Opinion
DOCKET NO. A-4641-13T2 DOCKET NO. A-3197-14T2
11-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO C. ALMONTE, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBINSON M. ABREU, Defendant-Appellant.
Jane M. Personette argued the cause for appellant Julio C. Almonte (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Robinson M. Abreu (Frank M. Gennaro, Designated Counsel, on the brief). Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent in A-4641-13 (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief in A-4641-13 and A-3197-14).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti, Fasciale, and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-06-0980. Jane M. Personette argued the cause for appellant Julio C. Almonte (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Robinson M. Abreu (Frank M. Gennaro, Designated Counsel, on the brief). Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent in A-4641-13 (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief in A-4641-13 and A-3197-14). PER CURIAM
Co-defendants Julio Almonte and Robinson Abreu appeal from the denial of their motion to suppress physical evidence seized from a motor vehicle and two homes. Defendant Abreu also appeals his sentence. Following the denial of the motion to suppress, both defendants pled guilty to second-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(10)(b), and, in accordance with their plea agreements, both defendants were sentenced to eight years in prison. We affirm and issue a consolidated opinion because the facts and arguments largely overlap.
The appeals are only consolidated for purposes of this opinion. --------
I.
Defendants were indicted for first-degree maintaining a facility for the manufacturing of marijuana, N.J.S.A. 2C:35-4, and first-degree possession of more than ten marijuana plants with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35- 5(b)(10)(a). The facts giving rise to defendants' indictments and the searches that led to the discovery of two marijuana growing facilities were developed at a two-day evidentiary hearing. The State presented testimony from two law enforcement officers: Detective Sergeant Todd Roth and Sergeant James Dalton. Both officers were members of a Drug Enforcement Administration task force (task force). The State also submitted documents and photographs, which were admitted into evidence during the hearing. Defendants elected not to testify at the hearing, but submitted several documents as evidence.
In October 2011, Detective Roth received information concerning the theft of a large amount of electricity at a home located in Closter, New Jersey (the Closter Home). The power company reported that the meter at the home had been bypassed and the home was using more than ten times the amount of electricity used by an average household.
The task force initiated surveillance of the Closter Home. The home and the property were observed to be unkempt and there was fire damage on the second floor of the house, but no record that the fire had been reported. Suspecting that the home was being used as a marijuana-growing facility, the task force conducted periodic surveillance of the Closter Home from October 6, 2011, to November 7, 2011. For the first thirty days, no one was seen entering or leaving the home and the three vehicles that were parked in front of the home were not moved.
On November 7, 2011, a vehicle driven by defendant Almonte was observed pulling into the driveway of the Closter Home. Almonte got out of the car, looked around, and entered the home through the rear door. Shortly thereafter, Almonte came out of the home carrying a black plastic bag, again looked around, got back into his car, and drove away. Three task force officers, including Roth, followed Almonte and then effectuated a motor vehicle stop.
When questioned, Almonte provided a New York State driver's license and stated that he had recently moved to a house in Bergenfield, New Jersey (the Bergenfield Home). Almonte denied coming from the Closter Home, but when told that he had been observed at the home, Almonte stated that he was taking care of the home for someone else.
Almonte was asked to step out of the car and a pat-down search revealed that he had $2317 in cash. Almonte appeared to be nervous and Roth asked if he had anything illegal in the car. Almonte replied that he did not and he told Roth that he could search the car. Roth did not have a written consent form, so he asked Almonte for verbal consent, informing him that he had the right to refuse and he could stop the search at any time. Almonte then provided consent. The ensuing search revealed that the black plastic bag contained three 1000-watt heat/light bulbs.
Roth then contacted the Bergen County Police and requested a K-9 dog unit. When the unit arrived, the dog gave a positive indication for the presence of the smell of drugs on the rear floor of the car and the heat bulbs. Almonte was asked to consent to a search of the Closter Home, but he refused. Almonte was then placed under arrest and taken into custody.
Two task force officers, including Sergeant Dalton, were sent to investigate the Bergenfield Home. When Sergeant Dalton arrived at the home, he observed that it was unkempt, the windows were covered, and there was a surveillance camera mounted over the front door. The officers approached the front door to determine if Almonte lived there.
As Dalton approached the house, he noted a strong smell of chemical and urine, which based on his experience, he believed indicated that the Bergenfield Home was being used to grow marijuana. No one responded to Dalton's repeated knocks on the front door, but Dalton heard what he believed to be a television or stereo being played loudly in the home.
While outside the Bergenfield Home, an unidentified "concerned citizen" approached Dalton and stated, "I was wondering when you guys were going to come here." The citizen then told Dalton that there were large numbers of people who visited the house and that the homeowner's brother lived across the street. Based on the information that he had observed and heard from the citizen, Dalton believed that he had probable cause to request a warrant to search the home. Dalton then contacted Roth about seeking a search warrant. Roth informed him that he was already in contact with an assistant prosecutor for the purpose of securing a warrant.
Dalton and the other officer then began to walk to the back of the home. While outside the home, Dalton detected a strong odor of raw marijuana and also saw a fifty-five gallon PVC drum, which from his experience, Dalton believed was used to store fertilizer for growing operations. Dalton knocked on the back door, but again no one responded.
Concerned that someone might be in the home destroying evidence, Dalton and the other officer entered the home through the rear door, which was unlocked. They then conducted a "security sweep" of the home, but located no one in the home. On the second floor, they observed a television that was turned on. In the cellar, they observed an active marijuana-growing operation. The officers then exited the home, contacted their superiors, and requested additional backup.
While waiting, defendant Abreu arrived and approached Dalton stating that he owned the home. After being informed that the officers were conducting a narcotics investigation, Abreu stated that he rented the home out. Abreu also made at least one statement indicating that he was aware that marijuana was being grown in the home.
Thereafter, search warrants were issued for both the Closter and Bergenfield Homes. The searches revealed evidence of two marijuana-growing facilities. No marijuana plants were found in the Closter Home, but the home did contain pots, equipment, and lamps which could be used for growing marijuana plants. The execution of the search warrant at the Bergenfield Home revealed over 150 marijuana plants, vegetation believed to be marijuana, and equipment used to grow marijuana.
Defendants moved to suppress the physical evidence seized from Almonte's motor vehicle and the Closter and Bergenfield Homes. After hearing the testimony and considering the evidence, the trial court denied the motion, and on June 17, 2013, issued a written opinion setting forth fact findings and explaining the reasons for the denial of the motion to suppress. The trial court found the testimony of Roth to be credible and reliable.
Based on Roth's testimony, the court found that there was reasonable and articulable suspicion that Almonte was involved in criminal activity that justified an investigatory detention to ascertain Almonte's identity and to make further inquiries. The trial court went on to find that Almonte voluntarily gave his consent to the search of his motor vehicle. In considering the totality of the circumstances, the trial court found that the arrest of Almonte was lawful.
The trial court also found that the warrantless entry of the Bergenfield Home was justified by exigent circumstances. In doing so, the trial court relied on the testimony of Dalton. Further, the trial court found that even if the search was unlawful, the evidence would still be admissible through the independent source rule.
Thereafter, both defendants negotiated plea agreements. Under their agreements, defendants pled guilty to an amended charge of second-degree possession of marijuana and the State agreed to recommend the dismissal of the first-degree charges and that defendants be sentenced to eight years in prison. The State also agreed not to object to defendants applying for the intensive supervision program (ISP). The trial court then sentenced defendants in accordance with the plea agreement to serve terms of eight years.
II.
On appeal, defendant Almonte argues:
Point I - POLICE HAD NO REASONABLE AND ARTICULABLE SUSPICION TO STOP MR. ALMONTE
A. New Jersey Constitutional Protections exceed Even the Fourth Amendment's
Point II - "REASONABLE AND ARTICULABLE SUSPICION" REQUIRED
Point III - THE STOP OF MR. ALMONTE WAS BASED ON NOTHING MORE THAN A HUNCH
Point IV - NERVOUSNESS IS NOT ENOUGH
B. The Traffic Stop Was Based On Racial Profiling
C. No Valid Consent Was Obtained to Search Mr. Almonte's Vehicle
1. Police Lacked A Reasonable and Articulable Suspicion
2. The State Bears the Burden of Proof
D. Even If the Initial Stop Could Be Justified, Police Questioning Turned a Routine Inquiry into a Full-On Interrogation
1. Mr. Almonte Should Have Been Free to Go After His Initial Cooperation with Police
2. The Absence of Any Evidence Does Not Create a Reasonable and Articulable Suspicion
E. Mr. Almonte Did Not Consent to A Search of His Car
1. Consent to Search Must Be Acknowledged in Writing
2. Police Have No Credible Basis For Failing to Obtain Mr. Almonte's Signature on the Consent to Search Form
F. There Was No Probable Cause to Arrest Defendant
G. Entry Into and Search of The Bergenfield Residence was Improper
1. Privacy Interest in One's Home Is Paramount
2. "Heavy Burden" Rests on the State
H. Police Should Have Obtained a Warrant for the Bergenfield Home
I. Evidence About the Bergenfield House Is Not Credible, Did Not Create Probable Cause, and Did Not Create an Exigent Circumstance
Defendant Abreu argues:
POINT ONE - DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS IMPROPERLY DENIED
A. Julio Almonte Was Improperly Seized And His Vehicle Was Improperly Searched
B. The Warrantless Entry of [the Bergenfield Home] Was Improper
C. The Evidence Seized in Bergenfield With the Search Warrant Must be Suppressed
POINT TWO - THE EIGHT YEAR SENTENCE WAS EXCESSIVE
Initially, we address defendant Almonte's argument that the stop of his vehicle was based on "racial profiling." We note that this argument was not raised before the trial court and, therefore, we could decline to consider it on appeal. State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Nevertheless, we will consider the argument, but we reject it because there is no evidence to support a claim of racial profiling. Defendant Almonte points to the fact that he is of Hispanic descent and that Roth mentioned that the Closter Home looked like it was a "Newark home" and Almonte was carrying a "bodega bag." Defendant Almonte's ethnicity, however, played no role in his encounter with law enforcement. Defendant Almonte drove into the driveway at the Closter Home and it was his actions and conduct that gave rise to the suspicions that led to his stop. Further, it was his actions, conduct, and statements that gave rise to the search of his vehicle and his arrest.
The other arguments made by both defendants can be organized into three issues: (1) whether the stop, consent search, detention, and arrest of defendant Almonte were lawful; (2) whether the "security sweep" of the Bergenfield Home was lawful and, if not, did it poison the subsequent searches conducted pursuant to the warrant; and (3) whether Abreu's sentence was excessive.
In reviewing a grant or denial of a motion to suppress, an appellate court should defer to the trial court's factual findings, so long as those findings are "supported by sufficient credible evidence in the record." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd in part, 192 N.J. 224 (2007). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). The legal conclusions of a trial court are reviewed de novo. Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
A. The Stop, Search, Detention, and Arrest of Almonte
An investigatory stop is permissible if it is "reasonable and justified by articulable facts[.]" State v. Coles, 218 N.J. 322, 343 (2014). The burden is on the State to show by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004). The reasonable suspicion standard requires "some minimal level of objective justification for making the stop." State v. Amelio, 197 N.J. 207, 211-12 (2008) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). A stop, however, may not be based on "arbitrary police practices, the officer's subjective good faith, or a mere hunch." Coles, supra, 218 N.J. at 343. Thus, "[t]he principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to a reasonable suspicion . . . ." State v. Stovall, 170 N.J. 346, 357 (2002) (alterations in original) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)). In determining whether reasonable suspicion existed, a reviewing court should consider "the totality of the circumstances." State v. Gamble, 218 N.J. 412, 431 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).
Applying this standard, we discern no basis for disturbing the trial judge's determination that the officers conducted a lawful investigatory stop. Based on his training and experience, Roth had reasonable suspicion that the Closter Home was being used as a marijuana-growing facility. The task force had conducted surveillance of the home for approximately one month and it had observed no activity. Defendant Almonte then came to the home, acted suspiciously, entered the home, and exited the home carrying a black plastic bag.
The trial judge found the testimony of Roth to be credible and reliable. The totality of the circumstances, combined with the observation and information available to Roth, provided a reasonable articulable suspicion that Almonte was engaging in criminal activity. Consequently, the stop of Almonte's vehicle was lawful.
We next turn to the consent search. Our Supreme Court has held that "law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002). The consent "must be voluntarily given and not the result of duress or coercion[.]" State v. Lamb, 218 N.J. 300, 315 (2014) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973)). Because an analysis of consent is a fact-intensive inquiry, our Supreme Court has identified factors to be considered in determining voluntariness or coercion. State v. King, 44 N.J. 346, 352-53 (1965).
Here, the trial judge credited and relied on the testimony of Roth. Roth testified that Almonte initially volunteered to have his car searched. Thereafter, Roth informed Almonte that he had a right to refuse consent and that he could stop the search at any time. Almonte then gave consent. Thus, the credible testimony by Roth established that Almonte's consent was knowingly and voluntarily given. Moreover, the lack of a written consent form is not determinative in this case.
After finding the three 1000-watt bulbs, Roth requested a K-9 dog unit. He testified that approximately thirty minutes elapsed from when the stop was initiated to when the K-9 unit arrived. "[C]onducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner" because it "generally does not implicate legitimate privacy interests." Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-38, 160 L. Ed. 2d 842, 847 (2005). Thus, a law enforcement officer can conduct a dog sniff even if it prolongs the stop so long as the officer has reasonable suspicion of drug activity. Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015); State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007), aff'd as modified, 199 N.J. 407 (2009). Given the facts of this case, the thirty-minute detention was not unreasonable.
Thereafter, Almonte was lawfully arrested. An arrest is lawful when the law enforcement officer has probable cause to believe that an offense has been or is being committed by the person arrested. State v. Brown, 205 N.J. 133, 144 (2011). Though "probable cause" eludes precise definition, "it is safe to say that a police officer has probable cause to arrest a suspect when the officer possesses 'a well-grounded suspicion that a crime has been or is being committed.'" State v. Basil, 202 N.J. 570, 585 (2010) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).
Here, Almonte had been observed going into the home where a suspected marijuana-growing operation was being conducted. He came out with a bag, and the bag was discovered to contain bulbs that are often used in growing operations. He gave evasive statements and a trained dog indicated that the bulbs had been around drugs. The totality of the information provided a well-grounded suspicion that Almonte was engaged in criminal activity.
B. The Security Sweep of the Bergenfield Home
"The privacy interests of the home are entitled to the highest degree of respect and protection in the framework of our constitutional system . . . ." State v. Evers, 175 N.J. 355, 384 (2003). Accordingly, a warrantless search of a home is subject to particular scrutiny and is presumed unreasonable unless the State proves that there was probable cause and exigent circumstances justifying the entry into the home. State v. Vargas, 213 N.J. 301, 314 (2013).
The State argues that after Almonte was arrested, task force officers went to the Bergenfield Home since Almonte had stated that he was living there. Once there, the officers made observations that caused them to be suspicious that the Bergenfield Home was being used as a marijuana-growing facility. The trial court found that there was a "fair probability" that marijuana would be found in the Bergenfield Home and that probability satisfied the probable cause requirement.
The term "exigent circumstances" covers a range of situations where "inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). While the threat of destruction of evidence is often cited as an exigent circumstance in drug cases, courts have cautioned on overreliance of such a rationale. State v. Alvarez, 238 N.J. Super. 560, 570 (App. Div. 1990); State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.), certif. denied, 168 N.J. 295 (2001).
Here, there was no claim that anything in the Bergenfield Home posed a threat either to the police or to the public. Instead, the State relies on the potential that evidence might have been destroyed in the Bergenfield Home. The trial court found exigent circumstances due to the "high possibility of the contraband being destroyed during the time it takes for an officer to obtain a warrant." In that regard, the trial court noted that the officers had been made aware that there had been a high volume of traffic accessing the home and that there was a potential that they had been observed through the camera mounted at the front of the home. The officers also heard a loud television or stereo coming from within the home suggesting that someone was inside the home. The officers then proceeded to the backyard where they made further observations, including smelling marijuana and seeing a container for fertilizer. Based on these facts, the trial court found that the exigent circumstances existed for the protective sweep of the home. Given that the fact findings here turned largely on the credibility of the testifying officers, and the trial court found that the officers were credible, we discern no basis to disturb the trial court's fact findings and the conclusion that the protective sweep was justified by exigent circumstances.
Moreover, like the trial court, we agree that even if the protective sweep of the Bergenfield Home had been unlawful, the evidence would still be admissible through the independent source rule. See State v. Holland, 176 N.J. 344, 354 (2003) (explaining that the independent source rule "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." (quoting Nix v. Williams, 467 U.S. 431, 441, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 387 (1984))). The independent source rule considers whether the State can prove that incriminating evidence was obtained lawfully, in spite of the fact that an earlier constitutional violation occurred. Id. at 354. There are three elements required to satisfy the doctrine: (1) the State had probable cause to conduct the search at issue absent the unlawfully-obtained information; (2) the State, "without the tainted knowledge or evidence," could have sought a proper warrant; and (3) the initial and permissible search was "not the product of flagrant police misconduct." Id. at 360-61.
All of these factors are satisfied here. Before entering the Bergenfield Home, the task force had probable cause to believe that the home was being used for growing marijuana. Indeed, before the officers went into the Bergenfield Home, the State was in the process of seeking a warrant. A review of the affidavit used to obtain the warrant discloses that there was sufficient probable cause to justify the issuance of a warrant even without the observations that were made in the Bergenfield Home. Finally, the protective sweep of the Bergenfield home was not the product of flagrant police misconduct.
In summary, based on the fact findings made by the trial court, there was sufficient credible evidence to conclude that the stop of Almonte's car was based on reasonable suspicion, Almonte gave a valid consent to search the car, the time between the stop and the arrival of the K-9 unit was not excessive, there was probable cause for defendants' arrest, and the sweep of the Bergenfield House was justified. Thus, we affirm the denial of defendants' motion to suppress the physical evidence.
C. Abreu's Sentence
Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "At the time of sentencing, the court must 'state reasons for imposing such a sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors effecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). Whether a sentence violates sentencing guidelines is a question of law and is reviewed de novo. State v. Robinson, 217 N.J. 594, 604 (2014). If the sentencing court has not demonstrated "a clear error of judgment" or the sentence does not "shock the judicial conscience," the appellate court should not substitute its judgment for that of the sentencing judge. State v. Roth, 95 N.J. 334, 364-65 (1984).
Applying this standard, we find no grounds for disturbing the sentence imposed on Abreu. In sentencing Abreu, the trial judge found aggravating factors nine, the need for deterrence, and eleven, that a purely financial and non-custodial penalty would be perceived as the cost of doing business. N.J.S.A. 2C:44-1(a)(9) and (11). The trial judge also found mitigating factors seven, defendant Abreu had no prior record; eight, the conduct of defendant Abreu was the result of circumstances unlikely to recur; nine, the character and attitude of defendant Abreu indicates that he is unlikely to commit another offense; and eleven, imprisonment would be a hardship to defendant Abreu and his dependents. N.J.S.A. 2C:44-1(b)(7), (8), (9) and (11). The trial judge concluded that the aggravating factors substantially outweighed the mitigating factors, accepted the plea agreement, and imposed an eight-year sentence.
Abreu argues that aggravating factor eleven should be considered only when there is the possibility of a non-custodial sentence. State v. Dalziel, 182 N.J. 494, 502 (2005). Here, the second-degree sentence carried a presumption of imprisonment, which Abreu did not challenge. We agree that consideration of aggravating factor eleven was inappropriate. The sentencing court, however, does more than quantitatively compare the aggravating factors with the mitigating factors. These factors are qualitatively assessed and assigned weight within a case specific balancing process. Fuentes, supra, 217 N.J. at 72-73. The trial judge's weighing of these factors, even absent aggravating factor eleven, was appropriate given the facts of this case and does not shock the judicial conscience.
Moreover, we note that the recommended sentence of eight years was crafted through the plea negotiations so that Abreu could apply for the ISP.
Although the eight-year sentence was not excessive, the VCCA assessment for Abreu was calculated incorrectly. A $100 fee was assessed when the fee should have been $50. It was calculated on the basis that Abreu was convicted of two offenses, but in fact he was only convicted of one. Indeed, the record reveals that the trial judge correctly assessed the fee during the sentencing hearing, but it was not accurately reflected in the judgment of conviction (JOC).
We affirm both convictions and Abreu's sentence. We remand for the correct assessment of the VCCA fee in the JOC for Abreu. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION