STATE OF NEW JERSEY VS. E.S. (17-02-0032, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0175-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.S.,
Defendant-Appellant.
_______________________
Submitted February 3, 2021 – Decided February 25, 2021
Before Judges Sumners, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-02-0032.
Peter R. Willis, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah C. Hunt, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant E.S.1 appeals from an August 9, 2019 order denying his motion for a
reduction of sentence following his cooperation with law enforcement pursuant to a
cooperation agreement and the sentence imposed by an August 19, 2019 judgment of
conviction. We find no merit in his arguments and affirm.
We derive the following facts from the record. In February 2017, a State
grand jury returned a four-count indictment against defendant. On September
11, 2017, defendant pled guilty to first-degree distribution of CDS, N.J.S.A.
2C:35-5(a)(1), (b)(1), (c), and N.J.S.A. 2C:2-6. Under the terms of the Brimage2
plea agreement, the State agreed to recommend a ten-year prison term with a
forty-month period of parole ineligibility and to dismiss the other three counts.
During the plea hearing, defendant acknowledged that between November 3,
2014, and May 15, 2015, he knowingly and purposely distributed over five
ounces of cocaine. The court accepted defendant's plea.
On October 18, 2018, defendant entered into a cooperation agreement with
the Division of Criminal Justice (the Cooperation Agreement). It set forth the
1
We refer to defendant by initials to maintain the confidentiality of records that
were sealed under Rule 1:38-11. See R. 1:38-3(f)(4).
2
State v. Brimage, 153 N.J. 1 (1998).
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terms and conditions of defendant's anticipated cooperation against an
individual we will refer to as Person 1.3
On April 1, 2019, the court conducted an in-camera Gerns4 hearing at
defendant's request. New Jersey State Police (NJSP) Detective Sergeant John
Cipot, NJSP Detective Andrew Oliveira, and defendant testified at the hearing.
The following facts were adduced.
Beginning in November 2014, Cipot supervised an investigation into
cocaine distribution in Ocean, Monmouth, and Middlesex Counties. The
investigation resulted in the arrest of approximately thirty offenders, including
defendant, the seizure of five kilograms of cocaine, and the confiscation of
$125,000 in cash. Defendant was charged with selling upwards of thirty ounces
of cocaine.
Before he signed the Cooperation Agreement, defendant alleged Person 2
had been involved in a fight with a cooperating witness at a bar. As a result ,
Person 2 was charged with obstruction of justice and interfering with a witness.
3
In order to maintain the confidentiality of records that were sealed under Rule
1:38-11, we refer to the target of the Cooperation Agreement as Person 1 and
the other five people that defendant identified as Persons 2 through 6 . See R.
1:38-3(f)(4),
4
State v. Gerns, 145 N.J. 216 (1996).
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3
However, the charges were later dismissed because the information defendant
provided was false.
On January 11, 2018, the State sent defendant a letter formalizing the
Division of Criminal Justice's understanding concerning defendant's anticipated
proffer of information to NJSP representatives six days later. The letter
explained that the purpose of the proffer would be to enable the State to evaluate
defendant's information about criminal activity prior to making any
determination to recommend a reduction of the previously agreed upon
recommended sentence. If defendant provided "fruitful" information, "a
separate cooperation agreement [would] be signed detailing the parameters of
any reduction in the State's sentencing recommendation."
Defendant read the letter and discussed it with his attorney. He
acknowledged that he voluntarily agreed "to provide information by way of a
proffer . . . without any [additional] promises or representations other than those
set forth [in the letter]." Defendant and his attorney signed the letter on January
17, 2018.
Cipot and two deputy attorney generals met with defendant and his
attorney for the proffer. Defendant identified Person 3 as a cocaine dealer whom
defendant dealt with in the past and believed he could make purchases from
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again. Based on that information, the NJSP checked to determine whether other
agencies were investigating Person 3 and learned that the Monmouth County
Prosecutor's Office (MCPO) was already investigating him. The NJSP asked
the MCPO to join their investigation as a cooperating agency but the MCPO
declined because an MCPO undercover officer had already made ten CDS
purchases from Person 3. According to Cipot, "[n]othing that [the NJSP]
provided was anything that was new to [the MCPO] or could further their
investigation." As a result, the NJSP was unable to proceed with an
investigation of Person 3. Eventually, the MCPO arrested Person 3. Oliveira
testified that his arrest would have occurred even without the information
defendant provided.
Defendant contended that he could have bought ounces of cocaine from
Person 3 while the MCPO's undercover had only purchased grams. Because that
never occurred, defendant's assistance concerning Person 3 was limited to
debriefing the MCPO. Defendant acknowledged that no cooperation agreement
existed regarding Person 3 and that he was unaware if the information he
provided led to an arrest or otherwise furthered MPCO's investigation.
In March 2018, defendant identified Persons 5 and 6, who were involved
in small scale distribution of prescription drugs. Since the NJSP had no interest
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in pursuing the distribution of small amounts of prescription drugs, nothing
came of the information provided by defendant. Defendant acknowledged no
cooperation agreement existed governing this information.
In September 2018, defendant identified Person 1 as a potential target.
Defendant informed investigators that Person 1 sold cocaine and that he would
eventually be able to purchase an ounce from Person 1.
On October 18, 2018, defendant and the Division of Criminal Justice
executed the Cooperation Agreement, which contained "the terms and
conditions of defendant's anticipated cooperation" against Person 1. The
Cooperation Agreement provided, in pertinent part:
If the defendant's cooperation results in the prosecution
of an individual identified as [Person 1] for
First[-]Degree Distribution of Controlled Dangerous
Substances (or Possession With Intent to Distribute
Controlled Dangerous Substances), in violation of
N.J.S.A. 2C:35-5, his recommended term of parole
ineligibility will be reduced by 12 months. If the
defendant's cooperation results in the prosecution of
[Person 1] for Second-Degree Distribution of
Controlled Dangerous Substances (or Possession With
Intent to Distribute Controlled Dangerous Substances),
in violation of N.J.S.A. 2C:35-5, his recommended
term of parole ineligibility will be reduced by six
months.
No other target was the subject of the Cooperation Agreement. Paragraph
4(B)(i) of the Cooperation Agreement stated that "[i]f notwithstanding his best
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efforts, defendant's cooperation [was] not productive and of substantial value to
the State, his recommended sentence [would] not be reduced." The Cooperation
Agreement expressly stated that renegotiation for further cooperation was
possible but "[a]ny modification made to th[e] Agreement for additional
cooperation [was] not binding unless reduced to writing and signed by all
parties." It further provided that "[i]f after fulfilling the requirements [set forth
in the Agreement] defendant's cooperation result[ed] in additional Indictments
charging another person or persons in a separate criminal scheme, the parties
[could], at the State's sole discretion, amend this agreement to include
consideration for that additional cooperation." The Cooperation Agreement also
included an integration clause, which read, "[n]o promises, agreements, or
conditions have been entered into other than those set forth in this Agreement,
and none will be entered into unless memorialized in writing and signed by both
parties."
Thereafter, the NJSP began investigating Person 1 by surveilling and
planning a controlled purchase of cocaine. Defendant successfully purchased
an eighth of an ounce of cocaine from Person 1 in South Amboy. Immediately
after the controlled purchase, defendant met with Cipot on the outskirts of South
Amboy. While Cipot and defendant sat in an undercover vehicle, Cipot
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observed Person 1 drive by them. Cipot suggested that defendant reach out to
Person 1 to dispel any suspicion by mentioning that defendant noticed him in
the area and that defendant was simply meeting with someone to sell the cocaine
he had just purchased.
After defendant briefly spoke to Person 1, contact between defendant and
Person 1 ceased and further attempts to set up controlled purchases with him
were unsuccessful. As a result, the NJSP was unable to further its investigation
of Person 1.
Before defendant was sentenced, he also provided background
information about Person 4. Cipot had been assisting British authorities with its
investigation of Person 4, who was wanted in the United Kingdom for a 2001
homicide and had been arrested in New Jersey during the investigation of
defendant's narcotics case. By the time defendant became involved, British
authorities had already drafted an arrest warrant for the murder and were "just
looking for background information on [Person 4] while he was in the United
States because they didn't have any information." During a meeting with British
authorities, defendant made no mention of Person 4's involvement in a homicide.
