Opinion
DOCKET NO. A-1065-12T3 DOCKET NO. A-1179-12T3 DOCKET NO. A-1984-12T3
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRANDON W. VASHEY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARYEL L. RAWLS, a/k/a DARRYL RAWLS, DARYEL C. RAWLS, DARYL RAWLS, and DERRYL RAWLS, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DECTRIC J. RAWLS, a/k/a JERMAINE JEFFERSON, LO LO, DETRIC RAWLS, DETRIC J. RAWLS, and DETRICK J. ROSS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Brandon W. Vashey in A-1065-12 (Frank M. Gennaro, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Daryel Rawls in A-1179-12 (Daniel Brown, Designated Counsel, on the brief). Kevin G. Byrnes, Designated Counsel, argued the cause for appellant Dectric Rawls in A-1984-12 (Joseph E. Krakora, Public Defender, attorney; Mr. Byrnes, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor and Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs in A-1065-12 and A-1179-12). Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-1984-12 (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief). Appellant Dectric Rawls filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Submitted (A-1065-12 and A-1179-12) and Argued (A-1984-12) January 6, 2016 - Decided February 5, 2016 Before Judges Alvarez, Ostrer and Haas. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-04-0705. Joseph E. Krakora, Public Defender, attorney for appellant Brandon W. Vashey in A-1065-12 (Frank M. Gennaro, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Daryel Rawls in A-1179-12 (Daniel Brown, Designated Counsel, on the brief). Kevin G. Byrnes, Designated Counsel, argued the cause for appellant Dectric Rawls in A-1984-12 (Joseph E. Krakora, Public Defender, attorney; Mr. Byrnes, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor and Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs in A-1065-12 and A-1179-12). Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-1984-12 (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief). Appellant Dectric Rawls filed a pro se supplemental brief. PER CURIAM
In these three back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Dectric Rawls (Dectric), Daryel Rawls (Daryel), and Brandon W. Vashey challenge their convictions and sentences following their guilty pleas to various narcotics-related offenses arising from their participation in a large-scale heroin-trafficking operation. We affirm all three of the defendants' convictions and the sentence the trial judge imposed on Dectric. In Daryel's and Vashey's cases, however, we remand for resentencing.
Because Dectric and Daryel Rawls are brothers and share the same surname, we refer to them individually by their first names in order to avoid confusion. In doing so, we intend no disrespect.
I.
On April 26, 2010, a Monmouth County grand jury returned a forty-eight count indictment charging defendants and twenty other individuals with a variety of drug offenses. The indictment charged Dectric, Daryel, and Vashey with second-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2) (count one); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); second-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(2) (count three); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count five).
The indictment separately charged Dectric with first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count six); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count forty-six); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count forty-seven); and second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count forty-eight). Finally, the indictment charged Daryel with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count forty-four); and second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count forty-five).
On December 23, 2011, the motion judge denied defendants' motions to dismiss the indictment. On March 23, 2012, the judge denied defendants' motions to suppress evidence seized by the police pursuant to several Communication Data Warrants (CDWs) and wiretap authorizations approved by other judges. That same day, the judge denied Daryel's motion to suppress evidence seized from his vehicle and residence following a consent search.
On April 30, 2012, Dectric entered an "open" plea to first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count six); and second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count forty-eight). In pleading guilty, Dectric did not waive his right to file an appeal from the court's decisions on his pre-trial motions. On August 17, 2012, a different judge (the sentencing judge) sentenced Dectric to life in prison on count six, with the twenty-five year period of parole ineligibility required under N.J.S.A. 2C:35-3. The judge imposed a consecutive eight-year term, with a four-year period of parole ineligibility on count eight. The judge dismissed the remaining charges and imposed appropriate fines and penalties.
On May 1, 2012, Vashey pled guilty to second-degree conspiracy to distribute a CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2) (count one); and second-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(2) (count three). On August 3, 2012, the sentencing judge merged count one into count three and sentenced Vashey to eight years in prison, with a four-year period of parole ineligibility. The judge dismissed the remaining charges and imposed appropriate fines and penalties.
Finally, on May 15, 2012, Daryel pled guilty to second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count forty-five). On July 13, 2012, the motion judge sentenced Daryel to eight years in prison, with a four- year period of parole ineligibility. The judge dismissed the remaining charges and imposed appropriate fines and penalties. These appeals followed.
On appeal, Dectric raises the following contentions:
POINT I
[DECTRIC'S] FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A PROPERLY AUTHORIZED GRAND JURY INDICTMENT WAS VIOLATED.
A. THE STATE FAILED TO COMPLY WITH THE FOUNDATION REQUIREMENTS FOR A PROPER CONSIDERATION OF ELECTRONIC SURVEILLANCE EVIDENCE.
1. THE STATE FAILED TO SHOW THAT THE WIRETAP EVIDENCE WAS SUFFICIENTLY AUDIBLE.
2. THE STATE FAILED TO PROVIDE AN EVIDENTIAL FOUNDATION LI[N]KING THE TAPED COMMUNICATIONS TO THE TELEPHONE FACILITY IDENTIFIED IN THE WIRETAP AUTHORIZATION.
3. THE STATE FAILED TO PRODUCE EVIDENCE SHOWING THAT THE COMMUNICATIONS HAD NOT BEEN ALTERED.
4. THE STATE FAILED TO PRODUCE EVIDENCE ESTABLISHING THE VOICE IDENTITY OF THE PERSON SUBJECTED TO [THE] INTERCEPTED COMMUNICATIONS.
B. THE STATE FAILED TO INSTRUCT [THE] GRAND JURORS PROPERLY, ACCURATELY, AND COMPLETELY.
C. THE STATE FAILED TO DISTINGUISH BETWEEN MERE PURCHASERS OF CDS AND THOSE WHO
WERE ALLEGEDLY INVOLVED IN A TRAFFICKING NETWORK, THEREBY MISLEADING [THE] GRAND JURORS CONCERNING THE SUFFICIENCY OF THE EVIDENCE.
D. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT THE INDICTMENT.
POINT II
[DECTRIC'S] RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS GUARANTEED BY ART. I, PAR. 7 OF THE [NEW JERSEY CONSTITUTION] AND NEW JERSEY STATUTORY LAW, WAS VIOLATED BY THE IMPROPER ISSUANCE OF DATA WARRANTS AND WIRETAP AUTHORIZATIONS.
A. THE WARRANTS WERE ISSUED ON THE BASIS OF DEFECTIVE AFFIDAVITS THAT FAILED TO ESTABLISH PROBABL[E] CAUSE.
1. THE POLICE FAILED "TO DEMONSTRATE" THE FACTUAL BASIS FOR THE CONCLUSION THAT [THE] CONFIDENTIAL INFORMANTS WERE RELIABLE AND HAD PERSONAL KNOWLEDGE OF THE CRIMINAL ALLEGATIONS.
2. BY THE TIME THE POLICE CONDUCTED THEIR SEARCH AND SEIZURE PURSUANT TO A COURT ORDER, THE UNDERLYING FACTS PURPORTEDLY ESTABLISHING PROBABLE CAUSE HAD BECOME STALE.
B. THE POLICE MADE MATERIAL AND FALSE REPRESENTATIONS OF THE FACTS IN THE AFFIDAVITS SUPPORTING THE WARRANT.
POINT III
THE CONDITIONAL PLEA PROCESS WAS DEFECTIVE, ARBITRARY[,] AND UNLAWFUL (Partially Raised Below).
A. THE PROSECUTOR'S DECISION NOT TO ALLOW APPELLATE REVIEW OF THE LEGITIMACY OF THE GRAND JURY PROCESS VIOLATES THE SEPERATION OF POWERS DOCTRINE AND UNDERMINES A VITAL PUBLIC INTEREST IN A LEGITIMATE GRAND JURY PROCEDURE (Not Raised Below).
B. THE PROSECUTOR'S DECISION WHETHER TO ALLOW A DEFENDANT TO ENTER A CONDITIONAL PLEA SHOULD BE SUBJECT TO GUIDELINES AND OVERSIGHT BY THE COURT TO PROTECT AGAINST ARBITRARY PROSECUTORIAL AUTHORITY AND TO ENSURE UNIFORM APPLICATION OF THE LAW.
POINT IV
[DECTRIC'S] MOTION TO WITHDRAW FROM AN OPEN-ENDED GUILTY PLEA (WITH NO PLEA AGREEMENT BY THE STATE) SHOULD HAVE BEEN GRANTED.
POINT V
[DECTRIC] WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE [UNITED STATES CONSTITUTION] AND ART. I, PAR. 10 OF THE [NEW JERSEY CONSTITUTION].
POINT VI
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE COURT IMPERMISSIBLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
C. THE IMPOSITION OF A LIFE TERM PLUS EIGHT YEARS FOR A DRUG CRIME IS CRUEL AND UNUSUAL, IN VIOLATION OF THE EIGHTH AMENDMENT TO THE [UNITED STATES CONSTITUTION].
POINT VII
[DECTRIC] ADOPTS AND INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN [DARYEL'S AND VASHEY'S] BRIEFS THAT ARE NOT INCONSISTENT WITH [HIS] ARGUMENTS.
In addition, Dectric raised the following issues in his pro se supplemental brief:
POINT 1
THE ALLEGED DRUG BUYS USED TO SUPPORT THE [CDWs] 71-75 WERE STALE, AND THE CDW RESULTS WERE USED TO SUPPORT THE SUBSEQUENT ELECTRONIC SURVEILLANCE APPLICATIONS, TAINTING THOSE APPLICATIONS WITH THE SAME STALENESS.
POINT 2
THE STATE FAILED TO PROVIDE THE ISSUING COURT WITH A SUFFICIENT BASIS TO IDENTIFY THE VOICE OF [DECTRIC]; OR, TO IDENTIFY [DECTRIC] AS BEIN[G] THE PERSON UTILIZING THE DESIGNATED TELEPHONE FACILITIES. THE STATE FAILED TO PROVIDE THE GRAND JURY WITH ANY EVIDENTIAL BASIS (OTHER THAN THE STATE'S OPINION) THAT IT WAS [DECTRIC'S] VOICE ON THE SEIZED COMMUNICATIONS.
POINT 3
THE AFFIANT FAILED TO ESTABLISH PREREQUISITES FOR THE ISSUANCE OF THE COMMUNICATIONS DATA WARRANTS; THE PROBABLE CAUSE WAS STALE AND THE EVIDENCE SEIZED WAS USED WITHOUT THE DEVELOPMENT OF AN INDEPENDENT SOURCE RESULTING IN ALL PROBABLE CAUSE USED FOR SUBSEQUENT APPLICATIONS BEING IRREPARABLY TAINTED.
Daryel presents the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING [DARYEL'S] MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO THE WARRANTLESS SEARCH OF [DARYEL'S] MOTOR VEHICLE.
POINT II
THE TRIAL COURT ERRED IN DENYING [DARYEL'S] MOTION TO SUPPRESS EVIDENCE SEIZED THROUGH ELECTRONIC SURVEILLANCE BECAUSE THE EVIDENCE OF ALLEGED DRUG BUYS USED TO ESTABLISH PROBABLE CAUSE FOR THE ISSUANCE OF THE COMMUNICATIONS DATA WARRANTS WAS STALE.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS (Not Raised Below).
Finally, Vashey raises these contentions:
POINT ONE
THE INITIAL COMMUNICATIONS DATA WARRANTS, DESIGNATED LML BY AJM-MON-71-CDW-09 THROUGH AND INCLUDING LML BY AJM-MON-75-CDW-09[,] WERE NOT SUPPORTED BY PROBABLE CAUSE.
POINT TWO
[VASHEY] RECEIVED AN EXCESSIVE SENTENCE.
II.
We derive the following facts from the record developed in the trial court. In July 2008, "numerous reliable informants" alerted Detective James Powers of the Monmouth County Prosecutor's Office (MCPO) that Dectric had been distributing significant amounts of heroin in the county. The informants notified Powers that Dectric had been leading a large-scale heroin-distribution operation for nearly five years, and that he was earning approximately $100,000 per month. As part of his operation, Dectric would transport more than 25,000 bags of heroin each month from a supply source in Newark to various co-conspirators, who would distribute the heroin in smaller quantities. Powers was already familiar with Dectric from previous narcotics investigations.
Based on this information, Powers and members of the MCPO Narcotics Strike Force initiated an investigation. After unsuccessfully attempting to infiltrate Dectric's operation with an undercover officer, the MCPO used two reliable, confidential informants to conduct seven separate, controlled purchases from Dectric and his associates between February 2 and March 19, 2009. In each of these transactions, an undercover detective listened in when the informant called Dectric or an associate on the telephone to arrange the transaction. The informant and the detective then met with Dectric or one of his associates at various locations to complete the transaction. The substances obtained during each of these controlled purchases tested positive as heroin.
On May 6, 2009, Powers submitted an application for CDWs for the telephone facilities used by Dectric and an associate named Robert Craven to arrange the purchases. In support of his application, Powers prepared an affidavit detailing the controlled purchases that had been made. On that same day, the CDW judge found probable cause to believe that Dectric, Craven, and others within the operation were using the aforementioned telephone facilities to engage in the crimes of possession and distribution of controlled dangerous substances. The judge therefore issued CDWs 71-75, authorizing the MCPO to obtain billing records, customer records, call detail records, and other information related to the activity of those telephone numbers from February 2, 2009 to May 6, 2009. The information obtained pursuant to these CDWs revealed that Dectric had made, on average, 180 calls per day during this period to individuals known to be engaged in narcotics distribution and other criminal activities.
Powers learned through confidential informants that Dectric changed the wireless telephone facilities he was using in furtherance of his operation every thirty days. The MCPO also continued to make controlled purchases of heroin from Dectric and his associates using confidential informants, and these transactions helped the detectives identify Dectric's new telephone facilities as he changed lines each month. As the investigation proceeded, Powers successfully applied for additional CDWs and Wiretap Authorization Orders on August 14, 2009; August 19, 2009; September 18, 2009; September 24, 2009; October 9, 2009; October 16, 2009; October 23, 2009; and October 30, 2009.
Between September 18 and November 17, 2009, Powers and other detectives intercepted numerous communications among Dectric and various other individuals in his organization arranging the distribution of heroin and then conducted undercover visual surveillance to confirm the subsequent transactions. In doing so, the MCPO detectives were able to identify various members of Dectric's distribution network, including Vashey and Dectric's brother, Daryel.
Vashey became a target of the investigation on September 25, 2009 when detectives intercepted a telephone communication between Vashey and Dectric. Detectives intercepted 264 pertinent communications between Vashey and Dectric between September 25 and October 19, 2009, and the two men were heard discussing the details of the heroin-distribution operation.
Daryel was identified as a participant in the operation on November 6, 2009, when Powers intercepted a cell-phone conversation between Dectric and Daryel. Daryel had previous convictions for narcotics charges and had recently been released from prison. During the call, the detective heard Dectric ask Daryel to bring him "[ten]." Based on the detective's experience, he believed this was a request for Daryel to bring Dectric ten "bricks" of heroin.
Based on the information obtained through the controlled purchases, wiretaps, and electronic surveillance records, the MCPO detectives obtained a search warrant for Dectric's apartment. On November 16, 2009, MCPO detectives executed the warrant, resulting in the seizure of seven "bricks" of heroin, plus seventy-one individual bags of heroin from underneath the mattress of Dectric's bed; fifty-five "bricks" of heroin and $28,766.11 in cash from inside a safe in Dectric's bedroom closet; a loaded .38-caliber handgun from a shoebox inside Dectric's bedroom closet; and a key to a padlock along with a receipt from a public storage facility located in Marlboro Township. After confirming that Dectric was renting a storage unit at the Marlboro facility, the detectives sought, obtained, and executed a search warrant for Dectric's storage unit, where they found a safe containing multiple shopping bags full of cash, totaling $258,491.
On November 16, 2009, the detectives arrested Dectric and Vashey for their roles in the operation. On that same date, Detectives Scott Samis and Frank Sangi went to Daryel's home to discuss the investigation with him.
At the subsequent suppression hearing, Samis testified that the detectives first set up surveillance directly across the street from Daryel's home in an unmarked police vehicle. There was a red Nissan parked in the driveway of the home facing the street. Samis saw Daryel exit his house and walk out to the car. Daryel walked over to the front, passenger-side of the car and moved some paperwork around inside the vehicle. Daryel then proceeded to open the trunk, and he then spent two or three minutes "concentrating on the left side of the vehicle."
When Daryel finished with the trunk, he got in the car and pulled out of the driveway, traveling in the opposite direction of the way the police car was parked. Samis testified that, as Daryel drove past the undercover car, he "looked at [them] directly and both of [the detectives] made eye contact[,] and then he quickly took off." After Daryel passed the unmarked car, Samis looked in the rearview mirror and saw Daryel make "a left turn onto Salem Road or Street." Samis "whipped" the car around to follow Daryel. As he did so, Samis observed Daryel make a right turn without using his turn signal. Daryel then began moving "in and out of traffic." After Daryel "cut off a small SUV," Samis turned on his lights and sirens to stop Daryel "for the motor vehicle violations and to talk about his actions at the house and the investigation."
After the stop, Samis asked Daryel to exit his car and Daryel complied. Samis told Daryel that he wanted to talk to him about the investigation and advised him of his Miranda rights, which Daryel waived. Samis told Daryel "that his brother had been arrested and . . . had provided information to law enforcement that [Daryel] was possibly in possession of drugs[.]" This was a "ruse" to get Daryel to cooperate. Samis asked Daryel for permission to search the car and Daryel's residence. Daryel consented to the search and signed a written consent form prepared by Samis.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During the search of Daryel's car, the detectives found a scale in the center console and plastic baggies in the car. When Samis opened the trunk, it was empty. However, because he had observed Daryel at the trunk working on something during the surveillance, Samis's "suspicions rose[,]" and he "removed the lining and the tire. When [Samis] placed [his] hand in the left wheel well, [he] was able to feel a plastic baggie, which [he] pulled out." The baggie contained 330 bags of heroin. Samis then arrested Daryel and took him to his residence.
Once there, Samis spoke to Daryel's girlfriend, who owned the home. The girlfriend consented to a search of the residence. The detectives found small rubber bands in the master bedroom and $5,400 in cash in a pair of Daryel's boots. The detectives then searched the area where Daryel was first seen near his car. The detectives found a garbage can, containing fifteen "bricks" of heroin. Daryel told the detectives that the heroin belonged to him. Later, at the police station, Daryel gave a videotaped statement to the detectives. Samis testified that he also issued several summonses to Daryel for the motor vehicle infractions.
III.
In Point I of his brief, Dectric argues that the motion judge erred by denying his motion to dismiss the indictment. He contends that the charges against him should have been dismissed because the State did not: provide a sufficient evidential foundation for the evidence before the grand jury; show that the wiretap recordings were audible; present evidence demonstrating that the recordings had not been altered; or present a voice identity expert to confirm that Dectric was one of the speakers on the recordings. He also asserts that the State failed to: properly instruct the grand jurors on the law; distinguish between the conspirators who were involved in the distribution network and the individuals who were "mere purchasers of CDS"; and produce sufficient evidence to support the charges against him.
In examining the power of grand juries, our Supreme Court "has recognized the grand jury's independence and has expressed a reluctance to intervene in the indictment process." State v. Hogan, 144 N.J. 216, 228 (1996). Consequently, a trial court should disturb an indictment only "'on the clearest and plainest ground' . . . and only when the indictment is manifestly or palpably defective." Id. at 228-29 (quoting State v. Perry, 124 N.J. 128 (1991)).
A trial judge's decision denying a defendant's motion to dismiss an indictment is reviewed for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55 (2015) (citing Hogan, supra, 144 N.J. at 229). Accordingly, the trial judge's "exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Hogan, supra, 144 N.J. at 229.
The motion judge concluded that all of Dectric's contentions lacked merit and denied his motion to dismiss the indictment. We detect no abuse of discretion in the judge's sound ruling.
Contrary to Dectric's contention that the formal Rules of Evidence apply in grand jury proceedings, the Supreme Court has long recognized that a "grand jury is an accusative rather than an adjudicative body[.]" Hogan, supra, 144 N.J. at 229-30 (citing United States v. Williams, 504 U.S. 36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed. 2d 352, 368 (1992)). Consequently, the grand jury's role is to investigate potential defendants and determine whether a criminal proceeding should commence, rather than weigh each party's evidence. United States v. Calandra, 414 U.S. 338, 343-44, 94 S. Ct. 613, 618, 38 L. Ed. 2d 561, 569 (1974).
"Credibility determinations and resolution of factual disputes are [therefore] reserved almost exclusively for the petit jury." Hogan, supra, 144 N.J. at 235. Moreover, "[t]he rules of evidence do not apply to certain preliminary inquiries" including a grand jury determining whether to return an indictment. State v. Engel, 99 N.J. 453, 462 (1985) (citing State v. Doliner, 96 N.J. 236, 249 (1984)).
Accordingly, grand jury "proceedings have never been conducted with the assiduous regard for the preservation of procedural safeguards which normally attends the ultimate trial of the issues." State v. Fary, 19 N.J. 431, 437 (1955) (quoting In re Pillo, 11 N.J. 8 (1952)). Thus, "[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd on other grounds, 110 N.J. 258 (1988); see also State v. Ferrante, 111 N.J. Super. 299, 304-06 (App. Div. 1970) (reversing trial court's dismissal of an indictment and remanding the case for trial given that trial judge based his dismissal on the incompetency of evidence presented to the grand jury).
Applying these principles, we conclude that the motion judge properly rejected Dectric's contentions on this point. Before the grand jury, the State presented the testimony of Detective Powers, who described the investigation in detail and played the pertinent wiretap recordings. There was no requirement that the State produce additional witnesses to authenticate the recordings or demonstrate further that Dectric's voice was on them. Powers was the detective responsible for leading the investigation and arranging for the recordings. He testified that he was familiar with Dectric from earlier investigations and was well aware that Dectric was the individual on the recordings. In addition, Dectric's participation in the recorded conversations was corroborated by Dectric's later direct participation in the heroin buys discussed on the tapes. Contrary to Dectric's contention, there is also no evidence that the tapes were inaudible. There was also no evidence in the record indicating that any of the tapes were altered in any way.
Dectric identified only one conversation on one of the recordings that he believed to be inaudible because one of the grand jurors asked Powers a question about what one of the speakers said. We have listened to this portion of the tape and, like the motion judge, are satisfied that it was audible.
Dectric next argues that the State "failed to instruct [the] grand jurors on each and every element of the charged crimes." However, the prosecutor presenting the State's case to the grand jury was under no obligation to do so. As we stated in State v. Hogan, "nothing in the New Jersey Constitution demands 'a verbatim reading of applicable statutes or a recitation of all legal elements of each charge . . . .'" 336 N.J. Super. 319, 340 (App. Div.) (quoting State v. Laws, 262 N.J. Super. 551, 562 (App. Div.), certif. denied, 134 N.J. 475 (1993)), certif. denied, 167 N.J. 635 (2001). Dectric also fails to cite any misleading or incorrect statement of the law in the prosecutor's instructions to the jury. Therefore, the motion judge did not abuse her discretion in rejecting Dectric's contention.
Dectric also argues that the State misled the grand jurors "concerning the sufficiency of the evidence" in its presentation by "fail[ing] to distinguish between mere purchasers of CDS and those who were . . . involved in [the] trafficking network[.]" However, this argument is not supported by the record, which is replete with examples of Powers painstakingly describing the role played by Dectric, Daryel, and Vashey in the operation as heroin distributors, rather than mere purchasers of the drug.
Finally on this point, Dectric argues that the State did not present sufficient evidence to support the charges against him. This contention is plainly without merit because the evidence the State presented concerning Dectric's leadership of the operation, which Dectric does not even mention in his brief, was overwhelming.
Unlike a formal trial, where the State's burden is to prove a defendant's guilt beyond a reasonable doubt, the State must only present the grand jury with "some evidence" as to each element of its prima facie case. State v. Morrison, 188 N.J. 2, 12 (2006). Indictments returned by a grand jury are presumed valid. State v. Francis, 191 N.J. 571, 587 (2007). Accordingly, in determining whether the evidence proffered in support of an indictment is sufficient, "the facts upon which the indictment is based must be viewed indulgently in favor of the State[,]" State v. Fleischman, 383 N.J. Super. 396, 398 (App. Div. 2006), aff'd, 189 N.J. 539 (2007), and "every reasonable inference is to be given to the State." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984). The defendant challenging the indictment bears the burden of showing that the evidentiary support for the charge is "clearly lacking[.]" State v. McCrary, 97 N.J. 132, 142 (1984).
Dectric failed to meet this burden. For example, in support of the charge of first-degree leader of a narcotics trafficking network under N.J.S.A. 2C:35-3, the State presented evidence to the grand jury that Dectric was transporting more than 25,000 bags of heroin each month from a supply source in Newark to his associates, who would then distribute the drugs in smaller quantities. The grand jurors heard numerous taped conversations between Dectric, his co-defendants, and other associates discussing the distribution of the heroin, and testimony from Powers concerning the MPCO's surveillance of the meetings between Dectric and his co-conspirators.
The search of Dectric's home produced a large quantity of heroin, cash, and a loaded .38-caliber handgun. The seizure of the handgun provided more than enough evidence to support the grand jury's indictment of Dectric on the second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a), the other charge to which Dectric pled. Thus, we reject Dectric's contention on this point.
IV.
In Point II of their respective briefs, Dectric and Daryel contend that the motion judge should have suppressed the evidence obtained through the CDWs and wiretaps. Vashey makes a similar argument in Point I of his brief. Defendants largely focus on the first set of CDWs, which Detective Powers obtained on May 6, 2009. Defendants contend that, if those warrants were invalidly granted, then all of the subsequent CDWs and wiretap authorization orders were also invalid.
The Fourth Amendment and article I, paragraph 7 of the New Jersey Constitution afford protection from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498-99 (1986). Consequently, "[b]efore issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched." State v. Evers, 175 N.J. 355, 381 (2003) (citing State v. Sullivan, 169 N.J. 204, 210-11 (2001)).
In State v. Mosner, 407 N.J. Super. 40, 61 (App. Div. 2009), we observed that "[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]" (quoting Evers, supra, 175 N.J. at 381). Therefore, a reviewing court must give substantial deference to a judge's determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant, the court must look to the totality of the circumstances to see if there was probable cause. State v. Chippero, 201 N.J. 14, 27 (2009).
Initially, Dectric argues that the evidence seized pursuant to the CDWs should have been suppressed because Detective Powers's supporting affidavits did not adequately establish that the confidential informants were reliable. We disagree.
Probable cause may be based upon information received from informants, so long as there is "substantial evidence in the record to support the informant[s'] statements." State v. Keyes, 184 N.J. 541, 555 (2005). A "court must consider the 'veracity and basis of knowledge' of [an] informant as part of its 'totality [of the circumstances]' analysis." Ibid. (quoting State v. Jones, 179 N.J. 377, 389 (2004)). The veracity factor may be shown "by demonstrating that the informant has proven reliable" in "providing [other] dependable information in previous police investigations." Ibid. An informant's basis of knowledge will be deemed sufficient if "the tip reveals 'expressly or clearly' how the informant became aware of the alleged criminal activity." Id. at 555-56 (quoting State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)).
In addition, if the police are able to corroborate the information in the tip through their own investigation, a search warrant may be issued even if the informant's tip does not demonstrate veracity or basis of knowledge. Smith, supra, 155 N.J. at 95-96. Factors that may be considered in the probable cause analysis when determining whether the police sufficiently corroborated an informant's tip include "controlled drug purchases performed on the basis of the informant's tip, the positive test results of narcotics obtained during a controlled purchase, and records corroborating an informant's account of the location of suspected drug activity." Jones, supra, 179 N.J. at 390 (citing Sullivan, supra, 169 N.J. at 215-17). The court must also consider the experience of the police officer who prepared the affidavit supporting the search warrant request "in investigating and apprehending drug dealers[.]" Ibid.
In denying Dectric's motion to suppress the evidence seized pursuant to the CDWs, the motion judge correctly applied these principles and concluded that Dectric's argument was "completely without merit." As the judge found, each confidential informant that Powers cited in his affidavit participated in controlled heroin purchases from either Dectric or one of his associates. Indeed, the MCPO arranged seven controlled drug buys from the drug ring before seeking the first set of CDWs. The transactions were arranged by having the informants speak to Dectric or an associate over identified telephone numbers. Both the calls and the subsequent heroin purchases were monitored by the MCPO team. The substances obtained during the transactions all tested positive for heroin. In his affidavits, Powers also set forth the basis for his specialized knowledge and extensive experience in investigating and arresting drug dealers.
Under these circumstances, we agree with the judge that the totality of this information was plainly sufficient to demonstrate the reliability of the confidential informants used by the MCPO during the investigation. Therefore, Dectric's argument on this point is without merit.
Next, all three defendants argue that the May 6, 2009 CDWs should never have been issued because the last controlled drug purchase mentioned in Detective Powers's affidavit occurred on March 19, 2009, which was forty-eight days prior to the issuance of the warrant. Thus, defendants contend that the information Powers included in the affidavit was too "stale" to support their issuance.
Our core concern in considering a staleness challenge is "do all the circumstances exhibited . . . reasonably [contribute] to a belief that the law was being violated at the time the warrant issued?" State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976). More specifically, "where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant" in determining whether information is stale. Ibid. (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).
Thus, contrary to defendants' contention, "the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit." Ibid. (quoting Johnson, supra, 461 F.2d at 287). Accordingly, in addition to the timing of the issuance of the warrant, a court "must consider the nature of the unlawful activity. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time." Ibid. (quoting Johnson, supra, 461 F.2d at 287).
These principles are particularly important in a case where, as here, the police are investigating a large-scale drug-distribution network using CDWs and wiretaps. As the Third Circuit observed in United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973), "[p]rotracted and continuous activity is inherent in a large-scale narcotics operation[,]" and "[a]ll the events establishing probable cause will not necessarily occur a few hours or even a few weeks before the affidavit for a search warrant is issued."
Similarly, the Third Circuit also observed that a "liberal examination given staleness in a protracted criminal conduct case 'is even more defensible in wiretap cases [such as this one] than in ordinary warrant cases, since no tangible objects which can be quickly carried off are sought.'" United States v. Tehfe, 722 F.2d 1114, 1119-20 (3d Cir. 1983) (quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)), cert. denied, 466 U.S. 904, 104 S. Ct. 1679, 80 L. Ed. 2d 154 (1984). In Tehfe, the court, interpreting New Jersey law, concluded that a state trial judge who approved the wiretap in question "properly found probable cause to believe that the telephone . . . was being used in a continuing criminal enterprise" although the affidavit did not state when the events causing the suspicion of heroin distribution actually occurred. Id. at 1115-17. The court reasoned that the drug operation in question was clearly a protracted and continuous activity and "there was recent information that would permit a finding that [the defendant's] enterprise was connected with the [wiretapped] phone[,]" including calls from defendant to the phone. Id. at 1120.
In this case, the motion judge properly found that Powers's affidavit set forth detailed information that Dectric's heroin-distribution operation was "protracted and continuous," rather than an isolated criminal event occurring on a single day. Powers also explained that the MCPO was conducting "an ongoing investigation and an extensive investigation. The nature of the activity alleged was not a one[-]time sale of narcotics . . . ." Powers provided information concerning seven separate drug purchases by two confidential informants in which four separate telephone facilities were used over a two-month period. The judge's finding that the information in Powers's affidavit was not "stale" is fully supported by the principles discussed above. We therefore reject defendants' contentions.
Finally on this point, Dectric argues that he was entitled to a Franks hearing based on his allegation that Detective Powers made "material and false representations of the facts in the affidavit[] supporting" the initial set of warrants. Specifically, Dectric argues, as he did before the motion judge, that Powers had no factual basis to conclude that the number called by the confidential informant to set up the controlled buys was used by Dectric or registered in his name. This argument lacks merit.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
In Franks, the Supreme Court held that
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.However, "such a hearing is required only if the defendant can make a substantial preliminary showing of perjury." State v. Howery, 80 N.J. 563, 583 n.4, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).
[438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]
The motion judge concluded that Dectric failed to make this required showing and we agree with her conclusion. As the judge noted, Dectric completely ignored the fact that the MCPO arranged seven controlled heroin purchases involving Dectric or one of his associates. Either Dectric or an associate responded to these telephone calls by appearing at the designated locations to sell heroin to the informants during transactions observed by the MCPO team. Thus, the telephone facilities for which information was sought in the CDWs were obviously being used by Dectric as part of his operation. Because Dectric clearly failed to meet the "substantial preliminary showing of perjury" required under the Franks standard, a hearing was not required.
V.
In Point I of his brief, Daryel argues that the motion judge erred by denying his motion to suppress the evidence seized during the consent searches of his car and residence. Daryel asserts that the judge's finding that Detective Samis observed him committing a traffic violation "was clearly mistaken and not supported by substantial and credible evidence in the record." Daryel bases this contention solely on the fact that the State did not introduce the summonses Samis testified he issued to Daryel during the suppression hearing. Daryel argues that, if the traffic stop was invalid, "his subsequent consent was therefore [in]valid[,]" and the evidence seized during the searches should have been suppressed. This argument lacks merit.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Gamble, 218 N.J. 412, 424-25 (2014). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a trial judge's findings that are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. citing State v. J.D., 211 N.J. 344, 354 (2012)).
"It is firmly established that a police office is justified in stopping a motor vehicle when he [or she] has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Here, Detective Samis testified that he observed Daryel make a right turn without using a turn signal, a violation of N.J.S.A. 39:4-126. Daryel then began moving "in and out of traffic" before cutting off another vehicle, a careless driving violation under N.J.S.A. 39:4-97. Thus, Samis had "an articulable and reasonable suspicion" that Daryel had committed a traffic violation when he stopped Daryel's car.
We reject Daryel's contention that the judge erred in relying upon Samis's testimony because the actual summonses he issued were not introduced in evidence. The judge made very strong credibility findings regarding the detective's testimony. The judge found that Samis "testified in a relaxed fashion and provided direct answers to questions. Nothing in his demeanor or the substance of his testimony would indicate that he was telling anything but the truth."
We defer to the judge's credibility findings because she had the opportunity to see and hear the detective testify at the suppression hearing. Gamble, supra, 218 N.J. at 424-25; see also Locurto, 157 N.J. at 472 (noting that an appellate court cannot itself "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.") (quoting State v. Barone, 147 N.J. 599, 615 (1998)). Thus, the State did not need to present the actual summonses to corroborate Samis's credible testimony.
As noted above, Daryel does not contest any other aspect of the motor vehicle stop or his subsequent consent to the searches that followed. Therefore, we discern no basis for disturbing the judge's decision to deny Daryel's motion to suppress the evidence seized during these searches.
VI.
During plea negotiations, the prosecutor made an offer to Dectric under which the State would recommend that he be sentenced to a twenty-five year term with a twelve-and-one-half year period of parole ineligibility in return for his guilty plea to count six, being the leader of a narcotics trafficking network. Dectric asked that the plea preserve his right to appeal the trial court's denial of his motion to dismiss the indictment. The prosecutor would not agree to this condition. Thus, the plea agreement was never consummated. Thereafter, Dectric entered an open plea to count six and to count forty-eight, possession of a firearm in the course of committing a drug offense.
At his sentencing hearing, Dectric's attorney complained that the prosecutor should not have been permitted to withhold his consent to the conditional plea agreement Dectric sought. The sentencing judge rejected this argument, finding that the State was under no obligation to offer Dectric any plea agreement and that trial judges are not permitted under Rule 3:9-3(a) to take part in plea discussions between the parties. The judge also concluded that, even assuming that he could review the prosecutor's decision not to agree to the conditional plea, the prosecutor did not abuse his discretion by rejecting Dectric's request. The judge found that the State "want[ed] finality[,]" which was a reasonable position to take in the negotiations given the overwhelming evidence the State had against Dectric, and the fact that there were numerous other defendants involved in the indictment.
In Point III of his brief, Dectric again asserts that the prosecutor should not have been permitted to withhold his consent to the conditional plea he sought. This argument lacks merit.
In pertinent part, Rule 3:9-3(f) provides that "[w]ith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." Thus, a conditional plea can only be entered if the prosecutor consents.
This requirement is fully in keeping with settled case law governing plea agreements. "A plea agreement is based on the 'mutuality of advantage' it affords to both the State and [the] defendant." Smith, supra, 306 N.J. Super. at 383 (quoting State v. Taylor, 80 N.J. 353, 361 (1979)). In a plea agreement, the "[d]efendant obtains the benefit of reduced penal exposure while the State is provided with the certainty of some punishment and the conservation of limited resources." State v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994).
However, there is nothing in the law that mandates that a plea agreement be struck in a particular case. This is so because "[t]he decision whether to offer a plea bargain is a matter of prosecutorial authority and discretion." State v. Gruber, 362 N.J. Super. 519, 537 (App. Div.) (citing State v. Hessen, 145 N.J. 441, 452 (1996)), certif. denied, 178 N.J. 251 (2003). Accordingly, both the prosecutor and the defendant must "voluntarily agree to [the] term[s] [of any plea agreement]. A bargain cannot be imposed upon a defendant and, by the same token, a defendant has no legal entitlement to compel a plea offer or a plea bargain; the decision whether to engage in such bargaining rests with the prosecutor." Williams, supra, 277 N.J. Super. at 46. Thus, contrary to Dectric's argument, the prosecutor was not obligated to make any plea offer to him, much less a plea offer on terms to which the prosecutor would not consent.
While a plea agreement will be found "unacceptable if based on an illegal term or condition," that is not the case here. State v. Thomas, 392 N.J. Super. 169, 183 (App. Div.) (citing Pressler, Current N.J. Court Rules, comment 4.3 on R. 3:9-3 (2007)), certif. denied, 192 N.J. 597 (2007). Rule 3:9-3(d) codified the Supreme Court's ruling in State v. Gibson, 68 N.J. 499, 510-11 (1975), that plea agreements may include "a provision that [the] defendant will not appeal[.]" See Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:9-3 (2016). Thus, we agree with the sentencing judge that the prosecutor did not improperly insist that Dectric forego his right to challenge the denial of his pre-trial motion to dismiss the indictment on appeal as a condition for the State's agreement to recommend a lesser sentence.
As noted above, the decision whether "to offer a plea bargain . . . certainly implicates prosecutorial authority and discretion." Hessen, supra, 145 N.J. at 452 (citing State v. Winne, 12 N.J. 152, 171 (1953)). And, the Supreme Court has observed "the prosecutor's discretion may, 'in appropriate circumstances, be reviewed for arbitrariness or abuse.'" Id. at 453 (quoting In re Investigation Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974) (a court may review a prosecutor's decision to select a matter for prosecution for abuse of discretion). However, even if we applied this principle to the prosecutor's decision declining to consent to a conditional plea, we are unable to discern any gross or patent abuse of discretion by the prosecutor in this case. See State v. K.S., 220 N.J. 190, 200, 203 (2015).
As the sentencing judge observed, the State wanted to bring this long-running investigation involving over twenty defendants to a close. "Prosecutors may . . . reasonably consider early disposition as an important law-enforcement objective, thus harnessing the most efficient use of prosecutor, defense, and judge time." State v. Shaw, 131 N.J. 1, 13 (1993). Thus, the prosecutor's interest in "finality" was reasonable. In addition, some of the other defendants who entered guilty pleas could not be sentenced until Dectric's case was concluded because, if that case went to trial, the other defendants would be called as witnesses. This provided further justification for the State's position concerning the plea negotiations. Under these circumstances, we decline to conclude that it was improper for the prosecutor to deny Dectric's request that he be offered a conditional plea.
Dectric also argues, for the first time on appeal, that the prosecutor's decision not to agree to a conditional plea "violates the separation of powers doctrine" and that this court should establish guidelines for prosecutors to follow in the future in determining whether a conditional plea is appropriate. However, "[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Neither of those exceptions applies to this case.
Although we therefore decline to address Dectric's newly-minted contention in further detail, we again note that decisions regarding whether to offer a plea bargain and the terms to be included in such a proposal are squarely within the prosecutor's authority and discretion. Hessen, supra, 145 N.J. at 452-53. Indeed, Rule 3:9-3(a) does not permit judges to participate in plea bargain discussions, subject to certain exceptions not applicable here. "Because a judge may not participate in plea negotiations, a judge may not tender a plea offer, especially over the objection of the prosecutor. . . . [and] such action improperly assumes the executive or prosecutorial power and, therefore, violates the doctrine of separation of powers." Williams, supra, 277 N.J. Super. at 48. Thus, separation of powers concerns would only arise if the court were to intervene in the plea bargain process in the manner suggested by Dectric.
VII.
In Point IV of his brief, Dectric argues that the sentencing judge should have granted his motion to withdraw his guilty plea. This argument lacks merit.
At the August 17, 2012 sentencing hearing, the judge asked counsel whether there was a pending motion to withdraw the guilty plea. In response, the assistant prosecutor told the judge that, sometime prior to June 29, 2012, Dectric had sent a letter "stating that he wanted to withdraw his plea." On June 29, 2012, however, Dectric's attorney sent a letter to the court "saying [that] after consultation there will be no motion to withdraw the plea."
Dectric's attorney then explained that, when he "became aware" of Dectric's letter, he had "a conference with [Dectric] to discuss . . . filing a conforming, formal motion on his behalf." However, "based upon those discussions, it was decided that it was not going to be filed[,]" and the attorney sent a confirming letter to the court. During his allocution at the sentencing hearing, Dectric admitted that he "did not pursue the motion to withdraw the plea." Thus, Dectric did not file a motion to withdraw his guilty plea in the trial court and, therefore, the judge made no decision concerning it.
Dectric's failure to file a motion to withdraw his guilty plea is fatal to his current argument on appeal. Under the plain error rule, allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result will be considered. State v. Macon, 57 N.J. 325, 337-39 (1971). However, as noted earlier, issues that were not presented a trial will generally not be considered on appeal. Nieder, supra, 62 N.J. at 234. Because a motion to withdraw the plea was never before the court, "its legal propriety never was ruled on by the trial court, [and] the issue was not properly preserved for appellate review." Robinson, supra, 200 N.J. at 18-19.
VIII.
In Point V of his brief, Dectric argues that his trial attorney rendered ineffective assistance to him by failing to explain that Dectric "did not have to enter into an open[-]ended plea in order to preserve his right to appeal the denial of his motion to dismiss the indictment." Dectric contends his attorney did not tell him that he could also file such an appeal if he were convicted at trial.
To establish ineffective assistance of counsel, a defendant bears the heavy burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence"; and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)). Because Dectric's claim of ineffective assistance of counsel rests upon evidence outside the record, it is not ripe for direct review.
Although we do not address the merits of Dectric's claim that he could successfully appeal the denial of his motion to dismiss the indictment following a jury's guilty verdict, we note that procedural irregularities in a grand jury proceeding are rendered harmless where the defendant is ultimately found guilty by a petit jury following a trial. State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987).
IX.
The arguments raised in Dectric's supplemental brief largely parrot the points raised by his appellate counsel. Dectric's supplemental contentions are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
X.
In Point VI of his brief, Dectric argues that his sentence "is patently excessive, cruel and unusual, and shocking to the judicial conscience." We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "are called to the court's attention[,]" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code, including the imposition of a mandatory life term with a twenty-five year period of parole ineligibility under N.J.S.A. 2C:35-3 under count six, first-degree leader of a narcotics trafficking network. Pursuant to N.J.S.A. 2C:39-4.1(d), the judge also properly imposed a consecutive term on count forty-eight, second-degree possession of a firearm in the course of committing a drug offense. The eight-year term, with a four-year period of parole ineligibility the judge imposed for the weapons offense under N.J.S.A. 2C:43-6(c), was well within the range for second-degree offenses. The sentences the judge imposed do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
There was ample evidence in the record to support the judge's finding that aggravating factors three, six, and nine applied. Dectric had an extensive juvenile and adult record, a substance abuse history, and multiple probation and parole violations. Dectric's reliance on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), is misplaced because the judge did not increase the mandatory minimum sentences required by N.J.S.A. 2C:35-3; N.J.S.A. 2C:39-4.1(d), and N.J.S.A. 2C:43-6(c), and none of the aggravating factors the judge cited constituted an element of the offenses for which he was sentenced.
N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense[.]"
N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses which he has been convicted. . . ."
N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]"
We discern no abuse of discretion in the judge's finding that no mitigating factors applied. As Dectric points out, "a guilty plea can have a lenient influence on [a] trial court's sentencing disposition, partly because it reflects a defendant's acceptance of responsibility for his or her criminal conduct and partly because it assists in the efficient disposition of cases." State v. Balfour, 135 N.J. 30, 38-39 (1994). However, here the life sentence with a twenty-five year parole ineligibility period for being the leader of a heroin trafficking network was a mandatory sentence. In addition, the judge was obligated to impose a consecutive term on the weapons offense. Therefore, the judge properly declined to consider defendant's guilty plea as a mitigating factor capable of lessening the sentences imposed.
Finally, Dectric argues that the mandatory life term, plus the consecutive eight-year term are "cruel and unusual" because "[a]ny legislative scheme that imposes a harsher sentence for a drug crime than for intentional murder is disproportionate and irrational." However, we have already upheld the constitutionality of the mandatory life sentence provided for under N.J.S.A. 2C:35-3. See State v. Kadonsky, 288 N.J. Super. 41, 45 (App. Div.), certif. denied, 144 N.J. 589 (1996). Therefore, we affirm the sentence the judge imposed upon Dectric in this case.
XI.
In the final points of their respective briefs, Daryel and Vashey also argue that their sentences were excessive. Both defendants pled guilty to second-degree distribution of heroin charges under N.J.S.A. 2C:35-5(b)(2). In terms of sentencing, N.J.S.A. 2C:35-5(b)(1) provides for the imposition of a mandatory prison sentence and period of parole ineligibility, "except as provided by N.J.S.A. 2C:35-12[.]" Under N.J.S.A. 2C:35-12 of the Comprehensive Drug Reform Act of 1987 (CRDA), N.J.S.A. 2C:35-1 to -36A-1, however, "a prosecutor may, through a negotiated plea agreement . . . waive the mandatory minimum sentence for any offense under the CRDA." State v. Brimage, 153 N.J. 1, 3 (1998). Such plea agreements are known as "Brimage agreements" and are governed by the Brimage Guidelines established by the Attorney General. Id. at 4.
As we have explained, "a key reason for authorizing the prosecution to relieve certain defendants accused of drug crimes from the [CRDA's] mandatory prison sentences and periods of parole ineligibility is to induce them to cooperate in the prosecution of others who are more culpable[.]" State v. Thomas, 253 N.J. Super. 368, 373 (App. Div. 1992). In turn, the Brimage Guidelines prescribe Statewide minimum plea offers for offenses under the CRDA, thus reducing the chance of disparate sentencing from county to county. Brimage, supra, 153 N.J. at 13.
To achieve the Legislature's specific goal of encouraging cooperation [by defendants] and [giving them an incentive to] turn[] State's evidence[,] and to prevent sentencing courts from undermining the effectiveness of prosecutors' strategies, N.J.S.A. 2C:35-12 requires the sentencing court to enforce all agreements reached by the prosecutor and a defendant under that section and prohibits the court from imposing a lesser term of imprisonment than that specified in the agreement.Specifically, N.J.S.A. 2C:35-12 states in pertinent part:
[Id. at 9.]
Whenever an offense defined in [the CRDA] specifies a mandatory sentence of imprisonment . . . during which the defendant shall be ineligible for parole, [or] a mandatory extended term which includes a period of parole ineligibility, . . . the court upon conviction shall impose the mandatory sentence . . . unless the defendant has pleaded guilty pursuant to a negotiated agreement . . . which provides for a lesser sentence, [or] period of parole ineligibility[.] . . . The negotiated plea . . . agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, [or] a specified period of parole ineligibility . . . ."
[(emphasis added).]
Thus, under the clear terms of N.J.S.A. 2C:35-12, "[a] trial judge who accepts a plea agreement in which the State recommends a sentence less severe than the sentence mandated by the [CRDA] may not impose an even lesser sentence." Thomas, supra, 253 N.J. Super. at 373. However, "[t]he [above] emphasized language makes it clear that [N.J.S.A. 2C:35-12] applies only where the prison sentence or period of parole ineligibility recommended by the prosecution, either before or after trial, is less than the sentence mandated by the [CRDA]." Id. at 372. Put another way, if the plea agreement calls for a sentence that is greater than the sentence mandated by the CRDA, N.J.S.A. 2C:35-12 does not apply, and the sentencing judge retains his or her discretion to impose a lesser term. Thomas, supra, 253 N.J. Super. at 374.
In determining whether N.J.S.A. 2C:35-12 applies to a plea agreement, "the [prosecutor's] recommendation must be compared to the minimum sentence mandated by the [CRDA]" for the offense. Ibid. Both Daryel and Vashey had prior drug distribution convictions and, therefore, they were each eligible for extended terms of ten to twenty years in prison for their convictions under N.J.S.A. 2C:35-5(b)(2). See N.J.S.A. 2C:43-6(f) (providing that an individual convicted under N.J.S.A. 2C:35-5, who has previously been convicted of a drug distribution charge, "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). N.J.S.A. 2C:43-6(f) also required "the imposition of a minimum term . . . fixed at, or between, one-third and one half of the sentence imposed by the court or three years, whichever is greater[.]"
For example in 2002, Daryel was convicted of first-degree drug distribution, N.J.S.A. 2C:35-5(a)(1) and (b)(1). In 2009, Vashey was convicted of third-degree drug distribution, N.J.S.A. 2C:35-5(b)(3).
Here, Daryel's and Vashey's Brimage plea agreements each called for the imposition of an eight-year base term, and a four-year minimum term during which they would be ineligible for parole. The eight-year base term called for in the agreements was less than the minimum ten-year term mandated by N.J.S.A. 2C:43-6(f). Therefore, under N.J.S.A. 2C:35-12, the motion judge and the sentencing judge were not permitted to impose a lesser base term. Thomas, supra, 253 N.J. Super. at 373. Accordingly, Daryel's and Vashey's arguments that their base terms were excessive must fail.
As noted above, the motion judge sentenced Daryel and the sentencing judge sentenced Vashey.
However, as the State acknowledges in its brief in Vashey's case, the four-year period of parole ineligibility called for in the plea agreements was greater than the minimum forty-month term required by N.J.S.A. 2C:43-6(f). Therefore, N.J.S.A. 2C:35-12 did "not limit the [judges'] sentencing discretion to accepting or rejecting the [prosecutor's] recommendation" concerning the appropriate minimum term. Thomas, supra, 253 N.J. Super. at 374.
The minimum term of parole ineligibility under N.J.S.A. 2C:43-6(f) is one-third of the minimum ten-year base term, or forty months.
Our review of the sentencing transcripts convinces us that neither judge considered imposing a parole ineligibility period shorter than the four years recommended by the State, nor did they explain their reasons for not doing so. Therefore, we remand for resentencing so that the trial judge assigned to the matter may consider whether to impose a period of parole ineligibility on Daryel or Vashey between the required forty months and the recommended four years, and explain his or her reasons for the resulting sentences. In remanding, we express no view on the merits of defendants' contentions concerning the period of parole ineligibility to be imposed and leave that determination to the trial judge.
XII.
In sum, we affirm Dectric's conviction and sentence. We also affirm Daryel's and Vashey's convictions, but remand in each of their cases for resentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
As for the balance of any of defendants' arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). --------
CLERK OF THE APPELLATE DIVISION