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State v. Linton


November 9, 2007


On appeal from the Superior Court of New Jersey, Law Division, Union County, 01-11-1307.

Per curiam.


Submitted October 29, 2007

Before Judges Lintner and Graves.

Following trial, a jury found defendant, Linford Linton, guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (Count One), and third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two).*fn1 The trial judge merged the Count One conviction with the Count Two conviction and a imposed an eight year mandatory extended term sentence, N.J.S.A. 2C:43-6f, with four years of parole ineligibility. Appropriate fines and penalties were imposed. Defendant appeals and we affirm the judgment of conviction but remand for re-sentencing in accordance with State v. Natale (Natale II), 184 N.J. 458, 465-66 (2005), and State v. Thomas, 188 N.J. 137, 151-52 (2006).

While on patrol at approximately midnight on August 6, 2001, Plainfield police officers Michael Black and Ronald James responded to a call that someone was occupying an abandoned house at 215 Monroe Avenue. Upon arriving, they noticed garbage and debris in the rear yard, a broken front door handle and smashed windows. After entering the unlit house, they noticed "broken furniture, garbage, [and] beer bottles." They also found approximately 100 glassine folds of suspected heroin, stamped "under control," behind the cushions of a couch. Next to the suspected heroin, they found a key and a small bag of marijuana.

They proceeded to the second floor where Black found defendant in a room on the south side of the house, kneeling near a door that was upright against the wall, placing items behind the door. Using his flashlight, Black saw defendant pull his hand from behind the door, jump up, and step behind another door that was upright against the wall. After calling James into the room, Black retrieved a plastic bag containing thirty-two vials of suspected crack cocaine and forty-two folds of heroin stamped "[u]nder control" located behind the edge of the door. Defendant was arrested and read his Miranda*fn2 rights. Defendant told Black that his name was Corey Linton and that he was a juvenile. Black later learned that defendant's name was Linford Linton and he was twenty-two years old.

Sergeant Richard Stamler of the Union County Prosecutor's Office testified as an expert. He opined that whoever possessed the drugs found in this case possessed them with the intent to distribute. Stamler based his conclusions on the quantity, value, and manner in which the drugs were packaged.

Defendant testified on his own behalf. Around 8:00 p.m. on August 6, 2001, defendant went to 215 Monroe Avenue because he "live[d] a few blocks around the corner and . . . was bored around the area." According to defendant, he "was going to the store and just moving around, see what else was going on . . . ." Defendant stated that he used to go into the house in his "younger years" and he knew the Brown family that lived next door. Defendant described the following activity that occurred outside the house:

Well, I was, basically, talking to friends. Some guys were rolling dice. You know, people were drinking. It was a -- I think it was a Sunday afternoon in the summertime. We was drinking and talking to girls. We were just playing around with the little boys around there . . . .

First, we . . . retired to the porch area at first and I was talking to a girl named Destiny (phonetic). I was asking her about her friend and she told me just to go wait for her, like wait, just wait inside. I'm all right. I'll wait. So we went in the house.

At that time, there were some guys downstairs. They just told me to go upstairs. It's a two family house. There's a living room downstairs and there's the upstairs living room. So I went into the upstairs living room, but I kept looking out the window to see what they were doing. So I seen them leaving. So I opened the window and I was, like, yeah. You're going to leave. She said, no. We'll be right back. Just hold on. We're coming right back. We're going to the store or whatever before it closes. So I said, okay. So I just laid back in the couch because my head was spinning a little bit and I was just laying back for a while.

Defendant stated that he saw police lights outside the house approximately fifteen to twenty minutes later and watched from the window as police officers, including Officer Black, searched four men. He laid back down on the couch until he heard the police "come pushing in" the front door of the house. Officer Black entered the room on the second floor where defendant was laying down and when he walked past the couch stated, "oh, my God. Get on the ground. Get on the ground." Defendant got on the ground and was handcuffed by another officer who was "not Officer James." Defendant then stated that Officer Black questioned him about the "guys on the porch" and the drugs that were found. He claimed that when he was taken outside there were more than four police cars and "a lot of officers."

On cross-examination, defendant indicated that he did not think the house was abandoned but believed it was still owned by the Jackson family. He testified that two individuals named Nyeem and Kasheef were on the porch of the house on the night in question, but he did not know their last names. According to defendant, a woman named Destiny Washington was on the porch and that he knew her "from Safe Haven Wats" and "from little thing[s] like Jam Steppers with [his] little cousin" and "Fourth of July Day parade and things like that." Defendant testified that he had "been in Plainfield now for . . . 13 years," confirmed that he saw Washington "around all the time," that he talked to her, and that she was his friend. He further stated that he spoke with Washington's friend, Charlene Brayboy, on the night in question and that Washington told him to wait for Brayboy inside the house.

Defendant also presented testimony from Frank DiNunzio. DiNunzio explained that defendant worked for him and, while defendant's payroll checks reflect the name Linford Linden, he is generally known as Corey.

On appeal defendant raises the following points:











We address defendant's contentions seriatim.

After defendant had rested his case, when the counsel and the court were discussing whether the State was entitled to a Clawans charge on defendant's failure to call Destiny Washington as a witness, defense counsel asked whether he would be able to mention in his closing argument that Officer James was not called as a witness for the State. The trial judge answered, "You can mention that he was not called. That's okay." The prosecutor then noted that he too should be able to state in his closing that defendant had the opportunity to subpoena Officer James but failed to do so. Defense counsel responded, "I would subpoena Officer James if, in fact, it's available at this time." The following colloquy then occurred:

THE COURT: Well, you can't do anything now. The case is over --


THE COURT: -- but you can say the State should have brought in Officer James and then he can say I didn't bother because it was going to be cumulative and if he wanted him, he could have brought him in [himself].


THE COURT: So [the prosecutor] is warning you that it may blow up, if you . . . .

[DEFENSE COUNSEL]: Well, what . . . I'm saying is that . . . I will subpoena him. You won't permit me to though.

THE COURT: Well . . . the case is over. You've already rested.

Defendant asserts that it was error for the judge to respond that it was too late for him to subpoena Officer James.

Generally, "[a]n accused in a criminal case has a constitutional right to present witnesses in his defense, pursuant to the due process and the compulsory process provisions of the federal and state constitutions." State v. Feaster, 184 N.J. 235, 250 (2005) (citing N.J. Const. art. I, ¶¶ 1, 10); see also U.S. Const. amends. V, VI, XIV, § 1. "A judge has discretion to allow a party additional time to secure witnesses" and his or her decision will only be reversed if "the factual record demonstrates that the judge abused his [or her] discretion." State v. Matarama, 306 N.J. Super. 6, 14 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998).

Defendant relies on State v. Dimitrov, 325 N.J. Super. 506 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000), in support of his argument that the judge should have allowed a brief last minute adjournment to allow him to present exculpatory evidence. In Dimitrov, the State requested a short adjournment on the day of trial because that morning the prosecutor had received from the defendant a report concerning an unknown witness who would testify that the defendant paid for the car he was accused of obtaining illegally. Rather than grant the adjournment, the judge determined not to let the witness testify. We recognized that "[t]he demands of due process are never more seriously tested than when a defendant in a criminal case is, for any reason, denied an opportunity to present a witness whose testimony has ostensible exculpatory value." Id. at 510. Out of concern that the defendant may have been convicted because he was precluded from presenting a witness who would have supported his version of the events, we reversed, holding that the trial court had "a reasonable opportunity to accommodate the needs of both parties and the judicial system" by granting a short adjournment. Id. at 511-12.

In Bellamy, supra, 329 N.J. Super. at 374, a co-defendant had entered a guilty plea just before the start of the defendant's trial and mentioned, for the first time, that another individual was "the prime mover behind the drug transaction" for which the defendant and co-defendant were charged. Prior to the co-defendant's plea, neither the State nor the defendant were aware of this other individual or had heard the co-defendant's version of events. Id. at 374-75. The defense counsel requested an adjournment the day before trial was to begin, but the trial court denied the request "on the basis that defendant knew or should have known about the existence of" the other individual. Id. at 375.

We reversed, holding that the trial court's refusal to grant a short adjournment was an abuse of discretion because "compelling defendant to go to trial with virtually no opportunity to investigate the existence or actions of [the other individual] had the very real potential of denying defendant a fair trial." Id. at 375-76. We noted that

[a] defendant is entitled to know the State's case against him within reasonable time to permit the preparation of a defense. Indeed, "[t]he principal purpose of our discovery rules is to assure the parties every legitimate avenue of inquiry prior to trial to enhance the search for the truth." [Id. at 376 (citing and quoting R. 3:13-3; State v. Burnett, 198 N.J. Super. 53, 58, (App. Div. 1984), certif. denied, 101 N.J. 269 (1985).]

We pointed out that "when balancing a short delay in the start of trial against defendant's legitimate ability to present a viable defense . . . we believe the integrity of the criminal process must prevail over the administrative disruption." Bellamy, supra, 329 N.J. Super. at 378.

Unlike the circumstances in Dimitrov and Bellamy, defendant knew the identity and existence of Officer James well before trial and did not make a request to call the witness either before the start of the trial or, for that matter, during it. Instead, defendant sought to call James after resting his case. More importantly, defendant presented nothing to indicate that Officer James's testimony would have been exculpatory. He failed to articulate a legitimate reason for calling James as a witness. Rather, his request came after he realized that if he mentioned James's absence, the State could comment on defendant's right to subpoena him to appear. Viewing the context in which the request was made, it appears to have been a knee-jerk response to the judge's decision to allow a Clawans charge regarding an unrelated witness. Under those circumstances, the judge's refusal to permit the case to be reopened to allow defendant to subpoena and present James as a witness did not amount to an abuse of discretion nor did it result in manifest injustice.

Defendant next contends that the trial judge erred in determining that purported statements made by Black were inadmissible hearsay. At trial, defendant began to testify as to statements allegedly made by Black at the scene:

He . . . asked me, who was the guys on the porch? He said . . . something to the effect, I know it's not yours. Like . . . you're a little man or something. And I'm, like, I don't know who is on the porch. And he's, like, yeah. You're going . . . to do a lot of time for this. I write a damn good report. I said, okay. You said that already. He said, all right, tough guy. . . .

The judge sustained the State's hearsay objection, after which defendant argued that the statements came under the excited utterance exception to the hearsay rule. Although the judge pointed out that defendant's testimony included "[n]othing about Officer [Black] being excited . . . being close in time to an exciting event [and] [n]othing about this being related to the exciting event," she nevertheless permitted defense counsel to establish the foundation through defendant's testimony. Defendant then gave the following descriptive testimony:

Q: During the time . . . of your discussions . . . with Officer Black, what proximity was Officer Black to your face?

A: He was standing right in front of me.

Q: Okay. And did you have . . . an opportunity to look at Officer Black in terms of his demeanor and -- and what type of demeanor did he have at that particular time?

A: He was, like, aggressive, like, trying to get information . . . .

THE COURT: All right. Aggressive is a conclusion. What did he say? What did he do, or act, or say that . . . made you think he was being aggressive?

A: He just -- he put one foot up on the table. I'm in a sitting position. He's a bigger guy or whatever. So he's, like, towering over me. He puts the drugs on the table. . . .

He was aggressive. . . .

Q: How do you explain -- what is your definition of aggressive?

A: Talking above a certain pitch or hand movements.

Q How . . . high was his pitch?

A: Higher than a regular conversation. I don't know. He was . . . not shouting like. He was just being aggressive. . . .

Defense counsel maintained that he established a foundation to meet the excited utterance exception, however, the judge disagreed and instructed the jury to strike "anything the Officer said."

On appeal, defendant reprises his argument that the statements attributed to Black should have been admitted under the excited utterance exception to the hearsay rule N.J.R.E. 801(c). He also argues, for the first time on appeal, that they also qualify as prior inconsistent statements, N.J.R.E. 803(a)(1), and statements against interest, N.J.R.E. 803(c)(25). We disagree.

An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). In deciding whether a statement is admissible as an excited utterance, the trial judge must determine whether the statement was made spontaneously and solely under the stress of excitement. See State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1405, 25 L.Ed. 2d 675 (1970). The judge must find that the declarant did not have an opportunity for deliberation, reflection, or misrepresentation before making the statement. Ibid.

The factors to be considered in determining whether a statement is admissible include: "(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the statement; and (6) whether the statement was made voluntarily or in response to a question." Truchan v. Sayreville Bar & Restaurant, Inc., 323 N.J. Super. 40, 48-49 (App. Div. 1999) (citations omitted). The statement must be found to be an uncontrolled response to the event perceived without time for reasoned reflection, thereby supporting a conclusion of trustworthiness and contraindicating fabrication. State v. Lyle, 73 N.J. 403, 413 (1977); Cestero v. Ferrara, 57 N.J. 497, 504 (1971). A "trial judge is accorded a broad measure of discretion in determining whether to admit a statement as an excited utterance." Truchan, supra, 323 N.J. Super. at 50.

The judge properly deemed Black's statements inadmissible hearsay, as they did not fall within the excited utterance exception because they were not made "under the stress of excitement caused by the event." N.J.R.E. 803(c)(2). In our view, defendant's description of Black's mental and physical demeanor as "aggressive," meaning speaking in a "higher pitch then normal" but "not shouting," do not rise to the level of an excited utterance. Cf. State v. Conigliaro, 356 N.J. Super. 54, 62-64 (App. Div. 2002) (statement made to police by victim of sexual assault approximately three hours after assault was properly admitted as excited utterance because victim "was still in a state of nervousness"); State v. Swint, 328 N.J. Super. 236, 246 (App. Div.) (statements made by victim of kidnapping, assault, and torture approximately one hour after escape and while victim was "crying, screaming, and covered with blood" were admissible as excited utterances), certif. denied, 165 N.J. 492 (2000).

Defendant next contends that Black's purported statements that defendant was a "little man," that he would do a lot of time for drugs unless he cooperated, and that Black stated he writes "a damn good report" should have been admitted under the inconsistent statement and statement against interest exceptions to the hearsay rule. Because those arguments were not raised before the trial judge, we consider them under the plain error standard, R. 2:10-2. Generally,

[c]ontradictory statements by a witness may always be shown if a suitable foundation be laid therefor[e]. The usual procedure for laying a foundation for the introduction of a supposed contradictory statement of a nonparty witness is to ask the witness, while on the stand under cross-examination, whether he made the statement. Courts generally require that the preliminary question -- if it is to be useful as a warning to the witness so that he may prepare to disprove the utterance or explain it away if admitted -- specify its substance, naming the time, place and person to whom made. The purposes of the requirement are to avoid unfair surprise to the adversary; to save time, since an admission by the witness may make the extrinsic proof unnecessary, and to give the witness, in fairness to him, a chance to explain the discrepancy. [Schneider v. Preis, 79 N.J. Super. 400, 407 (App. Div. 1963) (citations omitted).]

See also State v. Athorn, 92 N.J. Super. 326, 330 (App. Div.) ("[A] witness who is confronted by an allegedly prior inconsistent statement may, in an attempt to explain away the supposed inconsistency, testify to the circumstances surrounding the giving or signing of the statement."), certif. denied, 48 N.J. 355 (1966).

During cross-examination, Black was asked whether he questioned defendant, to which he replied that he "asked him what his name was." Black was also asked by defense counsel whether he "at any time . . . [told defendant] that you write a damn good report." He replied that he did not recall that. Thus, Black was never given an opportunity to explain the alleged statements that he knew the drugs did not belong to defendant and he would "do a lot of time for this." Consequently, it would not be properly admitted under N.J.R.E. 803(a)(1).

Similarly, "a party seeking to impeach a witness with a prior inconsistent statement [must] afford that witness 'an opportunity to explain or deny the statement.'" State v. Williams, 184 N.J. 432, 452 (2005) (quoting N.J.R.E. 613(b)). Because Black was never given an opportunity to explain or deny his alleged statements concerning defendant's purported non-involvement with drugs, admission of the statements as an inconsistent statement would not have been appropriate.

Equally unavailing is defendant's assertion that the statements were admissible under N.J.R.E. 803(c)(25), statements against interest. Defendant maintains, in his appellate brief, that Black's statement amounted to a declaration that "despite knowing defendant to be innocent, he intended to concoct a report that would lay responsibility on defendant." N.J.R.E. 803(c)(25) permits admission of a hearsay statement if the statement was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant. [N.J.R.E. 803(c)(25).]

In order for the exception to apply, "there must be some evidence establishing that the putative declarant actually made the statement in question." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(25) (2007) (citing State v. Bowens, 219 N.J. Super. 290, 296 (App. Div. 1987)). There is no evidence in the record establishing that Black actually made the statement attributed to him by defendant. Indeed, as previously pointed out, Black testified that, after arresting defendant, the only question he asked was what defendant's name was. Thus, admission of his purported statement as a statement against interest would not have been permitted, had it been raised at trial.

Next, defendant contends that the judge's decision to grant the State's motion for a Clawans charge was improper because there "was no showing that [Destiny] Washington was 'both practically and physically' available to the defense as a witness." He also contends that had she been located "there was no testimony she could have given to 'elucidate relevant and critical fact[s] in issue.'" Granting the State's motion regarding Destiny Washington, the judge reasoned that Washington was "a Plainfield girl that [defendant has] known all his entire life." She then concluded:

I have to determine, is this someone [defendant] would naturally be expected to call? Well, yes. She bolsters the fact that he went -- he was in the house really for the purpose of meeting girls, not to deal drugs, and the only reason he went in the house was at the direction of Destiny in order to meet the girl . . . .

A Clawans charge allows the jury to draw an inference that the missing witness would have had evidence unfavorable to the party who would reasonably have been expected to produce them. Clawans, supra, 38 N.J. at 170-71. An adverse inference for the failure to call a witness is proper only if that witness was within the power of the party to produce and that his or her "testimony would have been superior" to that already produced with respect to the issue to be proven. Id. at 171. It is not proper if the witness is "available to both parties" or "for some reason unavailable" or if the witness's "testimony would be cumulative." Ibid. Clawans teaches that, procedurally, the request for the charge should be made, as it was here, at the close of an opponent's case to accord the party accused of non-production the opportunity to either call the witness or demonstrate to the court the reason for not calling the witness.

Here, defense counsel indicated that he did not get enough information to do an investigation on Destiny Washington. However, according to defendant, Washington is a Plainfield girl who is two or three years younger than him, that he has been in Plainfield for thirteen years, and he "sees her around all the time . . . talks to her and she's [his] friend." Defendant, through his testimony, injected the issue that he was inside the abandoned house only because Washington had told him to wait there for Charlene Brayboy. It was thus "reasonable to infer" that he would have produced Washington to corroborate his "self-interested testimony" critical to his defense. State v. Velasquez, 391 N.J. Super. 291, 309 (App. Div. 2007) (citing State v. Wilson, 128 N.J. 233, 243-45 (1992); State v. Irving, 114 N.J. 427, 442-43 (1989)). Moreover, defendant's testimony concerning his longtime friendship with Washington and that he sees her all the time were circumstances that the judge could consider in determining that defendant had "superior knowledge of the identity of the witness," the testimony that "might be expected from [her]," as well as a "relationship" to conclude that she was within defendant's power to produce. Clawans, supra, 38 N.J. at 171; see also State v. Carter, 91 N.J. 86, 127-28 (1982).

While Stamler was testifying, a group of schoolchildren entered the courtroom. Upon the conclusion of Stamler's testimony and with the jury excused, the judge asked defendant to stand up, and stated the following to the students:

THE COURT: All right. Kids, while you're here, I want . . . you to notice a couple of things. I bet you all think drug dealers are really bad guys, right?

(Children respond)

THE COURT: They are really dangerous and they're horrible, right?

(Children respond)

THE COURT: Mr. Linton, do you mind being an example here? Do you mind just standing up, Mr. Linton, for a second?


THE COURT: I . . . want to talk to the kids. I want you to see this. This is a nice guy, isn't he? It looks like he could be your cousin. He -- he could be a friend. He could be a -- well, the police think he's a drug dealer. So I'm telling you that because I want you to know that not all drug dealers look like they are horrible people. I don't know if he's a drug dealer or not. The jury will tell me when it's all over, but I want you to realize, when you first --somebody first says to you, do you want to use some drugs? It's not going to be some mean guy. It's going to be the older brother of one of your friends. It's going to be the older sister of one of your friends. So you've got to watch out for that . . . they're not just really bad guys.

After the jury delivered its verdict, the judge stated to the jury:

[L]et me tell you this, unless you have any lingering questions. Well, you don't have any questions. You just gave a verdict 12 to nothing, but at an earlier stage in this proceeding[], Mr. Linton had pled guilty, and then for various reasons, we overturned that, and we ended up at trial. So I just thought that would be of interest to you. Defendant argues that those comments establish that the judge "did not maintain a position of complete neutrality" and "acted in an improper manner reflecting a lack of judicial impartiality" and, thus, amounted to plain error.

Defendant claims that the judge's introduction of him to the schoolchildren suggested that defendant was "a real drug dealer," and that she had "reserve[d] judgment of his guilt." He also contends that the judge's remarks subjected him to indignation, betraying judicial neutrality and calling into question the fairness of the entire trial process. He also asserts that the judge's gratuitous comments after the jury had reached its verdict amounted to an "affirmation to the jury for having reached the 'right' decision, a decision the court had reached before the verdict on the basis of the withdrawn guilty plea."

Claims of judicial misconduct pose a severe problem to our appellate courts because it is often "difficult to review a charge of unfairness [on] a dry record." State v. Guido, 40 N.J. 191, 208 (1963). It has been said that a person's manner may negate a barb his printed words seem to hold, just as it may supply a sting the record will not show. Ibid. We are thus obliged to consider such arguments with the knowledge that the trial transcript may not convey all that actually occurred.

As with all claims of error, charges of judicial impropriety must be viewed within the context of the entire trial proceedings. But the reviewing court should not evaluate the trial judge's conduct from the vantage point of twenty-twenty hindsight. Rather, appellate courts should recognize that trial judges often must act without the benefit of prolonged and objective research. [State v. Medina, 349 N.J. Super. 108, 132 (App. Div.), certif. denied, 174 N.J. 193 (2002).]

"A judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999). "[A] trial judge is an imposing figure. To the jurors he [or she] is a symbol of experience, wisdom, and impartiality. If he [or she] so intervenes as to suggest disbelief, the impact upon the jurors may be critical." Guido, supra, 40 N.J. at 208.

Our examination of the trial record does not support defendant's claim that the judge's statements to the schoolchildren and comments to the jury revealed impartiality or a lack of neutrality. Nor did her comments in any way prejudice defendant from his right to a fair trial. The judge's statement to the schoolchildren were made after the jury had been excused. Her explanation did not impugn the dignity of defendant nor did it suggest that defendant was either a drug dealer or guilty. Instead, her statement was clearly intended to convey to the children that drug dealers do not look different than any other ordinary person they might meet every day. She explained that, although charged by the police with dealing drugs, she did not know whether defendant was a drug dealer, but that determination would be made by the jury.

The judge's comments on the procedural history of the case respecting defendant's prior plea neither intimated that it had reached the right result nor suggested that the judge agreed with the verdict. So too, the comments to the jury were made after it had reached its verdict. They could not have influenced the jury in reaching its verdict. In our view, after a full examination of the entire record, we are satisfied that the judge was fair and impartial in her rulings and in the manner in which she conducted the trial. Her comments, now challenged by defendant for the first time on appeal, were not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971).

Finally, the State concedes defendant's fifth point that a remand is in order because the mandatory extended term sentence imposed, one year above the then presumptive term, does not comport with the subsequent decisions in Natale II and State v. Thomas, both decided while this appeal was pending. On remand, defendant may not be subject to a sentence above the sentence previously imposed. Natale II, supra, 184 N.J. at 496; Thomas, supra, 188 N.J. at 152. The sentencing court should re-determine defendant's sentence within the extended-term range based on the aggravating and mitigating factors found to be present. Thomas, supra, 188 N.J. at 154. "In balancing those factors, the court shall not be required to start from the fixed point of the previously applicable statutory presumptive sentence for the extended-term range." Ibid.

Defendant correctly points out that on re-sentencing the court should not consider aggravating factor, N.J.S.A. 2C:44-1a(11), that "the imposition of a fine [or] penalty . . . without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business . . . ." See State v. Dalziel, 182 N.J. 494, 502 (2005) (holding that aggravating factor 11 is inapplicable unless the judge is balancing a non-custodial term against a prison sentence).

The judgment of conviction is affirmed and the matter is remanded for re-sentencing in accordance with this opinion and the decisions in Natale II and Thomas.

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