Opinion
DOCKET NO. A-0096-14T3
07-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FUQUAN J. GILLARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-04-0985. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Fuquan J. Gillard was convicted of third-degree possession of a controlled dangerous substance (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 (count two); second-degree possession of a firearm while in the course of committing a drug offense, N.J.S.A. 2C:39-4.1 (count three); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four). The trial judge found defendant guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a) (count six). The evidence showed that following a motor vehicle stop, a police officer found 498 bags of heroin and a handgun inside the vehicle in which defendant was the driver and sole occupant. Although a defense witness testified that the drugs and handgun belonged to him, the State eviscerated his testimony on cross-examination.
At the conclusion of the State's case, the trial judge dismissed count five charging defendant with third-degree receiving stolen property, N.J.S.A. 2C:20-7(a).
The judge merged count one with count two and imposed a mandatory extended-term sentence of eight years with a four-year period of parole ineligibility. The judge merged count four with count three and imposed an eighteen-year term of imprisonment with a nine-year period of parole ineligibility. The judge also imposed a consecutive ten-year term of imprisonment with a five-year period of parole ineligibility on count six. Defendant's aggregate sentence was thirty-six years with eighteen years of parole ineligibility.
At sentencing, the judge made detailed findings in an oral opinion, which he later memorialized in the June 23, 2014 judgment of conviction. The judge determined that defendant was subject to a mandatory extended-term sentence on count two based on his prior conviction for possession of a CDS with intent to distribute, and N.J.S.A. 2C:39-4.1 mandated a consecutive sentence on count three. The judge considered the Yarbough factors in finding a consecutive sentence on count six was appropriate. The judge also found and applied the following aggravating factors: (1) N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense[;]" (2) N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[;]" and (3) N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]" The judge found no mitigating factors.
State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
On appeal, defendant raises the following contentions:
POINT I
THE USE OF DRUG EXPERT TESTIMONY IN THIS CASE WAS IMPROPER BECAUSE THE RISK OF UNDUE PREJUDICE RESULTING FROM THE EXPERT'S STATEMENTS DECLARING GUILT FAR OUTWEIGHED ANY PROBATIVE VALUE THAT MAY HAVE BEEN PROVIDED BY HIS TESTIMONY.
U.S. CONST., AMEND. XIV; N.J. CONST., ART. I, ¶ 1.
POINT II
THE YARBOUGH FACTORS DID NOT SUPPORT A CONSECUTIVE SENTENCE ON COUNT SIX; THE OVERALL SENTENCE WAS EXCESSIVE. U.S. CONST., AMEND[S]. VIII, XIV; N.J. CONST., ART. I, ¶¶ 1, 12.
POINT III
THE UNITED STATES SUPREME COURT SHOULD HOLD THAT DEFENDANT'S SENTENCE HERE TO EXTENDED TERMS AND PAROLE DISQUALIFIERS BASED ON FINDINGS OF FACT OF PRIOR CONVICTIONS MADE BY A JUDGE VIOLATE APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000)[;] U.S. CONST., AMEND[S]. VII, XIV.
We reject defendant's contention in Point I that the testimony of the State's drug expert that defendant possessed the drugs with intent to distribute was improper. The testimony was in response to a hypothetical that mirrored the facts in this case; the expert made no reference to defendant's guilt; the testimony conformed to the dictates of State v. Odom, 116 N.J. 65 (1989) and its progeny; and State v. Cain, 224 N.J. 410 (2016) does not apply retroactively. Moreover, the subject matter of the testimony concerned matters beyond the average ken of the jury, and the judge gave the jury the proper instruction on how to receive expert testimony. Accordingly, we find no reversible error in the admission of the testimony of the State's drug expert.
We have considered defendant's contention in Point II, that the Yarbough factors did not support a consecutive sentence on count six and the overall sentence is excessive, in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's sentence substantially for the reasons expressed by the trial judge. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on the Yarbough factors and aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.
We also find no merit in defendant's contention in Point III that the United States Supreme Court should hold that his extended-term sentence violates the Sixth and Fourteenth Amendments as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). Defendant argues that the decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) is inconsistent with Apprendi and should be reversed by the United States Supreme Court. We disagree.
U.S. Const. amend VI.
U.S. Const. amend XIV. --------
Almendarez-Torres held that a prior conviction that increases the maximum sentence for an offense is not an element of the offense and, thus, does not need to be charged in the indictment or found by a jury. Id. at 226-27, 118 S. Ct. at 1222, 140 L. Ed. 2d at 357. In Apprendi, decided two years after Almendarez-Torres, the Court held that any fact that subjects a defendant to a longer sentence must be submitted to the jury and found beyond a reasonable doubt. Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. However, the Court expressly refused to disrupt the Almendarez-Torres holding regarding prior convictions. Id. at 489-90, 120 S. Ct. at 2362, 147 L. Ed. 2d at 454-55. The Court specifically stated that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis added). Almendarez-Torres has not been disturbed, and there is no authority requiring the fact of a prior conviction to be submitted to a jury for its determination. An extended-term sentence based on a judge's finding of a prior conviction does not violate the Sixth and Fourteenth Amendments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION