Opinion
DOCKET NO. A-0574-11T2
05-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHILOH SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-09-1543.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant was found guilty of the following controlled dangerous substance (CDS) offenses set forth in Middlesex County indictment 08-09-01543: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second-degree possession of cocaine within 500 feet of a public building, N.J.S.A. 2C:35-7.1.
The indictment alleged these offenses occurred on August 8, 2008, which was the date of defendant's arrest.
After the verdict, defendant entered a plea of guilty to the following charges set forth in Middlesex County indictment 09-04-00595, which was pending at the time of trial: two counts of third-degree attempted theft of over $500, N.J.S.A. 2C:5-1 and 2C:20-3; and third-degree issuing a bad check, N.J.S.A. 2C:21-5. Pursuant to the plea agreement, defendant would be sentenced to ten years' incarceration, subject to five years of parole ineligibility, as a "persistent [] offender" to run concurrently to the sentence imposed on the charges under indictment 08-09-01543.
The indictment alleged these offenses occurred over the course of two days in September 2008. The charge for issuing a bad check for $522.42 under N.J.S.A. 2C:21-5 would constitute a fourth-degree offense, notwithstanding the indictment. We shall briefly address this issue infra.
On July 11, 2011, defendant appeared for sentencing before the trial judge. The State's motion to sentence defendant to an extended term was considered at that time. Given defendant's prior record, he was subject to a mandatory extended term of imprisonment on the third-degree school zone charge pursuant to N.J.S.A. 2C:43-6(f), as well as a discretionary extended term on the second-degree public building charge pursuant to N.J.S.A. 2C:44-3(a). Because the State wished to seek an extended term on the second-degree offense, and because N.J.S.A. 2C:44-5(a)(2) permits only one extended term sentence at one sentencing occasion, see State v. Pennington, 154 N.J. 344, 360-61 (1998), the State agreed to forego seeking an extended term under N.J.S.A. 2C:43-6(f) or on any of the charges under indictment 09-04-00595.
The State's motion sought imposition of an extended term under both statutes, as well as under N.J.S.A. 2C:43-7.
Defendant opposed the State's application for an extended term and noted that on June 18, 2010, he had been sentenced to a discretionary extended term on another indictment for a second-degree CDS offense that had occurred on November 8, 2008, three months after the commission of the offenses under indictment 0809-01543, and less than two months after the commission of the offenses under indictment 09-04-00595. Defendant at that time was sentenced under N.J.S.A. 2C:44-3(a) to fourteen years' incarceration, subject to seven years of parole ineligibility.
The trial judge granted the State's motion to sentence defendant to a discretionary extended term, and, after merging the possession and possession with intent offenses with the second-degree possession with intent within 500 feet of a public building offense, sentenced defendant to eighteen years' imprisonment, subject to nine years of parole ineligibility on that offense to run concurrently with a sentence of five years' incarceration, with three years of parole ineligibility, on the school zone offense. Defendant was not given an extended term sentence on the offenses under indictment 09-04-00595, but rather was sentenced to five years' imprisonment, subject to two-and-one-half years of parole ineligibility, on each offense to run concurrently with each other and concurrently with the offenses under 08-09-01543. Both sentences were to run consecutively to the sentence defendant had received on June 18, 2010. Appropriate fines and penalties were assessed.
Defendant appeals both his conviction and sentence under indictment 08-09-01543 and raises the following arguments on appeal:
POINT IDefendant also submitted a supplemental brief asserting error in receiving a "second extended term" and unfair prejudice in the admission of other crimes evidence.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION AND OF OTHER-CRIME EVIDENCE.POINT II
(Partially raised below)
A. THE TRIAL COURT IMPROPERLY ADMITTED OTHER-CRIME EVIDENCE.
B. THE TRIAL COURT FAILED TO GIVE THE JURY A PROPER LIMITING INSTRUCTION ON THE PERMISSIBLE AND IMPERMISSIBLE USES OF THE OTHER-CRIME EVIDENCE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT WITNESS OPINION EVIDENCE.POINT III
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED BY THE IMPROPER ADMISSION PAPERS PREPARED BY THE GOVERNMENT FOR THE PURPOSE OF CRIMINAL PROSECUTION WITHOUT CONFRONTATION.POINT IV
(Not raised below)
THE TRIAL COURT'S INSTRUCTION THAT A FIRE MUSEUM RELIED ON BY THE STATE, WHICH IS OPEN BY APPOINTMENT ONLY, "SATISFIES" THE PUBLIC BUILDING ELEMENT USURPED THE ROLE OF THE JURY IN DECIDING THE FACTS OF THE CASE. (Not raised Below)POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, INCOMPLETE, AND PREJUDICIAL INSTRUCTIONS ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)POINT VI
A. THE INSTRUCTION ON THE LAW OF ATTEMPT WAS INCOMPLETE, ERRONEOUS, AND PREJUDICIAL.
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT IT CANNOT FIND THAT THE DEFENDANT INTENDED TO ATTEMPT DISTRIBUTION KNOWINGLY.
C. NO REASONABLE JURY COULD HAVE FOLLOWED THE INSTRUCTION ON THE ESSENTIAL ELEMENTS OF THE CRIME OF INTENT TO DISTRIBUTE CDS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNFAIRLY PREJUDICAL
EVIDENCE THAT THE DEFENDANT WAS SITUATED IN A HIGH CRIME AREA TO PROVE THAT HE WAS INVOLVED IN THE DRUG TRADE.POINT VII
THE DEFENDANT'S RIGHT TO BE FREE FROM AN UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ISSUANCE OF A SEARCH WARRANT BASED ON AN AFFIDAVIT CONTAINING MATERIAL OMISSIONS OF FACTS.POINT VIII
THE SENTENCE IS EXCESSIVE.A. THE IMPOSITION OF A DISCRETIONARY PERSISTENT OFFENDER EXTENDED TERM SHOULD BE VACATED.
1. THE LAW ONLY AUTHORIZES ONE EXTENDED TERM, AND THE DEFENANT HAD ALREADY BEEN SENTENCED TO AN EXTENDED TERM BASED ON HIS PRIOR RECORD.B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS AND ERRONEOUSLY IMPOSED A PERIOD OF PAROLE INELIGIBILITY.
2. THE TRIAL COURT MISAPPLIED THE CRITERIA FOR IMPOSING AN EXTENED TERM.
Having considered these arguments in light of the record and the applicable law, we affirm defendant's convictions, but we remand for resentencing in accordance with this opinion.
I.
We derive the following facts from the trial record. Other facts, pertinent to the issues defendant raises on appeal, will be recounted when those issues are discussed later in this opinion.
On August 8, 2008, New Brunswick police officers, having received "court authorization to conduct a search" of the person of defendant, located him in the area of 87 Remsen Avenue in New Brunswick and took him into custody. The area is considered to be a "high crime area" where police have made arrests in the past.
"Court authorization" is the phrase the State and the defense agreed to use before the jury to refer to a "body cavity search warrant" for defendant issued by a judge on August 6, 2008. The warrant will be addressed in greater detail later in this opinion.
Following his arrest, defendant was taken to police headquarters and ordered to remove his clothing. Police observed a plastic bag in defendant's buttocks which he was asked to remove and drop to the ground. The bag contained forty smaller bags of a white powdery substance which later tested positive for cocaine. Defendant also had $1381 in cash on his person.
Paul Schuster, an experienced New Brunswick Police Lieutenant, testified that he had been conducting a surveillance in the area of Remsen Avenue in July 2008 and had occasion to observe defendant there on "at least half a dozen times." On those occasions, Schuster saw defendant have brief conversations with various individuals, and thereafter remove a small light-colored object from his mouth and exchange it for cash. The individuals would then put the object in their mouths and leave the area, while defendant remained there. These encounters were very brief.
Defendant's arrest at 87 Remsen Avenue was within 1000 feet of a school. It was also within 500 feet of the New Brunswick Fire Museum, within a former fire house owned by the City of New Brunswick. The museum, which contains historical documents and vintage fire uniforms and photographs, is open to the public "by appointment."
Daniel Muntone, a Lieutenant investigator with the Middlesex County Prosecutor's Office, testified as an expert in narcotics and drug distribution and opined on the basis of a hypothetical matching the facts of the case that the individual possessed the cocaine with the intent to distribute it.
II.
We shall address defendant's arguments in the order he has raised them in his brief.
A.
Other-Crime Evidence Under N.J.R.E. 404(b) and Expert Testimony.
Defendant argues that the trial judge erred in allowing the State to elicit testimony before the jury that Schuster observed defendant engaging in the distribution of CDS in July 2008 to prove his intent to distribute CDS on August 8, 2008, the date identified in the indictment. Defendant argues that such proofs were unnecessary because the State also proffered expert testimony about distribution.
Prior to allowing such testimony before the jury, the trial judge conducted a hearing pursuant to N.J.R.E. 104(a) at which Schuster testified to facts consistent with his later testimony at trial. The trial judge thereafter employed the analysis required under State v. Cofield, 127 N.J. 328 (1992), and allowed the testimony to be presented to the jury. The judge reasoned that the events were "close together in time;" that the evidence was material to a disputed fact, given defendant's argument that the CDS was "not for distribution purposes[;]" that the events were similar in kind; that the prior acts were based on evidence that was convincing "beyond [even] a reasonable doubt[;]" and that the evidence gives rise to no undue prejudice because the court would give an appropriate cautionary instruction.
As to the expert testimony proffered by the State, the judge explained he would allow both the expert to give his opinion and Schuster to testify to the "other crimes" evidence pursuant to N.J.R.E. 404(b) because the jurors would thereby be able to use Schuster's testimony when they "analyze the expert" testimony.
Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Our review of a trial judge's purely legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In general, "[d]eterminations on the admissibility of other-crime evidence are left to the discretion of the trial court[.]" State v. Marrero, 148 N.J. 469, 483 (1997). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." State v. Ramseur, 106 N.J. 123, 266 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).
That said, we are mindful that since "other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant, trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (citations and internal quotation marks omitted).
The admission of other-crime evidence is governed by N.J.R.E. 404(b), which states:
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. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident
when such matters are relevant to a material issue in dispute.
In State v. Cofield, supra, 127 N.J. 328, the Supreme Court established a four-part test to govern the admissibility of such evidence for those purposes. The Cofield test requires that:
[1] The evidence of the other crime must be admissible as relevant to a material issue;
[2] It must be similar in kind and reasonably close in time to the offense charged;
[3] The evidence of the other crime must be clear and convincing; and
[4] The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Williams, 190 N.J. 114, 122 (2007) (citing Cofield, supra, 127 N.J. at 338).]
Defendant argues that evidence of his prior distribution of CDS was cumulative because the State presented expert testimony of the issue of defendant's intent to distribute. We disagree. Upon our careful review of the record, we are satisfied that the trial judge appropriately held a Rule 104 hearing, and the resulting factual findings are entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009). The judge appropriately weighed the probative and prejudicial value of the evidence and ruled that evidence of the past distribution relevant to intent, see Cofield, supra, 127 N.J. at 337, and was proved by clear and convincing evidence. Without that evidence, the State would have been left with only an expert opinion based on a hypothetical to support the distribution charges.
Defendant also argues that the trial judge failed to give an appropriate instruction on the narrow use a jury may make of evidence under N.J.R.E. 404(b). This argument is without merit. The judge gave an appropriate and detailed instruction advising the jury on the limited permissible use of that evidence. See State v. P.S., 202 N.J. 232, 240 (2010).
Further, the judge cautiously restricted Schuster's testimony so as not to provide extensive details of defendant's prior acts, but permitted general testimony as to the number of incidents and the time when they occurred. Our independent review of the record discloses no abuse of discretion on these evidentiary rulings at trial.
Defendant argues that there was "no need to admit expert opinion evidence [respecting drug distribution] that the jury was fully capable of understanding and deciding on its own based on the other evidence that had been admitted." We disagree.
Expert testimony is admissible where the subject matter at issue may not be sufficiently familiar to the average juror or where it would "assist the [jurors] to understand the evidence or to determine a fact in issue[.]" State v. Berry, 140 N.J. 280, 289 (1995) (quoting N.J.R.E. 702). The requirement that expert testimony "assist the [jurors]" has been interpreted broadly to encompass testimony helpful to their understanding of the evidence presented. Id. at 290-91. The admissibility of expert testimony does not depend on "'whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield Packing Corp. 4 N.J. 135, 141-42 (1950)). Expert opinion testimony is permissible even where it embraces the ultimate issue to be determined by the jury, so long as the testimony does not express an "'opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of [the expert's] specialized knowledge[.]'" State v. Summers, 176 N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 79 (1989)); N.J.R.E. 704. The admissibility of such testimony rests in the sound discretion of the trial court. Summers, supra, 176 N.J. at 312.
Expert testimony about drug-trade practices is generally admissible because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror. State v. Reeds, 197 N.J. 280, 290 (2009); Odom, supra, 116 N.J. at 76. A narcotics expert is permitted to assist the jurors to understand how the defendant's statement and actions, in conjunction with the words and actions of other drug purchasers and sellers, could be indicative of narcotics distribution. See State v. Nesbitt, 185 N.J. 504, 515 (2006); Berry, supra, 140 N.J. at 301-02.
Guided by these standards, we hold that the admission of the State's expert testimony was not error.
B.
The Right to Confrontation.
Defendant argues that the State improperly violated his constitutional right to confrontation by the admission of maps approved by ordinance showing that the area of defendant's arrest was within 500 feet of a public building and within 1000 feet of a school. Defendant asserts that the maps were "testimonial" under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that his confrontation right was violated because "nobody who was involved in the preparation or the authentication of the maps testified." We disagree.
Initially, we observe that the maps and ordinance were received in evidence without objection. Accordingly, we analyze this argument under the "plain error" standard. R. 2:10-2; State v. Morton, 155 N.J. 383, 421 (1998).
The State presented at trial the official maps of the City of New Brunswick showing 500 foot zones around public buildings and 1000 foot zones around school property. The State also marked for identification the municipal enabling legislation, and, following testimony by Schuster about the locations depicted on the maps, moved the maps into evidence.
To correctly apply the Crawford analysis, we must consider "whether the particular evidence is admissible under the ordinary rules of evidence" and "whether it is testimonial, thus requiring the declarant to be available for cross-examination." State v. Chun, 194 N.J. 54, 139, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). In this case, the school and public building zone maps were approved by ordinance, and were admissible pursuant to N.J.S.A. 2C:35-7(f) and -7.1(e). The maps also satisfied the business record (N.J.R.E. 803(c)(6)) and the public record (N.J.R.E. 803(c)(8)) exceptions to the hearsay rule, and the maps were adopted without reference to a particular defendant and thus were not testimonial within the contemplation of Crawford. Furthermore, the State presented sufficient proofs, apart from the map itself, to establish defendant was within the 500-foot and 1000-foot zones at the time of his arrest. Accordingly, we find no error.
C
Search Warrant Affidavit.
Defendant argues that the absence of precise dates in the affidavit in support of the search warrant constitutes a "material omission" entitling defendant to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The affidavit stated, in part, that a confidential informant reported purchasing drugs from defendant, and that on "several occasions" in the second and third weeks of July 2008 the officer had seen defendant engage in suspected drug sales. Defendant argues that such a lack of specificity "bars" him from producing alibi evidence entitling him to a Franks hearing. We disagree.
In Franks, the Supreme Court held,
where 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.Defendant argues that he made a substantial showing that there were material omissions in the search warrant affidavit, as noted above. However, to establish his right to a hearing, defendant must show that the omissions, had they been known to the issuing judge, would have prompted the judge to refuse to issue the warrant. State v. Howery, 80 N.J. 563, 568 (1979), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Here, the issuing judge concluded that the warrant satisfied the requirement of probable cause even without the specific dates of the affiant's observations. There was, therefore, no basis to either request or hold a Franks hearing.
[Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]
D.
Sentencing.
The State concedes that defendant is entitled to a remand for resentencing pursuant to State v. Hudson, 209 N.J. 513 (2012). As we noted earlier, defendant was sentenced on June 18, 2010, to a discretionary extended term of fourteen years imprisonment, with seven years of parole ineligibility, for a second-degree CDS offense that had occurred on November 8, 2008. In the case on appeal, defendant was sentenced to a discretionary extended term of eighteen years imprisonment, subject to nine years of parole ineligibility, for the second-degree public building CDS offense that occurred on August 8, 2008. We agree that this second extended term runs afoul of both statute and case law and must be vacated, requiring that the matter be remanded to the Law Division for resentencing.
N.J.S.A. 2C:44-5(b) addresses "[s]entences of imprisonment imposed at different times" and states that "[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence . . . [t]he multiple sentences imposed shall so far as possible conform to subsection a of this section." N.J.S.A 2C:44-5(b)(1). The relevant section of N.J.S.A. 2C:44-5(a), which governs sentences for more than one offense, provides:
When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that:In State v. Pennington, 418 N.J. Super. 548 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012), a pre-Hudson case, the defendant claimed his sentence to an extended term on a first-degree robbery conviction was illegal because, at the time of his sentencing, he was "already serving an extended term for an offense committed after the robbery for which he was being sentenced." 418 N.J. Super. at 554. We agreed, stating that "[b]y its terms, N.J.S.A. 2C:44-5(b)(1) only applies when the sentencing offense occurred prior to the offense for which the existing extended term is being served." Id. at 555.
. . . .
(2) Not more than one sentence for an extended term shall be imposed.
Here, the sentencing offense occurred in August 2008, prior to the November 2008 offense for which an extended term was imposed in June 2010. Defendant was thus serving a discretionary extended sentence for an offense he committed after committing the August 2008 offenses. Consequently, under the principles espoused in Pennington, it would appear that the court's imposition of a second extended term sentence in 2011 was improper.
In Hudson, although the defendant was indicted for attacks on two victims in one indictment, the court granted his severance motion. 209 N.J. at 518. Later, in separate trials, the defendant was found guilty of charges related to both victims, which had been committed within a day of each other. Id. at 518-20. The defendant was convicted in June 2007 for the offenses he committed against victim G.R. on February 7, 2006, and sentenced to an extended term in August 2007. Id. at 518-19. Thereafter, the defendant was convicted in January 2007, for offenses he committed against the other victim, G.B., on February 8, 2006. Id. at 520.
At sentencing in Hudson, the State moved for imposition of a discretionary extended sentence. Ibid. The defendant objected, arguing that imposition of an extended term was improper under State v. Papasavvas, 163 N.J. 565, 627, corrected by 164 N.J. 553 (2000). The trial court in Hudson rejected this argument, concluding that the circumstances were distinguishable from the facts in Papasavvas. Hudson, supra, 209 N.J. at 521. The court explained, "this is a second sentencing hearing and [the defendant is] being sentenced for different crimes committed on different dates against different victims." Ibid. (internal quotation marks omitted).
On direct appeal in Hudson, we affirmed the defendant's conviction and sentence. Id. at 522. We found no merit to the argument that his sentence was manifestly illegal and noted that the defendant "sought severance and subjected himself to two separate trials and two separate sentencing proceedings" and could not now be heard to complain about the consequences of his successful application. Ibid.
The Supreme Court granted certification and reversed the sentence, concluding that by adhering to the plain meaning of N.J.S.A. 2C:44-5(b)(1), "it was legal error to have imposed a second extended-term on [the] defendant." Id. at 537. The Court placed particular focus upon "[t]he timing and sequences of [the defendant's] sentencing" to conclude that those factors brought the defendant "squarely under N.J.S.A. 2C:44-5(b)(1)'s application." Ibid. The Court did not hold that a defendant could only be subjected to one extended-term sentence, concluding that N.J.S.A. 2C:44-5(b)(1) "does not purport to apply as a perpetual ineligibility for any subsequent extended term once one is imposed." Id. at 531. The Court stated that "[s]ubsection b speaks clearly, and directly, in terms of the date of the latter offense and the time of imposition of the prior sentence that [a] defendant is serving." Id. at 532. However, the Hudson majority opinion does state that "[t]he prohibition [in N.J.S.A. 2C:44-5(b)(1)] against multiple extended-term sentences applies, as far as it is possible to do so, when sentencing a defendant who is already serving a sentence and who is about to be sentenced for an offense that predated imposition of that sentence." Id. at 535.
Under Pennington, and the reasoning of Hudson, defendant's second discretionary extended term cannot stand and must be reversed. Consequently, we vacate defendant's sentence and remand for resentencing.
Although defendant's sentence under indictment 09-04-00595 is not the subject of this appeal, we note that the sixth count of that indictment charges a fourth-degree offense, and yet defendant was sentenced on that charge to five years of imprisonment. Consequently, at resentencing, we direct the Law Division to correct that sentence, as well. We note, further, that that the limitation of N.J.S.A. 2C:44-5(a)(2) does not apply to mandatory extended terms under N.J.S.A. 2C:43-6(f). See State v. Singleton, 32 6 N.J. Super. 351, 355 (App. Div. 1999).
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E.
Remaining Arguments.
We conclude that the other arguments raised by defendant on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm defendant's convictions, but we vacate sentence and we remand for resentencing. The Law Division, on resentencing, shall review the aggravating and mitigating factors that are applicable, determine anew the length of the sentence for defendant, and decide anew whether to impose sentence consecutive to the sentence imposed in June 2010. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION