Opinion
DOCKET NO. A-3649-11T4
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NACIA H. WEBB, a/k/a NACYA WEBB, NACI WEBB, ISSAC FRAZIER, ISSIAC FRAZIER, IZZAC FRAZIER, TURTLE WEBB, NASIA WEBB, LAMAR OXFORD, Defendant-Appellant.
Lorane L. Posner argued the cause for appellant (Alan Dexter Bowman, P.A., attorney; Mr. Bowman, of counsel and on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-08-2640. Lorane L. Posner argued the cause for appellant (Alan Dexter Bowman, P.A., attorney; Mr. Bowman, of counsel and on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). The opinion of the court was delivered by MAVEN, J.A.D.
Following a four-day trial, a jury convicted defendant Nacia Webb of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one and four); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(1) (count five); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count six); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count seven); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and 2C:35-5(b)(1) (count eight).
The court granted defendant's unopposed motion to dismiss count three prior to trial. In addition, co-defendant Eva Acevedo was tried separately on counts four, five, and six.
After appropriate mergers, the court sentenced defendant to an aggregate custodial term of thirty-nine years with a twenty-year period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from both his conviction and sentence, raising the following points:
POINT I
THE COURT ERRED IN PERMITTING THE STATE TO ELICIT EVIDENCE THAT A VALID SEARCH WARRANT FOR THE BUICK LESABRE WAS OBTAINED ON THE BASIS OF A K-9 SNIFF (Not Raised Below).
POINT II
APPELLANT WAS IMPROPERLY DENIED [] A HEARING PURSUANT TO FRANKS V. DELAWARE, 438 U.S. 154 (1978), AS TO THE EXISTENCE OF FALSITIES OR INACCURACIES IN THE AFFIDAVIT UNDERPINNING THE SEARCH WARRANT.
POINT III
IRRELEVANT EVIDENCE AS TO CDS OFFENSES NO[T] CHARGED IN THE INDICTMENT DENIED APPELLANT A FAIR TRIAL (Not Raised Below).
POINT IV
THE TRIAL COURT ERRED IN PERMITTING EVIDENCE THAT THE JUVENILE CONFESSED TO POSSESSION OF THE COCAINE SEIZED FROM HIS RESIDENCE (Not Raised Below).
POINT V
THE CONVICTION RELATIVE TO THE CONSPIRACY CHARGED IN THE INDICTMENT IS INFIRM BECAUSE THE STATE'S PROOFS ESTABLISHED A MERE BUYER/SELLER RELATIONSHIP (Partially Raised Below).
POINT VI
THE STATE DID NOT ADDUCE SUFFICIENT EVIDENCE TO SUSTAIN THE OFFENSE OF EMPLOYING A JUVENILE CHARGED IN COUNT [SEVEN].
POINT VII
THE SENTENCE IMPOSED [IS] DISPROPORTIONATE AND UNCONSTITUTIONAL.
We have considered these arguments in light of the record and applicable legal standards. For the reasons that follow, we affirm in part and reverse in part.
I.
The facts as adduced from the trial record are as follows. Detective Miguel Ruiz and Sergeant Andrea Salvatini were assigned to the Governor's High Intensity Drug Trafficking Area (HIDTA) Task Force, to conduct surveillance in East Camden. One day during the week of April 19, 2009, the officers observed defendant for approximately three hours. Detective Ruiz saw defendant leave a residence on Kenwood Avenue with a black plastic bag, enter a gold Chrysler minivan, and drive to the 400 block of Rand Street. Next, he saw a "Spanish kid," later identified as J.R., come out of a residence on Rand Street empty-handed and enter the van. Detective Ruiz described J.R. as "a Spanish male, tight haircut, dark skin or brown skin, black clothing. He was about five-foot-four, five-foot-seven." Sergeant Salvatini testified that from her location, she got a good look at J.R., whom she described as "a younger Hispanic male." She also saw him enter the minivan and exit with a black plastic bag and return to the Rand Street residence.