Around January 2019, defendant informed Oliveira that he "remembered
possibly that [Person 4] told him one night that he had killed somebody in the
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U.K." This information was later shared with British authorities, but it bore no
fruit. Cipot did not consider the information credible because defendant failed
to mention it during the hours-long meeting with British authorities; instead,
defendant decided to share the information shortly before his sentencing date.
Defendant acknowledged no cooperation agreement existed concerning Person
4 and that none of the information he provided led to any additional arrests.
Also, British law enforcement never informed defendant that his testimony was
necessary related to the homicide and he never testified against Person 4.
Shortly before sentencing, defendant also identified an additional
potential target who sold drugs and owed defendant money. The NJSP declined
to act on the information because "[i]t was a low-level cocaine investigation"
and it was at least the third time defendant came forward with information about
possible targets right before sentencing.
Finally, defendant and Oliveira spoke briefly about drug prices and trends
around the area but nothing that assisted law enforcement with any investigation.
The two ceased communication at that point. Defendant did not identify any
other targets.
On August 2, 2019, the court issued an order and accompanying written
decision denying defendant's motion for a downward departure from
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recommended sentence under the plea agreement of ten-year term with a forty-
month period of parole ineligibility pursuant to the Brimage plea agreement.
First, the court considered that defendant purchased only one-eighth of an
ounce of cocaine from Person 1. Shortly after the transaction took place, Person
1 observed defendant in another vehicle and stopped speaking to him.
The court considered defendant's information concerning Person 2 but
noted it occurred before the Cooperation Agreement was entered into. The
information defendant provided involved charges of obstruction of justice and
interfering with a witness. Those charges were dismissed when Person 2 pled
guilty to first-degree distribution of CDS.
The court next considered defendant's information concerning Person 3.
Although defendant believed he could buy substantial quantities of cocaine from
Person 3, that never occurred because the MCPO was already investigating
Person 3. Even though Olivieri testified that defendant's information was useful
and helpful, he also explained that Person 3 would have been arrested without
the information provided by defendant.
The court also considered defendant's information concerning Person 4.
Although defendant provided "significant information," he "never entered into
a cooperation agreement or testified in respect to Person 4."
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Finally, the court considered defendant's identification of Persons 5 and 6
to the NJSP. "[B]ecause of the low level [of] drugs involved there was no
cooperation agreement" as to Persons 5 and 6 and they "were not pursued by the
State."
The court explained that "the cooperation of the defendant must be of
substantial value to the State to satisfy the agreement. As such, a defendant's
good faith efforts are not enough to satisfy the agreement in producing
information of a 'substantial value' to the State." (citations omitted).
The court found that the Cooperation Agreement "was specific," contained
"sufficient detail," set forth "the reasonable expectations and obligation of both
the defendant and the State," and stated that "[t]he State had the primary
authority to determine what was productive and a substantial value to the State."
Any cooperation beyond the terms of the agreement required "a separate written
agreement."
The court also found that the Cooperation Agreement was focused and
limited in scope, involving Person 1 and no others. It found that defendant's
cooperation did not result in the prosecution of Person 1 for either first - or
second-degree distribution or possession with intent to distribute CDS.
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The court "recognize[d] the good faith efforts made by the defendant" by
providing information on five other individuals. Notwithstanding those efforts,
the court found he did not "satisfy the agreement in producing information of a
'substantial value' to the State." The court further found that "defendant has not
shown by clear and convincing evidence that the State's sentence
recommendation was arbitrary and capricious." Finally, upon reviewing the
aggravating and mitigating factors, the court found "no reasons to justify"
downgrading count two to a second-degree offense.
On the same day, the court sentenced defendant in accordance with the
plea agreement to a term of ten years, subject to a forty-month parole
ineligibility period. (Da14-16). The court found aggravating factors three (risk
that defendant will commit another offense), five (substantial likelihood that
defendant is involved in organized criminal activity), and nine (need to deter
defendant and others from violating the law). See N.J.S.A. 2C:44-1(a)(3), (5),
and (9). The court gave "light weight to aggravating factor [three], moderate
weight to aggravating factor [five,] and heavy weight to aggravating factor
[nine]."
The court found mitigating factors seven ("no history of prior delinquency
or criminal activity"), eight ("defendant's conduct was the result of
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circumstances unlikely to recur"), nine (defendant's "character and attitude . . .
indicate that he is unlikely to commit another offense"), eleven (imprisonment
"would result in excessive hardship to [defendant] or his dependents"), and
twelve (defendant's willingness to cooperate with law enforcement). See
N.J.S.A. 2C:44-1(b)(7), (8), (9), (11), and (12). The court gave "clear weight"
to mitigating factor twelve, finding that although defendant's cooperation did
not rise to the level of "substantial value," he made "good faith efforts . . . on
numerous attempts even putting himself in jeopardy." The court determined that
the aggravating and mitigating factors were in equipoise and imposed the
recommended sentence, noting it "could not go lower." This appeal followed.
Defendant raises the following points for our consideration:
POINT I
THE STATE’S ARBITRARY AND CAPRICIOUS
POSITION CONTINUES TO DEFY THE COURT’S
RULING IN STATE V. GERNS AS WELL AS THE
ATTORNEY GENERAL’S BRIMAGE GUIDELINES
AND ITS BAD FAITH MISCHARACTERIZATION
OF [DEFENDANT'S] COOPERATION AND
EXCLUSIVE RELIANCE ON AN
UNCONSCIONABLE, UNREASONABLE
COOPERATION AGREEMENT GOES AGAINST
THE INTERESTS OF JUSTICE AND WARRANTED
A REDUCTION AT SENTENCING.
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A. The State is Mischaracterizing and Downplaying the
Value of [Defendant's] Cooperation, Ignoring Key
Aspects of the Same.
1. Cooperation Assistance Provided Against [Person 4].
B. [Defendant] Provided Assistance with Respect to a
Myriad of Additional Investigations that When Viewed
Collectively and Individually Clearly Offered
Substantial Value to the State Deserving a Downward
Departure.
2. Cooperation Assistance Provided Against [Person 2].
3. Cooperation Assistance Provided Against [Person 3].
4. Cooperation Assistance Provided Against [Person 1].
C. Examining [Defendant's] Cooperation Through the
Required "Broad Spectrum of Conduct" Reveals He
Not Only Provided Substantial Cooperation in
Accordance with Section 13 of the Brimage Guidelines,
But His Cooperation Agreement is Inherently Flawed
and Goes Against the Attorney General’s Own Policy
Guidelines Regarding the Same.
D. The State’s Review of [Defendant's] Cooperation
Wavered Inconsistently Between the Two (2) Deputy
Attorney Generals Handling the Case.
POINT II
THE TRIAL COURT’S GERNS DECISION AND
CORRESPONDING RULING NOT TO GRANT A
DOWNWARD DEPARTURE AT SENTENCING
WERE CLEARLY MISTAKEN AND CAUSED AN
UNJUST RESULT FOR [DEFENDANT]
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WARRANTING APPELLATE REVERSAL OR
REMAND PURSUANT TO R. 2:10-2 AND R. 2:10-3.
We are unpersuaded by these arguments.
"The Comprehensive Drug Reform Act of 1987 (CDRA) imposes
mandatory sentences and periods of parole ineligibility for certain offenses ,
N.J.S.A. 2C:43-6(f); it also provides an exception to the imposition of such
sentences in the context of a negotiated plea agreement, N.J.S.A. 2C:35-12."
State v. Courtney, 243 N.J. 77, 80 (2020). Significantly, N.J.S.A. 2C:35-12
"requires the sentencing court to enforce all agreements reached by the
prosecutor and a defendant under that section and prohibits the court from
imposing a lesser term of imprisonment than that specified in the agreement."
Ibid. (quoting Brimage, 153 N.J. at 9).
The Supreme Court has interpreted N.J.S.A. 2C:35-12 to require judicial oversight
"to protect against arbitrary and capricious prosecutorial decisions." State v. Vasquez,
129 N.J. 189, 196 (1992) (citation omitted). In 2004, revised guidelines were
promulgated to ensure statewide uniformity in the exercise of prosecutorial discretion
when negotiating plea agreements under N.J.S.A. 2C:35-12. Revised Attorney General
Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (July 15, 2004) (Brimage
Guidelines). "[A]ll plea agreements that are offered in exchange for a defendant's
promise to provide future or ongoing cooperation must set forth the reasonable
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expectations and obligations of both the defendant and the State in sufficient detail so that
those expectations and agreed-upon responsibilities are clearly understood." Brimage
Guidelines at 103.
Notably, the Brimage Guidelines allow for downward departures from authorized
plea offer agreements in exchange for a defendant's cooperation with law enforcement in
the "identification, investigation, apprehension, or prosecution" of individuals involved
in a drug-trafficking scheme or other criminal activity. Id. at 101. When determining the
appropriate sentence reduction, the prosecutors may consider, among other things, the
following:
1. The prosecutor's evaluation of the nature, extent,
significance, value, and usefulness of the defendant's
assistance;
2. The truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
3. The extent to which the defendant's assistance
concerns the criminal activity of other person(s) who
are more culpable than the defendant;
4. Any injuries suffered, or any danger or risk of injury
to the defendant or his or her family resulting from the
assistance; and,
5. The timeliness of the defendant's assistance.
[Id. at 102.]
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However, under the Brimage Guidelines, "a defendant's cooperation agreement can be
satisfied only if his or her efforts are of substantial value to the State." Gerns, 145 N.J. at
217-18. Good faith efforts alone are insufficient. Id. at 229. Indeed, "even partial
performance must provide some tangible benefit to the prosecutor." Id. at 227. Reducing
a sentence based on "defendant's efforts in the absence of valuable cooperation fails to
achieve any legislative purpose." Id. at 228-29.
While the Brimage Guidelines "vest the prosecutor with the authority to decide
whether a defendant has provided cooperation that has substantial value to the State, a
prosecutor may not be arbitrary or capricious in that determination." Id. at 228.
"Although the [Gerns] hearing must be 'deliberate, not perfunctory,' ordinarily the
prosecutor's decision will be dispositive." Ibid. (quoting State v. Shaw, 131 N.J. 1, 17
(1993)).
"The standard of judicial review of a prosecutor's decision requires a defendant to
show by clear and convincing evidence that the prosecutor's decision was arbitrary or
capricious." Id. at 222 (citing Vasquez, 129 N.J. at 196). Here, defendant failed to satisfy
this burden. Under the terms of the Cooperation Agreement, defendant did not qualify
for a downward departure because his cooperation did not result in the prosecution of
Person 1 for first- or second-degree distribution or possession with intent to distribute
CDS. Thus, defendant did not satisfy the clear and unambiguous terms of the
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Cooperation Agreement. While defendant's cooperation with law enforcement as to
Persons 2 through 6 may have been somewhat helpful, those efforts did not fall under the
Cooperation Agreement.
The record fully supports the trial court's determination that defendant did not
show by clear and convincing evidence that the prosecutor's decision was arbitrary or
capricious. Because defendant's cooperation as to Person 1 was not of substantial value,
it did not entitle him to a downward departure from the plea agreement's recommended
sentence. We discern no abuse of discretion by the prosecutor or the trial court.
Defendant further argues that imposing the recommended sentence was a clear
error of judgment that shocks the judicial conscience. We disagree.
"Appellate courts review sentencing determinations in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell,
117 N.J. 210, 215 (1989)). We determine "whether there is a 'clear showing of abuse of
discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79
N.J. 503, 512 (1979)). The sentence imposed by a trial court must be affirmed "unless:
(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating
factors were not 'based upon competent credible evidence in the record'; or (3) 'the
application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"
Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). "A
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sentence imposed pursuant to a plea agreement is presumed to be reasonable. . . ."
Fuentes, 217 N.J. at 70.
Defendant pled guilty to first-degree distribution of CDS in exchange for a
recommended minimum mandatory sentence under N.J.S.A. 2C:35-5(b)(1) and N.J.S.A.
2C:43-6(a)(1), and dismissal of the remaining counts. He was sentenced in accordance
with the plea agreement because he did not satisfy the Cooperation Agreement. N.J.S.A.
2C:35-12 "prohibit[ed] the court from imposing a lesser term of imprisonment."
Courtney, 243 N.J. at 80 (quoting Brimage, 153 N.J. at 9).
Moreover, the sentencing guidelines were not violated. The aggravating and
mitigating factors applied by the court were supported by competent credible evidence in
the record. The sentence does not shock our conscience. We discern no abuse of
discretion.
Affirmed.
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