Opinion
DOCKET NO. A-0766-13T2
04-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH STRICKLAND, 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 (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-08-1126. 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 (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kenneth Strickland appeals from his conviction for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and second-degree possession of heroin within 500 feet of public housing, N.J.S.A. 2C:35-7.1. He also appeals from the sentence, imposed after merger, of eight years in prison with a four-year parole bar. We affirm the conviction and the sentence.
I
In brief summary, defendant was arrested in an area that was within 500 feet of public housing. According to the State, defendant was arrested in the act of selling heroin to two teenagers. The police found two packets of heroin on his person. The teenagers testified for the State. A later search of the house defendant shared with Mark Hicks yielded a digital scale, $3600 in cash, magazine wrappers of a type frequently used to package heroin, small plastic sandwich bags with one corner cut off, and small rubber bands submerged in rice, used by drug dealers to keep heroin powder from absorbing moisture. The State charged defendant with possessing the two packets of heroin with intent to distribute them, and with doing so in a public housing zone.
Prior to jury selection, the court heard an in limine motion by the State to admit testimony that, a couple of hours prior to the arrest, Sergeant Quick (Sergeant Quick or Quick) observed defendant engaged in activity outside the house that was consistent with selling drugs, i.e., handing packets of what appeared to be heroin to other individuals, and receiving cash in return. The State argued that this evidence was an integral part of the crime with which defendant was charged on that day and was relevant to defendant's intent in possessing the two packets of heroin found on his person. Defense counsel argued that the earlier alleged sales were inadmissible N.J.R.E. 404(b) evidence as to which the State had no clear and convincing proof, since those buyers were not arrested and no drugs were seized.
The State also sought to admit evidence concerning alleged drug sales that defendant made to undercover officers after he was arrested in this case and released on bail, and evidence of his prior drug convictions.
The trial judge granted the motion as to Sergeant Quick's observations of defendant's conduct on the day of the arrest, concluding that "behavior that was exhibited [just] prior to the immediate arrest of the defendant . . . can come in under either [N.J.R.E. 403] or 404(b)." Defense counsel did not ask the court, either during the motion argument or during the trial, to limit the details of Sergeant Quick's permitted testimony. That is, having lost the battle to keep out evidence of defendant's activity earlier that day, the defense did not seek to limit what Sergeant Quick could say he observed, i.e., defendant allegedly selling heroin. As discussed later, we conclude this was a strategic decision, because the defense wanted Sergeant Quick to offer similar testimony about observing Hicks selling heroin.
After going through an analysis under State v. Cofield, 127 N.J. 328, 338 (1992), the judge excluded the State's proffered evidence concerning drug sales defendant allegedly engaged in after the date of his arrest. The judge also declined to let the State present evidence of defendant's prior drug convictions, as part of its case-in-chief. The judge reserved decision on the extent to which the State could cross-examine defendant on his prior convictions if he chose to testify. That issue became moot when he decided not to testify.
On the next trial day, the judge conducted a N.J.R.E. 104 hearing and precluded the State from introducing a statement defendant allegedly made to the police when he was arrested in connection with a later drug sale.
In his opening statement, the prosecutor stated to the jury that on the day of his arrest, defendant spent the morning selling heroin, and that he walked up and down the street in front of his house "and he sold heroin." "He sold heroin to numerous individuals . . . . [a]nd he eventually was stopped by the police before he was able to sell heroin to two teenagers in a car." Later in his opening statement, the prosecutor told the jury that Sergeant Quick would testify that "while he was performing surveillance, he saw Mark Hicks leave the residence, turn right and make hand-to-hand heroin sales." He told the jury that Sergeant Quick would also testify that he later saw defendant "doing the same thing." "He would approach individuals, he would hand them packets of heroin. He would receive cash money in return." He also explained to the jury that Sergeant Quick did not arrest Hicks or defendant because he intended to perform "a lawful search" of their residence later in the day and did not want to compromise that investigation.
Defense counsel did not object to any portion of the State's opening. Instead, she argued that Hicks was the real drug dealer, and there was "an awful lot of evidence against [him]." Defense counsel also told the jury that the "search warrant" to be executed later in the day was aimed at Hicks, and that Hicks and the two teenagers had pled guilty. In other words, the defense welcomed the State's evidence that Hicks was selling heroin, and that there was a search warrant for the apartment, because that was part of the defense strategy to show that Hicks was the drug dealer.
