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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3689-07T4

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEVIN REILLY, Defendant-Appellant. __________________________ August 11, 2009 Submitted April 28, 2009 - Decided Before Judges Yannotti and LeWinn. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Accusation No. 05-10-0955-A. Robin Kay Lord, attorney for appellant. Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Daniel M. Vannella, Assistant Prosecutor, of counsel and on the brief). PER CURIAM On October 3, 2005, defendant Devin Reilly pled guilty to an accusation charging him with first-degree possession of

cocaine with intent to distribute, 1 AND 2 WAS IMPROPER For the reasons that follow, we affirm defendant's

convictions, but remand for resentencing. At defendant's plea hearing, his attorney questioned him on the leader of organized crime count as follows: Q. Count 2, you're pleading guilty to being a leader of organized crime, a crime of the second-degree; on diverse dates in Cumberland County, did you possess marijuana, cocaine, steroids, and engage in gambling activities with other persons? A. Yes. Q. And, was that done for profit? A. Yes.

Q. And, . . . did you give drugs to people, and allow them to go out and sell it, and then bring you the money? A. Yes.

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Q. Okay. And, did you do that with cocaine, marijuana and steroids? You sold steroids as well? A. Yes, I sold steroids.

Q. Okay. And, was [the] marijuana in a quantity of over five pounds? A. Yes.

Q. And, was the cocaine in a quantity of over five ounces?

A-3689-07T4 3 A. Yes.

[(Emphasis added).] Defendant now contends that this factual basis "falls

woefully short of demonstrating that [his] conduct was a pattern of racketeering, as opposed to an isolated incident where he simply gave persons drugs to sell for him." 141 N.J. 142 (1995), the Supreme Court addressed the nature of the criminal conduct enjoined by the racketeering statute, stating: "[C]ontinuity," understood as an antonym of the terms "isolated" or "sporadic," points to "incidents of criminal conduct" that exhibit some ongoing connection. . . . We . . . conclude that some degree of continuity, or threat of continuity, is required and is inherent in the "relatedness" element of the "pattern of racketeering activity." [Id. at 168 (citations omitted).] We conclude that defendant provided an adequate factual We disagree.

basis for the court to accept his plea of guilty to a violation of 107 N.J. (1987). We Defendant turn first next to defendant's that the sentencing trial factor judge number arguments. erred by 283, 293

argues considering

inappropriately namely:

aggravating

eleven,

The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices[.] [N.J.S.A. 2C:44-1(a)(11).] In imposing sentence, the trial judge weighed the aggravating

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and mitigating factors as follows: In looking at the facts of this case, . . . I would suggest that aggravating factors 3, 9, and 11 should be given weight. I would give some weight to 3, the risk that he'll commit another offense . . . . I would give full weight to 9, the need to deter the defendant and others from violating the law; and I would give full weight to 11, that the imposition of a fine, penalty, or order for restitution without also imposing a term of imprisonment would be perceived by the defendant and others A-3689-07T4 6 merely as business. The judge found a part that of the cost of factor doing number seven

mitigating

applied, since defendant had no history of prior delinquency or criminal a activity, and had led a law-abiding life for

substantial period of time. [mitigating to respond factor affirmatively number to ten],

The judge also gave "full weight to that [defendant]'s treatment." likely The judge

probationary

thereupon found that "the aggravating factors slightly outweigh the mitigating factors," and imposed sentence in accordance with the plea agreement. We considered terms, is balancing concur with defendant factor is that number inapplicable term against the eleven. unless a prison judge "By the improperly its judge sentence." very

aggravating that a provision non-custodial

State v. Dalziel, 182 N.J. 494, 502 (2005). Defendant pled to first- and second-degree offenses, which 2C:44-1(d). carry a presumption of imprisonment. N.J.S.A. Moreover, defendant failed to establish any basis for overriding that presumption. clearly inappropriate. Defendant by imposing the "'presumptive'" term of fifteen years on the firstdegree offense and the "low end of the range," a term of five A-368907T4 7 years on the second-degree offense. that aggravating factor number Because we have concluded eleven should not have been next argues that the trial judge erred Therefore, consideration of this factor was

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considered

in

sentencing

defendant,

we

leave

it

to

the

discretion of the trial judge to address the appropriate terms on each offense on remand. Finally, defendant argues that the imposition of

consecutive sentences on the first two counts of the accusation was improper. are "separate." Defendant acknowledges that these two offenses He argues, however, that the imposition of

consecutive sentences does not necessarily follow and that the trial judge failed to make specific findings on the record to support his imposition of consecutive sentences. We are satisfied that the trial judge did not err in

imposing consecutive sentences.

Count one of the accusation

charged first-degree possession of cocaine "on or about August 26, 2004 . . . ." expansive offense of Count two charged the significantly more "a pattern of racketeering activity,

contrary to . . . 385 N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491 (2006). In that case, we recognized that

"we have the discretion to affirm a consecutive sentence without

A-3689-07T4 8 the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly

mistaken.'" Ibid. (quoting State v. Jang, 359 N.J. Super. 85, 177 N.J. 97-98 (App. 492 (2003)). Div.) certif.

denied,

Notwithstanding the trial judge's failure to analyze the socalled "Yarbough factors," State v. Yarbough, 100 N.J. 627, 64344 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), we are satisfied that the judge did not err in imposing consecutive sentences. Defendant's convictions are affirmed. This matter is

remanded for resentencing in conformance with this opinion.

A-3689-07T4 9

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