STATE OF NEW JERSEY VS. NICHOLAS M. IVES(13-02-0154, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4057-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS M. IVES, a/k/a NAZIR
BAY, a/k/a NAZAIR BEY,
Defendant-Appellant.
_____________________________
Submitted February 9, 2017 – Decided June 8, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 13-02-0154.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Kim L.
Barfield, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Nicholas Ives, also known as Nazir Bey, appeals
from an April 10, 2015 judgment of conviction after a jury trial.
We affirm the conviction and remand for resentencing.
Defendant was a senior corrections officer at Bayside State
Prison (Bayside). In September 2011, Robert Percy, an inmate,
gave a corrections officer a bundle of heroin with a note attached,
implicating defendant in prison drug transactions. Thereafter,
the New Jersey Department of Corrections Special Investigations
Division began investigating defendant. Percy told investigators
defendant provided him with heroin, which Percy paid for by
arranging for his wife, A.P.,1 to send money to N.P., the wife of
fellow inmate Vincent Heredia. Defendant and Heredia were
childhood friends and it was alleged defendant picked up payments
from N.P.'s home.
Defendant was indicted for second-degree official misconduct,
contrary to N.J.S.A. 2C:30-2(a), and third-degree conspiracy to
distribute a controlled dangerous substance (CDS), contrary to
N.J.S.A. 2C:5-2 and 2C:39-5(a)(1). Percy testified at trial,
telling the jury he was an addict currently serving a thirty-
three-year prison term. He recounted it was easy to obtain heroin
in the various correctional facilities where he had been assigned.
1
We use initials to protect the identity of non-party witnesses.
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While at Bayside, Heredia introduced Percy to defendant to obtain
heroin. Percy received the heroin from defendant in the kitchen
where defendant was stationed. According to Percy, defendant set
up a system to tape the drugs under a food cart where Percy would
retrieve them. Defendant alerted Percy to the presence of drugs
under the cart by ripping the edge of the food order sheet on top
of the cart.
Percy testified he lied to A.P., telling her he needed money
for legal fees and asking her to write three checks for $1500 each
and to send them to N.P. The checks were made payable to N.P. and
defendant's mother.
A.P. also testified. She told the jury she wrote the checks
to N.P. and defendant's mother after Percy told her both worked
for lawyers who he hired. N.P. testified Heredia called her and
told her to expect a "lawyer" to come to her house to turn over
money for his appeal. She was reluctant to do so, but later agreed
after she spoke twice over the phone to an inmate N.P. identified
as "Pop-pop," who told her something was "coming her way" and gave
her messages for the "lawyer." N.P. identified defendant as the
"lawyer" who came to her house, and identified her signature as
well as defendant's signature on the back of canceled checks. N.P.
identified a check made out to her for $1500 from A.P. and
testified the check was the mail she discussed with "Pop-pop."
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Defendant came to the house to pick up that check and endorsed the
check to himself so he could cash it. According to N.P., defendant
came to her house several more times but only to pick up unopened
envelopes sent to her house under the care of a different name.
A Wells Fargo bank employee provided testimony for the jury tracing
N.P.'s three checks to deposits into defendant's bank account.
Defendant testified and acknowledged he and Heredia had grown
up together but no longer socialized as adults. When Heredia was
incarcerated in Bayside, Heredia worked in the kitchen where
defendant was assigned. Defendant testified Heredia wanted a new
life and asked defendant to help him get a lawyer for his appeal.
Defendant testified he declined to help because of his position
as a corrections officer but later agreed to ask his mother, who
Heredia knew, if she would help him contact a lawyer. Defendant
told Heredia his mother would assist him, and Heredia gave
defendant the names of two lawyers, which defendant passed on to
his mother. Heredia told defendant he would send the money for
the lawyers to defendant's mother through a family member.
Defendant testified that, due to N.P.'s reluctance to assist
in getting money for the lawyers, he agreed to pick up money from
N.P. He acknowledged receiving the three checks, one of which was
endorsed to him and two others payable to his mother, which he
deposited in his Wells Fargo account. He testified he later gave
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cash to his mother. He testified Heredia's attorney wanted $10,000
for the appeal; however, when Heredia was transferred to another
prison, defendant's mother returned the money to defendant, and
he subsequently returned it to N.P. Defendant also acknowledged
guards and inmates at Bayside called him "the lawyer." He denied
engaging in drug transactions and denied having contact with Percy.
Defendant's mother also testified. She corroborated
defendant's account of trying to assist Heredia to hire a lawyer,
claiming she received the cash from defendant and kept it in a
safe at her house, but later returned it to defendant who returned
it to N.P. N.P. testified she never received money back from
defendant.
The jury found defendant guilty of both charges on October
8, 2014. On March 31, 2015, the trial judge denied defendant's
motion for a new trial, and after merging count two, conspiracy,
into count one, official misconduct, sentenced defendant to a
seven-year prison term with a five-year period of parole
ineligibility. This appeal followed.
On appeal defendant raises the following arguments:
POINT I.
THE CONVICTIONS WERE CLEARLY AGAINST THE
WEIGHT OF THE EVIDENCE, NECESSITATING
REVERSAL. U.S. CONST. AMEND XIV; N.J. CONST.
(1947), ART. 1, PAR. 10.
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POINT II.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
I.
Defendant argues the trial court erred in denying his motion
for a new trial pursuant to Rule 3:20-1. Specifically, he contends
the convictions were against the weight of the evidence because
Percy's testimony was not credible.
A jury verdict should not be set aside as against the weight
of the evidence unless, when balanced against the jury's
opportunity to assess a witness's credibility, there has been a
clear and convincing manifest denial of justice. State v.
Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied,
151 N.J. 470 (1997). "On a motion for a new trial, the objective
is not to second-guess the jury but to correct the injustice that
would result from an obvious jury error." Ibid."Unless no reasonable jury could have reached such a verdict,
a reviewing court must respect a jury's determination." State v.
Afanador, 134 N.J. 162, 178 (1993). When considering a motion to
set aside the verdict, the court must review the evidence to
determine "whether any trier of fact could rationally have found
beyond a reasonable doubt that the essential elements of the crime
were present." Ibid. (quoting State v. Carter, 91 N.J. 86, 96
(1982)). When a jury reaches its verdict based on its assessment
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of the witnesses' credibility, the verdict cannot be set aside
unless there is clear evidence of "a mistake, partiality, passion
or prejudice." State v. Haines, 20 N.J. 438, 447 (1956).
We are satisfied that there is no such evidence in the record.
The jury was in the best position to determine the credibility of
Percy's testimony. The jury heard the testimony about Percy's
drug use in prison and his manipulation of others to secure drugs
in prison, including lying to his wife. Moreover, the lies Percy
told his wife are not inconsistent with the plan set in motion to
secure heroin in prison by paying defendant. After considering
all of the evidence presented at trial, we are satisfied that a
jury could reasonably find defendant guilty of both charges.
Therefore, defendant's convictions were not against the weight of
the evidence, and there was no miscarriage of justice warranting
a new trial under Rule 3:20-1.
II.
Finally, defendant argues his sentence was excessive. We are
constrained to vacate defendant's sentence and remand for
resentencing, as the judge's findings on the applicable
aggravating and mitigating factors conflict and not supported by
the record.
As long as the sentence is based on competent credible
evidence and fits within the statutory framework, trial judges
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have broad sentencing discretion. 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); State v. Fuentes, 217 N.J. 57,
72, 74 (2014)). "Appellate review of sentencing is deferential,"
and we therefore avoid substituting our judgment for the judgment
of the trial court. Id. at 65; see State v. O'Donnell, 117 N.J.
210, 215-16 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).
The sentencing judge found aggravating factors three (the
risk of re-offense), six (the extent of defendant's prior criminal
record), and nine (the need for deterrence). The judge also found
mitigating factor seven, no prior history of delinquency or
criminal activity. In finding aggravating factor three the judge
stated,
He is . . . 39 years of age. There is no
juvenile record. The adult record consists
of prior arrests, which resulted in the
present indictable conviction. There is some
risk that he's going to commit another
offense. I will give that moderate weight.
The judge found mitigating factor seven, defendant has no
real prior history of criminal activity.
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The judge's finding of aggravating factor three and
mitigating factor seven are in conflict and are not supported by
competent, credible evidence in the record. While it is true a
finding of aggravating factor three can coexist with a finding of
mitigating factor seven, that finding must be "grounded in
competent, credible evidence in the record." Case, supra, 220
N.J. at 67. The judge did not provide a reasoned explanation as
to how he found defendant presented a risk to commit another
offense when this was defendant's first indictable conviction. As
such, we are constrained to vacate defendant's sentence and remand
for resentencing.
In remanding for resentencing, we do not express an opinion
on whether the court should again find aggravating factor three
and mitigating factor seven. Additionally, we do not express an
opinion on the length of the sentence imposed. On remand, we
require only that the court reconsider its determination as to
aggravating factor three and mitigating factor seven, make
appropriate findings supporting its determination, and resentence
defendant based on its weighing of the aggravating and mitigating
factors.
Defendant's conviction is affirmed and his sentence is
vacated. We remand for resentencing in accordance with this
opinion. We do not retain jurisdiction.
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