At the trial, Sergeant Quick testified that at about 8:30 a.m. on April 6, 2012, he was using binoculars to conduct surveillance of a house on Somerset Street. He was primarily trying to observe a man nicknamed "Quando," later identified as Hicks. Initially, Quick testified that he saw Hicks leave the house and meet a "black male in a black hoodie [who] gave him paper money and in exchange I'd seen Hicks remove the heroin from paper wrappings, from magazine wrappings and then quickly walked back to the house." The prosecutor restated the answer by reciting that Quick "believed" it was heroin and then asked Quick why he "believed" the substance was heroin. Quick replied that the object he saw Hicks hand the man in the hoodie was packaged the way he had often previously seen heroin packaged: "It's small in size, [a] white packet," wrapped in a magazine wrapping "to keep it dry." There was no objection to any of that testimony.
To protect the privacy of other residents or owners of the premises, we omit the exact address and will refer to it as "the house."
Quick explained that he did not arrest Hicks because "it was part of a bigger investigation" and the investigating detectives were not due to arrive on the scene until 10:00 a.m. Again, there was no objection. Quick then described observing Hicks engage in two more transactions that he believed were heroin sales. During the second sale, Quick observed a woman customer take a "bundle" of heroin from Hicks and count the packets in the bundle. Quick called in his observations to his colleague Sergeant Pappas, and then observed defendant leaving the house.
At this point defense counsel objected, apparently to the use of any street names, and the prosecutor directed the witness to use "real names."
Quick testified that he saw defendant walk down the street, where he met a man and a woman. Quick stated that the man gave defendant "paper money" and "[i]n exchange, [defendant] removed a bag of heroin from his right pocket" and gave it to the man. Defendant then returned to the house. There was no objection to that testimony. Quick then described another similar transaction in which defendant met a man who gave him paper money and gave the man "a bag of heroin from his pocket" in return. He then saw defendant return to the house, have a brief conversation with Hicks outside, and enter the house. At that point, Sergeant Pappas alerted Quick that the arrest team was on its way, and Quick advised him that defendant and Hicks were both "making sales." There was no objection.
Before the arrest team arrived, Quick saw defendant walk down the street to the corner, where a red car "had pulled up." Defendant opened the rear passenger door, spoke to someone in the car, then pulled "two bags of heroin" out of his left pocket and showed it to the car's occupants. Defendant put the bags back in his pocket and got into the car, which started to drive away. Quick alerted Sergeant Pappas and asked that the police stop the red car. The police arrested defendant and the other two occupants of the car, S.S. and Thomas Durkin.
Quick also testified in considerable detail that the area where defendant was arrested was located near a school and a public housing project. He identified the official school and public housing zone map, which was admitted in evidence without objection.
When the police searched the house, they found small rubber bands in a Tupperware container filled with rice, in a shoe box in defendant's bedroom. They also found rubber bands on the bedroom dresser, and they found mail addressed to defendant.
On cross-examination, defense counsel pursued the theme that Hicks was the target of the investigation and the search warrant. In response to her questions, Quick confirmed that Hicks was arrested and pled guilty. Counsel also elicited information that a K-9 drug sniffing dog alerted to the presence of drugs in a room of the house to which only Hicks had access.
Sergeant Pappas testified that he was one of the officers who intercepted the red car, which contained a driver and two passengers. Defendant was the back seat passenger. Pappas recovered a syringe from the floor of the car, near the driver's feet, and found a q-tip and a spoon on the front seat passenger's person. Detective Bogdanski testified that he arrested defendant and found two bags of suspected heroin, marked "best buy" in defendant's pocket. Defendant was not carrying any drug paraphernalia, such as a syringe or spoon. Bogdanski also described the search of the house and the discovery of small rubber bands, which were of the type "used to put bundles of ten bags of heroin together." Officer Alexander described the discovery of $3600 in cash in Hicks's bedroom and a digital scale in the kitchen.
The State later presented testimony from a forensic scientist that the two bags seized from defendant contained heroin.
The front seat passenger, S.S., testified that as of April 6, 2012, he was a fifteen-year-old heroin addict. He stated that he and his friend Thomas Durkin drove to New Brunswick in Durkin's burgundy colored car to buy heroin. Durkin testified that on April 6, 2012, he was eighteen. He gave S.S. a ride to a junkyard in Edison. On the way home, S.S. asked Durkin to stop in New Brunswick. They parked on Somerset Street. Someone came up to the car and spoke to S.S. Durkin did not get a good look at the person, but heard him say, "Just give me a couple of minutes. I'm just waiting for my boy to get back" and "pick up" something. S.S. responded, "Let me get a bunny." According to Durkin, he did not know what "bunny" meant until the police explained it to him. On cross-examination, Durkin confirmed that he was driving a red Acura. He admitted that a criminal charge against him was being dropped in return for his trial testimony.
The State also presented a prosecutor's investigator, Jose Rodriguez, who was qualified as an expert in narcotics packaging and distribution. He explained how heroin can be cooked using a spoon, filtered through a q-tip, and then injected with a syringe. Rodriguez explained how heroin was packaged in small glassine envelopes, which dealers keep in "bundles" held together with rubber bands. Rodriguez explained that the term "bunny" is slang for bundle.
Rodriguez testified that drug dealers frequently stash heroin in a container of rice to keep the heroin from absorbing moisture and clumping, which would make it harder to snort. He also explained that dealers wrap large "bricks" of heroin (numerous bundles packaged together) in newspapers or magazines for the same reason — to keep the drugs from absorbing moisture. He explained that if he was conducting an investigation and found a container of rice in a room where food would not normally be kept, he would suspect it was being used to store drugs.
Rodriguez identified the rubber bands found in defendant's house as being the kind used to hold heroin bundles together. He explained that drug dealers keep the rubber bands after they sell the heroin, as a sort of informal accounting method to keep track of how many bundles they have sold. He also explained how drug dealers use digital scales and how they use the plastic sandwich bags with a corner cut off, of the type found in defendant's house.
On cross-examination, Rodriguez was asked to confirm that the investigation in this case did not involve any confidential informants or undercover drug purchases. He stated that it did not, and added that he had mentioned confidential informants and undercover investigations during voir dire, just to explain his professional background as a narcotics investigator.
The defense presented no evidence or witnesses. There were no objections to the jury charge.
II
On this appeal, defendant presents the following issues for our consideration:
POINT I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN JURORS SOUGHT TO ASCERTAIN THE DEFENDANT'S LEGAL RESPONSIBILITY FOR THE INTERVENING ACTS OF ANOTHER, BUT THE TRIAL COURT FAILED TO GIVE
THEM AN INSTRUCTION ON THE LAW OF CAUSATION (PARTIALLY 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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ON THE LAW OF IDENTIFICATION. (NOT RAISED BELOW).
POINT III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESSES RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (PARTIALLY RAISED BELOW).
A. The State's lay witness testified that in his opinion, based on what the police told him, he was at the scene because his friend was involved in a drug deal.
B. The police officer improperly rendered his lay opinion that there was an exchange of heroin for money. (Not Raised Below).
POINT IV. THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED. (NOT RAISED BELOW).
A. The police suggested that the defendant was under surveillance for narcotics offenses based on an informant's allegations.
B. The trial court erroneously admitted hearsay paper evidence prepared by the government to prove an essential element of the crime.
POINT V. THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC HOUSING PROJECT) BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).
POINT VI. THE TRIAL COURT FAILED TO INSTRUCT JURORS ON EACH AND EVERY ELEMENT OF THE OFFENSE OF DISTRIBUTING AND/OR INTENDING TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC PARK. (NOT RAISED BELOW).
POINT VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS ON AN ESSENTIAL ELEMENT OF THE OFFENSE. (NOT RAISED BELOW).
A. The instruction on the law of attempt was incomplete, erroneous, and prejudicial.
B. The trial court failed to instruct jurors that the law of attempt requires purposeful conduct and that they cannot find that the defendant intended to attempt distribution knowingly.
POINT VIII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY IMPROPER ADMISSION OF EXPERT WITNESS OPINION EVIDENCE.
