:43-7(a)(3). As part of an extended-term sentence, the court may fix a minimum term of parole ineligibility not to exceed one-half of the term set. N.J.S.A. 2C:43-7(b).
[N.J.S.A. 2C:44-3(a).]
Here, the judge found that: (1) defendant was fifty years old at the time he committed the crimes; (2) defendant was previously convicted of third-degree possession of a CDS in 2003, and third-degree theft in 2006, when he was at least eighteen years old; and (3) both of those predicate crimes occurred within ten years of the crime for which defendant was being sentenced. See N.J.S.A. 2C:44-3(a). Accordingly, the judge correctly determined that defendant was a persistent offender eligible for an extended-term sentence.
The judge then analyzed the aggravating and mitigating factors to determine the length of defendant's sentence. The judge found and applied aggravating factors three, six and nine based on defendant's prior criminal history, which included twenty-two prior arrests in New Jersey or New York; eight New York convictions with two at the Superior Court level for criminal possession of a CDS; and four other New Jersey indictable convictions, including one for third-degree possession of CDS, two for resisting arrest, and one for third-degree theft by unlawful taking. The judge found no mitigating factors.
"The risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9).
At sentencing, defendant requested the following mitigating factors: "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4); "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8); "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(9); and "[t]he defendant is particularly likely to respond affirmatively to probationary treatment," N.J.S.A. 2C:44-1(b)(10). Defendant did not request mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to [him]" based on his age, N.J.S.A. 2C:44-1(b)(11), which he mentions for the first time in his merits brief. The record does not support this mitigating factor.
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We are satisfied that the judge followed the proper procedure to impose an extended-term sentence and properly imposed a sentence and period of parole ineligibility within the range for an extended-term. The judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION