Opinion
DOCKET NO. A-3336-10T2
04-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERNEST T. RICHARDSON a/k/a E-BLAZE RICHARDSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-0916.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ernest T. Richardson was tried before a jury and found guilty of four drug offenses and a related firearms offense. He appeals from the amended judgment of conviction entered by the Law Division on September 15, 2010. After merger, defendant was sentenced to ten years of incarceration with a three-year period of parole ineligibility. We affirm.
Defendant's period of parole ineligibility was originally six years. Because defendant received inaccurate information on his plea cut-off form, the State agreed to the entry of the amended judgment of conviction providing for three years of parole ineligibility.
In September 2008, police received information from a confidential informant that defendant possessed a large amount of marijuana in his home in Asbury Park. After making two controlled purchases from that location, Asbury Park Police Officer Lorenzo Pettway obtained a search warrant. When Officer Pettway and other officers arrived to conduct the search, defendant came outside. Prior to the search, defendant waived his Miranda rights. When served with the warrant, defendant cooperated, showing the officers where he kept the drugs and removing two pit bulls from his basement. Execution of the warrant resulted in police seizing significant amounts of marijuana and cash, along with scales, baggies, vacuum sealers, and two safes. Police also seized a loaded semi-automatic CO2-charged BB gun, along with a CO2 cartridge and BB's.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
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Defendant occupied the residence with his wife, mother-in-law, and brother-in-law. Before the police left defendant's premises, he asked what was going to happen next. Officer Pettway responded that all the occupants of the house were going to be charged with constructive possession of the seized contraband. According to Officer Pettway, defendant then stated that "everything in the house was his[,]" that his wife, mother-in-law and brother-in-law had no knowledge of the marijuana, and that "he was willing to take full responsibility for everything [the police] found in the house[.]" Defendant explained that he was selling marijuana because he had fallen behind on his bills and needed to "catch up." Based on these statements, defendant was the only person charged.
Thereafter, defendant was transported to the Monmouth County Prosecutor's Asbury Park satellite office. Once there, defendant was again informed of his Miranda rights. Defendant waived his rights and agreed to provide a formal statement. In that statement, which was video-recorded, defendant again admitted that he had been selling marijuana to catch up on his bills, that the marijuana and other contraband in the house belonged solely to him, and that the $11,821 seized from the safe in his bedroom constituted proceeds of his drug sales. He told the officers that he had been selling marijuana "on and off" for approximately four years, that he sold approximately eight pounds of marijuana each month, and that he realized between $1,000 and $2,000 in proceeds each week from his marijuana sales.
On April 29, 2009, a Monmouth County grand jury indicted defendant on charges of fourth-degree possession of a controlled dangerous substance (CDS) (marijuana), contrary to N.J.S.A. 2C:35-10a(3) (count one); third-degree possession of a CDS (marijuana) with intent to distribute, contrary to N.J.S.A. 2C:35-5b(11) (count two); third-degree possession of CDS (marijuana) on or within 1,000 feet of school property with intent to distribute, contrary to N.J.S.A. 2C:35-7 (count three); second-degree possession of CDS (marijuana) with intent to distribute while on or within 500 feet of a public housing facility, contrary to N.J.S.A. 2C:35-7.1 (count four); third-degree maintaining a fortified structure for the purpose of distributing CDS, contrary to N.J.S.A. 2C:35-4.1 (count five); second-degree possession of a firearm in the course of committing a drug offense, contrary to N.J.S.A. 2C:39-4.la (count six).
Defendant unsuccessfully moved to suppress the statements he gave to police. At trial, Officer Pettway testified regarding the items seized in the search of defendant's home and defendant's statements to the police. The State also presented expert testimony from two officers, one regarding narcotics distribution and the other regarding firearms. Defense counsel stipulated that the substance seized was marijuana and that it weighed 15.9 ounces.
After the State's case, the defense first presented four character witnesses. Defendant then testified on his own behalf. He said that he had smoked marijuana since he was about twelve years old. Defendant admitted that he owned the house that was the subject of the search and that the marijuana and BB gun the police seized from the house were his. Defendant testified he planned to use some of the marijuana himself and sell some of it to others. On cross-examination, defendant testified that he sold marijuana to about fifteen or twenty people, and that some of it was sold from his house.
As for the two pit bulls, defendant denied that his purpose in keeping them in his basement was for protection or to keep people out of his house. Instead, defendant testified that dogs had been a part of his life for almost twenty years, that he had been breeding pit bulls for at least four years and that he was a member of a kennel club. Although the dogs were trained to listen to him, they were not trained to be "attack dogs or anything like that." Defendant explained that he kept the two pit bulls in the basement because one of the dogs was "mean."
Regarding the BB gun, defendant testified that he acquired it because he had a problem with possums nesting in the roof above the porch attached to his house. He never got to use the BB gun to address the problem because he was unable to catch them going in. Instead, he used deer and rabbit repellant to remedy the problem. He did fire the gun at some cans for target practice, and even shot himself in the palm of the hand because he "was just curious as [to] how powerful the gun was." Defendant said this caused only a "little blister" which went away a short time later. After that, defendant said he put the gun in his basement to keep it away from his children, where it remained until the police seized it. By the time of the search, defendant claimed he had forgotten that the gun was down there.
The jury acquitted defendant on count five, maintaining a fortified structure, and convicted him on the other five counts. Defendant appeals and raises the following issues for our consideration:
POINT ONE
DEFENSE COUNSEL'S CONCESSION OF DEFENDANT'S GUILT ON COUNTS ONE, TWO, THREE, FOUR AND SIX RENDERED HIS TRIAL UNFAIR AND DEPRIVED [DEFENDANT] OF THE EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. VI & XIV; N.J.
CONST. (1947 ART. I, PAR. 10.) (NOT RAISED BELOW)
POINT TWO
TESTIMONY BY THE STATE'S KEY WITNESS AND STATEMENTS BY THE PROSECUTOR STRIPPED [DEFENDANT] OF HIS PRESUMPTION OF INNOCENCE AND VIOLATED HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMENDS. VI & XIV; N.J. CONST. (1947) ART. I, PAR. 10. (NOT RAISED BELOW)
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING [DEFENDANT] TO A DOWNGRADED SENTENCE. (NOT RAISED BELOW)
I.
We decline to address the claim raised in defendant's first point, relating to alleged ineffective assistance of trial counsel. "'Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal. Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)).
We are not persuaded that the record was sufficiently developed for us to properly consider defendant's claim of ineffective assistance of counsel on this appeal. Thus, we adhere to the policy of deferring claims of alleged ineffective-assistance of counsel to post-conviction relief proceedings, where the necessary factual record can be established.
II.
Defendant next argues that certain remarks made during the prosecutor's opening statement and during direct examination of two of the State's witnesses deprived him of a fair trial. Specifically, defendant contends that the following statements should not have been placed before the jury: (1) the prosecutor's statement during his opening that the police were "conducting an investigation" into defendant's address in Asbury Park and defendant;" (2) Officer Pettway's testimony on direct that, on the day of defendant's arrest, he and other officers "set up surveillance, looking for [defendant]" after they arrived "in the area of his home[;]" (3) Officer Pettway's testimony on direct that he told defendant the officers were there to "conduct a legal search" of defendant's home; (4) Officer Pettway's testimony on direct that the officers knew defendant "had two pit bulls[;]" (5) Officer Pettway's testimony on direct that he told defendant that he "felt [defendant] had drugs in the house[;]" and (6) the prosecutor's reference to defendant as the "target" of the police investigation during his direct examination of the State's firearms expert. According to defendant, the information imparted to the jury through these statements undermined his "presumption of innocence" and "implied his guilt based on facts outside of the record[.]"
Because defendant failed to object to these statements at the time they were made, our review of defendant's claims is governed by the plain error standard. R. 2:10-2. Under this standard, a reviewing court will disregard the alleged error unless it is "clearly capable of producing an unjust result." Ibid. To satisfy this standard, a defendant must establish not only that there was error, but also that the claimed error is "so egregious that it 'rais[es] a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Tierney, 356 N.J. Super. 468, 477 (App Div.) (quoting State v. Macon, 57 N.J. 325, 336 (1971)), certif. denied, 176 N.J. 72 (2003). Thus, "any finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Here, the State submits that none of these statements, either alone or in the aggregate, amounted to error. Defendant argues that the error resulting from these comments is analogous to that found in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v Alvarez, 318 N.J. Super. 137 (App. Div. 1999), in which we held that references to arrest and search warrants suggested that a judge had found that the defendants were involved in criminal activity and that this was clearly capable of producing an unjust result. However, in State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), our Supreme Court rejected this argument:
Defendant claims that trial counsel should have moved in limine to preclude references to the search warrants in the presence of the jury. Defendant also claims that trial counsel should have objected to police testimony that the search of James Davis's home was executed pursuant to a search warrant. Finally, defendant claims that the prosecutor's reference to the issuance of a search warrant for defendant's telephone records constituted an impermissible reference to a judicial finding of probable cause that defendant was involved with the murder of Maria Marshall.We note that the Court chose to distinguish our holding in Milton rather than overruling it. Ibid. Nevertheless, we conclude that defendant's reliance on Milton and Alvarez is misplaced, as both cases are readily distinguishable from the case under review.
We find those claims to be without merit. They have in common 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. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.
In Milton, supra, the defendant was convicted of possession of CDS and possession with intent to distribute after police executed a search warrant at the house he shared with his parents and brothers, and seized drugs from the bedroom he occupied. 255 N.J. at 516-18. The police also obtained a search warrant for defendant's person, but the warrant was never executed because defendant was not at home at the time the officers searched the house. Id. at 517. At trial, the defendant asserted a third-party guilt defense, arguing that the drugs seized from the house actually belonged to one of his brothers. Id. At 518. During the trial, the prosecutor made reference to the search warrant for the residence and to the search warrant for the defendant's person, both in his opening statement and in his direct examination of the testifying police officer. Id. at 519. We concluded that "the defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person." Id. at 520.
Similarly, in Alvarez, supra, the defendant was convicted of certain weapons offenses following police execution of a warrant to search the house he shared with other transients. 318 N.J. Super. at 140-44. The officers also had a warrant for defendant's arrest. Id. at 141. Prior to trial, the judge ruled that the State could reference the arrest warrant during trial in order to justify the police presence at defendant's residence. Ibid. Like the defendant in Milton, the defendant asserted a third-party guilt defense at trial, arguing that the weapons could have belonged to any of the other people living in the house. Id. at 143.
We reversed defendant's convictions, finding that the prosecutor's repeated references to both warrants, along with the information that the search warrant had been issued by a judge, ran afoul of the holding in Milton, by suggesting that "a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found in defendant's room." Id. at 148. We concluded that "the prejudicial references were more numerous and more injurious than those" in Milton, and, therefore, "were clearly capable of producing an unjust result." Ibid.
In the matter under review, at no time was the jury advised that the police had a search warrant for defendant's residence. Rather, Officer Pettway testified that the police were present at defendant's home to conduct a "legal search" of the premises. Office Pettway's testimony, elicited through the prosecutor's leading question, appears to have been designed to avoid the type of error found to be prejudicial in Milton and Alvarez.
Moreover, Officer Pettway's explanation that the police were at defendant's residence, to conduct a "legal search," the prosecutor's comment in his opening statement that the police were "conducting an investigation" of defendant and his residence, and the other comments Office Pettway made on direct examination served to explain the propriety of the police presence, and activity at defendant's house. See Marshall, supra, 148 N.J. at 240. Likewise, Officer Pettway's testimony regarding his knowledge that defendant "had pit bulls" was nothing more than an explanation as to why there was a "lag in time" between when he first approached defendant and when he actually searched defendant's house. In addition, the officer's testimony that he told defendant "he felt [defendant] had drugs in the house" did not suggest that the officer had knowledge of facts not presented to the jury. The jury could have reasonably inferred that Office Pettway's "feeling" was based on his observations of defendant when he first confronted defendant in the driveway; Officer Pettway testified that defendant appeared to have been smoking something when he came out of the house and that he smelled marijuana on defendant's breath and clothes while speaking to him.
Even if these comments were improper, given the strength of the State's proofs, they were not so prejudicial as to rise to the level of plain error. Unlike the defendants in Milton and Alvarez, who asserted a third-party guilt defense at trial, here defendant admitted at trial that the marijuana seized from the house belonged solely to him and that he intended to sell "some of it." Therefore, given the overwhelming proof of defendant's guilt presented at trial, the allegedly improper comments in this case were not "clearly capable of producing an unjust result." See R. 2:10-2; Macon, supra, 57 N.J. at 336.
III.
Although defendant failed to request a sentencing downgrade, defendant argues that the trial court abused its discretion by not sua sponte imposing a downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2). In support of this argument, he claims that the trial court erroneously found aggravating factors three and nine, and that there were mitigating factors the trial court failed to consider. He further contends that, had the aggravating and mitigating factors been properly considered and weighed, the trial court would have concluded that the mitigating factors substantially outweighed the aggravating factors and that the interest of justice demanded a lower sentence.
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Criminal Code, and the individual sentence does not shock our conscience, the result will be upheld. Id. at 608.
Here, we do not agree that defendant's sentence was the result of the trial court's mistaken exercise of its discretion. The trial court properly applied the sentencing guidelines. Defendant was sentenced to a five-year term of imprisonment for his conviction on count four (second-degree possession with intent within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1) and a consecutive five-year term, subject to a three-year period of parole ineligibility, for his conviction on count six (second-degree possession of a firearm while in the course of committing a drug offense, N.J.S.A. 2C:39-4.1a). This ten-year base term and corresponding three-year period of parole ineligibility was the lowest ordinary sentence for these second-degree convictions. See N.J.S.A. 2C:39-4.1d (prohibiting merger of conviction under this section with conviction for underlying CDS offense, and requiring that sentence imposed run consecutive to that imposed upon conviction for underlying CDS offense); N.J.S.A. 2C:43-6a(2) (establishing sentence for second-degree crime between five and ten years); N.J.S.A. 2C:43-6c (establishing imposition of mandatory minimum term for a conviction under N.J.S.A. 2C:39-4.1).
We see no plain error in the trial court's finding that the mitigating factors did not outweigh the aggravating factors. The court's application of aggravating factor nine (need to deter others from violating the law), N.J.S.A. 2C:44-1a(9), is supported by the clear need to deter others from selling marijuana. See State v. Varona, 242 N.J. Super. 474, 492 (App. Div), certif. denied, 122 N.J. 386 (1990). While we accept defendant's contention that the trial court erred by applying both aggravating factor three (risk defendant will commit another offense), N.J.S.A. 2C:44-1a(3), because it also found mitigating factor nine, (defendant's character indicates he is unlikely to commit another offense), N.J.S.A. 2C:44-1b(9), even had the court not applied aggravating factor three, the mitigating factors would not have outweighed the aggravating factors as they would have been in equipoise. We defer to the trial court's discretion not to apply any other mitigating factor. See Bieniek, supra, 200 N.J. at 607-09.
Despite a finding that the aggravating factors outweighed the sole mitigating factor, the court imposed the minimum ordinary base terms for the two second-degree convictions, see N.J.S.A. 2C:43-6a(2), and the lowest possible period of parole ineligibility mandated by the Graves Act. See N.J.S.A. 2C:43-6c. Such a sentence does not shock the judicial conscience.
Finally, even if mitigating factors outweighed the aggravating factors, such a finding would not have provided justification for a downgraded sentence under N.J.S.A. 2C:44-1f(2). That provision allows a court to sentence a defendant "to a term appropriate to a crime of one degree lower than that of the crime for which [the defendant] was convicted" only if the court is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and that "the interest of justice demands" such a lesser sentence. N.J.S.A. 2C:44-1f(2). Our Supreme Court has held that "the standard governing the downgrading of a defendant's sentence [under N.J.S.A. 2C:44-1f(2)] . . . is high." State v. Megargel, 143 N.J. 484, 500 (1996).
A court's authority to downgrade a sentence "in the interest of justice" is "limited to those circumstances in which defendant can provide 'compelling' reasons for the downgrade." Id. at 501-02 (citing State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). "These reasons must be in addition to, and separate from, the 'mitigating factors which substantially outweigh the aggravating factors,' that the trial court finds applicable to a defendant under the first prong of section 44-1f(2)." Id. at 502; See also State v. Read, 397 N.J. Super. 598, 614 (App. Div.) (noting that the focus of a court applying 2C:44-1f(2) must be on "'the severity of the crime' rather than the personal circumstances of the offender"), certif. denied, 196 N.J. 85 (2008).
Even if the first prong of N.J.S.A. 2C:44-1f(2) were satisfied in this case, defendant has failed to demonstrate any "compelling reasons" for downgrading his sentence that are separate and apart from those mitigating factors he asserts the trial court failed to consider. Accordingly, nothing in the record demonstrates that defendant has met the high standard necessary for imposition of a downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION