NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3141-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRELL K. RAINEY,
Defendant-Appellant.
___________________________________
Submitted October 10, 2017 – Decided October 26, 2017
Before Judges Sabatino and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
Nos. 14-02-0402 and 14-02-0403.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In a bifurcated trial, defendant was convicted of second-
degree unlawful possession of a handgun, N.J.S.A. 2C:30-5(b);
third-degree possession of a controlled dangerous substance
(heroin), N.J.S.A. 2C:35-10(a); fourth-degree possession of a
defaced firearm, N.J.S.A. 2C:39-3(d) and obstruction of the
administration of law, N.J.S.A. 2C:29-1; and then he was convicted
of second-degree certain person not to possess a firearm, N.J.S.A.
2C:39-7(b). The court sentenced defendant to an aggregate term
of ten years, with a five-year period of parole ineligibility.
Defendant presents the following points on appeal:
POINT I
BECAUSE THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THE DRUGS AND WEAPON
FOUND IN TWO ADJACENT BACK YARDS HAD BEEN
POSSESSED BY RAINEY, THE VERDICT WAS AGAINST
THE WEIGHT OF THE EVIDENCE AND MUST BE
REVERSED. (Not Raised Below)
POINT II
THE FAULTY STATEMENT OF REASONS GIVEN FOR THE
CONTROLLING SENTENCE REQUIRES A REMAND FOR
RESENTENCING.
Unpersuaded by these arguments, we affirm.
The facts of the case are uncomplicated. Two police officers
testified that during a field inquiry, defendant refused to permit
one of them to pat him down, after the officer spotted a bulge in
his hoodie. Defendant ran and the officers gave chase. One
officer testified that he observed defendant toss a gun and a
drugstore bag while he fled. The officer retrieved the gun and
2 A-3141-15T4
the bag, which contained heroin along with dental products.
Defendant admitted he fled from the officer, but denied he
possessed a gun or drugs. He said the bulge in the pocket was a
cell phone, which he simply lost during the chase, and the
drugstore bag he dropped contained no heroin. The jury evidently
believed the officers, and not defendant.
As defendant did not move for a new trial, his argument that
the conviction was against the weight of the evidence is
procedurally barred. See R. 2:10-1 (stating "the issue of whether
a jury verdict was against the weight of the evidence shall not
be cognizable on appeal unless a motion for a new trial on that
ground was made in the trial court."). The procedural requirement
is no mere technicality, as we are obliged to defer to a trial
court's ruling, which is based on its feel of the case, and
opportunity to assess witnesses' credibility. State v. Carter,
91 N.J. 86, 96 (1982). Although the Rule may be relaxed in the
interests of justice, to prevent a miscarriage of justice under
the law, State v. Smith, 262 N.J. Super. 487, 512 (App. Div.),
certif. denied, 134 N.J. 476 (1993), there is no compelling reason
to do so here.
In any event, defendant's argument of insufficient proof
lacks substantive merit. On a motion for a new trial, "[t]he
evidence should be sifted to determine whether any trier of fact
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could rationally have found beyond a reasonable doubt that the
essential elements of the crime were present." Carter, supra, 91
N.J. at 96. Little sifting is needed here to conclude the jury's
verdict was rationally based on the testimony of two officers.
Despite defense efforts to undermine their credibility, the jury
obviously found the officers' version of events substantially more
plausible than defendant's. We discern no failure of the jury's
function to warrant our intervention. See Smith, supra, 262 N.J.
Super. at 512.
We also reject defendant's challenge to his sentence.
Defendant was eligible for an extended term. However, the State
declined to seek one, and recommended the ten-over-five aggregate
sentence. Defense counsel concurred. She presented no mitigating
facts, aside from noting that defendant did not commit a crime of
violence, nor did he actually sell or distribute drugs.
The court accepted counsels' joint sentencing recommendation.
The court reviewed defendant's record, noting he was twenty-nine
years old; he had thirteen prior arrests, and three prior
indictable convictions including two CDS-related convictions; and
he was unemployed and lacked a high school diploma. The court
found aggravating factors three, risk of reoffending; six, prior
criminal record; and nine, the need to deter defendant and others.
See N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found no
4 A-3141-15T4
mitigating factors. See N.J.S.A. 2C:44-1(b). Thus, the
aggravating factors preponderated.
In particular, the court imposed sentences of: five years
flat on the drug count; eighteen months flat on the obstruction
count; eighteen months, with an eighteen-month parole
ineligibility term, on the possession of a defaced weapon count;
ten years, with a five-year parole ineligibility term, on the
handgun possession count; and five years, with a five-year parole
ineligibility term, on the certain persons count — all to run
concurrently.
We apply a deferential standard of review to the trial court's
sentencing determination. State v. Grate, 220 N.J. 317, 337
(2015). No doubt, the court's statement of reasons could have
been more explanatory. See State v. Fuentes, 217 N.J. 57, 74
(2014) (stating that trial courts must provide a "clear and
detailed statement of reasons" for a sentence). Nonetheless, we
are satisfied that the court's finding of aggravating factors and
lack of mitigating factors was "based upon competent and credible
evidence in the record." Fuentes, supra, 217 N.J. at 70 (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)). Although the trial
court noted defendant's multiple arrests, the court did not
5 A-3141-15T4
identify them, let alone presume defendant's guilt.1 In any event,
the balance of defendant's record supported the court's findings.
The sentence does not shock our judicial conscience. See State
v. Case, 220 N.J. 49, 65 (2014). Therefore, we will not disturb
it.
However, as the State concedes, defendant's judgment of
conviction erroneously refers to N.J.S.A. 2C:43-7(c), which
pertains to an extended term, although the court did not impose
one. See State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div.
1956) (stating that a clearly stated oral sentence will control
where it conflicts with the written judgment). Furthermore, the
separate judgment of conviction for the certain persons offense
does not state that the sentence would run concurrent to the other
sentences. We remand for prompt correction of the judgments.
Affirmed. Remanded solely for correction of the judgments
of conviction. We do not retain jurisdiction.
1
The Court in State v. K.S., 220 N.J. 190, 199 (2015), reviewing
the denial of a pretrial intervention application, disapproved of
the statement in State v. Green, 62 N.J. 547, 571 (1973) that a
"sentencing judge might find it significant that a defendant who
experienced an unwarranted arrest was not deterred by that fact
from committing a crime thereafter." The K.S. Court concluded
that "deterrence is directed at persons who have committed wrongful
acts" not those simply charged. 220 N.J. at 199. However, even
if K.S. is extended to sentencing, as opposed to PTI admission,
it was decided after the sentencing in this case.
6 A-3141-15T4
STATE OF NEW JERSEY VS. DARRELL K. RAINEYÂ (14-02-0402 and 14-02-0403, ESSEX COUNTY AND STATEWIDE)
Combined Opinion