Opinion
DOCKET NO. A-2073-12T3
09-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARQUIS D. HALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Koblitz and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-05-0539. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Marquis Hall appeals from his convictions for drug offenses and sentence. We affirm.
On the morning of January 14, 2010, Detectives Stephen Szbanz and Thomas Tumillo initiated surveillance from the second floor of the Commons Plaza Office building in Trenton because they had "received information about nonstop drug dealing in that vicinity." Szbanz testified they had conducted numerous investigations in the area resulting in the seizure of controlled dangerous substances (CDS) including heroin, pills, and marijuana. He stated narcotics, specifically heroin, were a problem in the area.
At 10:10 a.m., Szbanz observed two individuals "huddled closely together" in front of Po-Po's Chinese Restaurant at 8 North Broad Street. The individuals were later identified as defendant and S.M., a juvenile at the time. S.M. reached into his waistband, pulled out a black plastic bag, and opened the bag to pull out objects that were small, white, and paper-like. S.M. counted the objects. Based on his experience, Szbanz suspected the objects were heroin. According to Szbanz, as S.M. put the objects back into the bag and into his waistband, defendant had been "overlooking" S.M. the entire time and looking right at the objects.
Around 10:20 a.m., Mr. Flores approached defendant and S.M. They all huddled closely together and engaged in conversation. When Flores removed an unknown amount of money and handed it to defendant, they proceeded to the doorway of the restaurant, opened the door, and stepped inside. Szbanz testified he had an unobstructed view even when they were in the restaurant. Defendant put the money into his right-front pants pocket; S.M. reached into his waistband, pulled out the black plastic bag, removed one of the white rectangular objects, and handed it to Flores. Flores removed his cell phone from his jacket pocket. He took off its back cover and inserted the object into the phone.
A mobile arrest team detained all three men. A search of defendant yielded $209 in denominations of $1, $5, $10, and $20 in different pockets. Heroin was recovered from Flores's cell phone. S.M. had fourteen packets of heroin stamped with the words "Knock Out." The area where the transaction occurred was within one thousand feet of the Daylight/Twilight Educational School.
Defendant was indicted in a nine-count indictment with third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), 2C:2-6 (counts one and six); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3), 2C:2-6 (counts two, four, and seven); third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7, 2C:35-5(a)(1), 2C:35-5(b)(3), 2C:2-6 (counts three, five, and eight); and second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6, 2C:2-6 (count nine).
Pretrial motions were filed on behalf of defendant to compel full disclosure of the surveillance location; to suppress evidence obtained from the search at his arrest; to bar the prosecution from revealing his prior criminal record; and to preclude expert testimony. The last of these motions was denied without prejudice. The judge limited the extent to which the prosecution could reveal the defendant's prior criminal record if he chose to testify. Initially, the trial judge ruled that the exact surveillance location and elevation should not be disclosed, but after defendant moved a second time for disclosure, the judge permitted disclosure of the fact that the surveillance location was elevated, but not the specific level of elevation. The motion to suppress evidence was denied.
Although counsel requested a hearing pursuant to State v. Sands, 7 6 N.J. 127 (1978), he later asked that the prior conviction be sanitized rather than barred.
Szbanz testified that he was on the second floor of the building when he conducted surveillance.
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At trial, the State presented Mercer County Prosecutor's Office Detective Joseph Angarone as an expert in the field of CDS. Angarone testified that the estimated value of one bag of heroin recovered in this case would be $10. He explained that defendant kept the money in a "haphazard fashion," which is typical of drug dealers, meaning money is shoved into different pockets in no particular order. He stated it was common for street-level drug dealers to have low denominations of money on them. Angarone also testified it was common for a dealer to employ a juvenile as a "runner" to handle the drugs. Angarone explained that in drug transactions involving a runner, the dealer will only have the money on him, while the runner will have the drugs on him so the dealer could avoid arrest because the drugs are not on him. With a juvenile runner, Angarone testified that the "dealer is usually [in] close . . . proximity overseeing the operation."
Defendant testified at trial and denied any involvement in the drug transaction. He testified that his girlfriend and the mother of his children gave him $200 to pay a phone bill. He had $213 with him that day when he left the house and spent some to buy a beverage and a couple of loose cigarettes. His girlfriend corroborated defendant's testimony, stating that on the morning of the incident, she gave him $200 in cash to pay a phone bill.
According to defendant, on the day of his arrest, he walked down the street and saw S.M., whom he had seen around a couple of times, standing by the store. S.M. pulled out a bag of heroin from the side of his waist and said, "Look, this is what I am doing. Like, I can sell you this or I can get you a discount." Defendant declined, saying, "I'm not with that no more." Then, they talked about a football game until Flores approached. During the drug transaction between Flores and S.M., defendant went into the store and bought a beverage. He lit up a cigarette and walked off. Flores and S.M. were walking behind him, but they never walked together.
During deliberations, defense counsel observed Juror 11 walk to Po-Po's restaurant during a lunch break. When Juror 11 returned, Juror 11 had a conversation with Juror 14, and defense counsel observed "shoulder shrugs and waves of hands, shaking no, yes." Defense counsel alerted the trial judge and requested a mistrial.
The trial judge first questioned Juror 11. The juror admitted going to Po-Po's to look at the menu but said he then decided to get a slice of pizza from the restaurant next door. Juror 11 denied that he went to Po-Po's because it had been mentioned during the trial and asserted the visit would not assist him in deliberations. Juror 14 reported that Juror 11 told him he had walked past Po-Po's during lunch and nothing else. He stated that nothing Juror 11 said would affect his deliberations.
The trial judge conducted a voir dire of all fourteen jurors, including a second interview of Juror 14. Aside from Juror 14, none of the jurors knew of any juror who violated the judge's instructions during the lunch hour. None indicated that he or she may have learned something over the lunch hour that would assist in deciding the case. After concluding the voir dire, the trial judge stated he was satisfied that Juror 14 had not been contaminated by anything Juror 11 had done or said. However, he excused Juror 11, substituted the first alternate, and instructed the jury to begin deliberations anew. The motion for a mistrial was denied.
The jury acquitted defendant on count nine, which charged him with employing a juvenile in a drug distribution scheme, and convicted him on all other counts. At sentencing, the trial judge merged counts one to seven into count eight and sentenced defendant to an extended term of seven years with three and one-half years of parole ineligibility.
Defendant raises the following issues in this appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT FULL DISCLOSURE OF THE SURVEILLANCE LOCATION.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON.
POINT III
PERMITTING DETECTIVE SZBANZ TO TESTIFY BEFORE THE JURY THAT HE BELIEVED HE HAD OBSERVED A DRUG TRANSACTION WAS IMPERMISSIBLE LAY OPINION TESTIMONY THAT DEPRIVED DEFENDANT OF A FAIR TRIAL BELOW (PLAIN ERROR).
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO PRECLUDE EXPERT OPINION TESTIMONY FROM THE PROSECUTION.
POINT V
THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S PRIOR CONVICTIONS TO BE ADMITTED AGAINST HIM.
POINT VI
THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO ELICIT TESTIMONY ABOUT THE "HIGH CRIME AREA" DURING ITS CASE-IN-CHIEF.
POINT VII
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT VIII
THE PROSECUTOR IMPROPERLY ASKED A DEFENSE WITNESS WHEN SHE FIRST APPROACHED POLICE WITH HER STATEMENT (PLAIN ERROR).
POINT IX
THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL DURING DELIBERATIONS OR FAILING TO GRANT DEFENDANT A NEW TRIAL ON THIS GROUND.
POINT X
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We are unpersuaded by any of these arguments. After reviewing the record in light of applicable legal principles, we conclude that the arguments presented in Points V and VII lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and that the remaining arguments warrant only limited discussion.
I
At trial, the State revealed that surveillance of Po-Po's restaurant, located at 8 North Broad Street, was conducted from the second floor of the Commons Plaza building. Despite these facts, defendant argues in Point I that the trial court erred in denying his request for full disclosure of the surveillance location. Citing State v. Garcia, 131 N.J. 67, 81-82 (1993), he states he is entitled to know "the distance from which the observation was made," whether any vision-enhancing articles were used, whether the observations were made from an elevated position, and information about the witness's line and angle of sight. There is no indication in the record that he lacked this information. It was known that surveillance was conducted from the second floor from a building at a specific address. Detective Szbanz estimated the distance from his elevated vantage point to Po-Po's as thirty-five to forty-five feet. On cross-examination, counsel was even able to use a photograph that approximated the detective's view and question him about whether the sun glare and a tree interfered with his observations. Further, Detective Szbanz admitted using binoculars during his surveillance.
After conducting an in camera hearing, the trial judge found that disclosure would compromise an important government interest and that disclosure would compromise present or future prosecutions or endanger lives or property. The judge concluded the State met its two-part burden under Garcia, supra, 131 N.J. at 77-78. The judge also found that defendant failed to demonstrate the requisite need for further information and therefore denied the motion for full disclosure. We find no error in this determination.
II
In Point II, defendant contends that the trial court erred in denying defendant's motion to suppress evidence seized from defendant following his arrest because the State did not demonstrate that police officers had sufficient probable cause for his warrantless arrest and subsequent search of his person. This argument lacks merit.
Within this context, probable cause "'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001) (first two alterations in original) (citation and internal quotation marks omitted).
We view the totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983), to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Ibid. The factors to be considered in applying that test include a police officer's "common and specialized experience," Schneider, supra, 163 N.J. at 362, and evidence concerning the high-crime reputation of an area. State v. Johnson, 171 N.J. 192, 217 (2002).
In this case, experienced narcotics officers testified they had made numerous drug arrests in the neighborhood, which was known to the police for heavy drug trafficking. Using binoculars, they observed three men engage in a suspected drug transaction. They saw defendant receive money from Flores and S.M. hand Flores small unknown objects, which they believed to be narcotics. Based on their experience, it was reasonable for the detectives to conclude that the totality of the circumstances supported a well-grounded suspicion that they had witnessed a drug transaction. The trial court properly concluded that the circumstances justified the detectives' conclusion it was likely that defendant had just engaged in a drug transaction, and that it was therefore appropriate to order their arrest, and to conduct a search incident to those arrests.
III
Detective Szbanz testified as a fact witness, not as an expert. Nonetheless, during his testimony, he expressed the opinion that he suspected heroin was transferred in the transaction he observed. Referring to "objects that were small, white, paper-like objects" that Szbanz observed from his surveillance location, the prosecutor asked, "Now, at that time, based upon your experience, what did you suspect them to be?" Szbanz replied, "CDS, heroin."
Defendant argues that this opinion testimony exceeded the boundaries of State v. McLean, 205 N.J. 438, 461-62 (2011) and constitutes plain error. R. 2:10-2. We agree that Detective Szbanz should not have opined that the item exchanged was heroin. However, any error here was harmless because the items described were recovered and the fact they held heroin is not disputed.
Lay opinion testimony is governed by N.J.R.E. 701, which permits a lay witness's "testimony in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." In McLean, the Court explained how these requirements should be applied. First, a lay opinion is limited to the perceptions of the testifying witness, meaning "the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." McLean, supra, 205 N.J. at 457 (citations omitted). "The second requirement of the lay opinion Rule is that it is limited to testimony that will assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue." Id. at 458. "The Rule does not permit a witness to offer a lay opinion on a matter 'not within [the witness's] direct ken . . . and as to which the jury is as competent as he to form a conclusion.'" Id. at 459 (citations omitted).
It is evident the testimony here does not satisfy this criteria. The average person could not discern whether a package contained heroin based on no more than the observations Detective Szbanz described. We are not persuaded by the State's argument that the opinion falls within the scope of proper lay opinion because it did not include the explicit conclusion that a drug transaction occurred.
However, the fact that heroin was exchanged was not in issue at trial, a circumstance that likely explains why there was no objection to this testimony. See State v. Marshall, 123 N.J. 1, 104 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). In the absence of an objection, we "disregard any error unless it is clearly capable of producing an unjust result" and reverse only if the error was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (citations and internal quotation marks omitted). That standard was not met here.
IV
Defendant argues that the trial court erred in denying his motion to exclude the expert testimony of Detective Angarone, because the fact that he had money on him in a certain way was not an issue that required expert testimony to assist the jurors, and Angarone's opinion that a narcotics sale had occurred was impermissible as infringing on the ultimate issues the jury had to decide. We disagree.
"Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)); see also N.J.R.E. 702. Courts have repeatedly recognized that the nature and purpose of the possession of illegal drugs is a subject not generally known to laypersons, but rather is a subject within the specialized knowledge of experts. State v. Summers, 176 N.J. 306, 312 (2003). The Supreme Court thereafter addressed the scope of this limitation in Nesbitt, observing that expert testimony is permissible to describe any unusual aspects of drug transactions as jurors are not generally aware of the methods of operation utilized in street-level drug sales, especially when drug dealers "act in concert with others in the business of distributing drugs on the street." Nesbitt, supra, 185 N.J. at 506-07, 515.
The trial court denied defendant's motion to exclude the expert opinion testimony of Detective Angarone without prejudice. In so doing, the trial court referred to the guidelines established for such testimony in Nesbitt, id. at 504, Odom, supra, 116 N.J. at 65, and McLean, supra, 205 N.J. at 438, and stated that as long as the prosecutor complied with those standards, Detective Angarone would be permitted to offer expert testimony. The court stated further, "However, [counsel], if you feel that during the direct examination, there is a deviance from what the case law provides, you make your objection and I will hear you at side bar." Defendant did not object to any of the testimony that followed.
In State v. Sowell, 213 N.J. 89, 100 (2013), the Court stated, "the case law makes clear that it is not proper to present expert testimony about straightforward but disputed facts." However, the Court also reviewed the areas "that lend themselves to expert testimony in drug trials." Ibid. Those areas include "the difference between drugs possessed for distribution as opposed to personal use, or how drug traffickers package and distribute illegal drugs[,] . . . the roles that participants play in street-level drug transactions, such as 'why drug dealers use juveniles as "mules" to carry drugs,'" and "how a person's actions fit into a drug distribution scheme when the defendant had no personal contact with the drugs or money exchanged." Ibid. (quoting State v. Berry, 140 N.J. 280, 301-02 (1995)). The Court noted that in these and other areas, it was recognized that expert testimony "could help the jury assess evidence it was generally unfamiliar with." Ibid.
Thus, the Court has recognized that the very topics that were subjects of Detective Angarone's testimony here regarding street-level distribution — the placing of money of low denominations in a haphazard fashion on defendant's person and the use of a juvenile as a runner — are appropriate subjects for expert testimony. Defendant's argument therefore lacks any merit.
V
In Point VI, defendant argues that the trial court committed plain error in permitting Detective Szbanz to testify that information had been received of "nonstop drug dealing" in the location under surveillance, that "narcotics were a problem in that area," and that there had been many seizures of heroin and other drugs there. There was, however, no objection to this testimony at trial, and so our review is limited to consideration as to whether this alleged error was "clearly capable of producing an unjust result." R. 2:10-2.
The testimony complained of now was elicited as an introduction to the actions the detectives took on the day of defendant's arrest, as a way to explain the reason for setting up surveillance at that location. See State v. Tarver, 272 N.J. Super. 414, 431-33 (App. Div. 1994) (finding no plain error in an officer's testimony that an investigation had been initiated after he received a report of people on the corner selling narcotics). The characterization, which was relevant in explaining the police actions, was based upon Szbanz's personal perceptions and observations as a member of the Tactical Anti-Crime Unit in Trenton, and comprised proper lay testimony. See N.J.R.E. 701; see also McLean, supra, 205 N.J. at 459; Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (permitting a trained detective to offer lay opinion testimony that a neighborhood was a "high-crime" area). It was not plain error to permit this testimony.
VI
One of the points relied upon by the State in establishing defendant's guilt of distribution and possession of CDS with intent to distribute was the fact that he had over $200 in small denominations in various pockets on his person. Approximately eight days before trial, the defense advised that defendant's girlfriend and the mother of his twins would testify she had given him $200 in various denominations to pay her telephone bill on the morning he was arrested. She testified she was aware of defendant's arrest shortly after it occurred but never told the police she had given him the cash. When asked when she provided this information to defense counsel, she stated, "[a] couple of months ago. Over a year." Defendant was arrested on January 14, 2010. Defendant's girlfriend testified on September 7, 2012.
In a follow-up question, the prosecutor asked defendant's girlfriend about remembering "a couple of months ago" events that occurred "two and a half years ago." Defense counsel objected. However, at a sidebar conference, he explicitly stated he did not object to the line of questioning but only to the prosecutor's alleged mischaracterization of the witness's testimony. Counsel said, "She testified it was a year ago or a few months to a year ago. I think it is mischaracterizing to say it was a few months ago." When the prosecutor resumed questioning her, he asked her to clarify when was "the first time [she] officially told someone." She testified that "[i]t was over a year ago." There was no further objection.
Defendant now argues that the State violated the guidelines established in State v. Silva, 131 N.J. 438, 447-48 (1993), for questioning a defense witness about the delayed disclosure of an alibi. Although the testimony provided by defendant's girlfriend was not an alibi, per se, it was offered to support the defense that the amounts of cash in various denominations did not reflect guilt in a drug distribution scheme. Therefore, the delay in the disclosure of exculpatory evidence was subject to the same foundational requirements. State v. Holden, 364 N.J. Super. 504, 512 (App. Div. 2003).
The failure to disclose exculpatory information may or may not have probative value regarding the credibility of a witness depending upon the circumstances. In some situations, "the natural response of a person in possession of exculpatory information would be to come forward in order to avoid a mistaken prosecution of a relative or a friend," and the failure to come forward "is akin to a witness's 'prior inconsistent statement,'" that is appropriate for impeachment. Silva, supra, 131 N.J. at 446. However, because there are also circumstances in which the witness's silence lacks such probative value, a proper foundation must be laid for such questioning "by asking whether 'the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities.'" Id. at 447-48.
As the mother of defendant's twins, it is evident that she had a reasonable motive to provide exculpatory information for him. It can be inferred from her testimony that she was aware of the charges pending against him shortly after his arrest and that she could have provided the information to the police. The record is less clear as to whether she was aware that the fact she was the source of the cash would support the defense. However, because the objection at trial was to the alleged mischaracterization of her testimony as disclosing the information a few months earlier rather than a year earlier, and not to the line of questioning, the argument is reviewed for plain error. R. 2:10-2.
The prosecutor's questions regarding the delay in disclosure were limited. Once defendant's girlfriend clarified that she provided the information to defense counsel over a year ago, the cross-examination was directed at testing her recollection of the events of that day and her motive for assisting defendant at trial. Her testimony did not stand alone. Defendant also testified and gave a similar account of how the cash came to be in his possession while denying any involvement in drug distribution. The jury therefore had the opportunity to assess the credibility of both defendant and his girlfriend in determining the facts.
Accordingly, we conclude that the cross-examination challenged here was not clearly capable of causing an unjust result. R. 2:10-2; see also Holden, supra, 364 N.J. Super. at 513.
VII
In Point IX, defendant argues that the trial court erred in failing to declare a mistrial when Juror 11 disobeyed the court's instructions and visited the location where defendant was arrested. At a minimum, he contends that the court should have also removed Juror 14 from the deliberating panel as well. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Winter, 96 N.J. 640, 646-48 (1984). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002). The court should exercise its discretion "with the greatest caution, under urgent circumstances, and for very plain and obvious causes." State v. Loyal, 164 N.J. 418, 436 (2000). In addition to deciding whether a "manifest injustice" will result from continuing the trial, the court must decide "whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps." Pressler & Verniero, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2014); see also State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). When "the court has an appropriate alternative course of action," it should deny a request for a mistrial. Allah, supra, 170 N.J. at 281 (citing Loyal, supra, 164 N.J. at 436-37).
We recognize that when the basis for the requested mistrial is alleged juror misconduct, the trial court is in the best position to gauge the effect of the alleged juror impropriety and defer to its decision on a motion for a mistrial. State v. Harvey, 151 N.J. 117, 205 ( 1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Here, the court conducted an extensive voir dire of all fourteen jurors. The only juror who disregarded the court's instructions and visited the scene was dismissed. The court further examined each juror to determine whether any other juror received information over the lunch hour that would assist the jury in the deliberation process. Juror 14 was the only juror who knew about Juror 11's transgression. The judge accepted Juror 14's representation that Juror 11 had only told him that he had walked past Po-Po's during lunch and that nothing said would affect his deliberations. Because the judge conducted a thorough voir dire and found each of the remaining jurors to be free of contamination, see State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997), the trial court did not abuse its discretion in denying a mistrial.
VIII
In Point X, defendant challenges the sentence imposed by the trial court as excessive. Although he contends that it was error to impose an extended term, he identifies no legal error in its imposition.
This court's review of the trial judge's sentencing decision is quite limited. State v. Fuentes, 217 N.J. 57, 70-81 (2014). When a trial judge's findings of aggravating and mitigating factors are "based upon competent credible evidence in the record," and the sentence imposed falls within the permissible range for the convicted offense, this court should not interfere. State v. Roth, 95 N.J. 334, 363-64 (1984); Bieniek, supra, 200 N.J. at 607-08.
The court found the following aggravating factors: the risk of re-offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court provided the following support for these aggravating factors:
Number 3, the risk that the defendant will commit another offense since he has now been convicted of two convictions of selling controlled dangerous substances by the time he was 21 years of age. Number 6, that prior criminal record including now two upper court superior court convictions for selling drugs and three adjudications as a juvenile. Once again, two out of three for controlled dangerous substances. Finally, number 9, the need to deter the defendant and others from selling controlled dangerous substances.Although the trial judge's explanation was brief, we find it adequate under the facts of this case.
Defendant also argues that the court erred in failing to find excessive hardship, N.J.S.A. 2C:44-1(b)(11), as a mitigating factor because he had two young children who depended upon him for support. This argument is substantially weakened by the testimony given by his girlfriend that it would create no financial hardship to her if defendant was not able to help her support their twins.
The fact of having dependents, alone, does not justify the finding of this mitigating factor, and will not amount to the "serious injustice" that would overcome the presumption of incarceration applicable here. See State v. Kelly, 97 N.J. 178, 219-20 (1984). Moreover, the trial judge took into consideration that defendant has two young children who live with their mother, stating,
The Court recognizes the defendant has shown no remorse whatsoever for being found guilty. Under the way I've weighed the aggravating and mitigating circumstances, namely, I'm clearly convinced the aggravating factors outweigh the non-existing mitigating factors and the Court could sentence him to the high range of the extended term for [a] third degree offense. I recognize that the defendant does have young children who are dependent upon him. I recognize that he was working at the time. I also recognize he only has the one prior conviction, but as I said before, he now has two convictions, for selling drugs in a school zone by the time he was 21 years of age. However, the Court's going to exercise its discretion to do justice in this case.We find no abuse of discretion in the sentence imposed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION