STATE OF NEW JERSEY, Plaintiff–Respondent, v. SALADEEN SEARS, Defendant–Appellant.
DOCKET NO. A–3282–11T4
-- September 06, 2013
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
A jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS) (oxycodone), N.J.S.A. 2C:35–10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(a)(1) (count two); and third-degree possession of CDS (oxycodone) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35–7 (count three). The court sentenced defendant to ten years' imprisonment with five years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENTS IN DETECTIVE COLOGNE'S REPORT WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below).
II. DEFENDANT'S SENTENCE MUST BE VACATED AND THE CASE REMANDED FOR RESENTENCING BECAUSE THE IMPOSITION OF THE MAXIMUM PAROLE INELIGIBILITY PERIOD DID NOT COMPORT WITH THE SENTENCING PROVISIONS OF THE CODE OF CRIMINAL JUSTICE.
We recount the relevant facts of the case as adduced at trial. On January 4, 2011, Detective Alejandro Aguiar of the Essex County Sheriff's Department, Bureau of Narcotics, was working undercover in a Newark neighborhood when he observed a drug sale transaction. Aguiar saw a man, later identified as defendant, walking back and forth in front of a store, when another man approached him. Aguiar observed that after a brief conversation, the first man reached into his pocket and pulled out a white napkin or a paper towel. The man then removed an item and handed it to the other man, and thereafter received paper money in exchange. The man placed the napkin back into his pocket and got into a blue SUV. Aguiar immediately radioed the backup units and provided them with the two men's description, the transaction that he observed, and a description of the vehicle.
Detectives Noel Mendez and Angel Cologne were one of the two backup units that responded to Aguiar's call. Mendez and Cologne each testified that after activating their lights and sirens, the blue SUV stopped. The officers approached the car from the right side, and Mendez opened the front passenger door and defendant exited the vehicle. Mendez then saw a white napkin on the floor of the front passenger seat. The napkin was later found to contain forty-one Oxycontin pills.
During cross-examination, Cologne affirmed that defendant was in the front passenger seat. He acknowledged an error in his written police incident report, which read that “Sears exited the rear passenger door.” In court, Cologne indicated that the report should have stated that it was “Finch,” the third passenger, who exited the rear passenger door.
We have carefully considered each of defendant's arguments in the context of the entire record, and in light of the briefs and applicable legal principles, we conclude they are without merit and do not require discussion in a written opinion. R. 2:11–3(e)(2). However, we deem it appropriate to briefly comment on these contentions.
We first reject defendant's argument that the judge erred by not charging the jury on prior inconsistent statements based on Cologne's report. Because trial counsel did not object to the court's instructions, we review this contention under the plain error standard. See State v. Singleton, 211 N.J. 157, 182 (2012), certif. denied, 214 N.J. 119 (2013); see also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7–2 (2013) (“The rule requires objection to the court's ruling at the time the ruling is made, requires that litigants be afforded the opportunity to object to the charge after it is given, and, for purposes of review, remits litigants to the plain error rule.”). Plain error is reversible only if it is “clearly capable of producing an unjust result.” R. 2:10–2. Accordingly, we will reverse only if “the error led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).
We have carefully scrutinized the issue as to whether the absence of a jury instruction concerning the use of an inconsistent statement had a prejudicial effect. We conclude that in this one-day trial, with the judge's instructions on credibility, defense counsel's arguments in summation, and the jury's common sense, the jurors were amply equipped to deal with such inconsistencies.
As to defendant's second claim regarding his sentence, given his extensive history of CDS convictions, the sentence was properly within the extended term range and it was not manifestly excessive. See State v. Bieniek, 200 N.J. 601, 612 (2010) (“The reviewing court is expected to assess the aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record.”); see also State v. Roth, 95 N.J. 334, 365 (1984) (“We must avoid the substitution of appellate judgment for trial court judgment.”).