NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The opinion of the court was delivered by
GRALL, J.A.D.
Defendant Eric S. Aikens appeals, challenging his convictions and sentence. Aikens and Lamar Brown were tried together on a single indictment charging fifteen crimes involving controlled dangerous substances (CDS) that were committed on May 28 and 30 and June 5 and 6, 2009. Three counts — five, seven and nine — were dismissed prior to trial. The jury convicted Aikens of seven counts and Brown of nine.
Both Aikens and Brown were charged with and convicted of the crimes committed on May 30, 2009: second-degree conspiracy to possess CDS and possess CDS with the intent to distribute on May 30, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5a(1), b(3) (count four); and second-degree distribution of CDS, cocaine, within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count six). Aikens was also convicted of four additional counts that charged him, but not Brown, with third-degree crimes committed on June 6: possession of cocaine, (count twelve); possession of cocaine with intent to distribute (count thirteen); possession of heroin (count fourteen); and possession of heroin with intent to distribute (count fifteen).1
The judge merged Aikens' convictions for the crimes committed on May 30 and sentenced him to a six-year term of imprisonment for distributing CDS within in 500 feet of a public park, three years to be served without eligibility for parole. The judge did not merge any of Aikens' convictions for the crimes committed on June 5. He imposed a three-year term of imprisonment for each of those convictions. Because those three-year terms are concurrent with one another and with the sentence imposed on count six, his aggregate term is six years.
The trial was brief, and the State's evidence was not complicated. On May 28, Detective Clothy Ortiz, who was working undercover, called Brown and asked to purchase two twenty-dollar bags of cocaine. Brown directed Ortiz to meet him in the area of South Orange Avenue and Arsdale Terrace in East Orange, and she did. Detective Richards drove Ortiz to the meeting and gave her two marked twenty-dollar bills. Ortiz walked to the front of a building on Arsdale Terrace, where she stood until Brown pulled up in a two-door black Pontiac. Ortiz walked to the driver's side of the car and gave Brown the bills in exchange for two plastic bags that held crack cocaine.
The May 30 transaction generally followed the same pattern, but there were some significant differences. This time, Ortiz named the meeting spot — an address on Harrison Avenue that is within 500 feet of a public park. Notably, Aikens was with
Brown. Brown arrived in a Lexus, and Aikens was driving. Aikens honked the horn, and when Ortiz approached the car, he asked Ortiz how many she needed. Brown, who was sitting in the passenger seat, opened the glove box and retrieved two small plastic bags of cocaine from a larger plastic bag that contained several smaller bags. Aikens gave the CDS to Ortiz and accepted her payment. There were two parking lots for the building, and Detective Borrero was positioned in the south lot where he was able to see the Lexus when it pulled into the north lot. Detectives Richards and Velazquez were also positioned nearby, and after the transaction with Ortiz, Velazquez stopped the Lexus for a tinted-glass violation and obtained information identifying Aikens.
Ortiz also called Brown on June 5 and asked him to meet her at the same place on Harrison Avenue. When Brown arrived, he was driving the Pontiac. Pursuant to warrants, Brown was arrested and the Pontiac was searched. As a consequence of the search, seventeen small bags of cocaine and additional small, but empty, bags were recovered.
Aikens was arrested on June 6 in Newark. The Lexus he had been driving on May 30 was spotted on Kerrigan Boulevard, and there were warrants authorizing his arrest and a search of the car. When the officers searched the Lexus, they recovered twenty-eight small bags of cocaine and three small bags of heroin. The drugs were between the passenger seat and the console.
Brown testified at trial, and Aikens did not. According to Brown, he never met Ortiz on Arsdale Avenue and did not even know where Arsdale Avenue was prior to this trial. Brown also gave an account of his meeting with Ortiz on Harrison Avenue that contradicted the testimony of Ortiz. He said the detective was wearing "scrubs," not jeans as she had said, and that she had gotten into the Lexus, which she had denied when defense counsel asked.
During his testimony, Brown acknowledged that he had three or four prior convictions and had served time in prison. But Brown explained that he had moved on since those convictions and now had a family. On cross-examination, Brown acknowledged convictions entered in 1998, 2002, and 2005 for which he was sentenced, respectively, to three, five and four-year terms of imprisonment.
Aikens raises four issues on appeal.
I. THE POLICE CONDUCT A) VIOLATED FUNDAMENTAL CONSTITUTIONAL PRINCIPLES OF DUE PROCESS AND FAIRNESS WHICH CONSTITUTED ENTRAPMENT AND, B) CONSTITUTED ENTRAPMENT UNDER CODE PRINCIPLES OF N.J.S.A. 2C:2-12 BY SETTING UP A STING OPERATION WHEREBY UNDERCOVER DETECTIVES DIRECTED DEFENDANT(S) TO PURCHASE NARCOTICS IN A LOCATION THAT WAS WITHIN 500 FEET OF A PUBLIC PARK, WITHOUT ANY PROPER LAW ENFORCEMENT OBJECTIVE. (Not Raised Below).
II. THE TRIAL COURT OMMITTED PLAIN ERROR BY NOT SEVERING THE TRIAL OF CO-DEFENDANTS, WHERE THE NARCOTICS OFFENSES ALLEGEDLY PARTICIPATED IN BY THE CO-DEFENDANTS WERE NOT IDENTICAL TRANSACTIONS, AND CO-DEFENDANT BROWN CHOSE TO TESTIFY BUT AIKENS DID NOT, AND THUS THE JURY WAS MADE AWARE THAT BROWN HAD A SERIOUS AND EXTENSIVE CRIMINAL RECORD. (Not Raised Below).
III. THE PROSECUTOR'S RENDERING OF HIS PERSONAL OPINION THAT DEFENDANTS WERE GUILTY BASED ON HIS ANALYSIS OF THE FACTS AS THEY APPLIED TO EACH ELEMENT OF THE OFFENSE DURING SUMMATION IMPROPERLY INFLUENCED THE JURY AND USURPING IT'S [SIC] FUNCTION (Not Raised Below) AND HIS STATEMENTS TO CO-DEFENDANT BROWN WHICH ESSENTIALLY CALLED HIM A LIAR ON SUMMATION ON AN ISSUE MATERIAL TO AIKENS CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
IV. THE COURT ABUSED ITS DISCRETION IN IMPOSING A SIX-YEAR TERM WITH A FOUR[SIC]-YEAR PAROLE DISQUALIFIER WHERE THE PROSECUTOR HAD BEEN WILLING TO GIVE HIM [A] FOUR[-]YEAR TERM WITH A TWO-YEAR PAROLE DISQUALIFIER IF HE PLED GUILTY, BUT THE OFFERS WERE CONTINGENT ON BOTH DEFENDANTS MAKING A PLEA, AND AIKENS AGREED TO ACCEPT THE OFFER BUT HIS CO-DEFENDANT DID NOT.
Having reviewed the record in light of the foregoing issues, we conclude that the arguments have insufficient merit to warrant discussion beyond the brief explanations that follow. R. 2:11-3(e)(2).
I
Aikens did not raise an entrapment defense at trial, and for that reason evidence relevant to that defense was not developed. It is true that there is no question that the detectives selected the location for the second transaction. Ortiz so testified. But the record does not suggest that the police selected the site for the undercover buy because of the enhanced punishment provided for a transaction proximate to a public park. See N.J.S.A. 2C:35-7.1. To the contrary, the only pertinent testimony gives rise to an inference that the location was selected to facilitate surveillance by and the cooperative efforts of the several officers involved. Because nothing in the record gives reason for concern about a violation of Aikens' right to due process or fundamental fairness, we follow our general practice and decline to consider this issue raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
II
Although Brown's appellate counsel indicates that it is unclear whether his client sought severance in the trial court, there is nothing in the record provided on appeal that indicates that either Aikens or Brown moved for separate trials, as required by Rules 3:10-2 and 3:15-2. For that reason, relief is not available absent error that is clearly capable of producing an unjust result. R. 2:10-2. There was no error here.
If a severance motion had been filed, it would have been proper to deny it. These codefendants should have been tried together and had one trial on all of the charges. "Rule 3:7-6 expressly permits joinder when there is some connection between separate counts rendering the evidence probative of a material issue in another charge." State v. Sterling, 215 N.J. 65, 91 (2013). And "Rule 3:7-7 allows for joinder of defendants who are `alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting R. 3:7-7).
The State's proofs included evidence that Aikens and Brown jointly participated in one of the two transactions with Detective Ortiz. Moreover, the second transaction provided context essential to establish Aikens' control of the Lexus, which is the vehicle in which the drugs he possessed on June 6 were found.
Joint trials are preferred, and "[t]hat preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability." State v. Brown, 170 N.J. 138, 160 (2001). Where, as here, joinder is proper, severance is proper only when necessary to address prejudice. R. 3:15-2(a)-(b). The question of prejudice depends upon the balance of "the potential prejudice to a defendant against the interest in judicial economy." Brown, supra, 170 N.J. at 160.
In this case, there was no apparent or actual risk of prejudice from antagonistic or incompatible defenses. Ibid. These codefendants had the same strategy — undermining the credibility of the State's witness. Furthermore, because neither defendant gave the police a statement, there was no question of one defendant's out-of-court statement implicating the other. R. 3:15-2(a).
Aikens argues prejudice based on the fact that the jurors learned about Brown's prior convictions because of Brown's decision to testify. But this alleged prejudice is nothing other than a claim of prejudice based on "guilt by association," which is "`not in itself sufficient to justify a severance. . . .'" Brown, supra, 170 N.J. at 162 (quoting State v. Brown, 118 N.J. 595, 605 (1990)). Whatever impact evidence of Brown's prior convictions may have had on the jurors' view of Brown's guilt, we have no doubt that the jurors' verdicts on Aikens' convictions would have been the same if Aikens had been tried alone. Aikens argues, that the trial court erred by failing to give the jurors adequate instruction on the permissible and impermissible uses of Brown's prior conviction. Assuming that Aikens is correct, we cannot conclude that the omission had any impact on Aikens' convictions.
III
Similarly, Aikens' claims of prosecutorial misconduct provide no grounds for relief. "Prosecutorial misconduct is a basis for reversal of a criminal conviction if the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002). The prosecutor's cross-examination of Brown and his closing argument were forceful and may have come more than uncomfortably close to the line separating permissible and impermissible advocacy. Nevertheless, the absence of an objection from either of the two defense attorneys indicates that the remarks complained about now did not have the capacity to distract or inflame the jurors. See State v. Timmendequas, 161 N.J. 515, 576 (1999) (noting that a failure to object to a prosecutor's conduct both signifies that it was not deemed prejudicial when made and deprives the trial court of the opportunity to cure the prejudice).
IV
Aikens' objections to his sentence rest on a misunderstanding of the respective roles of the prosecutor and the trial court. Pronouncement of sentence is the responsibility of the trial court, not the prosecutor. State v. Cassady, 198 N.J. 165, 180 (2009); State v. Roth, 95 N.J. 334, 365 (1984). The trial court is not bound by a plea agreement, and the trial court has no authority to dictate the terms of a plea agreement. R. 3:9-3(a), (c), (e); see State v. Madan, 366 N.J.Super. 98, 108-15 (App. Div. 2004) (reversing a trial court's rejection of a plea agreement on the judge's mistaken view of the law and undue emphasis on witness impact). A judge's exercise of sentencing discretion is subject to the sentencing provisions of the Code of Criminal Justice and binding precedents construing them. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); Cassady, supra, 198 N.J. at 180-81. Given the deference this court owes to the trial court's sentencing determinations, there is no basis for us to intervene.
Because Aikens has not raised the question of merger on this appeal and it has no impact on his sentence, we have not addressed that issue.
Affirmed.
