Opinion
DOCKET NO. A-5577-12T2
03-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID N. MEYER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 13-01-00040. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a judgment of conviction entered following the denial of his motion to suppress evidence and his subsequent retraxit plea of guilty to second-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1). Defendant raises the following arguments on appeal:
POINT IWe affirm substantially for the reasons expressed by Judge Patricia G. Wild on the motion and at sentencing, and find defendant's arguments are without sufficient merit to warrant an extended discussion in a written opinion. Rule 2:11-3(e)(2). We add only the following.
THE EVIDENCE SEIZED IN THE EXECUTION OF THE WARRANT MUST BE SUPPRESSED BECAUSE THE WARRANT WAS INVALID.
POINT II
THE MATTER MUST BE REMANDED FOR A NEW SENTENCING HEARING BECAUSE THE COURT IMPOSED SENTENCE BASED UPON A MISTAKE CONCERNING THE EXTENT OF DEFENDANT'S PRIOR RECORD.
On February 8, 2012, police seized weapons, ammunition, drug paraphernalia and controlled dangerous substances from a residence which they had entered pursuant to a search warrant issued by the acting municipal court judge for Upper Township in Cape May County. The acting municipal court judge had been named as the first alternate under the March 1, 2011 order of the assignment judge entered pursuant to N.J.S.A. 2B:12-6. That statute authorizes the assignment judge to appoint an "acting judge" of each municipal court in the vicinage to serve temporarily when the regular municipal judge is unable to hold court.
The March 1, 2011 order further required the acting judge to "make a record of the reason" that any application for judicial action is not being made to the duly appointed municipal judge of the vicinage. This part of the order was incorporated in accordance with a statement by the Supreme Court in State v. Broom-Smith, 201 N.J. 209, 236 (2010), that "when a warrant applicant applies to a substitute judge, a record should be made of the reason the application is not being presented to the territorially-appropriate court." The Court explained that the statute and Rule 1:12-3a prevent "judge-shopping" by law enforcement officers.
Here, the regularly assigned municipal court judge for Upper Township was away from February 1, 2012 through February 12, 2012, on a vacation out of state and the acting judge who executed the order for the search warrant on February 1, 2012, was the first alternate judge for that municipality under the assignment judge's order. The acting judge did not, however, "record the reason" for his substitution on the warrant application or the warrant itself.
Defendant argues that this failure by the acting judge to make a record of the reason for his substitution invalidates the search warrant and requires suppression of everything the police discovered and seized in the ensuing search of the home. Defendant does not argue that the police engaged in any type of "judge shopping" or that the acting judge executed the order for the warrant in bad faith.
We reject defendant's argument that the warrant was invalid simply because of the acting judge's technical failure to make a contemporary record of the reason he signed the warrant. Neither the policies underlying the court rule and the statute, nor the principles of Broom-Smith, were in any manner offended by the actions of the police or the acting judge. Clearly, this was not a case of inappropriate "judge shopping"; rather, it is not disputed that the regular municipal judge was out of state on a vacation, and the acting judge was the duly authorized first alternate under the assignment judge's order of March 1.
Finally, we turn briefly to defendant's argument that the judge's mischaracterization of his prior record requires vacating his sentence and remanding for a new sentencing hearing. We are mindful that our standard of review of the judge's sentencing determinations is limited. If a sentencing court properly identifies and balances the applicable aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentence that is so imposed, consistent with the guidelines, should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 611-12 (2010) (discouraging appellate courts from "second-guessing" the sentencing assessments of trial judges that are based upon the pertinent aggravating and mitigating factors).
Applying this limited standard of review, we find no reason to disturb the sentence imposed by Judge Wild. The sentence does not shock the judicial conscience. The trial court adequately took into account defendant's background in imposing the custodial term and the parole disqualifier. Defendant had, in the past, been given the benefit of parole and had violated parole. In 2010, while on parole after receiving a sentence of imprisonment for his prior indictable drug offense, defendant was convicted of an assault offense and a contempt offense, and was again incarcerated. Prior parole had not deterred defendant. The judge appropriately weighed the aggravating and mitigating factors supported by the record and imposed sentence.
Defendant pled guilty to second-degree possession of a controlled dangerous substance, heroin, with intent to distribute, N.J.S.A. 2C:35-5(a)(1), in return for the dismissal of the related second and third-degree weapons offenses for which he was also indicted; the dismissal of the indictment against his girlfriend; the dismissal of other charges pending against him; and the State's recommendation that he be sentenced to twelve years' incarceration, subject to six years of parole ineligibility. Defendant argues that the judge mistakenly mischaracterized his record by stating that the present conviction would be his third indictable conviction, whereas, in fact, he had only one prior indictable conviction.
Defendant was subject to an extended term because of his 2007 conviction of possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:43-6(f), and, further, was subject to a period of parole ineligibility, N.J.S.A. 2C:43-6(b).
In 2009, defendant had been charged with criminal contempt for violating a restraining order, but the charge was downgraded to a disorderly persons offense in accordance with a plea agreement. Also, in 2010, defendant was indicted for third-degree aggravated assault, and that charge was later downgraded to a charge of simple assault, N.J.S.A. 2C:12-1(a)(1). Accordingly, while defendant's 2007 conviction for possession of cocaine with intent to distribute in a school zone, was his only prior indictable conviction, defendant, in addition, did have a history of disorderly persons offenses and parole violations as an adult.
The judge found three aggravating factors, including risk of re-offending, N.J.S.A. 2C:44-1(a)(3), defendant's record, N.J.S.A. 2C:44-1(a)(6), and the need to deter defendant, N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. The judge was "clearly convinced" the aggravating factors outweighed the absent mitigating factors, and sentenced defendant in accordance with the plea bargain.
Given this record, we find no basis whatever to support defendant's speculation that the judge "may well have imposed a lesser sentence" had the record more clearly reflected that defendant's contempt offense was a disorderly persons offense rather than a fourth-degree crime.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION