STATE OF NEW JERSEY v. DEAVEN MIMS LAMMARR MIMS DEAVON MIMS DENVEN MIMS

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DEAVEN MIMS, a/k/a LAMMARR MIMS, DEAVON MIMS, DENVEN MIMS, Defendant–Appellant.

DOCKET NO. A–1015–11T3

-- December 06, 2013

Before Judges Waugh and Accurso. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

Defendant Deaven Mims appeals his conviction for fourth-degree distribution of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35–5(a)(1), (b)(12) (count one);  third-degree distribution of CDS (marijuana) within 1000 feet of school property, N.J.S.A. 2C:35–7, –5(a) (count two);  fourth-degree possession of CDS (marijuana) with intent to distribute, N.J.S.A. 2C:35–5(a)(1), (b)(12) (count three);  and third-degree possession of CDS (marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35–7, –5(a) (count four), as well as the resulting sentence of two concurrent seven-year terms of incarceration, both subject to three-and-a-half years of parole ineligibility, on counts two and four.1  We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On August 3, 2010, Detective Anthony Degiglio 2 of the Paterson Police conducted surveillance at the intersection of North 6th Street and Clinton Street in Paterson.   Degiglio was in plain clothes and had parked his unmarked police car approximately a block away from the intersection.   He described the intersection as a residential area “well known for narcotics activity.”   Although Degiglio was the only police officer on the scene, there was a backup team positioned several blocks away.   He used binoculars for some of his observations.

Shortly after 1:00 p.m., Degiglio observed Mims sitting in a chair on the sidewalk near the northeast corner of the intersection.   Approximately five minutes later, he saw a woman walk up to Mims and hand him money.   Mims then walked into an alley-like area between two buildings on North 6th Street and returned after a few seconds.   Degiglio then observed Mims hand the woman a small object.   Degiglio notified the backup team, but they were unable to locate the woman.

A few minutes later, at approximately 1:25 p.m., Degiglio observed a green Ford Taurus park across the street from Mims. He saw the passenger get out of the car, approach Mims, and hand him money.   The passenger was subsequently identified as McKinley Giggetts.   Mims handed Giggetts a small object, which Giggetts in turn handed to Arthur Ward, the driver of the Taurus.   Degiglio notified the backup team.

Mims, Giggetts, and Ward were arrested and searched.   Nothing was found on Giggetts.   Ward had a single bag of marijuana, and Mims had three bags of marijuana.   Three additional bags of marijuana, and several empty bags similar to those used to hold the seized marijuana, were found during a search of the area behind the house to which Mims had gone during the first transaction.3

Mims was indicted for the four offenses listed above.   Giggetts and the driver were charged with possession.   Giggetts pled guilty in municipal court to the disorderly persons offense of possession of CDS. N.J.S.A. 2C:35–7.1(a).

During the weekend prior to the trial date, Mims was struck by a motor vehicle, causing him to be tossed into the air and land on his back.   He was taken to a hospital as a result of the accident.   He was diagnosed with a scalp laceration, which required seventeen stitches, and multiple contusions.   Following diagnostic tests, including X-rays, there was no evidence of a concussion or trauma-induced back injury.

On the first day of trial, Mims moved for an adjournment of the trial based on his injuries, claiming that his head injury prevented him from participating in his defense.   The judge denied the motion, explaining that the medical records submitted in support of the motion established no injuries other than the head laceration and contusions.   The judge found no evidence of any injury that would prevent Mims from participating in the trial.   When defense counsel asked the judge to reconsider, he responded:

․ with all due respect, I've read the same report you have here.   The disposition summary is scalp lacerations, contusions multiple.   That's it.   He had stiches put in.   He's supposed to go back in a week to have the stitches taken out.   He was discharged after three hours in the ER. They were concerned because apparently he complained about back pains.   Radiological results are no fractures, degenerative disk disease.

There's nothing further for you to argue with regard to the medical condition [and] I am not adjourning the matter based on that.

The judge agreed to review any additional medical reports, but none were submitted.

Mims also moved for suppression of the evidence on the first day of trial.   The judge held a suppression hearing, at which Degiglio testified to the facts related above.   Mims' mother testified that she owned the house behind which the drugs were found.   The State argued that the drugs seized behind the house were in plain sight and visible from an area outside of the mother's back yard.

The trial judge denied the motion to suppress the drugs.   As to the drugs found on Mims, the judge held that Degiglio had a reasonable, articulable suspicion that he had witnessed drug transactions and that the search incident to Mims' arrest was lawful.   As to the drugs seized behind the house, the judge accepted the State's argument that State v. Johnson, 171 N.J. 192 (2002), authorized the search of the common area.   In so finding, the judge held that

Officer Huntington's entry into that rear of that property into a common area of that property was altogether appropriate, lawful and logical, given [Degiglio's observations of Mims entering the area during the transactions].   The State is absolutely right that the fact that it was a common area made it altogether lawful for the officer to have gone back there, not needing either a search warrant or a consent to search in a common area.

During the trial, Degiglio again testified to the facts outlined above.   There was no objection to Degiglio's testimony that he had set up surveillance of the intersection or to his characterization of the location as a high narcotics area.   Degiglio also testified that Mims was arrested within two blocks of Public School 17.   On cross examination, defense counsel sought to question Degiglio about other investigative methods that he could have used rather than surveillance, but was precluded from doing so when the prosecutor objected.

The officers from the backup team testified about the arrest and search.   They did not testify about the alleged drug transactions, which they had not witnessed.

After the State rested, Mims moved for a directed verdict of acquittal.   The trial judge found that the testimony provided by the State's witnesses was “very much consistent with a person selling drugs on the street, who after receiving money goes to their stash and retrieves [drugs] and then completes the transaction.”   Defense counsel also argued that Public School 17 had been closed and turned into a charter school.   The judge held that there was sufficient evidence in the record that “it was a functioning [public] school.”   Consequently, he held that there was, at that time, sufficient evidence that there was a school operating within 1000 feet of the site of the alleged drug transactions.   The judge denied the motion in its entirety.

Mims presented three witnesses.   His mother testified regarding her belief that Public School 17 was now a charter school,4 and that her son was employed by a fencing company at the time of the incident.   Barbara O'Byrne, a Public Defender's investigator, testified concerning photographs of the area, which defense counsel subsequently argued undercut Degiglio's testimony that he had a good view from his car to the area where the alleged drug transactions had taken place.

Finally, Giggetts testified about his transaction with Mims. According to Giggetts, he was on his way to the liquor store across from where Mims was arrested, but did not have enough money.   When he saw Mims, he asked him for some money.   Giggetts testified that, when Mims gave him the money, Mims slapped his hand so hard that he dropped the money.   Giggetts also testified that (1) he did not know about Ward's marijuana, (2) he had not given Ward any marijuana, and (3) he did not purchase any marijuana from Mims.

On cross-examination, the prosecutor sought to impeach Giggetts' testimony by questioning him about statements made to the municipal judge when he pled guilty to possessing marijuana on the day of his arrest, as well as statements made to the prosecutor and one of his detectives the week before the trial.   Defense counsel objected, but was overruled.

The jury found Mims guilty on all four counts.   Mims filed a motion to set aside the verdict, arguing that there was insufficient evidence to support the convictions.   He also claimed that he had been denied exculpatory evidence concerning the criminal histories of his son and brother, both of whom lived at his mother's house.   He argued that he could have contended that the marijuana behind the house belonged to one of them.

The motions were heard on October 12, 2011, just prior to the sentencing.   The judge denied the motion for a new trial.   As to the contentions concerning the alleged Brady 5 violation, the judge found “the notion that there was any Brady violation ․ to be absurd.”   In so finding, the judge rejected defense counsel's argument that the State had a duty to investigate everyone living in the area so that they could provide the defense with detailed criminal histories on them.

The judge then granted the State's motion for an extended-term sentence under N.J.S.A. 2C:43–6(f).  He found the following aggravating factors to be present:  that the defendant was likely to commit another offense;  that he had an extensive prior record, including other school zone drug distribution convictions;  and that his prior offenses had been serious.  N.J.S.A. 2C:44–1(a)(3), (6).   The judge also found a need to deter Mims and others from such offenses.  N.J.S.A. 2C:44–1(a)(9).   He found no mitigating factors.   After required mergers, the judge sentenced Mims to an extended term of seven years with three-and-a-half years of parole ineligibility for each of the two school-zone offenses, the two seven-year sentences to run concurrently.   This appeal followed.

II.

Mims raises the following issues on appeal:

POINT I:  THE DEFENDANT'S RIGHT TO PRESENT A COMPLETE DEFENSE, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE IMPROPER AND HIGHLY PREJUDICIAL IMPEACHMENT OF THE KEY DEFENSE WITNESS.

POINT II:  THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED.

A. THE POLICE INFORMED JURORS THAT THEY WENT TO THE SCENE BECAUSE THEY WERE INVESTIGATING ALLEGED DRUG ACTIVITY IN THE AREA OF THE DEFENDANT'S RESIDENCE.

B. THE FACT THAT THE POLICE WERE INVESTIGATING THE AREA OF THE DEFENDANT'S RESIDENCE FOR DRUG RELATED ACTIVITY HAD NO PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL.

C. THE TRIAL COURT IMPROPERLY RESTRICTED THE DEFENDANT'S EXERCISE OF HIS CONFRONTATION RIGHTS AND RIGHT TO PRESENT A COMPLETE DEFENSE TO SHOW THAT REASONABLE DOUBT IN THIS CASE AROSE FROM THE STATE'S LACK OF EVIDENCE.

POINT III:  THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO GRANT A CONTINUANCE NOTWITHSTANDING SEVERE HEAD INJURIES SUFFERED BY THE DEFENDANT IN AN AUTOMOBILE ACCIDENT THE WEEKEND PRIOR TO TRIAL.

POINT IV:  THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE.

POINT V:  THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE WARRANTLESS SEARCH OF THE PREMISES.

POINT VI:  THE INDICTMENT SHOULD BE DISMISSED.

A. THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

B. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VII:  THE SENTENCE IS EXCESSIVE.

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO A MANDATORY EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

C. THE IMPOSITION OF A SEVEN–YEAR SENTENCE WITH A THREE–AND–ONE–HALF–YEAR PERIOD OF PAROLE INELIGIBILITY FOR A TWENTY–FIVE DOLLAR SALE OF MARIJUANA SHOCKS THE JUDICIAL CONSCIENCE.

A.

We begin our discussion with Mims' assertion that his right to a fair trial was violated when the prosecutor was permitted to cross-examine Giggetts concerning his guilty plea to possession of marijuana.   He relies on N.J.R.E. 609, which only allows such impeachment with respect to convictions involving “a crime,” 6 arguing that it was improper to impeach Giggetts on the basis of his guilty plea to a disorderly persons offense.   See State v. Rowe, 57 N.J. 293, 302 (1970).

After Giggetts testified that he did not participate in a drug transaction involving Mims, the prosecutor asked him if he had told a judge he was guilty of possessing marijuana on August 3, 2010.   He acknowledged that he had done so through a video link-up while he was in jail, but that he did it “to get out, because [he] was panicked for being in jail,” which he characterized as “wrong.”   When asked whether he had “lied” to the judge, he responded that he had not.   When asked again to explain why he had pled guilty, he testified:  “Because the fact that I was in the vehicle that had the weed, so I was partly accountable for it.”

The prosecutor then asked Giggetts whether he had told him and a detective the week before that he did not have “any drugs on [him] that day,” that he was “innocent, and that [he] only pled guilty to get this case over with.”   Although Giggetts' responses to that line of questioning were somewhat ambiguous, he did not deny having done so and his response can be understood as agreeing that he did make those statements.

On redirect, Giggetts explained that he was aware that there was marijuana in the car.   He testified that he and the driver planned to smoke it later, but that the marijuana in the car came from somewhere else.   He also testified that, when he told the municipal judge that he was in possession of marijuana on August 3, he “meant” the marijuana in the car, and that he would have told the prosecutor the same thing the week before had he asked.

Taken in context, we find nothing improper about the prosecutor's use of the guilty plea for the purpose of impeachment.   The prosecutor's line of questioning was not a general impeachment of credibility under N.J.R.E. 609, but specific impeachment of his trial testimony based upon Giggetts' prior inconsistent statement in admitting that he possessed marijuana on August 3. See N.J.R.E. 803(a)(1).   For that purpose, the fact that the plea was not to a “crime” is irrelevant.   Such a prior inconsistent statement can even be admissible as substantive evidence.  State v. Caraballo, 330 N.J.Super. 545, 556 (App.Div.2000).   Mims exercised his right to address the testimony on redirect.   See N.J.R.E. 613(b).

We are not persuaded by Mims' argument that the impeachment was improper because the State did not conclusively demonstrate that Giggetts had specifically pled guilty to possession of the marijuana it contends he purchased from Mims. Giggetts told the prosecutor several times that he did not have marijuana “on” him on August 3, and was appropriately questioned about his having told the municipal judge he was guilty of possessing marijuana that day.   There was an apparent inconsistency between the two statements, and the State was entitled to explore it by way of impeachment.   Whether Giggetts' efforts to explain away the apparent inconsistency were successful was a matter for determination by the jury.

B.

We turn next to Mims' argument that he was denied his right to confront the witnesses against him when Degiglio, based upon his personal experience, testified that there was surveillance in the area of Mims' residence, which he characterized as an area “well known for drug activity.”   Mims argues that those statements implied that the police had obtained information from outside sources, who did not testify at trial and were not subject to cross-examination.

In State v. Bankston, 63 N.J. 263 (1973), the Supreme Court observed:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so “upon information received.”   Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.   However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.   Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.

[Id. at 268–69 (internal citations omitted).]

See also Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L. Ed.2d 177, 203 (2004) (holding that “[w]here testimonial evidence is at issue ․ the Sixth Amendment demands ․ unavailability [of the declarant] and a prior opportunity for cross-examination”).   The Bankston Court added that, “[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.”   Bankston, supra, 63 N.J. at 271.

“The common thread that runs through Bankston [and its progeny] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.”  State v. Branch, 182 N.J. 338, 351 (2005).   The Branch Court held that,

[i]n contexts other than a photographic identification, the phrase “based on information received” may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person.

[Id. at 352.]

In State v. Luna, 193 N.J. 202, 216–17 (2007), the Court held that “witnesses may testify that they took certain investigative steps based ‘upon information received.’  [Bankston, supra, 63 N.J. at 268–69].   But, they cannot repeat specific details about a crime relayed to them by ․ another person without running afoul of the hearsay rule.”  Luna, supra, 193 N.J. at 217;  see also State v. Vandeweaghe, 177 N.J. 229, 240–41 (2003) (quoting State v. Vandeweaghe, 351 N.J.Super. 467, 484 (App.Div.2002)) (“[A] police officer may, without violating either the hearsay rule or defendant's right to confrontation, explain the reasons he apprehended a suspect or went to the scene of a crime by stating he did so ‘upon information received.’ ”).

We reject Mims' argument that Degiglio's testimony suggested or even implied that he had information from non-testifying witnesses about Mims' involvement in drug trafficking.   It was merely an explanation for his presence in the area, in plain clothes and an unmarked vehicle, and using binoculars.   There was no suggestion that Degiglio was specifically investigating Mims or that Mims was even known to him.7  In fact, he testified that he did not know Mims.

C.

Mims also challenges the judge's denial of his motion to suppress the evidence seized from the rear of his mother's house at the time of his arrest.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are “supported by sufficient credible evidence in the record.”  [State v. Elders, 386 N.J.Super. 208, 228 (App.Div.2006) ] (citing State v. Locurto, 157 N.J. 463, 474 (1999));  see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that “there was substantial credible evidence to support the findings of the motion judge that the ․ investigatory search [was] not based on probable cause”);  State v. Alvarez, 238 N.J.Super. 560, 562–64 (App.Div.1990) (stating that standard of review on appeal from motion to suppress is whether “the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record” (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

An appellate court “should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.”  Johnson, supra, 42 N.J. at 161.   An appellate court should not disturb the trial court's findings merely because “it might have reached a different conclusion were it the trial tribunal” or because “the trial court decided all evidence or inference conflicts in favor of one side” in a close case.  Id. at 162.   A trial court's findings should be disturbed only if they are so clearly mistaken “that the interests of justice demand intervention and correction.”  Ibid. In those circumstances solely should an appellate court “appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.”  Ibid.

[State v. Elders, 192 N.J. 224, 243–44 (2007) (citations omitted).]

Our review of the motion judge's legal conclusions is plenary.  State v. Harris, 181 N.J. 391, 420–21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898 (2005);  State v. Goodman, 415 N.J.Super. 210, 225 (App.Div.2010), certif. denied, 205 N.J. 78 (2011).

The United States Constitution and New Jersey's Constitution protect individuals from unreasonable searches and seizures.   U.S. Const. amend.   IV;  N.J. Const. art.   I, ¶ 1. A warrant is generally required before a search and seizure is conducted.   In this case, however, the trial judge relied on State v. Johnson, 171 N.J. 192 (2002), which held that where, as here, evidence is found in a common area of a multi-occupancy building, “none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants.”  Id. at 209 (quoting State v. Ball, 219 N.J.Super. 501, 506–07 (App.Div.1987)) (internal quotation marks omitted).   Police may lawfully make observations in such areas.  Ibid.

After hearing the testimony, the trial judge determined that Degiglio's observations of Mims' conduct involving the two transactions provided a “reasonable, articulable suspicion for the detention” of Mims, Giggetts, and Ward. He further concluded that the discovery of the marijuana in the course of the searches incident to their arrest justified the other officer's investigation of the area behind the house.   The judge found, based partly on the testimony of Mims' mother, that the area behind the house, where the marijuana was found, was a common area and that the officer did not need a search warrant to enter it.

We find no error in the admission of Degiglio's testimony concerning the discovery of the marijuana at the rear of the house.   Degiglio testified that he was personally familiar with the back of the house, that the other officer told him where he had found the drugs, and that, based on his knowledge of the area, that location would be visible from the area open to the general public.   The State's failure to call the other officer as a witness does not warrant reversal.  State v. Williams, 404 N.J.Super. 147, 171 (App.Div.2008), certif. denied, 201 N.J. 440 (2010).

D.

We have reviewed Mims' remaining arguments with respect to his conviction in light of the record and applicable law, and find them to be without merit and not warranting extended discussion in a written opinion.   R. 2:11–3(e)(2).   We add only the following.

i.

Mims contends that the trial judge improperly precluded defense counsel from exploring alternative investigatory techniques not used in connection with the surveillance that led to his arrest.

We accord “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).   Those rulings will only be disturbed when they present “a clear error of judgment” resulting in “a manifest denial of justice.”  Id. at 454.  N.J.R.E. 611(a) allows a trial judge to exercise “reasonable control over the mode ․ of interrogating witnesses” to, among other purposes, “avoid needless consumption of time.”

We find no abuse of the judge's discretion with respect to the issue of other investigatory methods.   The issues before the jury were whether Degiglio's testimony was truthful and whether he was able to make the observations to which he testified, not whether he might have done things differently.

ii.

With respect to Mims' request for an adjournment because of his injury, we find no abuse of the trial judge's discretion under State v. Hayes, 205 N.J. 522, 537 (2011) (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A.1926)).   The judge carefully considered the medical records, made his own observations of Mims in court, and offered to consider any additional medical information supplied to him.   We find nothing in the record to indicate that Mims “suffered manifest wrong or injury” from the denial of the adjournment.  Ibid.

iii.

Mims argues that there was a Brady violation because the State did not disclose to the defense that his son and his brother, who lived in his mother's house, outside of which the marijuana was found, had criminal records involving drugs.8  However, Mims has failed to demonstrate that he was not aware of that information himself or that the prosecutor or investigating officers knew about his relatives' drug records.   In addition, this is not a case in which drugs were discovered first and the police were investigating to whom they belonged.   The case against Mims was based on Degiglio's testimony that he witnessed Mims make sales in front of the house and also that he witnessed him go to the back of the house and return with drugs.   We see no basis to conclude that the result would have been different had the information been disclosed by the State.  State v. Russo, 333 N.J.Super. 119, 134 (App.Div.2000).

iv.

We see no merit to Mims' argument that the trial judge erred in denying his motions for a judgment of acquittal and for a new trial.

In considering whether to grant a motion for acquittal, the trial judge must view “the State's evidence in its entirety,” give “the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom,” and determine whether “a reasonable jury could find guilt of the charge beyond a reasonable doubt.”  State v. Reyes, 50 N.J. 454, 458–59 (1967).   If the State's evidence meets this standard, the motion must be denied.  State v. Spivey, 179 N.J. 229, 236 (2004).

On a motion for a new trial, premised on the verdict having been against the weight of the evidence, the trial court considers whether “it clearly and convincingly appears that there was a manifest denial of justice under the law.”   R. 3:20–1.

A trial court may only set aside a jury verdict as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses' credibilities, a manifest denial of justice clearly and convincingly appears.   See R. 3:20–1.   The jury is free to believe or disbelieve a witness's testimony.   See State v. Reyes, 50 N.J. 454, 464 (1967).   On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error.

[State v. Saunders, 302 N.J.Super. 509, 524 (App.Div.), certif. denied, 151 N.J. 470 (1997).]

We review the trial judge's decision for abuse of discretion.   See State v. Artis, 36 N.J. 538, 541 (1962).

There was evidence in the record that the unknown woman handed Mims money, he went to the rear of the building, and gave her something when he returned.   There was also testimony that he subsequently received cash from Giggetts and handed him something, which Giggetts then gave to Ward. Marijuana was found on Ward's person when he was searched, on Mims' person when he was searched, and at the rear of the building.   Mims had several bags of marijuana, which provided further support for the inference that he was selling marijuana that he had obtained from the rear of the building.   There was also evidence of the required proximity to the school.   Consequently, the judge appropriately denied both motions.

E.

Finally, we turn to Mims' argument that he should not have received an extended-term sentence and that the sentence was excessive.

“[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard.”  State v. Blackmon, 202 N.J. 283, 297 (2010).  “In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether ‘the factfinder [has] appl [ied] correct legal principles in exercising its discretion.’ ”  Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)).   The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that “shock the judicial conscience.”  Roth, supra, 95 N.J. at 363–65.   If the sentencing judge has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the sentencing judge.  Id. at 364–65.

“In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are ‘fully supported by the evidence.’ ”  Blackmon, supra, 202 N.J. at 296–97 (quoting State v. Dalziel, 182 N.J. 494, 504–05 (2005)).

Pursuant to N.J.S.A. 2C:43–6(f) (emphasis added), any person convicted of possession with intent to distribute CDS or convicted of distribution or possession with intent to distribute in a school zone after having been previously convicted of such an offense “shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [N.J.S.A. 2C:43–7(c) ].”  The imposition of the extended term is mandatory upon the prosecutor's motion.  State v. Simon, 421 N.J.Super. 547, 558 (App.Div.2011).

“N.J.S.A. 2C:43–6(f) does not contain any language permitting waiver of an extended term because a prior conviction is remote.”  Ibid. An extended term can only be waived if the defendant's qualifying prior conviction is “extremely remote.”  Ibid.;  State v. Irrizary, 328 N.J.Super. 198, 204 (App.Div.), certif. denied, 164 N.J. 562 (2000).   A subsequent conviction within seven years of a disorderly persons offense involving drugs and within eleven years of release from custody of more serious drug offenses has been held to qualify as “extremely remote.”  Ibid.

Mims' criminal history, which is extensive, includes seven prior convictions for indictable offenses in New Jersey and three in New York. Most of those convictions were for drug offenses, including distribution in a school zone.   Mims' most recent conviction, for drug-related offenses including distribution within 1000 feet of a school, occurred in 2004, and involved offenses committed in 2003.   He was paroled in November 2006.   Because his criminal history cannot be characterized as “extremely remote,” the extended term was mandatory under N.J.S.A. 2C:43–6(f) and could not be waived by the judge.

The aggravating factors found by the judge were supported in the record.   Mims' arguments concerning mitigating factors are unpersuasive, and we conclude that the judge did not err in declining to adopt them.

The trial judge imposed a sentence of seven years, which was three years less than the maximum.  N.J.S.A. 2C:43–7(c).  It is clear from the record that he did so after balancing the relatively small amount of marijuana involved with Mims' extensive history of drug involvement.   There was no double counting because of the extent of Mims' criminal record.

N.J.S.A. 2C:43–7(c) requires a minimum term of between one-third and one-half of the full sentence or three years, whichever is greater.   While the judge could have imposed a three-year minimum term, his decision to impose a three-and-a-half-year term was not an abuse of his broad sentencing discretion.

III.

In summary, we affirm both the conviction and the sentence on appeal.

Affirmed.

FOOTNOTES

1.  FN1. The remaining counts were merged with counts two and four respectively.

2.  FN2. At the time of the surveillance, Degiglio had been a Paterson police officer for thirteen years, had been assigned to the narcotics division for six years, and had conducted over 700 narcotics investigations.

3.  FN3. The alley-like opening between two buildings led to the rear entrance of a second building, which had a small porch.   The drugs were found near, but not on, the porch.

4.  FN4. We note that, even if it had been a charter school, the 1000–foot statute would apply.   See State v. Shelley, 205 N.J. 320, 330 (2011).

5.  FN5. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L. Ed.2d 215, 218 (1963).

6.  FN6. Pursuant to N.J.S.A. 2C:1–4(b), a petty disorderly persons offense is not a “crime.”

7.  FN7. We firmly reject the suggestion that Degiglio should have testified that he was “on routine patrol,” which was patently untrue.

8.  FN8. Mims' son was arrested for a drug offense after Mims' own arrest.   His brother had a prior conviction for selling marijuana at the same location.

PER CURIAM

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