Opinion
DOCKET NO. A-2126-10T2
02-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAVAN FOWLER, a/k/a JAVAN WILLIAMS, JAVON FOWLER, and JAKEEM WILLIAMS, Defendant-Appellant.
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief). Michael J. Williams, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Williams, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-00499.
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief).
Michael J. Williams, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Williams, of counsel and on the brief). PER CURIAM
Defendant Javan Fowler appeals from his September 4, 2008 judgment of conviction and sentence. Defendant was tried by a jury with one of his three codefendants, Lathan Fowler. His other codefendants — Joey Fowler, defendant's cousin, Tamika Walker, and Karen Rembert, who obtained cocaine from defendant on the porch of 224 Bond Street — pled guilty prior to trial. The charges against defendant and Lathan were based on evidence uncovered during searches of two dwellings — 224 and 318 Bond Street — and observations of the defendants' conduct prior to and during the searches.
We will refer to co-defendant Lathan Fowler and defendant's cousin, Joey Fowler, by their first names for the sake of clarity.
The judge submitted the charges based on defendant's and Lathan's possession of a controlled dangerous substance (CDS) to the jury with limiting instructions — that defendant possessed or constructively possessed only the drugs found at 224 Bond Street and that Lathan possessed or constructively possessed only the drugs found at 318 Bond Street. The jury was not charged on joint possession. The jury found defendant guilty of all seven counts against him that were submitted to the jury: third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) & (b)(3) (count two); third-degree possession of a CDS with intent to distribute on or within 1000 feet of school property (school zone violation), N.J.S.A. 2C:35-7 (count three); second-degree possession of a CDS with intent to distribute in or within 500 feet of a public park (public park violation), N.J.S.A. 2C:35-7.1 (count four); third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) & (b)(3) (count five); third-degree distribution of a CDS on or within 1000 feet of school property (school zone violation), N.J.S.A. 2C:35-7 (count six); and second-degree distribution of a CDS in or within 500 feet of a public park (public park violation), N.J.S.A. 2C:35-7.1 (count seven). The same indictment charged co-defendant Lathan Fowler under counts one, two and three; however, the jury acquitted Lathan of all charges. On appeal defendant argues that the judge should have severed Lathan's trial, precluded certain evidence and declared a mistrial. Defendant also maintains that his sentence is excessive. After reviewing the contentions of defendant in light of the relevant law and facts, we affirm defendant's conviction but remand for resentencing.
The seven remaining counts had been dismissed at the request of the State.
Trial testimony revealed the following facts. In February 2007, Elizabeth Police Officer Joseph McDonough of the Narcotics Division obtained a search warrant for the first-floor apartment at 224 Bond Street in Elizabeth. The warrant described the premises as a "TWO-STORY TWO FAMILY HOUSE WITH SEPARATE EXTERIOR ENTRANCES FOR EACH APARTMENT ON THE FRONT PORCH." The warrant named Walker as the subject, but also included "ANY AND ALL PERSONS ARRIVING AT, DEPARTING FROM AND LOCATED THEREIN REASONABLY BELIEVED TO BE ASSOCIATED WITH THE INVESTIGATION." Officer McDonough, dressed in plain clothes, sat alone in a parked, unmarked car about fifty feet from the location. He testified that the neighborhood is a "high-crime narcotic[s] area, also known for assaults, shootings, and different crimes."
McDonough noticed defendant standing on the front porch in the doorway to one of the apartments. After a few minutes, defendant went inside. A woman, later identified as Rembert, then approached the house and knocked on the door. Defendant opened the door, at which point Rembert "handed him an item[.]" Defendant "then exchanged something to her cupped hand," after which she walked off the porch and defendant went back inside the apartment.
Officer McDonough immediately told Officer Athanasios Mikros, also of the Elizabeth Police Department's Narcotics Division, what he had just witnessed. Mikros located Rembert and stopped her. As he approached her, he saw her discard "a dollar bill onto the ground with a glass vial, with a yellow cap that contained suspected CDS cocaine." After recovering the discarded items, Officer Mikros arrested Rembert.
Around the same time, Officer McDonough contacted dispatch to request further assistance. During the approximately fifteen minutes that elapsed before officers arrived to assist, McDonough witnessed defendant conduct two additional hand-to-hand transactions from the porch of 224 Bond Street.
Defendant was standing on the porch and talking with his cousin, Joey, when a backup unit arrived. As narcotics officers exited the van, defendant ran into the apartment and slammed the front door. Sergeant Daniel Geddes and other officers quickly approached the residence. Sergeant Geddes announced that he had a search warrant and forced entry into the apartment using his shoulder. Defendant ran to the bathroom and began flushing vials with yellow caps down the toilet. Geddes recovered three glass vials with yellow caps from the bathroom floor. The vials tested positive for cocaine. Police arrested both defendant and Joey. Joey was charged with resisting arrest and obstructing the administration of law.
A small bag of marijuana and keys to a safe were found on defendant. Police also recovered eighty-four vials outside the apartment, which apparently had been thrown out a window by Walker.
When arrested, Joey identified his address as 318 Bond Street. McDonough testified that police applied for a search warrant for 318 Bond Street because he had "personally seen [defendant] at 318 Bond Street poking his head in and out of the second and third-floor window[s]." He testified that both addresses are located within 1000 feet of school property, while 224 Bond Street is also located within 500 feet of a public park.
Pursuant to the second search warrant, officers entered 318 Bond Street, which was unoccupied at the time. Police proceeded to search the second floor and the attic. In the second floor bedroom, officers recovered a small Century safe, which could be opened with the keys found in defendant's pocket. Inside the safe, police found three bottles of prescription pills issued to a Joqeen Fowler. In the same bedroom, police also found drug paraphernalia and packaging material, including a digital scale, Ziploc baggies, empty vials and caps. On a dresser, police discovered a receipt for the purchase of a mattress that was addressed to defendant at 318 Bond Street.
Officer McDonough testified without objection that, when defendant was arrested, he said he lived at 135 Bond Street.
In the attic, which was comprised of two separate rooms, police found a larger safe sitting on a desk. The safe contained personal papers belonging to Lathan, as well as $598 in cash. Two knotted plastic bags of cocaine, two smaller Ziploc bags containing cocaine, and packaging materials, including glass vials and caps were also found in the attic.
Rembert testified at trial for the State. She admitted to purchasing cocaine at 224 Bond Street, but was unable to identify defendant as the man who sold her the drugs.
Joey also testified for the State. He testified that 318 Bond Street was defendant's girlfriend's home and that defendant stayed at that address with her. According to Joey's testimony, he rang the doorbell at 224 Bond Street and, while waiting for defendant to answer the door, a female he did not know approached the porch. Defendant answered the door, spoke briefly with the female, and accepted money from her in exchange for cocaine. Shortly thereafter, police executed the search warrant at 224 Bond Street.
In an agreement with the State, Joey pled guilty to fourth-degree resisting arrest on condition that he testify against defendant. Two other fourth-degree crimes were dismissed as part of the agreement.
On appeal defendant raises the following issues:
POINT I: BECAUSE JAVAN'S CHARGES WERE UNRELATED TO LATHAN'S AND AROSE FROM EVIDENCE RECOVERED AT A DIFFERENT RESIDENCE, THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AND SUA SPONTE SEVER HIS CASE SUBSTANTIALLY PREJUDICED JAVAN AND DEPRIVED
HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10). (Not Raised Below).
POINT II: THE TRIAL WAS TAINTED WITH IRRELEVANT AND PREJUDICIAL EVIDENCE THAT VIOLATED JAVAN'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10). (Not Raised Below).
A. REPEATED REFERENCES TO TWO SEARCH WARRANTS WERE IRRELEVANT, UNNECESSARY, AND RESULTED IN PREJUDICE, CREATING THE INFERENCE THAT ANOTHER COURT, WHICH HAD ISSUED THE WARRANTS, HAD FOUND EVIDENCE OF CRIMINAL ACTIVITY AT EACH RESIDENCE.POINT III: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL ONCE THE STATE DISMISSED SEVEN COUNTS AGAINST JAVAN, AFTER THE JURY HAD ALREADY BEEN SWORN AND INFORMED OF ALL CHARGES AGAINST HIM, THEREBY PREJUDICING JAVAN BY ALLOWING THE JURY TO SPECULATE AS TO THE OUTCOME OF THE DISMISSED CHARGES. (Not Raised Below).
B. EVIDENCE OF OTHER ALLEGED TRANSACTIONS WAS IRRELEVANT, PREJUDICIAL, AND IMPROPERLY ADMITTED AS "OTHER CRIMES" EVIDENCE WITHOUT BEING SCRUTINIZED
UNDER N.J.R.E. 404(b) AND STATE V. COFIELD, 127 N.J. 328 (1992).
POINT IV: THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.
As defendant did not raise these issues at trial, all but the excessive sentence issue are considered under the plain error rule. R. 2:10-2. A reviewing court may reverse on the basis of unchallenged error only if it finds an error that was "clearly capable of producing an unjust result[.]" Id.; see also State v. Baluch, 341 N.J. Super. 141, 184 (App. Div.) (citing R. 2:10-2), certif. denied, 170 N.J. 89 (2001). To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
I
Defendant asserts that although both he and Lathan were charged under counts one through three of the indictment, their "charges originated from completely different circumstances[.]" Defendant therefore maintains that, once the trial testimony revealed no factual overlap underlying their respective charges, the trial judge should have sua sponte declared a mistrial and severance.
Defendant does not discuss the double jeopardy concerns that would arise from such a mistrial. See State v. Torres, 328 N.J. Super. 77, 85-87 (App. Div. 2000).
A.
At the hearing on defendant's motion for a new trial, the judge acknowledged "that there was a certain amount of ambiguity regarding the evidence in this case" and that he would have considered a severance "had this evidence been developed prior to trial." He noted, however, that defense counsel neither filed a motion to sever nor sought a bill of particulars "to set forth which drugs were attributable to which defendant[.]" Moreover, he observed that the charges against each defendant "did arise from the same criminal episode," in that the execution of the search warrant at 224 Bond Street led to the issuance of the search warrant for 318 Bond Street.
"Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction . . . [that] constitut[es] an offense or offenses." R. 3:7-7. Rule 3:15-2 governs relief from prejudicial joinder in criminal cases. According to the Rule, "[i]f . . . it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b).
In general, there is a "preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Where the evidence against all defendants is largely the same, a joint trial is preferred as it promotes (1) efficiency in the judicial system, (2) the convenience of witnesses and victims, (3) the avoidance of inconsistent verdicts, and (4) the development of more accurate relative culpability assessments. State v. Sanchez, 143 N.J. 273, 282 (1996) (citations omitted). The decision whether to grant a motion for severance is within "'the sound discretion of the court.'" State v. Brown, 170 N.J. 138, 160 (2000) (quoting State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985)). Accordingly,
A severance should not be granted merely because it would offer defendant[s] a better chance of acquittal. Rather, it is incumbent upon the trial judge to weigh the interests of judicial economy and efficiency against the right of every accused to have the merits of his case fairly decided. [T]he issue is not the respective weights of the evidence but the fairness of the trial as to each defendant.So long as the separate status of the co-defendants can be maintained by proper instructions to the jury, severance is not necessary. State v. Brown, 118 N.J. 595, 605 (1990).
[Scioscia, supra, 200 N.J. Super. at 42-43 (alterations in original) (citations and internal quotation marks omitted).]
In charging the jury, the judge instructed it to consider the charges and evidence against each defendant separately. He stated:
Now there are seven offenses in the indictment. There are three offenses as they relate to Lathan Fowler, and there are seven as they relate to Javan Fowler. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge, based upon the law as I am about to give you.
You must also return separate verdicts for each defendant as to each of the charges being tried. In other words, you will have to decide each case individually. Whether the verdicts as to each defendant are the same depends on the evidence and your determination as judges of the facts.
With reference to count one, third-degree possession of a CDS, the judge instructed the jury that, in weighing the evidence against defendant, it should consider only the CDS found on the bathroom floor that was recovered by Sergeant Geddes at 224 Bond Street. As to Lathan, he instructed the jury to consider only the evidence recovered in the attic at 318 Bond Street. He further reiterated that "[t]hese are separate propositions and the defendants are entitled to have their charges considered separately based upon the evidence which is relevant and material to the charges against them."
As to count two, third-degree possession of a CDS with intent to distribute, the judge repeated his instruction that defendant's charges were based only on the CDS found at 224 Bond Street, while Lathan's charges stemmed only from the CDS recovered at 318 Bond Street. In charging the jury on the school zone violation, count three, the court again remarked that "each defendant's charges relate to different locations and separate quantities of cocaine[.]" Thus, the judge explained repeatedly that the jury should consider only the relevant evidence against each defendant.
Lathan's defense did not place blame on defendant. Neither defendant nor Lathan testified. Lathan's attorney argued in summation that Joey, not defendant, was likely responsible for the drugs found at 318 Bond Street. Lathan's attorney also emphasized that the charges against the two co-defendants were separate. Therefore, the trial judge did not err in denying defendant's request for a new trial.
B.
Defendant further avers that the court's failure to declare a mistrial and sever the co-defendant's case resulted in prejudice by allowing the jury to improperly consider the evidence obtained from 318 Bond Street against him. The evidence challenged consists of "the narcotics, paraphernalia, and personal papers" recovered from 318 Bond Street and the testimony of Officer McDonough and Joey, which supported the conclusion that defendant resided on the second floor at that address. Defendant contends that such evidence constituted "other bad acts" evidence, which is admissible only in limited circumstances. See N.J.R.E. 404(b). Defendant asserts that the State's use of this evidence did not comport with N.J.R.E. 404(b) or satisfy the four-part test established in State v. Cofield, 127 N.J. 328, 338 (1992). He also asserts that the State's sole purpose in presenting the evidence that he lived at 318 Bond Street was to prejudice the jury against defendant.
We note that the cocaine at 318 Bond Street was found in the attic where Lathan's personal papers were also located.
"[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not evidence of other crimes, wrongs, or acts." State v. Rose, 206 N.J. 141, 177 (2011) (citation and internal quotation marks omitted). Therefore, intrinsic evidence "to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the Rule 403 balancing test." Id. at 177-78. Pursuant to N.J.R.E. 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." Accordingly, "the trial judge must . . . engage in a careful and pragmatic evaluation focusing on the specific context in which the evidence is offered by weighing its probative value against its apparent or undue prejudice." State v. Castagna, 400 N.J. Super. 164, 175 (App. Div. 2008) (citations and internal quotation marks omitted).
The judge was not provided the opportunity to conduct such a balancing analysis as no objections were made at trial when the evidence was introduced. Nevertheless, drug paraphernalia, including a scale and baggies, were found on the second floor at 318 Bond Street. Defendant possessed a key which opened a safe on the second floor at 318 Bond Street and a receipt addressed to defendant for a mattress delivered to that address was recovered on the second floor, suggesting that he resided there. This evidence was legally obtained, is corroborative of defendant's intent to deal drugs and is intrinsic to the charges against him. Its probative value is not outweighed by undue prejudice.
The judge instructed the jury that it should not consider the CDS found in the attic at 318 Bond Street against defendant. The evidence from his activity at 224 Bond Street was more than sufficient to support defendant's convictions. Two witnesses testified that defendant sold cocaine to Rembert. Defendant was also found flushing vials of cocaine down the toilet at 224 Bond Street. The trial judge's failure to sua sponte declare a mistrial and sever defendant's case from the case of his co-defendant Lathan was neither "clearly capable of producing an unjust result," R. 2:10-2, nor an abuse of discretion. See Brown, supra, 170 N.J. at 160. Therefore, the trial judge did not err in denying defendant's request for a mistrial.
II
Defendant also maintains that admission of the evidence of both search warrants and other alleged narcotics transactions was unfairly prejudicial.
A.
Defendant contends that testimony concerning the search warrants for 224 Bond Street and 318 Bond Street improperly led the jury to infer that defendant participated in criminal activity.
In support of his argument, defendant relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) and State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999), in which we held that references to arrest and search warrants during trial impermissibly suggested that a judge had previously found that the defendants were involved in criminal activity. In State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), however, the Supreme Court squarely rejected "the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt." Id. at 240. The Marshall Court further concluded "that a properly instructed jury will not presume guilt based on the issuance of a search warrant." Ibid.
Not only was the jury instructed as to what evidence to consider against defendant, but the facts here are also clearly distinguishable from both Milton and Alvarez. In Milton, supra, police obtained a search warrant for the house of the defendant's mother, as well as a search warrant for the defendant's person. 255 N.J. Super. at 517. Police executed the search warrant of the house while the defendant was not home. Ibid. The defendant was convicted of drug offenses based on evidence recovered during the search, although he argued that the drugs belonged to one of his brothers. Id. at 517-18. We reversed the defendant's conviction because the State presented testimony concerning the unexecuted warrant to search the defendant's person. Id. at 520. We concluded that such testimony was clearly capable of producing an unjust result because it implied "that sufficient independent proof had been presented to a neutral judge to believe that [the] defendant would be found in possession of drugs." Ibid.
In Alvarez, supra, the police went to execute an arrest warrant for the defendant at a house where he resided with other individuals. 318 N.J. Super. at 141-42. After arresting the defendant, police secured the second floor of the house for a few hours while they obtained a search warrant for the premises. Id. at 142. They confined the search to the defendant's bedroom. Ibid. The defendant was ultimately convicted of offenses based on evidence found in his room. Id. at 143. At trial, both the prosecutor and testifying officers made numerous references to the search and arrest warrants. Id. at 145-47. We reversed in part because,
[a]s the jury heard again and again, while the search warrant was technically for the entire premises, [the] defendant's room was the sole focus of police interest; it was the only room secured and the only room searched. As if those references were not damaging enough, the prosecutor managed to insert into his questions the fact that a judge issued the search warrant, thus suggesting that a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found in [the] defendant's room.We also noted that "the repetitive references to the arrest warrant for [the] defendant suffer[ed] the exact infirmities we condemned in Milton." Id. at 148.
[Id. at 147-48.]
Here, only Walker was named in the search warrant for 224 Bond Street. Moreover, Sergeant Geddes testified that the investigation leading to the issuance of the 224 Bond Street warrant neither targeted nor mentioned defendant. It was defendant's own unlawful conduct, witnessed and testified to by both Officer McDonough and Joey, that triggered his arrest. Any reference to the 224 Bond Street search warrant established only the reason why police were present at that address at that time.
In light of the substantial evidence against defendant, the references to the warrants were not "clearly capable of producing an unjust result[.]" R. 2:10-2.
B.
Defendant next contends that the trial judge erred by failing to exclude from evidence Officer McDonough's testimony about the two subsequent hand-to-hand transactions which occurred between defendant and unknown buyers. Defense counsel not only did not object to this evidence, but actually questioned Officer McDonough about the transactions on cross-examination. McDonough's testimony revealed that the police neither stopped nor arrested those buyers. McDonough testified as to the additional hand-to-hand transactions he witnessed and did not improperly categorize them as "drug" transactions. Thus, the officer was merely reporting what he saw shortly after defendant sold drugs to Rembert. It was up to the jury to decide what inferences, if any, to accord these other hand-to-hand transactions.
See State v. McLean, 205 N.J. 438, 443, 460-62 (2011) (finding it improper for a police officer to categorize a hand-to-hand transaction as a "drug transaction" before a jury); see also State v. Sowell, _____ N.J. _____ (2013) (discussing that expert witnesses should not "intrude on the province of the jury" (citation omitted)).
Defendant argues that such testimony served as "other crimes" evidence under N.J.R.E. 404(b) and should have been excluded. As with the evidence obtained at 318 Bond Street which was presented to the jury, McDonough's testimony about uncharged, additional hand-to-hand transactions between defendant and unidentified parties is relevant intrinsic evidence, which is exempt from N.J.R.E. 404(b) analysis. Rose, supra, 206 N.J. at 177.
As the judge instructed the jury, the charges against defendant stemmed from the hand-to-hand transaction conducted between defendant and Rembert, whom the police later arrested. Officer McDonough witnessed the transaction between defendant and Rembert, Rembert was arrested and was in possession of a glass vial with a yellow cap containing cocaine, and defendant was found flushing vials with yellow caps down the toilet. We review the plain error allegation in light of the strong evidence of defendant's guilt presented by the State. The unchallenged testimony about the two additional transactions between defendant and unknown buyers that occurred after the exchange with Rembert was not clearly capable of producing an unjust result. See R. 2:10-2.
III
At the conclusion of the preliminary jury instruction, the judge dismissed the following counts against defendant at the request of the State: fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count nine); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count ten); third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (count eleven); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (count twelve); fourth-degree tampering, N.J.S.A. 2C:28-6(1) (count thirteen); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count twenty). Defendant asserts that the judge should have sua sponte granted a mistrial after dismissing the seven non-narcotics charges at the request of the State. Failure to do so, he argues, left the jury wondering about the disposition of those charges and infected their ability to fairly decide the remaining charges.
"A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice." State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010) (citing State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 205 N.J. 78 (2011). "Where there has been no final resolution of the merits of the charges against [a] defendant, 'a trial court has a discretionary range within which it may properly operate to grant a mistrial whether on its own motion or otherwise.'" State v. Leonard, 234 N.J. Super. 183, 189 (App. Div. 1989) (quoting State v. Rechtschaffer, 70 N.J. 395, 406 (1976)). A court should act sua sponte only if "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." State v. Loyal, 164 N.J. 418, 436 (2000) (quoting United States v. Perez, 22 U.S. 579, 580, 6 L. Ed. 165, 165 (1824)).
Defendant's argument is premised on speculation. Defendant suggests that the jury likely believed that he pleaded guilty to the dismissed charges and was therefore guilty of the remaining offenses. This argument falls far short of showing the "manifest necessity" required to support a sua sponte declaration of a mistrial. The court's failure to declare a mistrial under these circumstances was not an abuse of discretion.
IV
Defendant contends his sentence is manifestly excessive. At the time of sentencing, defendant's presentence report revealed four juvenile adjudications, four adult convictions for drug crimes, two municipal court convictions, three probation violations, and a drug conviction in New York, for which he received a prison sentence. Defendant also had two pending drug indictments.
The judge granted the State's application for an extended term as a repeat drug offender pursuant to N.J.S.A. 2C:43-6(f) on the school zone violation, count three of the indictment. He then merged counts one through three into count four (public park violation) and counts five and six into count seven (public park violation), stating "[w]hat remains in those mergers is the mandatory period of parole ineligibility." See Pressler & Verniero, Current N.J. Court Rules, comment 2.4.8 on R. 3:7-6 (2013) (explaining the merger of varying drug offenses for sentencing purposes). The judge sentenced defendant on the public park violation in count four to a ten-year term of incarceration with the five-year parole disqualifier he determined was required by the extended term on the school zone violation. This sentence is improper.
Defendant received a concurrent ten-year sentence with a mandatory three-year parole disqualifier on count seven.
The judge incorrectly believed he was required to impose a five-year mandatory parole disqualifier on the extended term he imposed on the school zone violation. A five-year parole disqualifier is mandatory under most circumstances pursuant to N.J.S.A. 2C:43-7(c), which provides that a "sentence shall include a minimum term which shall, except as may be specifically provided by [N.J.S.A. 2C:43-6(f)], be fixed at or between one-third and one-half of the sentence imposed by the court, or five years, whichever is greater[.]" (Emphasis added). The school zone violation specifically falls within the statutory framework of N.J.S.A. 2C:43-6(f). As a result, on the school zone violation, no greater mandatory minimum must be imposed for an extended term. Both a regular term and an extended term must contain a minimum of between "one-third and one-half of the sentence imposed by the court or three years, whichever is greater[.]" N.J.S.A. 2C:43-6(f) (emphasis added). We need not determine whether the judge properly considered the mandatory minimum required by an extended term before merging the school zone violation into the public park violation because in this case it does not affect defendant's sentencing exposure.
The judge said, referring to the statute controlling waiver of mandatory minimums and extended terms, "the term that would have to be imposed on a second degree pursuant to [N.J.S.A. 2C:]35-12 I believe is the 60-month period of parole ineligibility."
It is anomalous for a court to consider an extended term on a charge before that charge is merged into another charge, however the merger of a school zone violation into a public park violation could be viewed as an exception to the general rule. See State v. Dillihay, 127 N.J. 42, 47, 56 (1992) (discussing the need for courts when imposing mandatory minimum sentences to comply with the legislature's intent in enacting a non-merger provision for school zone crimes).
--------
We remand for the purpose of resentencing. In all other respects, we affirm. 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 DlVISIOn