Defendant then drove toward the intersection of Morse and Thorndyke Streets. Less than five minutes after defendant reached the intersection, the officers observed J.R. leave the Rand Street residence and join defendant at the corner. Detective Ruiz watched J.R. engage in approximately thirty drug transactions in a three-to-four-hour period. Defendant was present for each transaction and directed customers toward J.R. Detective Ruiz explained that for each customer, J.R. would reach into his waistband, remove an item, hand it to the customer in exchange for money, and then place the money in his pockets. Each transaction lasted less than one minute.
On May 1, 2009, Detective Sean Miller, another Task Force officer, made an undercover purchase of crack cocaine directly from defendant. Detective Miller testified that he and another officer drove to a residence on Morse Street where they saw defendant on the front porch. When Detective Miller asked defendant for crack cocaine, defendant reached into his pants pocket, pulled out a sandwich bag, and gave the officer six bags of crack in exchange for three twenty-dollar bills. Detective Miller relayed this transaction to Officer Victor Diaz who then arrested defendant.
While conducting surveillance on May 3, 2009, Detective Ruiz and Sergeant Salvatini again observed defendant for three hours, and during that time he exited the same Kenwood Avenue residence, this time carrying two plastic bags. Defendant put one bag in the minivan and placed the other bag in the trunk of a Buick LeSabre parked two houses away. Detective Ruiz had not observed anyone other than defendant entering the trunk of the Buick during previous surveillances. Defendant drove to the 400 block of Rand Street where J.R. was observed entering defendant's van. After J.R. exited the van, he carried a plastic bag from the van into a residence. Defendant then drove to the Morse and Thorndyke Street corner, and within five minutes J.R. exited the Rand Street residence and walked to the corner to join defendant. Detective Ruiz observed J.R. stash a plastic bag in a nearby vacant lot. J.R. engaged in drug transactions for about three hours walking customers to the vacant lot, retrieving items from the plastic bag, exchanging the items for money, and stashing the bag again. During the three hours of observation, they saw defendant speaking with J.R.
On May 15, 2009, Detective Ruiz and Officer Diaz, and other officers, conducted surveillance in advance of executing search warrants at the residences on Kenwood Avenue and Rand Street. Detective Ruiz testified after a SWAT team secured the Kenwood address, he entered the house. Defendant, codefendant Acevedo, and two children were present when Detective Ruiz entered. Acevedo was the listed owner of both the residence and the unregistered Buick LeSabre. Upon a search of the home, the officers seized a clear plastic bag containing twenty bags of crack cocaine from a bathroom light fixture, and another clear plastic bag containing eleven bags of crack cocaine from a shoe on the bedroom floor. Each small bag of crack cocaine was stamped with a black and yellow Batman logo. Detective Ruiz also seized $390 in cash from defendant. The residence on Kenwood Avenue was located within five school zones.
The fifteen-page warrant affidavit includes sworn testimony from Detective Ruiz and Sergeant Salvatini and includes factual support in the form of communications from a confidential informant, tax records, background checks, and the surveillance reports.
Sergeant Salvatini testified that a K-9 unit was called to Kenwood Avenue to walk around the exterior of the vehicles that defendant had been seen entering on previous occasions. The canine's positive "hit" on the Buick LeSabre, indicating the presence of narcotics, led to a search warrant being obtained for the car. The vehicle was towed to the police department and searched by Detective Ruiz and Sergeant Salvatini, who retrieved 140 bags of crack cocaine (marked with the Batman logo) from the glove box. A search of the trunk revealed a bag filled with a large amount of crack cocaine, and a utility bill addressed to codefendant Acevedo at the Kenwood Avenue address.
That same day, Officer Diaz and other officers executed a search warrant at the Rand Street residence. J.R. and his parents were inside the home. A search of the first floor revealed an iced tea can with a twist-off top that contained a hidden container filled with twenty-four bags of crack cocaine and $200. J.R. admitted to the officers that it was his crack cocaine. J.R.'s parents were released and J.R. was charged for the items that were seized.
Officer Diaz described J.R. as a "Hispanic male, young, maybe five-six, 140, 150 pounds." He testified J.R. was taken to the Juvenile Bureau at the Camden City Police Department to be processed.
The State presented the testimony of Investigator Robert Ferris, a fourteen-year veteran of the Camden County Prosecutor's Office. Without objection, he was qualified as an expert in the fields of street-level narcotics and drug distribution. Investigator Ferris testified that the area of Morse and Thorndyke Streets was known for its "open-air drug sets for crack cocaine." He explained that a "drug set" is a location known by customers to be a place where they can buy a type of CDS. A set could involve four or five people with different roles, some serving as lookouts, others dealing directly with customers, and others directing customers to individuals for a particular type of drug. Sellers could either keep drugs on themselves, or stash them in a secret location to keep a distance between themselves and the drugs. Investigator Ferris also stated that bags of crack cocaine used in street-level sales are typically packaged in small Ziploc bags, often in different colors, or with different stamps or logos. The logos are used to differentiate the product sold at one drug set from a drug sold at another drug set within the area.
Defendant elected not to testify or present any witnesses at trial. At the end of the State's case defendant filed a motion pursuant to Rule 3:18-1 for judgment of acquittal on the charges of employing a juvenile and conspiracy. Defendant argued the State failed to produce proof of defendant's and J.R.'s ages as well as the elements of conspiracy to distribute CDS. The trial judge denied the motion, finding circumstantial and direct evidence from which a reasonable jury could convict defendant on both charges.
The jury found defendant guilty on all remaining counts. Thereafter, defendant filed a motion pursuant to Rule 3:18-2 for judgment of acquittal raising the same argument he raised on the Rule 3:18-1 motion. The judge denied the motion. With regard to the charge of employing a juvenile the judge concluded,
The Court finds that there was substantial circumstantial evidence of both [] defendant's adult status and J.R.'s juvenile status from which a reasonable jury could find guilt of a charge beyond a reasonable doubt. . . .
At trial Detective Diaz testified that during processing [] defendant [] stated his date of birth . . . which would have made defendant well over the age of 18 at the time of this incident.
. . . .
I note also that the jury has heard testimony regarding J.R's age and that several witnesses characterized J.R. as appearing to be young. Additionally[,] there was testimony presented that J.R. was processed as a juvenile when he was arrested.
. . . .
[T]he [S]tate introduced evidence that the detectives observed the defendant employ J.R. in numerous hand to hand CDS transactions. . . . J.R. would . . . go to the corner of Morse and Thorndyke Streets where he would loiter with [] defendant. While there [] defendant would direct individuals to J.R. . . .
. . . .
Viewed in its entirety and in the light most favorable to the [S]tate I find this evidence sufficiently demonstrates that the defendant and J.R., the juvenile, were more than merely working together.
. . . .
Based on the foregoing[,] I find that the [S]tate presented sufficient evidence to enable a jury to find the defendant guilty of employing he juvenile in a drug distribution scheme[.]
On the conspiracy count, the judge concluded,
In the instant case the jury heard testimony that the police observed [] defendant give J.R. a bag that J.R. then used to retrieve items that he sold to individuals at the direction of the defendant. Affording the [S]tate the benefit of all the evidence presented as well as all the favorable inferences which reasonably could be drawn in his favor, I am
satisfied that a reasonable jury could find [] defendant guilty beyond a reasonable doubt of conspiracy to distribute a controlled dangerous substance.
II.
We consider defendant's arguments in the order he has raised them in his brief. Defendant's arguments in Points I and II stem from the same premise: police lacked probable cause to support the search warrants issued for the Buick LeSabre and the residences.
A.
In Point I, for the first time on appeal, defendant challenges Sergeant Salvatini's testimony explaining the use of the drug sniffing dog. Defendant contends the court committed reversible error by allowing this testimony to be elicited without a foundation as to the qualifications of the officer or the reliability of the sniff. Defendant argues that "[t]he error is not related to search and seizure" but, rather, the "lack of foundation to admit the evidence." Specifically, defendant contends "[a]bsent [the] representation concerning the K-9 [that the K-9 alerted to the presence of CDS in the vehicle], inadequate probable cause existed to enter the vehicle and search it." We conclude this contention, packaged as a challenge to the testimonial evidence underlying the search warrant for the vehicle, is, in essence, a challenge to the issuance of the search warrant to search the vehicle. We review this issue for plain error. R. 2:10-2.
The qualifications of the officer and the K-9 dog, "Zero," were set forth in an affidavit submitted in support of the search warrant for the Buick LeSabre. If there was any question as to their qualifications, defendant could have, and should have, raised the challenge in an appropriate pre-trial motion. Having failed to do so, the current challenge is deemed waived. R. 3:5-7(f); see also State v. Kim, 412 N.J. Super. 260, 268-71 (App. Div.) (noting "[d]efendants who seek to exclude evidence on constitutional grounds are required to file a motion to suppress the evidence in accordance with Rule 3:5-7, governing motions to suppress in the Law Division"), certif. denied, 202 N.J. 344 (2010); see also State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988) (observing "[i]t is now well-established that constitutional claims, such as Fourth Amendment rights, may be waived unless properly and timely asserted") (citation omitted).
B.
With regard to Point II, defendant contends he was entitled to a Franks hearing because the warrant application did not specify the date for each surveillance event but, rather, referred only to the "week of a specific month." He sought the hearing for an opportunity to cross-examine Detective Ruiz and Sergeant Salvatini. The State maintains defendant failed to identify specific falsities in the application. We agree.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
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In Franks, the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
[Franks v. Delaware, 438 U.S. 154, 188, 98 S. Ct. 2674, 2692, 57 L. Ed. 2d 667, 672 (1978).]
New Jersey has adopted the use of a Franks hearing. See, e.g., State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). However, "[s]uch a hearing is required only if the defendant can make a substantial preliminary showing of perjury." State v. Howery, 80 N.J. 563, 583 n.4 ( 1979). "He must allege 'deliberate falsehood or reckless disregard for the truth,' and those allegations must be supported by an offer of proof." Ibid. (quoting Franks, supra, 438 U.S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672). Furthermore, the statements claimed to be false must have been material to the finding of probable cause. Ibid. A defendant's claim must be more than conclusory and must be "supported by more than a mere desire to cross-examine." Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682. "[A] Franks hearing is not directed at picking apart minor technical problems with a warrant application; it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents." State v. Broom-Smith, 406 N.J. Super. 228, 240 (App. Div. 2009), aff'd, 201 N.J. 229 (2010).
In this matter, defendant posits that the events relied upon in the affidavit "are not averred with chronological precision" and are "vague as to temporality." Defendant further disputes "the verity and accuracy" of the search warrant affidavit, yet he does not specify in what manner the affidavit is inaccurate. Rather, he asserts he "[is] confident of his ability to demonstrate the falsities by means of cross-examination of the affiant."
As the trial court recognized, defendant requested a Franks hearing simply to cross-examine the affiants in order to ferret out possible falsities in the affidavit. Such a desire is insufficient to warrant a Franks hearing. See Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682. Defendant has failed to make any showing that the affidavit included false or perjured statements. Accordingly, we conclude the trial court did not err in denying defendant a Franks hearing.
C.
In Point III, defendant argues for the first time that the court erred by admitting testimony of uncharged offenses including references to weapons, violence and a sophisticated distribution enterprise with no demonstrated applicability to defendant. Defendant further argues that the cumulative effect of such testimony requires the grant of a new trial, as it violated N.J.R.E. 404(b). We review this contention employing the plain error standard. See R. 2:10-2. Defendant is entitled to relief only if the alleged error had the clear capacity to produce an unjust result.
Evidence "of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). In general, the rule is one of exclusion rather than inclusion, and is intended to prevent the admission of other crimes or bad acts when the evidence is offered solely to establish a defendant's propensity to commit crimes. See State v. Herrerra, 211 N.J. 308, 339 (2012). However, the rule applies only to other acts of the defendant. See State v. Figueroa, 358 N.J. Super. 317, 326 (App. Div. 2003) (recognizing that N.J.R.E. 404(b) does not exclude evidence of other crimes of codefendants, as that evidence does not implicate the defendant).
According to defendant, the State's hypothetical evidence as to a "drug-set," and references to guns and robbery, transformed the trial from proof of his guilt of the offenses charged in the indictment into "a symposium on bad acts." Defendant contends that any possibility of proper consideration of the evidence by the jury was negated by the lack of a limiting instruction. Defendant's arguments lack merit.
As described above, N.J.R.E. 404(b) only applies to exclude evidence of prior bad acts or other crimes that involved defendant. The conduct mentioned in the allegedly improper testimony cited by defendant did not pertain to him. Detective Ruiz's testimony that the function of the HIDTA Task Force "was to investigate who runs the corner and target the main guy" in drug operations was merely background information regarding the Task Force. That testimony is clearly not "prior bad acts" as contemplated by N.J.R.E. 404(b).
Detective Miller's testimony that his undercover experiences included acting "as a mid-level drug dealer buying drugs, guns, and assault weapons" described unrelated prior work experience. His testimony did not involve prior bad acts by defendant. Finally, Investigator Ferris's testimony describing drug sets did not reference prior bad acts by defendant. Rather, his expert testimony spoke to the general operation of drug sets and attempted to define the phrase for the jury. As such, it was not subject to exclusion under N.J.R.E. 404(b). See Figueroa, supra, 358 N.J. Super. 317, 326 (2003). We are satisfied the trial court did not abuse its discretion in admitting the testimony.
D.
In Point IV, defendant contends, for the first time on appeal, that the State violated his rights under the Confrontation Clause by introducing into evidence J.R.'s confession, without redacting references that clearly implicated defendant. He further argues the court erred by failing to issue a limiting instruction to the jury sua sponte. We conclude the testimony did not violate the Confrontation Clause and its admission was not clearly capable of producing an unjust result. R. 2:10-2.
The United States Supreme Court has long held that admission in a joint trial of a non-testifying codefendant's confession expressly identifying a defendant as an accomplice violates the defendant's right of confrontation as there is no cross-examination. Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 1628, 20 L. Ed. 2d 476, 485 (1968). However, the Bruton court recognized that no confrontation clause problem would exist "if the confessor made no statement inculpating the nonconfessor." Id. at 126, 88 S. Ct. at 1622, 20 L. Ed. 2d 479.
In the matter at hand, Detective Ruiz's reference to J.R.'s confession did not have any effect on defendant's constitutional rights because the confession did not implicate defendant. J.R. simply admitted to owning the crack cocaine that was found in the Rand Street residence. Moreover, defense counsel used J.R.'s confession to support the defense theory that defendant was not the owner of any of the drugs. There is no factual basis for defendant's contention. We, therefore, reject defendant's claim that the court erred by failing to give a limiting instruction sua sponte. No instruction was necessary or warranted because J.R. did not implicate defendant.
E.
In Points V and VI, defendant contends the trial court erred in denying his motions for judgment of acquittal on the charge of conspiracy, as well as the motion for a new trial on the employing a juvenile charge. We disagree.
Our review of a motion for judgment of acquittal made before, Rule 3:18-1, and after the verdict, Rule 3:18-2, is the same; and this court uses the same standard as the trial judge. See State v. Bunch, 180 N.J. 534, 548-49 (2004); see also Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2015). We must determine "whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Wilder, 193 N.J. 398, 406 (2008); (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).
Under both Rules 3:18-1 and -2, the court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
As to Point V, defendant contends that the State's evidence was insufficient to prove the conspiracy charge. He argues that, at best, the evidence indicated only that defendant supplied J.R. with drugs "on occasion." N.J.S.A. 2C:5-2(a)(1), provides that a person is guilty of conspiracy if he: "[a]grees with such other person or persons that they or one or more of them will engage in conduct which constitutes [a] crime or an attempt or solicitation to commit [a] crime[.]"
In this case, the State demonstrated through testimony that defendant delivered large quantities of crack cocaine to J.R., defendant and J.R. interacted together in numerous transactions to sell drugs, and defendant directed customers to J.R. on the street corner and then J.R. sold drugs to those persons. Viewing the State's evidence in its entirety, and, according the State the benefit of all reasonable inferences, we are satisfied a jury could find that defendant agreed with J.R. to engage in criminal conduct by distributing CDS as defined by N.J.S.A. 2C:35-5(b)(1).
Next, we turn to the argument raised in Point VI. Defendant contends the State failed to prove that defendant violated N.J.S.A. 2C:35-6 (count seven). We are constrained to agree and reverse the conviction.
The statute defining employing a juvenile in a drug distribution scheme provides:
Any person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S.A. 2C:35-4 or subsection a. of N.J.S.A. 2C:35-5, is guilty of a crime of the second degree. . . .
[N. J.S.A. 2C:35-6.]
In State v. Lassiter, we recognized that the Legislature adopted N.J.S.A. 2C:35-6 to address and prevent the "insidious act of employing children in any drug distribution scheme" by an adult. 348 N.J. Super. 152, 161-62 (App. Div. 2002); see Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:35-6 (2015). The statute is intended to protect children from the acts of adults, and requires proof that both the charged adult and the juvenile satisfy the statutory requisite age. Ibid. Hence, in the absence of proof of the required element of age beyond a reasonable doubt, a conviction under N.J.S.A. 2C:35-6 cannot stand. State v. Collins, 262 N.J. Super. 230, 234-35 (App. Div. 1993).
It is axiomatic that the State must prove each element of the crime charged beyond a reasonable doubt. N.J.S.A. 2C:1-13(a); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970); State v. Vick, 117 N.J. 288, 293 (1989). Thus, the State was required to prove that J.R. was seventeen years old or less. Under certain situations age may be proved by physical appearance alone or other circumstantial evidence. See, e.g. State v. Lefante, 12 N.J. 505, 513 (1953) (fifty-three-year-old defendant tried for sexual abuse of nine-year-old victim); see also Collins, supra, 262 N.J. Super. at 236.
In Collins, a 17-year-old juvenile was present when the defendant made a sale to an undercover officer, and the juvenile had actually handed the packet to the officer. Id. at 233. We reversed the judgment of conviction finding the State failed to offer any proof of the defendant's age, an element of the offense. Id. at 235-36. We determined there is no violation of N.J.S.A. 2C:35-6 without proof that the person whom the actor engaged in the criminal offense is seventeen years old or younger.
This issue was also addressed in State v. A.N., 267 N.J. Super. 158 (Ch. Div. 1993). In that case, the juvenile defendant was charged with sexual assault in violation of N.J.S.A. 2C:14-2(b), a crime of the second-degree if committed by an adult. Id. at 159. The offense required the State to prove the "defendant [was] at least four years older than the victim, who was less than 13 [years of age] at the time of the alleged sexual assault." Id. at 160. At a bench trial, both the defendant and his alleged victim appeared in court, and participated in the trial. The court made the following findings,
[The victim's father] identified A.N. as being the culprit in open court. Thus, his physical appearance was part of the evidence. A.N. is a tall, lanky young man who looks very mature. Further, by calling [the victim] to testify, his physical appearance was also in evidence. He appeared to be every bit the pre-adolescent nine[-]year old that he is. He is short and full of baby fat, which is characteristic of scores of little boys below the age of 13. Consequently, a rational fact finder could easily be satisfied that the State proved the age requirement beyond a reasonable doubt based upon this physical evidence.Based on his observation of the defendant and the child victim in court, the judge found "the obvious physical fact that A.N. is much more than four years older than the alleged victim is sufficient to overcome the defense motion for judgment of acquittal. A rational trier of fact can easily make this determination based upon physical appearance alone." Id. at 165.
[Id. at 162.]
In the instant case, the State's evidence of J.R.'s age consists of a general physical description of a young Hispanic male that included J.R.'s estimated height and weight, and testimony that J.R. was processed in the Juvenile Bureau of the Camden Police Department. Unlike the youth in A.N., J.R. did not appear in court, therefore the jury did not have an opportunity to observe J.R. This case is more akin to Lassiter, where the State argued that proof of the deceased co-defendant's age was implied by the indictment. Lassiter, supra, 34 8 N.J. Super. at 161.