POINT IX. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE THAT OTHER PEOPLE, AS WELL AS DEFENDANT, HAD COMMITTED PRIOR CRIMES.
A. The evidence showing the commission of other crimes should have been excluded.
B. Evidence that Hicks had conducted drug transactions was unduly prejudicial and had minimal probative value
C. The trial court failed to give a proper limiting instruction. (Not Raised Below).
POINT X. THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE INTENT TO DISTRIBUTE CDS COUNTS SHOULD HAVE BEEN GRANTED.
POINT XI. 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.
Except for the issues addressed below, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
First, addressing defendant's Point IX, we agree with defendant that Sergeant Quick's testimony about allegedly observing defendant giving bags of "heroin" to various buyers directly contravened the principles set forth in State v. McLean, 205 N.J. 438, 461-63 (2011), and the recent opinion in State v. Brockington, ___ N.J. Super. ___ (App. Div. 2015). As we observed in Brockington, a case in which Sergeant Quick also testified, his testimony should have been confined to the facts as to what he observed, (seeing defendant give people small plastic bags of a substance in exchange for cash), not his opinions, conclusions, or beliefs about what he saw (that these were heroin sales). Supra, ___ N.J. Super. at ___ (slip op. at 14-16); see McLean, supra, 205 N.J. at 460-61.
On the other hand, as in Brockington, we reject defendant's argument that Quick's factual testimony concerning his observations should have been excluded as prohibited "other crimes" evidence under N.J.R.E. 404(B). Supra, ___ N.J. Super. at ___ (slip op. at 17-18). We agree with Brockington that factual testimony of that type, concerning transactions that occurred shortly before defendant's arrest, was admissible under N.J.R.E. 403, because it was intrinsic evidence as to the charged crimes and was highly relevant to his intent in possessing the two packets of heroin found on his person. Id. at ___ (slip op. at 18); see State v. Rose, 206 N.J. 141, 179-80 (2011). It was not N.J.R.E. 404(B) evidence of "other crimes or bad acts."
The dissenting judge in Brockington would have excluded that evidence as well. Id. at ___ (slip op. at 10) (Fisher, P.J., dissenting).
Based on that analysis, we must next answer the question whether defendant's conviction here must be reversed, as was the conviction in Brockington. We reach a different result than in Brockington, for several reasons. First, defense counsel's failure to object to any of the testimony means that we will not reverse absent plain error, i.e., a finding that the unobjected-to errors had a clear capacity to produce an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). Second, the defense strategy here implicates the doctrine of invited error. See State v. A.R., 213 N.J. 542, 561 (2013). When Quick was testifying about observing Hicks selling "heroin," the defense not only failed to object, but invited and embraced that conclusory testimony, because it was part of the defense strategy to blame everything on Hicks. Had the defense objected to the same type of testimony concerning what Quick saw defendant do, the judge very well might have excluded all testimony of that sort. In failing to signal an objection to the testimony, either in pre-trial oral argument or during the trial, and encouraging this type of testimony as a matter of strategy, the defense invited the error. See ibid. Moreover, given the strength of the State's case and the limited options available to the defense, we cannot say that defense counsel pursued a bad strategy even though it was not successful in obtaining an acquittal.
Similarly, it was defense counsel who placed before the jury the fact that there was a "search warrant" and that the police surveillance was focused on Hicks. That information was an integral part of the defense strategy. Defendant's appellate argument challenging that testimony is without merit. R. 2:11-3(e)(2).
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Further, looking at the record stripped of the objectionable testimony, we conclude beyond a reasonable doubt that defendant still would have been convicted had the errors not occurred. Recalling that Quick observed the details of these transactions through binoculars, he testified that he saw Hicks, and then defendant, repeatedly meet briefly with a series of individuals who handed them cash, in return for which Hicks and defendant, respectively, handed those individuals small white bags of an unidentified substance. Quick saw defendant produce the white bags from his pants pocket.
Then, defendant was seen showing two similar bags to the occupants of a red car, returning the bags to his pocket and getting into the back seat of the car. The car was stopped and the police found in defendant's pocket two bags of what a forensic expert testified was heroin, labeled in a fashion another expert testified was typical of drugs packaged for sale.
In the car, the police found paraphernalia next to the driver's feet, and more paraphernalia in the possession of the front seat passenger. An expert explained how a drug user would use that paraphernalia to cook and inject heroin. The front seat passenger testified that he and his friend drove to New Brunswick to buy heroin. The driver testified that he heard the back seat passenger ask the person who approached the car to give him a "bunny" or bundle of heroin and heard the person reply that he needed to get more from his "man." That would explain why defendant only had two bags in his pocket instead of a whole bundle, which would have been ten bags. There was no evidence that defendant was a drug user or possessed the heroin for personal use, and unlike the two teenagers, he had no paraphernalia on or near his person.
A search of defendant's and Hicks's apartment yielded strong evidence that they were both engaged in selling drugs, including a digital scale in the kitchen, plastic bags with a corner cut off in the kitchen, large amounts of cash in Hicks's bedroom, rubber bands on defendant's dresser, and more rubber bands in a container of rice in defendant's closet. Expert testimony tied all of that evidence to drug sales.
We in no way condone the kind of improper testimony Quick gave in this case, and we trust that by now the prosecutor's office understands that such improper testimony must be avoided. However, in this case, on this particular record, the interests of justice do not require reversal of defendant's conviction. Not only was the error invited, but defendant clearly would have been convicted even without the improper testimony.
Defendant's additional challenges to his conviction require little discussion. Contrary to defendant's characterization of the testimony, Durkin did not state that the police told him that a drug deal was going on. He testified that at first, he did not know why he and S.S. were at the location on Somerset Street but later realized that "it looked like a drug sale was going on." In response to the prosecutor's question whether he knew what S.S. meant when he asked for a "bunny," Durkin stated that he did not know what a "bunny" was at the time, and then spontaneously added that the police "kind of told [him]" later on. At that point, defense counsel objected and the judge asked Durkin, "You didn't at the time, right?" Durkin said "yeah," and the judge told the prosecutor to move on to another subject. Defense counsel did not ask the court to further address the matter. In the context of this record, we find no reversible error in Durkin's brief comments. R. 2:10-2.
Contrary to defendant's argument in Point VIII, it was entirely proper for the State to present an expert witness to explain to the jurors how drug dealers use the various paraphernalia found in this case. The average juror would not know the significance of the loose small rubber bands found in the house, how heroin is packaged, why the rubber bands were submerged in a container of rice, how digital scales and magazine wrappers are used in a drug dealing operation, and the other details to which Rodriguez testified. See McLean, supra, 205 N.J. at 450-51.
In light of the evidence of defendant's guilt, his motion for a judgment of acquittal notwithstanding the verdict was properly denied. See State v. Reyes, 50 N.J. 454, 459 (1967).
Defendant's belated challenges to the jury charge are without merit. The trial judge correctly charged the jury that it was irrelevant whether defendant knew he was within 500 feet of public housing, so long as he possessed the heroin with intent to distribute it at the time when he was within 500 feet of that location. See N.J.S.A. 2C:35-7.1(b). Defendant's identity, to which several police officers testified, was never questioned. There was no need for an identification charge and none was requested for obvious reasons. Defendant's remaining challenges to his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Lastly, defendant challenges the sentence imposed. After merger, the court sentenced defendant, on the second-degree conviction, to eight years in prison with a four-year parole bar, although she could have sentenced him to ten years with a five-year parole bar. See N.J.S.A. 2C:43-6(a)(2), (f). The judge based the sentence on defendant's lengthy prior record of convictions for myriad offenses, his failure to respond positively to probation or prior prison terms, and the lack of any mitigating factors. The judge found that defendant had "demonstrated pure contempt for the rule of law and the rights and safety of others, as exhibited by his pattern of criminal behavior." The judge cited defendant's convictions for, among other things, "drug-related offenses, theft, robbery, receiving stolen property, weapons offenses, aggravated assault, [and] burglary." Given our limited and deferential standard of review, we find no basis to disturb the sentence. See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010). Defendant's reliance on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), is misplaced, because the judge did not increase the mandatory minimum sentence, and none of the aggravating factors the judge cited constituted an element of the crime for which he was sentenced.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION