STATE OF NEW JERSEY v. BRANDON W. VASHEY, STATE OF NEW JERSEY v. DARYEL L. RAWLS, a/k/a DARRYL RAWLS, DARYEL C. RAWLS, DARYL RAWLS, and DERRYL RAWLS, DERIC RAWLS, DETRIC J. RAWLS, and DETRICK J. ROSS

In these three back-to-back appeals, which we now

consolidate for purposes of this opinion, defendants Dectric

Rawls (Dectric), Daryel Rawls (Daryel),1 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.

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

1 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.

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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.

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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

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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

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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).

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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 OPENENDED 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].

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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:

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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

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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.

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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

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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

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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,

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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

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"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 Miranda2

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.

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.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

A-1065-12T3 17

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

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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.

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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

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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

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discussed on the tapes. Contrary to Dectric's contention, there

is also no evidence that the tapes were inaudible.3 There was

also no evidence in the record indicating that any of the tapes

were altered in any way.

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

3 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.

A-1065-12T3 22

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

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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

A-1065-12T3 24

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

A-1065-12T3 25

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

A-1065-12T3 26

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

A-1065-12T3 27

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.

A-1065-12T3 28

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

A-1065-12T3 29

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

A-1065-12T3 30

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 Franks4 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,

4 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

A-1065-12T3 31

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.

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.

[438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]

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).

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

A-1065-12T3 32

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

A-1065-12T3 33

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.

A-1065-12T3 34

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.

A-1065-12T3 35

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

A-1065-12T3 36

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

A-1065-12T3 37

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)

A-1065-12T3 38

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).

A-1065-12T3 39

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

A-1065-12T3 40

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.

A-1065-12T3 41

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

A-1065-12T3 42

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.

A-1065-12T3 43

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.5

5 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).

A-1065-12T3 44

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

A-1065-12T3 45

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,6 six,7 and nine8

6 N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense[.]"

7 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. . . ."

A-1065-12T3 46

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.

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

(continued) 8 N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]"

A-1065-12T3 47

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

A-1065-12T3 48

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.

[Id. at 9.]

Specifically, N.J.S.A. 2C:35-12 states in pertinent part:

A-1065-12T3 49

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

A-1065-12T3 50

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

convictions9 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[.]"

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

9 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).

A-1065-12T3 51

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 judge10 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.

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).11 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.

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

10 As noted above, the motion judge sentenced Daryel and the sentencing judge sentenced Vashey. 11 The minimum term of parole ineligibility under N.J.S.A. 2C:436(f) is one-third of the minimum ten-year base term, or forty months.

A-1065-12T3 52

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

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.12 We do not retain

jurisdiction.