In Lassiter, the defendant was also charged with employing a juvenile in a drug distribution scheme. Id. at 154. He argued that he was entitled to a judgment of acquittal because the State failed to prove the age of his co-defendant, who had died before trial. Ibid. The State argued the deceased co-defendant's age could be implied because he had been charged in the indictment, pled guilty, and agreed to testify. Id. at 161. We rejected this argument stating:
We will assume that in certain instances where a juvenile's case cannot be waived to
the Law Division age can be assumed from the fact of indictment for some purposes. See, e.g. , N.J.S.A. 2C:4-11. But the fact judicial notice can be taken for some purposes, does not satisfy the proof requirement at trial, particularly in the absence of an endeavor to have the court take judicial notice. See N.J.R.E. 201 as to the taking of judicial notice.In addition, we found the State did not produce a sufficient description of the deceased co-defendant to provide a reasonable basis in the evidence from which a jury could infer his age. Id. at 161-62.
[Id. at 161 n.5.]
Here, Detective Diaz testified that J.R. was taken to the Juvenile Bureau to be processed, but there is no evidence that he participated in processing J.R. or that he had direct knowledge that J.R. was in fact processed as a juvenile. Although, pursuant to N.J.R.E. 201, we may take judicial notice that the function of the Juvenile Bureau is to process youths less than eighteen years of age, that fact, as was the fact of the indictment and subsequent guilty plea of the co-defendant in Lassiter, is not, in this instance, dispositive without more. Id. at 161. In contrast to Detective Diaz's vague testimony related to J.R.'s processing, he provided specific details concerning how he processed defendant. He testified that he personally processed defendant after his arrest, defendant provided his name, date of birth, social security number, his height and other biological information. Defendant was also present in court during the trial.
Viewing the testimonial evidence of the officers in its totality, we conclude it is insufficient to provide a "reasonable basis" from which the jury could infer J.R.'s age, an essential element of the offense employing a juvenile in a drug distribution scheme. We, therefore, reverse the conviction on count seven, vacate the consecutive nine-year sentence imposed on that charge, and remand for retrial on that count. We need not address defendant's remaining challenge to this point.
F.
Finally, in Point VII, defendant argues the sentence of thirty-nine years with twenty years parole ineligibility was excessive and disproportionate to the crimes committed. Because we are vacating the nine-year sentence on count seven, we will review the sentence on the remaining counts, which is an aggregate thirty-year sentence.
At sentencing, the State moved for an extended term on count five, a first degree crime. The State argued for a term above the mid-range of fifty years.
The court noted defendant had four prior indictable convictions, ten prior municipal court convictions, six juvenile adjudications, probation and parole violations, and bench warrants. The court found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The court found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). The court concluded an extended term was justified considering defendant's criminal background, including a prior 2002 drug distribution conviction, and previous unsuccessful opportunities for rehabilitation as a juvenile and as an adult.
The court merged count four, third-degree possession of CDS, into count five, first-degree possession with intent to distribute CDS and imposed a thirty-year extended prison term, with fifteen years to be served without parole eligibility; merged count one, third-degree possession of CDS, into count two, third-degree possession of CDS and imposed a five-year prison term, with two-and-one-half years to be served without parole eligibility; on count six, third-degree possession of CDS, imposed a five-year prison term, with three years to be served without parole eligibility; and on count eight, third-degree conspiracy to distribute CDS, cocaine, a four-year flat prison term. In addition, finding the need for deterrence to be "great," the court appropriately exercised its discretion in imposing an extended term for count five pursuant to N.J.S.A. 2C:43-6(f). The court imposed the appropriate fines and penalties, granted 161 days of jail credit, and imposed a six-month loss of defendant's driver's license.
We have carefully reviewed the record of the sentencing hearing, and are satisfied the court engaged in a detailed and thorough analysis of the facts to support the sentence imposed. Trial judges have broad sentencing discretion as long as the sentence is based on competent, credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
In this instance, the overall sentence complies with the Code, and does not shock our conscience. State v. Bieniek, 200 N.J. 601, 608-09 (2010). We find no abuse of discretion in the court's findings with respect to aggravating and mitigating factors, id. at 610-11, or the imposition of the extended term. The sentence imposed is well-supported by the record and we discern no basis to disturb it.
Affirmed in part, and reversed and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION