Appellate Panel Denies Meyer’s Bid for Resentencing

TRENTON – The state court’s Appellate Division rejected a bid by David N. Meyer, 27, presently serving six to 15 years in state prison for manufacture and distribution of a controlled dangerous substance, who believed the trial judge should have imposed a lesser sentence.
Meyer began serving his sentence June 21, 2013 for the offense Feb. 8, 2012 in Cape May County. The earliest he could be paroled is Aug. 11, 2018, according to the state Department of Corrections.
In a seven-page, March 19 unpublished decision, which means it cannot be used as case law reference, the appellate judges noted Meyer’s conviction “following the denial of his motion to suppress evidence and his subsequent retraxit pleas of guilty to second-degree possession of heroin with intent to distribute…”
Meyer argued:
• The evidence seized should be suppressed because the warrant was invalid.
• The matter must be given a new sentencing hearing because “the court imposed sentence based upon a mistake concerning the extent of defendant’s prior record.”
The appellate panel sided with Judge Patricia G. Wild, and found Meyer’s “arguments are without sufficient merit to warrant an extended discussion in a written opinion.”
The panel added, “On Feb. 8, 2012, police seized weapons, ammunition, drug paraphernalia and controlled dangerous substance from a residence which they had entered pursuant to a search warrant issued by the acting municipal court judge for Upper Township in Cape May County. The acting municipal court judge had been named as the first alternate under the March 1, 2011 order of the assignment judge entered pursuant (to statute). That statute authorizes the assignment judge to appoint as “acting judge” of each municipal court in the vicinage to serve temporarily when the regular municipal judge is unable to hold court.”
Further, the court noted that the assigned municipal court judge for Upper Township was away from Feb. 1, 2012 through Feb. 12, 2012, on vacation out of state and the acting judge who executed the order for the search warrant on Feb. 1, 2012 was the first alternate judge for that municipality under the assignment judge’s order. The acting judge did not, however, ‘record the reason’ for his substitution on the warrant application or the warrant itself.”
Meyer argued that failure by the acting judge to make a record of the reason for his substitution invalidated the search warrant and required suppression of everything police found and seized in the home search.
“We reject defendant’s argument that the warrant was invalid simply because of the acting judge’s technical failure to make a contemporary record of the reason he signed the warrant. Neither the policies underlying the court rule and the statute, not the principles of Broom-Smith, were in any manner offended by the actions of the police or the acting judge.”
The panel briefly addressed Meyer’s argument that the judge’s mischaracterization of his prior record requires vacating his sentence and remanding for a new sentencing hearing.
“We are mindful that our standard of review of the judge’s sentencing determinations is limited. If a sentencing court properly identifies and balances the applicable aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence.
“A sentence that is so imposed, consistent with the guidelines, should be modified only if it ‘shocks the judicial conscience.’”
“Applying this limited standard of review, we find no reason to disturb the sentence imposed by Judge Wild. The sentence does not shock the judicial conscience. The trial court adequately took into account defendant’s background in imposing the custodial term and the parole disqualifier.
“Defendant had, in the past, been given the benefit of parole and had violated parole. In 2010, while on parole after receiving a sentence of imprisonment for his prior indictable drug offense, defendant was convicted of an assault offense and a contempt offense, and was again incarcerated.
“Prior parole had not deterred defendant. The judge appropriately weighed the aggravating and mitigating factors supported by the record and imposed sentence.”
The court further noted that in 2009, Meyer was charged with criminal contempt for violating a restraining order, but the charge was downgraded to a disorderly persons offense in accordance with a plea agreement.
Also, in 2010, he was indicted for third-degree aggravated assault, and that charge, too, was downgraded to simple assault.
“Accordingly, while defendant’s 2007 conviction for possession of cocaine with intent to distribute in a school zone was his only prior indictable conviction, (Meyer), in addition did have a history of disorderly persons offenses and parole violations as an adult.”
Finally, the judges found three aggravating factors, including risk of re-offending, his record, and the need to deter him and no mitigating factors.
“The judge was ‘clearly convinced’ the aggravating factors outweighed the absent mitigating factors, and sentenced defendant in accordance with the plea bargain,” the panel wrote.