State v. Lagares

• Decision Date: 19 April 1991
• Citation: 247 N.J.Super. 392,589 A.2d 630
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Reynaldo LAGARES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 392

247 N.J.Super. 392

589 A.2d 630

STATE of New Jersey, Plaintiff-Respondent, v. Reynaldo LAGARES, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 12, 1991.

Decided April 19, 1991.

Theresa Yvette Kyles, Asst. Deputy Public Defender, argued the cause for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney; Theresa Yvette Kyles, of counsel and on the brief).

Robert E. Bonpietro, Deputy Atty. Gen., argued the cause for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen. of N.J., attorney; Robert E. Bonpietro, of counsel and on the letter brief).

Before MICHELS, BRODY and D'ANNUNZIO.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Reynaldo Lagares was found guilty of (1) possession of a controlled dangerous substance, to wit cocaine, a third degree crime, in violation of N.J.S.A. 2C:35-10a(1) (Count One); (2) possession with intent to distribute cocaine, a third degree crime, in violation of N.J.S.A. 2C:35-5a(1) (Count Two), and (3) distribution of cocaine, a third degree crime, in violation of N.J.S.A. 2C:35-5 (Count Three). The trial court denied defendant's motion for a judgment of acquittal notwithstanding the verdict and his motion for a new trial and granted the State's motion for the imposition of an extended term on the ground that defendant was a persistent offender pursuant to N.J.S.A. 2C:43-6f. The trial court then merged defendant's convictions for possession of cocaine under Count One and for possession with intent to distribute cocaine under Count Two into his conviction for distribution of cocaine under Count Three and committed defendant to the custody of the Commissioner of the Department of Corrections for seven years with a three year parole ineligibility period. In addition, the trial court assessed a $1,000 Drug Enforcement Demand Reduction (DEDR) penalty, a $50 forensic laboratory fee and a $30 Violent Crimes Compensation Board penalty and suspended defendant's New Jersey driver's license for six months. Defendant appeals.

Defendant seeks a reversal of his convictions or alternatively, a modification of his sentence on the following grounds set forth in his brief:

I. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN RULING THAT DEFENDANT'S PRIOR DRUG CONVICTIONS COULD BE ADMITTED INTO EVIDENCE FOR IMPEACHMENT PURPOSES, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. ( U.S. CONST., AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 9 AND 10).

II. N.J.S.A. 2C:43-6f, UNDER WHICH DEFENDANT WAS SENTENCED TO AN EXTENDED TERM OF IMPRISONMENT AS WELL AS A MANDATORY MINIMUM TERM, VIOLATES THE DOCTRINE OF SEPARATION OF POWERS AND DEFENDANT'S RIGHTS TO EQUAL PROTECTION AND DUE PROCESS OF LAW. ( U.S. CONST., ART. III; AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 1; ART. III, PAR. 1).

III. THE EXTENDED TERM IMPOSED HEREIN IS MANIFESTLY EXCESSIVE.

IV. N.J.S.A. 2C:35-15, WHICH PROVIDES FOR MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION (DEDR) PENALTIES TO BE IMPOSED ON ALL PERSONS CONVICTED OF OFFENSES ENUMERATED IN THE COMPREHENSIVE DRUG REFORM ACT OF 1986 N.J.S.A. 2 C:35-15 ET SEQ., VIOLATES THE DEFENDANT'S RIGHTS TO EQUAL PROTECTION AND DUE PROCESS AND IS CRUEL AND UNUSUAL PUNISHMENT. (NOT RAISED BELOW).

We have carefully considered these contentions and all the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further discussion will provide guidance with respect to some of these contentions.

I.

We are satisfied that the trial court did not err in admitting defendant's prior convictions for purposes of impeachment. Admission of prior convictions is governed by N.J.S.A. 2A:81-12, which provides:

Interest or conviction of crime as affecting credibility.

For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter or his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence....

The decision to admit a prior conviction under this statute against a criminal defendant "rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144, 386 A.2d 378 (1978). See State v. Whitehead, 104 N.J. 353, 358, 517 A.2d 373 (1986); State v. Hutson, 211 N.J.Super. 49, 53, 510 A.2d 706 (App.Div.1986), aff'd, 107 N.J. 222, 526 A.2d 687 (1987). The trial judge has wide latitude in this area. State v. Sands, 76 N.J. at 144, 386 A.2d 378. "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Id. at 144, 386 A.2d 378. See State v. Morris, 242 N.J.Super. 532, 543-45, 577 A.2d 852 (App.Div.1990).

When exercising the broad discretion entrusted to them, trial judges should be guided by the following principles:

The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [State v. Sands, 76 N.J. at 144-45, 386 A.2d 378].

In the final analysis, " N.J.S.A. 2A:81-12 does not mandate that every prior conviction be admitted into evidence to affect credibility." Id. at 147, 386 A.2d 378. However, the trial judge should admit a prior conviction "unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." Id.

Our review of the record reveals that the trial court did not mistakenly exercise its discretion in admitting defendant's 1982 convictions for possession of marijuana and possession with intent to distribute marijuana. Certainly, the jury was entitled to know this information in assessing defendant's truthfulness in the event he testified. Moreover, these convictions clearly have a bearing on defendant's credibility and are not so distant in time as to be prejudicial, being only seven years old. See State v. Morris, 242 N.J.Super. at 545, 577 A.2d 852; State v. McBride, 213 N.J.Super. 255, 267, 517 A.2d 152 (App.Div.1986); State v. Harkins, 177 N.J.Super. 397, 401, 426 A.2d 1053 (App.Div.1981).

II.

Contrary to defendant's argument, N.J.S.A. 2C:43-6f, which provides for an extended term of imprisonment with a mandatory parole ineligibility term, does not violate the doctrine of separation of powers or defendant's constitutional rights to equal protection and due process of law because the prosecutor must make an application to the court to invoke the statute. N.J.S.A. 2C:43-6f provides:

A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S. 2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S. 2C:35-6, leader of a narcotics trafficking network under N.J.S. 2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L.1987, c. 101 (C. 2C:35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S. [2C:]35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.

The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also...