Opinion
DOCKET NO. A-4230-12T4
11-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGINALD V. BROWN, a/k/a REGINAL V. BROWN, REGINALD BROWN-BEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-05-0090. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Reginald V. Brown was convicted of three drug-distribution offenses and two gun-possession offenses. He appeals from the Law Division's July 2, 2013 amended judgment of conviction, challenging his convictions and the sentences imposed. For the following reasons, we affirm.
I.
We discern the following facts from the record. Prior to his arrest, defendant resided in a single-family house with his girlfriend E.S., their son, and E.S.'s son from another relationship. The house had belonged to defendant's mother until her death in 2008. It has four bedrooms, including one master bedroom on the second floor.
At approximately 9:00 a.m. on October 18, 2011, police arrived at defendant's house to execute a search warrant. When they arrived, defendant was talking with his friend S.R. on the front lawn. After securing the premises, police searched S.R. and recovered a small baggie containing 0.29 grams of cocaine and alprazolam (Xanax). Defendant had no guns or drugs in his immediate possession.
Upon entering the house, police found two scales on the kitchen counter and several jars in a cabinet above the oven. In the upstairs master bedroom, police found a cooler next to the bed which contained 430 pills of oxycodone, 2.57 grams of cocaine, a loaded .25 caliber semi-automatic handgun, a loaded .22 caliber revolver, a disassembled .25 caliber semi-automatic handgun, and a pen gun. The cocaine had been placed in a baggie similar to the baggie recovered from S.R. Elsewhere in the room, police found 5.87 grams of crack cocaine, color-tinted baggies, and another unlabeled bottle containing alprazolam.
Thereafter, defendant was arrested and charged under Camden County Indictment No. 12-05-0090 with second-degree possession of more than one ounce of oxycodone with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(4) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two); third-degree possession of at least five doses of alprazolam without a prescription, N.J.S.A. 2C:35-10.5(a)(3) (count three); second-degree possession of a firearm during commission of a drug crime, N.J.S.A. 2C:39-4.1(a) (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count five).
Defendant qualified for this charge due to his prior criminal record, which includes one conviction for possession of a controlled dangerous substance (CDS) with intent to distribute, one conviction for simple possession of CDS, one conviction for eluding, and one conviction for simple assault as a disorderly-persons offense.
At trial, E.S. attempted to cast doubt on whether the drugs actually belonged to defendant. She testified that she and defendant had moved into the master bedroom one month before the search, and that the bedroom still contained some belongings of defendant's mother. Specifically, E.S. testified that defendant's mother had been prescribed several medications including oxycodone and alprazolam and, due to not taking her medication regularly, she accumulated a large quantity of these drugs before her death in 2008.
Additionally, E.S. denied ever seeing defendant with guns, cocaine, or prescription drugs, and asserted that defendant had not been in the master bedroom on the day of the search. She testified that their house was a "party house," wherein several friends came and went as they pleased, regardless of whether defendant was home. However, with the exception of when E.S. and defendant initially moved into the house, E.S. testified that she never saw any of these friends enter the master bedroom.
II.
Several procedural issues raised both prior to and during trial are now at issue on appeal. Due to defendant's failure to timely provide witness information during discovery, the case was adjourned and scheduled for October 24, 2012. The day before trial, defendant moved to suppress the testimony of the State's narcotics-transactions expert, Special Agent Daniel Brown, because the State had not provided his expert report. The trial judge initially granted the motion, but vacated the suppression the next day and, over defendant's objection, postponed the trial.
The trial judge based his decision to postpone the trial on the premise that both parties would benefit from more time to prepare. Not only would the State have time to obtain a report from its expert witness, but defendant would have time to acquire two pieces of evidence that the trial judge thought would be beneficial to his case: the grand jury transcript, giving defendant the ability to move to dismiss the indictment; and digital video recorder (DVR) footage from defendant's house that defendant had previously alleged contained exculpatory evidence.
However, despite any deficiencies in defendant's case at the time, defendant repeatedly expressed his desire to proceed to trial immediately. Defendant asserted that neither the grand jury transcript nor the DVR footage would help his case more than the strategic advantage of proceeding to trial without the State having supplied an expert report.
Notwithstanding defendant's objection, the trial judge determined that, due to the extent to which defendant's counsel was not prepared for trial, proceeding to trial the next day would violate defendant's right to effective assistance of counsel. The trial judge rejected defendant's assertion that the grand jury transcript and the DVR footage were less important to his case than the suppression of Special Agent Brown's expert report. Accordingly, the trial judge postponed the trial over defendant's objection.
On the first day of trial, Detective Dorothy Quinn testified for the State regarding the recovery of the scales and jars from defendant's kitchen. Although she was personally involved in the recovery at defendant's home, she was never qualified as an expert in narcotics distribution or packaging. When asked why she confiscated the scales and jars, Detective Quinn testified that the scales were "consistent with evidence of narcotics distribution, narcotics packaging, narcotics usage . . . [and are] utilized to weigh narcotics." As for the jars, she testified that jars are "[u]sually . . . utilized to house narcotics. Primarily this specific [type of] jar, based on my training and experience, is [used to house] marijuana . . . ." Importantly, defendant did not object to this testimony at trial. In addition to Detective Quinn's testimony, Special Agent Brown testified that, based on the quantity of pills and cocaine as well as the presence of packaging materials, firearms, and scales, the narcotics found in the house were consistent with distribution.
One particular point of contention at trial was the State's characterization of the master bedroom in defendant's home. When the prosecutor first referred to the master bedroom as "Mr. Brown's bedroom," defendant objected to the categorization of whether the bedroom actually belonged to defendant as an issue of fact for the jury to determine. The trial judge sustained the objection. Nevertheless, the prosecutor made the characterization twice more during direct examinations, once with the same witness and once while questioning another detective. Both times, the trial judge sustained objections to the characterization, the second time including a brief instruction to the jury that whether the bedroom was defendant's was an issue of fact for the jurors to determine "[b]ased upon the totality of the evidence."
Following his conviction, defendant was sentenced to an aggregate term of twenty-three years of incarceration with eleven and one-half years of parole ineligibility. Importantly, two months after sentencing, the trial court amended its judgment of conviction to clarify that count four (firearm possession during commission of a drug crime) was to run consecutively to count one (possession with intent to distribute) but concurrently with count five. Although this amendment did not change the aggregate sentence, it effectively raised the mandatory minimum time served by two years. The trial court did not provide an explanation for the change, nor did it provide defendant the opportunity to object to the amendment.
On appeal, defendant makes the following arguments:
Without leave granted, on October 7, 2015 — three weeks after the calendar date for this appeal — defendant submitted a sixty-one-page, non-conforming supplemental brief, and the State thereafter submitted a fourteen-page brief in response. We decline to consider or address these untimely submissions. Defendant may, if he chooses, present these arguments in a timely-filed petition for post-conviction relief. We intimate no view as to how a trial court should address those issues if raised in a PCR petition.
POINT ONE
THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF BY FAILING TO ENGAGE IN THE REQUISITE INQUIRY EVEN AFTER THE DEFENDANT CLEARLY INDICATED THAT HE DID NOT CONSIDER HIMSELF REPRESENTED BY COUNSEL. (Not Raised Below).
POINT TWO
THE TRIAL COURT'S REVERSAL OF ITS DECISION TO PRECLUDE THE TESTIMONY OF A WITNESS OFFERED BY THE STATE AS AN EXPERT BECAUSE OF SERIOUS DISCOVERY VIOLATIONS, AND TO ALLOW THE PROSECUTION MORE TIME TO RECTIFY THE DEFICIENCIES DESPITE DEFENDANT'S REPEATED ASSERTION OF HIS SPEEDY-TRIAL RIGHTS, DEPRIVED THE DEFENDANT OF A FAIR TRIAL. MOREOVER, THE TESTIMONY OF ANOTHER POLICE OFFICER, WHO WAS NOT QUALIFIED AS AN EXPERT, EXACERBATED THE ERROR WHEN SHE IMPROPERLY INVADED THE PROVINCE OF THE JURY BY OFFERING TESTIMONY AS TO THE ULTIMATE ISSUE OF WHETHER THE DEFENDANT POSSESSED CONTROLLED
DANGEROUS SUBSTANCES WITH THE INTENT TO DISTRIBUTE. (Partially Raised Below).
A. The Trial Court Erred in Delaying the Trial To Permit the State to Submit [an] Expert Report in Place of the Deficient "Report" it Had Supplied Only One Day Before the Trial Was to Begin, and to Allow the Witness to Testify as an Expert.
B. Allowing a Fact Witness to Offer Expert Testimony Exacerbated the Prejudice to the Defendant and Constituted Plain Error.
POINT THREE
BY REPEATEDLY REFERRING TO THE MASTER BEDROOM AS "THE DEFENDANT'S BEDROOM" OVER THE DEFENSE'S OBJECTION AND EVEN AFTER HE WAS INSTRUCTED NOT TO DO SO BY THE COURT, THE PROSECUTOR DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. VI, XIV; N.J. CONST., Art. I, paras. 1, 9, and 10.
POINT FOUR
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT POSSESSED] THE DRUGS AND WEAPONS FOUND IN THE BEDROOM THAT HAD BELONGED TO HIS MOTHER[, WHICH] WAS EASILY ACCESSIBLE TO A NUMBER OF PEOPLE WHO FREQUENTED THE HOUSE, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not Raised Below).
POINT FIVE
WITHOUT EXPLANATION OR JUSTIFICATION, TWO MONTHS AFTER SENTENCING AND AFTER DEFENDANT HAD ALREADY BEGUN TO SERVE HIS SENTENCE, THE JUDGMENT OF CONVICTION WAS AMENDED TO CHANGE THE JUDGE'S ON-THE-RECORD RULING THAT THE SENTENCE ON COUNT FIVE WAS CONCURRENT TO COUNT ONE, MAKING IT CONSECUTIVE TO THAT
COUNT INSTEAD AND THEREBY RAISING THE AGGREGATE MANDATORY MINIMUM BY TWO YEARS. TO CORRECT THIS ERROR, THE MATTER MUST BE REMANDED FOR RESENTENCING.We will address these arguments in turn.
III.
First, we will address defendant's piecemeal challenges to his conviction. We begin with his argument that the trial court denied his constitutional right to self-representation.
"Both the United States Constitution and our New Jersey Constitution grant defendants charged with a criminal offense the right to have the assistance of counsel. The corollary to the right of a criminal defendant to be represented by an attorney is the defendant's right to represent himself." State v. King, 210 N.J. 2, 16 (2012) (citations omitted). The determination of whether a defendant makes a knowing and intelligent waiver of counsel rests with the sound discretion of the trial court. State v. DuBois, 189 N.J. 454, 468 (2007).
"When confronted with a defendant's unequivocal request for self-representation, the trial court must carefully question the defendant to determine the scope of his request." State v. Figueroa, 186 N.J. 589, 593 (2006) (footnote omitted). To unequivocally invoke the right to self-representation, a defendant must first make a knowing and intelligent waiver of the right to counsel. Id. at 593 n.1. Once invoked, the trial court must "engage in a searching inquiry" to determine whether defendant understands the drawbacks of self-representation, and to place that understanding on the record. Id. at 593; see also State v. Crisafi, 128 N.J. 499, 510-12 (1992) ("The colloquy between the court and the defendant will test the defendant's understanding of the implications of the waiver, and will provide appellate courts with an objective basis for review.").
A criminal defendant is not entitled to partial or hybrid representation; in fact, our Supreme Court has advised that hybrid arrangements should be avoided whenever possible. Figueroa, supra, 186 N.J. at 594. Hybrid representation occurs where "the defendant wishes to represent himself only in respect of a part of the trial and not the trial as a whole." Ibid. Like the issue of knowing and voluntary waivers, the sound-discretion standard applies to the determination of an application for hybrid representation. State v. McCleary, 149 N.J. Super. 77, 80 (App. Div. 1977). "[A]s long as the right to a hybrid representation is not constitutionally protected, . . . the interests of justice are better satisfied by a trial in which one counsel participates than a trial complicated by dual representation." Ibid.
A separate, but related, concept to hybrid representation is that of standby counsel. Standby counsel serves a more limited role in conjunction with pro se representation, and cannot "destroy the appearance that the defendant is conducting his own defense." State v. Reddish, 181 N.J. 553, 598 (2004) (citation omitted). The purpose of standby counsel is "to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." State v. Reddish, 181 N.J. 553, 597 (2004) (quoting Faretta v. Cal., 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2540 n.46, 45 L. Ed. 2d 562, 581 n.46 (1975)).
Here, defendant asserts that he repeatedly attempted to invoke his right to self-representation, and merely had an attorney present to act as standby counsel. The record does not support this assertion. The following colloquy took place between the trial judge and defendant at a pre-trial hearing.
Q: I don't understand what that means. There's no . . . right to hybrid representation under the Constitution of the United States, under [Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)], or in the State of New Jersey. He's your lawyer. He will represent you throughout this case. Do you want him to represent you?
A: He is my assistance of counsel. Yes. He's my assistance of counsel.
Q: You're talking to me in a language that I don't -- I'm assuming you don't
object to him standing there, picking the jury. Of course he has to confer with you when he does everything --
A: Right. That means he's my assistant.
Q: Is that what you're interpreting --
A: That means he's my assistant. It doesn't mean he represents me. It means he's my assistant.
Q: We're using different words to define what normally happens. The client is there. He assists the lawyer in selecting the jury, gives him his thoughts, every once in a while gives him information about details. He will send a question his way or a bunch of questions his way, but that's what you're talking about, right?
A: Correct.
Q: It's okay for him to act in that capacity, correct?
A: To assist me, yes.
Although defendant told the trial judge several times that he did not want his attorney to "represent" him, the context of this colloquy and defendant's actions thereafter indicate otherwise. Defendant repeatedly referred to his attorney as his "assistance of counsel" and unquestionably relied on his attorney before, throughout, and after trial. Prior to the colloquy between the trial judge and defendant, defendant's counsel had filed pre-trial motions and made arguments to the court on defendant's behalf. This arrangement continued throughout the duration of the trial. At no point did defendant dismiss his attorney from the case and indicate that he wished to proceed pro se.
Defendant's counsel advocated for defendant throughout the course of the trial, and did not take the minimalistic role reserved by our Supreme Court for standby counsel. Accordingly, by confirming his express desire to have an attorney act on his behalf during trial, defendant was clearly seeking, at the very least, hybrid representation, as opposed to self-representation. As neither the United States nor New Jersey Constitution affords a right to such representation, we discern no reason to disturb the trial court's sound judgment on appeal.
We next turn to defendant's argument that the trial court denied him his right to a speedy trial by postponing the trial one day before it was set to begin.
A defendant's right to a speedy trial is protected by Article One, Paragraph Ten of the New Jersey Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. State v. Cahill, 213 N.J. 253, 263-64 (2013). There are four non-exclusive, non-dispositive factors that are relevant to the assertion of a defendant's right to a speedy trial: (1) length of the delay; (2) reason for the delay; (3) assertion of the right by a defendant; and (4) prejudice to the defendant. Id. at 264-67.
In short, a straight-forward application of these four factors leads us to the conclusion that defendant was not denied his right to a speedy trial. First, the adjournment at issue lasted fifteen days — clearly not a substantial delay in the greater context of pre-trial proceedings. Defendant's trial began 267 days after his indictment. Post-indictment delays generally warrant speedy-trial considerations when the delay approaches one year. Id. at 265-66. Here, the trial, despite the adjournment which caused delay, commenced and indeed concluded well within this timeframe. Accordingly, the length of the delay weighs against defendant's speedy-trial argument.
The reason for delay also weighs against defendant. With regard to this factor in the analysis, deliberate delays weigh heavily against the State, while inadvertent delays caused by prosecutorial mistakes weigh more lightly. Id. at 266. Although the State evidently failed to sufficiently prepare its case for trial, the record does not indicate that the adjournment was based on any intentional misconduct by the State. Accordingly, the reason for delay weighs only slightly in favor of defendant's speedy-trial claim.
In addition to allowing the State more time to obtain an expert report, the trial judge emphasized that the adjournment would serve to benefit the defendant for various reasons. However, it is not for the trial court to second-guess matters of trial strategy. See, e.g., State v. Nash, 212 N.J. 518, 542 (citation and internal quotations omitted) ("Mere dissatisfaction with a counsel's exercise of judgment is insufficient to warrant overturning a conviction."). Therefore, the fact that adjournment might have substantively aided defendant's case merits minimal consideration on the second prong, although it might weigh in the State's favor on the fourth prong (prejudice). --------
The next factor, however — assertion of the right by a defendant — weighs in defendant's favor. The record indicates that defendant asserted his right to a speedy trial several times in opposition to the State's request to postpone the trial. Although asserting one's speedy-trial right is not dispositive, the repeated assertion of the right in face of continuing delays is entitled to strong weight. Ibid. Here, however, only one delay is at issue: the October 23, 2012 adjournment. Thus, although defendant asserted his right to a speedy trial several times at the same hearing, his assertions do not weigh quite as strongly as they would have if multiple delays had occurred.
Finally, we assess whether the adjournment prejudiced defendant. A decision is prejudicial in a constitutional sense when it "deprive[s] the defendant of a fair trial, [producing] a trial whose result is unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 674, 693 (1984). Although allowing the State to obtain an expert report resulted in more testimony against defendant at trial, defendant does not allege that it led to an unfair or unreliable trial. Accordingly, absent any specific allegations from defendant that he would suffer from prejudice due to the fifteen-day adjournment, the trial court did not violate defendant's right to a fair and speedy trial.
Defendant next argues that the trial court should have suppressed Detective Quinn's testimony as improper lay opinion. Detective Quinn testified that, based on her experience, the scales and jars she recovered from defendant's home were consistent with drug distribution. As defendant admits that he failed to raise this issue below, it falls under the plain error rule. Therefore, this court should disregard the error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
N.J.R.E. 701 provides that a lay witness' opinion testimony is admissible "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." Lay opinion is limited to the subject of the witness' direct observation, and may not rest on inadmissible hearsay. State v. McLean, 205 N.J. 438, 460 (2011).
Opinion testimony — particularly from a law enforcement officer — that relies on specialized knowledge crosses into the realm of expert testimony, and is only admissible if the witness is qualified as an expert pursuant to N.J.R.E. 702. State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995). An expert is someone who is qualified "by knowledge, skill, experience, training, or education" to offer an opinion. N.J.R.E. 702. "[A] question that refer[s] to the officer's training, education and experience, in actuality call[s] for an impermissible expert opinion." McLean, supra, 205 N.J. at 43 (emphasis added).
In this case, the trial judge should not have permitted Detective Quinn to testify that the scales and jars found in defendant's home were consistent with drug distribution. Although this aspect of her testimony merely served as the foundation for why she confiscated the scales and jars from defendant's home, the proffered fact that such items were often used in the drug-distribution business was based entirely on specialized knowledge she acquired through her training and experience in the police force. Accordingly, as Detective Quinn was never qualified as an expert, her opinion exceeded the scope of ordinary lay opinion, and should not have been admitted.
Although mistaken, the trial court's failure to bar this testimony was harmless. For plain error to warrant a remand, the possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Here, defendant simply has not made such a showing. Although Detective Quinn should not have been permitted to testify that the presence of scales and jars were consistent with drug distribution, testimony to this effect was also rendered by Special Agent Brown, who was qualified as an expert in narcotics transactions. Accordingly, even if the trial court should have barred the testimony as to Detective Quinn, the jury would have heard it nevertheless from Special Agent Brown. Accordingly, the trial court's error does not raise any doubt as to whether the jury might have reached a different verdict, and defendant's argument to the contrary must fail.
We next address defendant's argument that he was deprived of his right to a fair trial because, several times, the prosecutor improperly characterized the master bedroom in his home as being "Mr. Brown's bedroom."
"To justify reversal of a criminal conviction, the prosecutor's conduct must substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Roach, 146 N.J. 208, 219 (citation and internal quotations omitted), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). This court "should determine whether the conduct was so egregious that it deprives the defendant of a fair trial." State v. Loftin, 146 N.J. 295, 386 (1996) (citation and internal quotations omitted). Factors include "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (citation and internal quotations omitted).
Applying the factors enunciated in Roach, we hold that defendant was not denied a fair trial. Without question, the State improperly referred to the bedroom as "Mr. Brown's bedroom" several times. However, defendant promptly objected to these categorizations, and the trial court sustained the objections and eventually instructed the jury that such a categorization would be left to them. Defendant mistakenly assumes that the improper references to the master bedroom could not be alleviated with curative instructions to the jury. Generally, jurors are expected to respect and follow curative instructions from the trial judge. See State v. Manley, 54 N.J. 259, 270 (1996) (citations omitted) ("And, in administering the criminal law the courts must rely upon the jurors' ability and willingness to follow the limiting instruction without cavil or question."). Therefore, because the improper remarks were addressed and effectively cured by the judge, defendant was not denied a fair trial.
IV.
We next turn to defendant's assertion that the jury verdict was against the weight of the evidence.
A trial court shall not "set aside the verdict of [a] jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. Furthermore:
[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.
[R. 2:10-1.]
In light of these two guiding principles, we decline to set aside the verdict on both procedural and substantive grounds. First, with regard to Rule 2:10-1, defendant failed to move to set aside the verdict at trial. Therefore, we are not required to entertain his argument that the verdict was against the weight of the evidence. Nevertheless, a brief review of the trial record indicates that the verdict was supported by sufficient evidence to withstand defendant's substantive arguments.
The record adequately supports the finding that defendant possessed the drugs and guns found in the master bedroom of his house. Defendant's mother had been dead for over three years, and it defies belief that the cooler full of drugs and guns could have been hers. Further, E.S.'s attempt at trial to implicate their houseguests is equally unpersuasive. Finally, the drugs and guns, along with Agent Brown's expert opinion, support the finding of defendant's intent to distribute. Therefore, in light of the strong evidence in favor of the jury verdict, we affirm the trial court's amended judgment of conviction.
V.
We last address whether the trial court erred in amending defendant's sentence two months after it was first imposed.
We review sentencing for clear abuse of discretion. State v. Bolvito, 217 N.J. 221, 228 (2014). We will affirm a sentence unless: "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
"[T]he sentencing transcript, rather than the judgment of conviction, [is] the true source of the sentence." State v. Murray, 338 N.J. Super. 80, 91 (App. Div.), certif. denied, 169 N.J. 608 (2001). Corrections to conform with the sentencing transcript do not "impair[] any substantive right of the defendant," and do not require the court to provide defendant with notice and opportunity to contest the change. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). However,
while a judgment may be corrected or amended to correct technical errors or clerical mistakes, the judgment of conviction cannot embody a sentence which constitutes an increase above that originally imposed by the trial judge, unless an appellate court orders an increase or reconsideration or unless an illegal sentence is subsequently corrected.An increase in parole ineligibility is an increase in sentence. Id. at 571.
[State v. Womack, 206 N.J. Super. 564, 570 (App. Div. 1985) (citations omitted).]
"[O]nce a sentence has gone into operation, 'serious double jeopardy problems' would arise if the trial judge were permitted to increase that sentence." State v. Ryan, 86 N.J. 1, 11 (quoting State v. Matlack, 49 N.J. 491, 501 (1967)), cert. denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981). The application of double jeopardy rests upon the defendant's legitimate expectation of finality in the sentence. State v. Schubert, 212 N.J. 295, 312-13 (2012).
In assessing a defendant's legitimate expectation of finality, courts have considered the time elapsed between the original sentencing, whether execution of the sentence has already begun, and whether the sentence has been completed. Ibid. Defendant's expectation of finality is also lessened where the original sentence was illegal. Compare State v. Eigenmann, 280 N.J. Super. 331, 341 (App. Div. 1995) ("[A] defendant has no legitimate expectation of finality in a sentence below the statutorily mandated minimum sentence[.]"), with Schubert, supra, 212 N.J. at 315 (concluding a defendant, discharged from probation four years earlier, had a legitimate expectation of finality in an illegal sentence).
Importantly, we have allowed upward correction of a sentence where the trial court originally expressed its intent to impose the greater sentence, regardless of the original sentence's legality or the partial execution of the sentence. Womack, supra, 206 N.J. Super. at 571. In Womack, the sentencing court sentenced the defendant to custody "for a period of ten years." Id. at 568. The judgment, however, reflected ten years of incarceration in addition to five years of parole ineligibility. Ibid. Defendant appealed, arguing that the judgment of conviction improperly increased his sentence against his expectations. Ibid.
On appeal, we concluded that the "judgment of conviction can include a parole ineligibility term which embodies confirmation of the sentencing judge's indication at the time of sentencing that he intended to impose a period of parole ineligibility." Id. at 571 (citations omitted). Accordingly, this court remanded for clarification of the sentencing judge's intent at the time of sentencing. Id. at 571-72.
Here, the court's original sentence was illegal, because a sentence for firearm possession while committing a listed CDS offense must be imposed consecutive to the sentence for the underlying CDS conviction. N.J.S.A. 2C:39-4.1(a) and (d). Moreover, the court misspoke when it stated that count five was to run concurrent to count one. From its explanation of the aggregate sentence, the court clearly intended to arrive at twenty-three years of incarceration with eleven and one-half years of parole ineligibility, and clearly informed defendant of that intent. That total sentence could only occur if count five was run consecutively to count one. Furthermore, while defendant had already begun serving his sentence, the two-month gap between the original sentencing and the amendment was not substantial.
For these reasons, we find that defendant had no legitimate expectation in the finality of a sentence of twenty-three years of incarceration with nine and one-half years of parole ineligibility. As defendant had no legitimate expectation of finality in the lesser sentence, the court did not violate his due process rights by amending the judgment of conviction. Moreover, as the amended judgment reflects the sentencing court's clear original intent, we will not disturb it on appeal.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION