STATE OF NEW JERSEY VS. REYNALDO MORERA (16-04-1200, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1879-19T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
REYNALDO MORERA,
Defendant-Respondent.
________________________
Submitted September 29, 2020 – Decided October 28, 2020
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-04-1200.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for appellant (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Vincent C. Scoca, attorney for respondent (Robert
Carter Pierce, of counsel and on the brief).
PER CURIAM
Pursuant to N.J.S.A. 2C:44-1(d), a sentencing court may "waive the
presumption of imprisonment for a first- or second-degree offender when
'having regard to the character and condition of the defendant, it is of the opinion
that his imprisonment would be a serious injustice which overrides the need to
deter such conduct by others[.]'" State v. Rice, 425 N.J. Super. 375, 386 (App.
Div. 2012) (quoting N.J.S.A. 2C:44-1(d)). In addition, when a defendant is
convicted of a first- or second-degree crime, "the court may sentence [him or
her] to a term appropriate to a crime of one degree lower than that of the crime
for which he [or she] was convicted[,]" if "the court is clearly convinced that the
mitigating factors substantially outweigh the aggravating factors and where the
interest of justice demands[.]" N.J.S.A. 2C:44-1(f)(2). Even if the State agrees
to downgrade the charge to a third-degree offense pursuant to N.J.S.A. 2C:43-
6(f)(2), "the presumption of imprisonment" contained in N.J.S.A. 2C:44-1(d)
still applies. State v. Nance, 228 N.J. 378, 399 n.4 (2017).
An Essex County grand jury indicted defendant Reynaldo Morera for
third-degree possession of a controlled dangerous substance (CDS), N.J.S.A.
2C:35-10(a)(1) (count one); and first-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1) (count two). The charges arose from events
that took place on December 9, 2015, when defendant arrived at Newark Liberty
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International Airport upon returning from the Dominican Republic. Federal
authorities arrested defendant after inspection of two bottles marked "laxative
supplement" in his luggage revealed they contained more than one kilogram of
cocaine.
In return for defendant's guilty plea, the State agreed to downgrade count
two to a second-degree offense, dismiss count one, and recommend a five-year
term of imprisonment with no period of parole ineligibility. During the plea
colloquy, defendant admitted that he traveled to the Dominican Republic to visit
family, and, while there, he agreed to bring back the two bottles, which he knew
contained cocaine, and deliver them to someone in Paterson, where defendant
resided.
However, at sentencing, defense counsel argued that his fifty-seven-year-
old client had been "duped into bringing some cocaine into the country under
the guise of it being medication," but once defendant realized it was cocaine,
"he went along with the event . . . despite not understanding the impact it could
have on his life." Arguing a number of mitigating sentencing factors applied,
see N.J.S.A. 2C:43-1(b), and noting defendant's gainful employment and lack of
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prior criminal convictions,1 counsel asked the judge to sentence defendant as a
third-degree offender to a "reverse 364," i.e., a non-custodial probationary
sentence in which defendant would serve 364 days in jail if he violated
probation, or a suspended sentence.
The prosecutor argued that defendant had already received the benefit of
the State's decision to downgrade the charge from a first- to second-degree
offense. The prosecutor noted that pursuant to N.J.S.A. 2C:44-1(d), a person
convicted of a first- or second-degree offense was presumed to receive a
sentence of imprisonment unless imprisonment would result in a serious
injustice. He asked the court to impose the bargained-for sentence of five years
imprisonment with no mandatory period of parole ineligibility.
The judge noted that defendant had always appeared in court as required
since his arrest, and she concluded the conviction was an "aberration" in
defendant's life. She found aggravating factor nine applied, N.J.S.A. 2C:44-
1(a)(9) (the need to deter defendant and others), and mitigating factors six,
seven, eight, nine and ten applied. See N.J.S.A. 2C:44-1(b)(6) (defendant has
or will compensate the victim or will participate in a program of community
1
The pre-sentence investigation report (PSR) revealed several prior criminal
charges which defendant claimed were either dismissed or lodged against
someone else, not him.
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service); (b)(7) (defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period of time before the
commission of the present offense); (b)(8) (defendant's conduct was the result
of circumstances unlikely to recur); (b)(9) (defendant's character and attitude
indicate he is unlikely to commit another offense); and (b)(10) (defendant is
particularly likely to respond affirmatively to probationary treatment ).
The judge concluded that the mitigating factors "substantially
outweigh[ed] the aggravating ones," and pursuant to N.J.S.A. 2C:44-1(f), "it
[wa]s in the interest of justice that [defendant be] given the opportunity to be
sentenced a degree lower, to the third-degree range." Even though she noted
that the presumption of imprisonment still applied, citing defendant's lack of
criminal history, the judge concluded it was "appropriate" to impose a
probationary sentence. The judge sentenced defendant to five years’ probation
which could be reduced to three years if defendant complied with the terms and
conditions of probation. The judge imposed all mandatory fines and penalties,
one hundred hours of community service, and ordered defendant to maintain
gainful employment and remain arrest and drug free. The State dismissed count
one of the indictment.
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The sentence was automatically stayed pursuant to N.J.S.A. 2C:44-
1(f)(2), which provides, "if the court imposes a noncustodial or probationary
sentence upon conviction for a crime of the first[-] or second degree, such
sentence shall not become final for [ten] days in order to permit the appeal of
such sentence by the prosecution." The State filed this timely appeal, after
which the judge filed a written amplification of her reasons for imposing the
probationary sentence. See R. 2:5-1(b).
The judge cited an article describing the role of "blind mules," i.e.,
"unknowing couriers" in international drug trafficking operations. Reiterating
the sentencing factors she found prior to imposing probation and turning to
N.J.S.A. 2C:44-1(f)(2), the judge wrote "that the mitigating factors substantially
outweighed the aggravating factors and in the interest of justice, [defendant]
should have been sentenced a degree lower in the third-degree range." The judge
again found that defendant had "no criminal record and had had no involvement
with the criminal justice system except for this matter[.]"
Relying on State v. K.S., 220 N.J. 190 (2015), the judge wrote that she did
not take into account that defendant was originally indicted for a first-degree
offense, or his conviction for a disorderly persons' offense from 1995 because
these were not "undisputed facts." Relying on State v. Jaffe, 220 N.J. 114
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(2014), the judge wrote that she viewed defendant as he stood before the court
on the day of sentencing, and, therefore, took into consideration that defendant
had not reoffended since he was indicted. The judge wrote, "even if the court
does take the original charges into consideration, [defendant’s] imprisonment
would be of such serious injustice based on all of the mitigating factors that the
court has considered."
The State contends not only did defendant fail to rebut the presumption of
imprisonment that applies to convictions for first- or second-degree crimes,
N.J.S.A. 2C:44-1(d), but also that defendant was not entitled to have the second-
degree conviction treated as a third-degree offense. We agree with both points,
and, therefore, reverse and remand the matter to the trial court for resentencing.
Our review of the sentence imposed by the trial court is usually quite
limited. State v. Miller, 205 N.J. 109, 127 (2011). We review the sentence for
a mistaken exercise of the judge's discretion. State v. Fuentes, 217 N.J. 57, 70
(2014). "However, 'the deferential standard of review applies only if the trial
judge follows the Code and the basic precepts that channel sentencing
discretion.'" State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Case,
220 N.J. 49, 65 (2014)).
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We begin by noting "that the two statutes address 'qualitatively different
situations,' with N.J.S.A. 2C:44-1d being geared toward the initial determination
of whether a defendant will be 'in or out' of prison rather than the length of term
scenario confronted by the downgrade provision of N.J.S.A. 2C:44-1f(2)." State
v. Lake, 408 N.J. Super. 313, 327 (App. Div. 2009) (quoting State v. Megargel,
143 N.J. 484, 499 (1996)). "[T]he compelling reasons required to satisfy the
interest of justice for a downgrade under N.J.S.A. 2C:44-1f(2) present a
'somewhat lower standard' than the 'truly extraordinary and unanticipated
circumstances' required before a 'serious injustice' may be found under N.J.S.A.
2C:44-1d." Ibid. (quoting Megargel, 143 N.J. at 501–02).
"[T]he standard governing downgrading is high." Megargel, 143 N.J. at
500. It requires the judge to engage in a "two-step process. The judge 'must be
clearly convinced that the mitigating factors substantially outweigh the
aggravating ones and that the interest of justice demands a downgraded
sentence.'" Rice, 425 N.J. Super. at 384 (quoting State v. L.V., 410 N.J. Super.
90, 109 (App. Div. 2009)). Additionally, "[t]he reasons justifying a downgrade
must be 'compelling,' and something in addition to and separate from, the
mitigating factors that substantially outweigh the aggravating factors." Ibid.
(quoting Megargel, 143 N.J. at 505).
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"[B]ecause the focus remains on the offense and not the offender, the
surrounding circumstances used as compelling reasons for a downgrade should
arise from within the context of the offense itself." Lake, 408 N.J. Super. at 326
(citing Megargel, 143 N.J. at 500-01). The court must "consider the sentence
from the perspective of deterrence." Trinidad, 241 N.J. at 454 (citing Megargel,
143 N.J. at 501). The "court should also state why sentencing the defendant to
the lowest range of sentencing for the particular offense for which he was
convicted, is not a more appropriate sentence than a downgraded sentence [.]"
Megargel, 143 N.J. at 502.
Here, the judge engaged in the two-step process required, and, she
concluded that the mitigating sentencing factors substantially outweighed the
aggravating ones. However, in considering the "interest of justice" standard, the
judge did not focus on the offense. She did not explain the compelling reasons
why, for example, sentencing defendant at the lowest range for a second-degree
offense, which was the State's recommendation, was inappropriate.
Rather, the judge explained her reasons for a downgrade by focusing
entirely upon defendant's lack of any serious criminal record, his stable
employment, and his timeliness when required to be in court. The "interest of
justice" prong cannot be based on "circumstances such as a defendant's overall
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character or contributions to the community[.]" Rice, 425 N.J. Super. at 385;
see also State v. Locane, 454 N.J. Super. 98, 110 (App. Div. 2018) (citing
"black-letter law that the focus of the downgrade decision must be the severity
of the crime, not defendant's personal circumstances"). Although the judge
referenced the role of unwitting "mules" in the international drug trade,
defendant's allocution under oath when he pled guilty belied any claim that he
lacked full awareness of his role in transporting more than one kilogram of
cocaine into this country and delivering it to a specific person. In short, the
judge's decision to downgrade the offense was a mistaken exercise of her
discretion.
"The downgrading of an offense is not a prerequisite to finding that the
presumption of imprisonment for a first- or second-degree conviction has been
overcome." State v. Evers, 175 N.J. 355, 389 (2003) (citing State v. Jarbath,
114 N.J. 394, 413 (1989)). The court's discretion to impose a sentence other
than imprisonment upon conviction of a first- or second degree crime "may be
legitimately exercised in those 'truly extraordinary and unanticipated' cases
where the 'human cost' of punishing a particular defendant to deter others from
committing his offense would be 'too great.'" Ibid. (quoting State v. Rivera, 124
N.J. 122, 125 (1991)). In Evers, the Court noted that as of the date of its
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decision, this exacting standard had only been met in one case, Jarbath. 175 N.J.
at 389; see also State v. Soricelli, 156 N.J. 525, 533 (1999) (stating the Court
has "regularly . . . declined to find circumstances sufficient to constitute 'serious
injustice' that would overcome the presumption of incarceration"). Our research
has revealed no other decision by the Court or any reported decision from this
court since Evers that found the defendant was entitled to this extraordinary
relief.
Here, the judge certainly explained what facets of defendant's "character
and condition" influenced her decision not to impose a custodial term. N.J.S.A.
2C:44-1(d). However, as the Court has explained,
defendant's status as a first-time offender, 'family man,'
'breadwinner,' and esteemed member of the community,
however commendable and worthy of consideration in
deciding the length of his term of incarceration, is not
so extraordinary as to alter the conclusion that his
imprisonment would not constitute a serious injustice
overriding the need for deterrence.
[Evers, 175 N.J. at 400.]
Simply put, the judge failed to explain what were the "truly extraordinary and
unanticipated circumstances" present that justified the necessary statutory
conclusion, i.e., defendant's incarceration would be a serious injustice that
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outweighed the need to deter others from trying to import a significant amount
of cocaine into this country. Megargel, 143 N.J. at 501.
We are mindful that defendant committed this crime more than five years
ago and was sentenced nearly one year ago. Defendant is entitled to have the
judge assess him as he stands before the court at the time of re-sentencing. State
v. Randolph, 210 N.J. 330, 351 (2012). We therefore decline the opportunity to
exercise original jurisdiction and order the court to impose a specific sentence.
We vacate the judgment of conviction in this case and remand the matter to the
trial court for resentencing consistent with the principles discussed in this
opinion.
Reversed and remanded. We do not retain jurisdiction.
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