August 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC MITCHELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0907.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Gilroy and Lihotz.
Tried to a jury, defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35- 5b(3). On March 24, 2006, defendant was sentenced to a mandatory extended-term, pursuant to N.J.S.A. 2C:43-6f, of seven years of imprisonment with a three-and-one-half-year period of parole ineligibility, and a suspension of his driving privileges for a period of six months. All appropriate penalties and assessments were also imposed. Defendant appeals, and we affirm.
Because defendant does not contend that the verdict was against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other necessary facts when addressing the issues.
On June 17, 2005, John Tilton, a police officer with the City of Rahway Police Department, was on patrol in a motor vehicle in the area of Main Street and East Cherry Street in Rahway, when he observed an individual, later identified as Greg Richelshagen,*fn1 standing in front of the Landmark Liquor Store. After observing Richelshagen looking up and down the street as if searching for someone, Tilton parked his motor vehicle on East Cherry Street, approximately thirty feet away from Richelshagen. About one minute later, a second individual walked up and shook hands with Richelshagen. Tilton recognized the second person as defendant, having known him for approximately eight years. After the two shook hands, Richelshagen removed money from his pocket and gave it to defendant. In exchange, defendant handed Richelshagen a small, plastic object, after which both individuals separated and left the area.
Believing that he had just witnessed a drug transaction, Tilton exited the vehicle and requested both individuals to come toward the police car. Both ignored the officer's request. Because he had lost sight of defendant and knew defendant's identity, Tilton pursued Richelshagen and stopped him a few blocks from the liquor store. Upon searching Richelshagen, Tilton recovered a bag of cocaine from his pocket. Richelshagen was placed under arrest and transported to police headquarters. After Richelshagen was processed, Tilton went back out on patrol and arrested defendant. No contraband was found in defendant's possession.
In the interim, Detective James Crowell interviewed Richelshagen. After Crowell advised him of his Miranda*fn2 warnings, Richelshagen gave a formal written statement concerning the purchase of the cocaine found on his person at the time of his arrest. Richelshagen stated that he knew defendant from prior contacts over the past several months and identified defendant from a photograph as the individual who had sold him the cocaine earlier that evening, as witnessed by Patrolman Tilton. At trial, Richelshagen again identified defendant as the individual who had sold him the cocaine for $20.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION ON AN ESSENTIAL ELEMENT OF THE OFFENSE.
A. THE INSTRUCTION WAS SO VAGUE, CONFUSING, AND CONTRADICTORY THAT A REASONABLE PERSON WOULD BE INCAPABLE OF UNDERSTANDING AND APPLYING THE LAW (NOT RAISED BELOW).
B. THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AN ATTEMPT TO DISTRUBTE CDS WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY WAS INFORMED THAT THE DEFENDANT HAD SOLD DRUGS ON A PRIOR OCCASION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ARGUMENTS THAT THE DEFENDANT OPERATED A DRUG BUSINESS AND THAT JURORS DO NOT WANT DRUG DEALERS IN FRONT OF THEIR HOUSES (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF SUGGESTIVE AND UNRELIABLE IDENTIFICATION EVIDENCE.
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
Defendant argues that the trial judge erred in his charge to the jury when he instructed that "distribution," under N.J.S.A. 2C:35-5a(1), "means transfer, actual, or constructive, or attempted, from one person to another of a controlled dangerous substance." Defendant contends that the instruction improperly allowed the jurors to convict defendant, not of actual distribution, but of attempted distribution. Defendant asserts that even if an individual could be guilty under the statute by attempting to distribute CDS, the judge failed to provide the jury with any legal guidance on the law of attempt.
Defendant did not object during the charge conference or at the end of the jury charge. Because defendant raises these objections for the first time on appeal, we consider the issues under the plain error rule, R. 2:10-2. Under Rule 1:7-2, a defendant waives the right to contest an instruction on appeal "if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court will reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
Proper jury instructions "are essential to a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. "However, a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).
The record discloses that the instruction provided to the jury on the substantive charge mirrored that of the model jury charge for distribution of a CDS. The instruction provides that among the elements which the State must prove beyond a reasonable doubt is that the defendant distributed cocaine on the date alleged in the indictment. The instructions further provide that "distribute" means the "transfer, actual, constructive or attempted, from one person to another of a [CDS]." See Model Jury Charge (Criminal), "Distribution of a Controlled Dangerous Substance" (1988). Under the comprehensive Drug Reform Act of 1987, "distribute" means to "deliver other than by administering or dispensing a [CDS] . . . ." N.J.S.A. 2C:35-2. "Deliver" is defined in the same statute as meaning "the actual, constructive, or attempted transfer from one person to another of a [CDS] . . . ." N.J.S.A. 2C:35-2. Because the instruction was in accordance with the elements as defined by the statute, we find no error in the charge.
Nor do we find any reversible error by the trial judge's failure to provide the jury with a definition of "attempt." Defendant was not charged with attempted distribution of a CDS, but with actual distribution. The State presented overwhelming evidence in support of that charge. The trial judge referenced the evidence concerning actual distribution during his instructions. We are satisfied that the instructions were sufficiently clear, unambiguous and helpful to the jury. The instructions did not have the capacity to confuse the jury under the facts of this case, nor does the record indicate that the jury was confused or did not understand the instructions.
Defendant argues next that the trial judge erred by denying his motion for a mistrial after Patrolman Tilton testified that he believed that Richelshagen had purchased cocaine from defendant earlier the same day. We disagree.
A mistrial should be granted if "the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury." Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2007). A mistrial need not be granted if "the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps." Ibid. The decision to grant or deny a motion for a mistrial "rests with the sound discretion of the trial court, and it should not be disturbed when . . . there is no clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. Labrutto, 114 N.J. 187, 207 (1989).
Here, the testimony complained of occurred during defendant's cross-examination of Patrolman Tilton. Counsel asked, "[a]t that point were you aware of the amount that Mr. Richelshagen said that he had paid for the alleged cocaine?" Tilton responded, "[a]ctually I was still - I don't know how much he paid Mr. Mitchell. I believe in his statement he said he paid for that purchase and something from earlier in the day, ma'am." Defendant objected, and the trial judge immediately gave the jury a curative instruction, advising the jury that, "we are here about this incident and nothing else. Okay? You should strike from your memory anything that's said about some other time. This is the case on trial. Nothing else." At the close of the case, the judge again instructed the jurors to "strike that testimony from [their] memory." Because the trial judge gave an immediate and forceful instruction to the jury, we are satisfied that the judge correctly denied the motion, determining that Officer Tilton's statement was inadvertent, and defendant did not suffer any prejudice. We presume the jurors followed the court's cautionary instruction. State v. Nelson, 173 N.J. 417, 478 (2002).
Defendant argues next that he was denied a fair trial because the prosecutor impermissibly used an allegation of criminal disposition to ensure a guilty verdict "by characteriz[ing] a single alleged drug transaction of $20 as a 'business occupation.'" Defendant also contends that the prosecutor engaged in misconduct during his closing argument when "he told the jurors the case was important because they did not want drug dealers in front of their houses." It is noted that defendant did not object at trial to the prosecutor's comments. Therefore, his objection now must rise to the level of plain error. R. 2:10-2.
"It is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). However, this wide latitude is not unfettered: it is bound by parameters established by decisional law and by ethical considerations. Ibid. Accordingly, "the assistant prosecutor's duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
In considering issues of prosecutorial misconduct, the reviewing court must first determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). Where misconduct is identified, it does not constitute grounds for reversal unless it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). Thus, to warrant reversal, a prosecutor's misconduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
Whether a prosecutor's misconduct denied a defendant a fair trial requires consideration of both the "tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). A reviewing court will consider: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Id. at 575-76.
Defendant argues that the prosecutor improperly argued that he was conducting a "business operation," impermissibly referencing other crime evidence. Defendant contends that the prosecutor's remark inferred that defendant was "engaged in a criminal enterprise that will continue without a guilty verdict." When considering the statement in the context in which it was made, we disagree. The prosecutor had been commenting upon the testimony of Patrolman Tilton and the Patrolman Tilton's observations of the drug transaction between defendant and Richelshagen. In doing so, the prosecutor commented upon the testimony of Richelshagen and the role he played in the drug transaction observed by Patrolman Tilton. "By the way, Greg is no victim. He is actually a co-defendant and part of this whole business operation that this defendant was conducting out there on the street that day." We are satisfied that the statement only focused on the transaction forming the basis of the charge.
Defendant asserts that the prosecutor improperly used "disposition evidence and scare tactics" in an attempt to prove defendant's guilt when the prosecutor commented, "[i]f somebody was selling drugs in front of your house, you wouldn't like that. That's why this is a very serious case." Following the closing remarks of counsel, the judge instructed the jury that "[a]rguments, statement[s], openings, summations of counsel are not evidence and must not be treated as evidence . . . any comments by counsel are not controlling." Although the comment would have been better left unsaid, we do not find that it rises to plain error, because it was an isolated fleeting remark, not repeated as a theme of the prosecutor's argument. State v. Jang, 359 N.J. Super. 85, 97 (App. Div.) (holding that inappropriate closing remarks of the prosecutor did not rise to the level of plain error where they were fleeting and accompanied by an appropriate charge by the trial judge, instructing among other things, that counsel's comments are not evidence), certif. denied, 177 N.J. 492 (2003).
Defendant argues next that Richelshagen's out-of-court identification of defendant was unduly suggestive and tainted his substantive in-court identification. Defendant contends that the identification evidence was unreliable because Richelshagen had been arrested for possession of cocaine; had lied to the police, stating that he did not possess cocaine; and would lie again at the identification proceeding in order to help himself.
The test on appellate review of a Wade*fn3 hearing is whether the trial judge could reasonably conclude that the identification procedure was not "'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)). The test for suggestiveness is a two-pronged test. The first prong is whether the identification procedure employed was "impermissibly suggestive." Madison, supra, 109 N.J. at 232. Only if there is a finding of impermissible suggestiveness does the second prong of the test even apply. Ibid. The second prong requires a determination of whether the suggestiveness resulted in a "'very substantial likelihood of irreparable misidentification.'" Ibid. (citation omitted). "The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation." State v. Mustacchio, 109 N.J. Super. 257, 263 (App. Div.), aff'd, 57 N.J. 265 (1970).
For the second prong, the court focuses on the witness's reliability. To determine whether or not the witness is reliable, and the procedure resulted in a very substantial likelihood of misidentification, the following factors must be weighed: "'[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of [the witness's] prior description . . ., the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" State v. Clausell, 121 N.J. 298, 326 (1990) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)). "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154. The use of the two-step analysis when determining the admissibility of out-of-court identifications was recently reaffirmed by the Supreme Court. State v. Herrera, 187 N.J. 493 (2006).
Testifying at the Wade hearing were Richelshagen, Detective Crowell, and Patrolman Tilton. Richelshagen testified that he knew defendant as "Eric" for several months, having purchased drugs from him once or twice before the day of the transaction at issue. On June 17, 2005, Richelshagen bought cocaine from defendant twice, once in the morning, and once in the evening. After the second purchase, Richelshagen left the area and was stopped by the police. Initially, Richelshagen denied having any drugs on him, but after realizing the police had observed the drug transaction, Richelshagen informed the police of what had occurred and that he had cocaine in his possession, taking it out of his pocket and giving it to a police officer. After he was arrested, Richelshagen was transported to police headquarters where he gave Detective Crowell a formal statement concerning his purchase of the cocaine from defendant. During the interview, Crowell showed Richelshagen photographs of two people, one photograph showing an individual with long dreadlocks. Richelshagen identified the photograph of the person without dreadlocks as defendant and as the individual who had sold him the cocaine. Richelshagen confirmed his out-of-court identification by again identifying defendant during trial as the individual who sold him the cocaine on June 17, 2005.
Crowell testified as follows. Crowell took a statement from Richelshagen on the evening of June 16, 2005, after Richelshagen had been arrested by Patrolman Tilton. Crowell knew prior to the interview that defendant was the individual who had sold Richelshagen drugs because of information provided by Patrolman Tilton. Crowell showed Richelshagen a single photograph of defendant. Crowell admitted that he had not followed the Attorney General's Guidelines by not placing five "filler" photographs in an array with defendant's photograph. Crowell stated that he varied from the recommended Guidelines because "I felt [Richelshagen] knew who the subject was, and it was clear to me that [Richelshagen] knew who he was." Crowell also conceded that he violated the Guidelines by not having the photo presented to Richelshagen by an individual who was unaware of defendant's involvement in the crime.
Tilton testified as to his observations concerning the drug transaction, and that he did not need Richelshagen to make an identification because Tilton had known defendant for several years. At the conclusion of the hearing, the judge determined that the identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. We agree.
Contrary to most situations where the person making the out-of-court identification never saw the suspect prior to the commission of the crime, Richelshagen had known defendant for several months, had engaged defendant in several drug transactions during that time period, had purchased drugs from defendant earlier on the day in question, and had engaged defendant in a face-to-face drug transaction only several hours before he identified defendant from a photograph as the individual who had sold him the cocaine. Although Crowell did not follow the New Jersey Attorney General's Guidelines pertaining to photo arrays, we are satisfied that the procedure did not result in a substantial likelihood of misidentification based on the totality of the circumstances. The showing of a single photograph goes to the weight, not the admissibility of the identification. State v. Farrow, 61 N.J. 434, 453 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973). We also reject defendant's contention that the identification was unreliable because Richelshagen had been arrested and had initially lied to the police, denying that he possessed cocaine. Those are matters of credibility, to be determined by the trier of fact. See State v. Cook, 330 N.J. Super. 395, 417 (App. Div.) (holding "[c]redibility of the identification is not the issue on the question of admissibility but rather is a matter of weight for the jury"), certif. denied, 165 N.J. 486 (2000). Moreover, Richelshagen's identification was confirmed by Patrolman Tilton's identification of defendant as the person who sold Richelshagen the cocaine.
Lastly, we address defendant's challenge to the sentence. Defendant argues that the mandatory extended term should be vacated because the State's decision to deny a waiver of the extended term was arbitrary and capricious. Defendant contends that the sentence is excessive, and that he should not have been sentenced to a term in excess of five years. Defendant asserts that the judge's finding of aggravating sentencing factors, N.J.S.A. 2C:44-1A(3) (that defendant is at a risk to commit another crime); N.J.S.A. 2C:44-1a(6) (the defendant has a prior record); and N.J.S.A. 2C:44-1a(9) (that there is a need to deter defendant and others from committing crimes), constituted double counting because the trial court had already considered defendant's record in granting the State's motion for a mandatory extended term. Defendant also contends that the judge erred in not finding mitigating factors, N.J.S.A. 2C:44-lb(1) (defendant's conduct did not cause serious harm) and N.J.S.A. 2C:44-1b(11) (incarceration will impose an excessive hardship because defendant suffers from diabetes). We disagree.
When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).
The judge granted the State's motion to impose a mandatory extended-term sentence based on defendant's prior conviction in 1999 for possession of a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7. After finding aggravating factors (3), (6), and (9), based upon defendant's extensive criminal record, defendant was sentenced to a seven-year term, the mid-range for a second-degree offense, with three years of parole ineligibility, the minimum allowed by statute. We are satisfied that the trial judge correctly granted the State's motion for a mandatory extended term, and that the sentence is neither manifestly excessive nor unduly punitive and does not constitute an abuse of discretion.
Defendant contends that the mandatory extended-term sentence should be vacated, asserting that the prosecutor's decision to seek the enhanced sentence was arbitrary and capricious, based on the remoteness of his conviction for possession of a CDS within 1,000 feet of a school, citing the Attorney General's Directive Implementing Guidelines for Determining Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6f, issued April 20, 1992, as referenced by the Court in State v. Kirk, 145 N.J. 159, 168-69 (1996). We disagree.
The imposition of "an extended sentence for repeat offenders [is] the norm." State v. Lagares, 127 N.J. 20, 33 (1992). "[B]efore judicial intervention is warranted in overturning the prosecutor's decision to seek an extended term under the guidelines," State v. Irrizary, 328 N.J. Super. 198, 204 (App. Div.), certif. denied, 164 N.J. 562 (2000), the defendant must meet the heavy burden of proving "that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion . . . ." Lagares, supra, 127 N.J. at 33. As stated in Kirk, the 1992 Attorney General Directive had set forth various factors on which a prosecutor could have relied as a basis for waiving an enhanced sentence, including "(f) defendant's prior record includes only convictions that are extremely remote, and the State determines that there is no reason to believe that defendant derived a substantial source of income from criminal activity at any time." Kirk, supra, 145 N.J. at 169. However, the 1992 Directive was superseded by the Attorney General's Directive No. 1998-1, Prosecuting Cases under the Comprehensive Drug Reform Act. Section 4C of the 1998 Directive sets forth only four grounds for waiving an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6f, and remoteness of the predicate act is not one of those grounds. Accordingly, defendant's argument is without merit. Moreover, even if the prosecutor could have considered the remoteness of the predicate act as a ground for waiving an extended term, we would have rejected that argument. The lapse of seven years between the predicate drug offense, making defendant eligible for a mandatory extended term, and sentencing for the present offense is not so "extremely remote" as to require vacating the mandatory extended term because between the two convictions, defendant was also convicted of other offenses, including a disorderly person's offense on January 20, 2005, for failure to deliver a CDS to the police and a petty disorderly person's offense on January 16, 2005, for prowling in public places that was CDS related. See Irrizary, supra, 328 N.J. Super. at 203 (holding "that in determining whether a predicate offense is too remote for purposes of waiver, the sentencing judge must consider intervening convictions, including disorderly persons convictions").
We are also satisfied that the judge properly determined the aggravating factors in imposing the extended-term sentence. A court must determine a defendant's sentence "within the extended-term range based on aggravating and mitigating factors found to be present." State v. Thomas, 188 N.J. 137, 154 (2006). In fulfilling its sentencing obligation, a court is required to consider all statutory aggravating and mitigating sentencing factors and determine which ones are applicable, that is, supported by credible evidence in the record. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A judge may consider aggravating factors (3), (6), and (9) in determining the appropriate extended-term sentence. Thomas, supra, 188 N.J. at 153-54.
Lastly, we do not discern any reason to conclude that the judge erred in not finding mitigating factors (1) and (11). As to mitigating factor (1), that defendant's conduct did not cause serious harm, see State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) (holding "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm"). As to mitigating factor (11), that incarceration would impose an excessive hardship on defendant because he suffers from diabetes, although the pre-sentence report referenced his medical illness, the record is devoid of any facts supporting the argument that incarceration would cause defendant excessive hardship. Dalziel, supra, 182 N.J. at 505.