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State v. Washington

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN WASHINGTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-1997.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges Gilroy and Baxter.

Following a trial by jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (Count Four); third-degree eluding, N.J.S.A. 2C:29-2b (Count Five); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a (Count Six).

After a denial of his motion for a new trial on February 9, 2005, defendant was sentenced to a mandatory extended term of fifty years of imprisonment on the conviction of armed robbery on Count One, pursuant to N.J.S.A. 2C:43-7.1b, subject to the No Early Release Act (NERA).*fn1 Counts Two and Three were merged with Count One. On Counts Four and Five, defendant was sentenced to a term of five years on each conviction. On his conviction on Count Six, defendant was sentenced to a term of eighteen months, with a nine-month period of parole ineligibility. The sentences on Counts Four, Five, and Six run concurrent to each other and to the sentence imposed on Count One. All appropriate fines and penalties were imposed. Defendant appeals, and we affirm.

Because defendant does not contend that the verdicts were 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 facts as necessary in addressing the issues.

I.

On August 10, 2002, Septin Ayyildiz was working the nighttime shift at a gas station located at the intersection of Monmouth Road and Cedar Avenue, West Long Branch. At approximately 2:20 a.m., a gold-colored motor vehicle entered the gas station and pulled up near the attendant's booth in which Ayyildiz was sitting. The driver, later identified as defendant, exited the motor vehicle and approached the booth, requesting a pack of cigarettes from Ayyildiz. After Ayyildiz complied, defendant asked for a second pack. As Ayyildiz turned his head to retrieve the cigarettes, he felt an object pressed against the left side of his stomach. Ayyildiz observed that the object was a knife, approximately five to six-inches in length.

Defendant demanded that Ayyildiz give him the money from the cash register in the booth. After Ayyildiz complied, defendant returned to his vehicle and drove out of the gas station with the tires of the car screeching. As the vehicle left the gas station, it was observed by Sergeant Lawrence Mihlon of the West Long Branch Police Department. Mihlon intended to stop the vehicle and issue a summons for careless driving, but first drove slowly past the gas station to ascertain whether the attendant was all right. Ayyildiz informed Mihlon that he had just been robbed by the driver of the gold vehicle.

Mihlon proceeded to follow defendant's vehicle onto Cedar Avenue, activating his patrol vehicle's overhead lights and siren. Defendant did not stop, and a high-speed chase ensued eastbound onto Ocean Boulevard. After Mihlon turned onto Ocean Boulevard, he observed that defendant had crashed his vehicle and had fled the scene. Paper money was strewn about the street near the crash site.

After other officers responded to the area, the police searched the crash site attempting to locate defendant. Responding to a pedestrian's tip, the officers proceeded to the beach, where they observed defendant treading water approximately fifty feet offshore. After defendant came back near the shoreline, the police placed him under arrest and took him to Monmouth Medical Center.

In the interim, Ayyildiz and the manager of the gas station had responded to the West Long Branch Police Department to formally report the robbery. Ayyildiz informed Detective Paul Habermann, that he had been robbed by a black male. At Habermann's request, Ayyildiz accompanied him to the Monmouth Medical Center, where Ayyildiz identified defendant as the person who had robbed him. After Ayyildiz identified defendant, Ayyildiz was driven by Habermann to the accident site, where he also identified defendant's vehicle.

At trial, defendant testified that he did not commit the robbery, stating that he had loaned his automobile to an acquaintance known as "Rasheem." While defendant was waiting for Rasheem to return for him on Ocean Boulevard, he heard sirens and saw his car crash into some bushes. Believing that he would get in trouble because his license was suspended, defendant ran and hid among jetty rocks on the beach. After he was discovered, he ran into the ocean, but was later placed under arrest. Concerning Ayyildiz's identification, defendant stated that Rasheem looked like him and that could have accounted for the misidentification.

On appeal, defendant argues:

POINT I.

THE ADMISSION INTO EVIDENCE OF THE TESTIMONY[,] CONCERNING THE INHERENTLY UNRELIABLE OUT-OF-COURT IDENTIFICATION, OBTAINED PURSUANT TO A SHOWUP, DEPRIVED DEFENDANT OF HIS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS. U.S. CONST. [ART.] VI; XIV; N.J. CONST. ART. I, PARA. 10.

POINT II.

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST TO ADMIT EVIDENCE OF A SIMILAR ROBBERY COMMITTED WHILE THE DEFENDANT WAS IN JAIL. SUCH EVIDENCE WAS ADMISSIBLE ON THE THEORY OF THIRD-PARTY GUILT. U.S. CONST.

[ART.] VI, XIV; N.J. CONST. ART. I, PARA. 10.

POINT III.

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant raises the following arguments pro se:

POINT I.

THE ONE-PERSON SHOW-UP OF DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND, AS SUCH, THE PRE-TRIAL AND IN COURT IDENTIFICATION OF DEFENDANT BY SEPTIN AYYILDIZ SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (SUPPLEMENTED TO COUNSEL'S POINT I).

POINT II.

STATE CONSTITITIONAL DUE PROCESS GUARANTEES MANDATE EXCLUSION OF THE PRE-TRIAL IDENTIFICATION EVIDENCE IN THIS CASE.

POINT III.

THE TRIAL COURT'S FAILURE TO ADMIT EVIDENCE OF ANOTHER SUSPECT AMOUNTS TO A VIOLATION OF DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947) ART I, PAR. 10) (SUPPLEMENTED TO COUNSEL'S POINT II).

POINT IV.

THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE AND MISLEADING IN SEVERAL RESPECTS, VIOLATING DEFENDANT'S RIGHT TO A FAIR IMPARTIAL TRIAL, PURSUANT TO HIS CONSTITUTIONAL RIGHTS. U.S.[] CONST. AMEND. 14TH; AND HIS N.J. CONST. ART. I, PAR. 10.

A. THE FAILURE OF THE TRIAL COURT TO PROVIDE A JURY INSTRUCTION ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL.

B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO HOW [TO] EVALUATE THE TESTIMONY OF THE POLICE OFFICERS.

C. THE TRIAL COURT ERRED IN FAILING TO MOLD THE IDENTIFICATION CHARGE TO INCLUDE AN ADEQUATE INSTRUCTION ON CROSS-RACIAL IDENTIFICATIONS; AND TO RELATE THE CHARGE TO THE FACTS OF THE CASE, DEPRIVED THE JURY OF ADEQUATE GUIDANCE FOR ITS DELIBERATIONS, VIOLATING MR. WASHINGTON'S RIGHT TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS. (NOT RAISED BELOW).

POINT V.

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR[S] VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.

II.

Defendant, in Point I of his counsel's brief and in Points I and II of his pro se brief, argues that the trial judge erred in admitting Ayyildiz's out-of-court identification of him while he was at the hospital. Defendant contends that the out-of-court showup was impermissibly suggestive and resulted in a substantial likelihood of misidentification. Defendant asserts that the judge abused her discretion and deprived him of his right to a fair trial by admitting the showup identification, contrary to the United States and the New Jersey Constitutions. The State counters that the trial judge properly admitted the showup identification because the procedure was not unduly suggestive, and in the alternative, even if the procedure was impermissibly suggestive, the identification was, nevertheless, reliable.

The findings of a trial judge in a Wade*fn2 hearing are entitled to great weight. We will not disturb the findings and legal conclusions unless we are convinced that they are so manifestly unsupported by, or inconsistent with the competent, credible evidence to offend the interest of justice. State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). Stated another way, "the trial court's findings that [the] identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, _____ N.J. ____, ____ (2008) (slip op. at 21).

The test on appellate review of a Wade hearing is whether the trial judge could have reasonably concluded 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 suggestivity is a two-pronged test. The first prong is whether the identification procedure employed was "impermissibly suggestive." Id. at 232. Only if there is a finding of impermissible suggestivity does the second prong of the test even apply. Ibid. The second prong requires a determination of whether the suggestivity 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's identification is reliable, the following factors are to be considered: "'[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.

Our Court has recently reaffirmed the use of the two-step analysis when determining the admissibility of out-of-court showup identifications. Adams, supra, slip op. at 21-22; State v. Herrera, 187 N.J. 493 (2006). While acknowledging that oneon-one showups are inherently suggestive by definition because "the victim can only choose from one person, and, generally, that person is in police custody," the Court held that "standing alone[,] a showup is not so impermissibly suggestive to warrant proceeding to the second step." Herrera, supra, 187 N.J. at 504; see also Wilson, supra, 362 N.J. Super. at 327. "[H]owever, . . . only a little more is required in a showup to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. at 504. "[A]dded comments by the police [may] render[] the showup procedures in [an] out-of-court identification of [a] defendant impermissibly suggestive." Id. at 506.

Prior to the commencement of trial, defendant sought to exclude evidence that Ayyildiz had identified him on the morning of the robbery. Testifying at the Wade hearing were Ayyildiz and Habermann.

Ayyildiz testified as follows. Ayyildiz testified that the gas station was illuminated by "clear and bright" overhead lights, and that there were lights inside the attendant's booth where he was located. After defendant exited his motor vehicle, he approached the booth and requested a pack of cigarettes while standing approximately three feet from Ayyildiz. After Ayyildiz handed defendant a pack of cigarettes, defendant requested a second pack. As Ayyildiz turned his head to retrieve the cigarettes, he felt something pressed against the left side of his stomach, which he later observed as a knife.

Defendant demanded that Ayyildiz give him the money from the cash register in his booth. When Ayyildiz complied, defendant immediately fled the scene. Ayyildiz described the confrontation as lasting approximately two to three minutes, during which he looked directly at defendant's face for most of that time. Although he observed that defendant was wearing something around his head, similar to that of a turban, Ayyildiz could not recall whether defendant had worn eyeglasses or had facial hair at the time of the incident. As to remembering defendant's facial features, Ayyildiz stated: "I can't forget his face. The man that's sitting in front of me today is the same man that robbed me that night."

Shortly after the robbery, Ayyildiz had gone to the police station to formally report the robbery to Habermann; after which Habermann told him "that we're going to go to the hospital, there's somebody there that you need to look at . . . ." On arrival at the hospital, Ayyildiz observed defendant lying on a bed in a small room, wearing the same clothes that he had worn at the time of the robbery, not hospital clothes. On viewing defendant, Ayyildiz informed Habermann that he "was 100 percent sure that [defendant] was the person that [he] saw at the gas station." At the conclusion of his testimony, Ayyildiz again identified defendant as the individual who had robbed him.

Habermann testified as follows. He testified that he responded to the West Long Branch Police Station at approximately 3:38 a.m., where he met Ayyildiz and the gas station manager. Ayyildiz reported the incident, informing Habermann that he had been robbed by a black man. After approximately ten to fifteen minutes, Habermann was informed that the Long Branch Police had someone in custody at the hospital emergency room, and "that the person in the emergency room had been pulled from the ocean in the area where the car that was involved in the gas station robbery had crashed."

On learning this information, Habermann requested that Ayyildiz accompany him to the hospital, telling him that "there was somebody at the [e]mergency [r]oom, I didn't know how they were involved, if they were involved at all with the case. However, I just wanted him to come with me so that he could take a look at that person." Habermann told Ayyildiz that "the person you are about to view may or may not be involved in your case."

When Habermann and Ayyildiz arrived at the hospital at 3:55 a.m., they proceeded to a small security room adjacent to the emergency room. Defendant was in the security room by himself, lying on a bed facing the doorway. Unlike Ayyildiz, Habermann testified that defendant was dressed in a hospital gown, not his street clothes. Although Habermann would have been surprised if the defendant was not handcuffed, he did not recall seeing any handcuffs. Before permitting Ayyildiz to view defendant, Habermann again instructed him that: the person he's going to see may not have anything to do with the case or may have something to do with the case. I have no idea who this person is. I said to [Ayyildiz] just look at him; and if you've seen him before, tell me if you have. If you haven't seen him before, tell me you haven't seen him.

The door to the security room contained a small window. Ayyildiz first looked through the window at defendant. However, because Habermann wanted Ayyildiz to have an unobstructed view, Habermann opened the door slightly, and Ayyildiz stood in the doorway where he looked at defendant lying on the bed. After Ayyildiz viewed defendant, he informed Habermann that he was 100% sure that defendant was the individual who had robbed him. On leaving the hospital, Habermann took Ayyildiz to the accident site, where Ayyildiz identified the car involved in the accident as the one driven by defendant at the time of the robbery.

Following the hearing, Judge Urhmacher denied defendant's motion to suppress the showup identification, determining that the showup was not "so suggestible as to taint the identification." Moreover, after considering the totality of the circumstances surrounding the showup under the Manson criteria, the judge determined that the identification was reliable. The judge found that Ayyildiz had observed defendant for two or three minutes, at an illuminated gas station, with defendant standing three feet away from Ayyildiz, providing Ayyildiz with ample opportunity to view the defendant; Ayyildiz had looked at defendant's face during that time, giving defendant his undivided attention; Ayyildiz had expressed 100% certainty at the time he had identified defendant at the hospital; and that the time between the crime and the showup identification had only been an hour and one half.

We do not determine that the statements made by Habermann to Ayyildiz, both at the police station and at the hospital, before Ayyildiz viewed defendant in the security room, or the circumstances surrounding the viewing itself, rendered the showup procedure impermissibly suggestive. However, even assuming we were to have determined the showup procedure impermissibly suggestive, we are satisfied that the judge correctly found that the identification was reliable, that is, that the identification was not imposed on Ayyildiz, leading to a substantial likelihood of irreparable misidentification, but rather that the identification was that of Ayyildiz. Madison, supra, 109 N.J. at 234.

We have reviewed the record, and we are satisfied that there was sufficient, credible evidence in the record for the judge to have reached her determination that the identification was reliable. The area where the robbery occurred was well-lit; Ayyildiz had the opportunity for two or three minutes to observe the face of defendant who was, at most, only three feet away from him during the robbery, which demonstrates a level of certainty; and it was an extremely short period of time between the robbery to the time of the identification at the hospital.

III.

Defendant argues, in Point II of defense counsel's brief and in Point III of his pro se brief, that the trial court erred in denying his request to admit evidence of a second robbery that had been committed at the same gas station while defendant was incarcerated. Defendant contends that the evidence would have bolstered his contention that Rasheem had committed both robberies. Defendant asserts that the evidentiary ruling deprived him of his rights to due process and of a fair trial. We disagree.

The principle is well established in our system of criminal jurisprudence that "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978), aff'd following remand, 80 N.J. 350 (1979). Accordingly, "a defendant is entitled to prove his innocence by showing that someone else committed the crime" for which he is being tried. State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989). A defendant may introduce similar other-crimes evidence in his defense, pursuant to N.J.R.E. 404(b) "if in reason it tends, alone, or with other evidence, to negate his guilt of a crime charged against him." Garfole, supra, 76 N.J. at 453.

Concerning the threshold of proof required for introducing such evidence, the Court recently stated:

The standard for introducing defensive other-crimes evidence is lower than the standard imposed on "the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility." [State v. Cook, 179 N.J. 533, 566 (2004) (quoting Garfole, supra, 76 N.J. at 452-53).]

However, even if the evidence is relevant, a court must still determine whether the probative value of the evidence "is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a); Cook, supra, 179 N.J. at 566.

Moreover, the burden is on the party seeking to exclude the evidence to prove "that the N.J.R.E. 403 consideration should control." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2008). Because a trial court's decision on whether to admit defensive other-crimes evidence depends on the weighing and balancing of N.J.R.E. 403 factors, the court's decision is highly discretionary. Cook, supra, 179 N.J. at 567; State v. Bull, 268 N.J. Super. 504, 511 (App. Div. 1993), certif. denied, 135 N.J. 304 (1999). Accordingly, where the other-crimes evidence "shows no more than 'some hostile event' and leaves to 'mere conjecture' its connection with the case, it may properly be excluded. Bull, supra, 260 N.J. Super. at 512 (quoting Koedatich, supra, 112 N.J. at 301).

Defendant sought to introduce evidence of a September 29, 2002, robbery of the same victim at the same gas station, while defendant was incarcerated awaiting trial on the August 10, 2002, robbery. Defendant sought to admit evidence of the September 29, 2002, robbery to prove that Rasheem had committed the August 10, 2002, robbery. Defendant asserted that the robberies were sufficiently similar to one another, proving that he did not commit the August 10, 2002, robbery, and that the physical description of the passenger in the motor vehicle used during the September 29, 2002, robbery matched the physical description of Rasheem. At the conclusion of the motion, Judge Mellaci denied defendant's motion:

Despite defendant's argument, the robberies are dissimilar enough that the evidence is not sufficiently probative to permit admittance. The August 10, 2002 robbery was conducted by one black male, while the September 29, 2002 robbery was committed by two black males.

During the first robbery, defendant did not take any money from the victim's person, while the two men who committed the second robbery frisked the station attendant and made him turn over the money in his pockets. The defendant allegedly used a serrated kitchen knife, but the perpetrators of the second robbery used what was described to be [a] hunting knife.

Furthermore, different vehicles were used and while defendant tore out of the station with screeching tires, the perpetrators of the second robbery calmly walked to their car and casually drove away.

Finally, the station attendant positively identified defendant, who is a forty-six[-]year[-]old black male as the perpetrator of the August 10 robbery while the same attendant estimated the two perpetrators from the September 29 robbery to be in their twenties and thirties. Therefore, there were numerous dissimilarities between the two robberies without anything unique that would connect the two crimes.

[T]he exclusion of the reverse 404 (b) evidence does not prevent defendant from arguing at trial that Rasheem rather than he committed the August 10, 2002 robbery; rather, [i]t simply prevents the admittance of evidence that lacks probative value and would be confusing and misleading to a jury and result in a waste of time.

Considering that the similarity between the two robberies is tenuous and that there is no indication that Rasheem had any connection to the second robbery, admitting evidence of the September 29, 2002 robbery simply would do nothing to prove or disprove defendant's claim that Rasheem committed the August 10, 2002 robbery. Therefore, the defendant's motion to admit reverse N.J.R.E. 404(b) evidence should be denied . . . .

We have reviewed the motion record and discern no reason to interfere with Judge Mellaci's thoughtful analysis of the facts concerning the two robberies. We are satisfied that Judge Mellaci correctly exercised his discretion in denying admission of the other-crimes evidence.

IV.

Defense counsel next argues that defendant's sentence is excessive, contending that the imposition of a fifty-year term*fn3 of imprisonment was not warranted "especially when the extended-term and consequences of NERA are factored in." We reject this argument.

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 should modify a sentence only when "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

Prior to sentencing, the State moved to have the court sentence defendant to a mandatory extended-term, pursuant to N.J.S.A. 2C:43-7.1b. The judge granted the motion based on defendant's extensive criminal record that included more than two prior robbery convictions. After finding aggravating factors (3), "[t]he risk that the defendant will commit another offense"; (6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and (9), "[t]he need for deterring the defendant and others from violating the law," and no mitigating factors, the judge sentenced defendant to a term of imprisonment of fifty years, a sentence within the range for a first-degree extended-term sentence, that is, between twenty years and life imprisonment. N.J.S.A. 2C:43:-7a(2). We have considered defendant's argument, and we are satisfied that the sentence is not manifestly excessive, nor unduly punitive, and does not constitute an abuse of discretion. O'Donnell, supra, 117 N.J. at 215-16; Roth, supra, 95 N.J. at 363-65.

Defendant does not contest that he was eligible for an extended-term sentence. Defendant contends that the judge improperly considered aggravating sentencing factors (3) and (9) when imposing the extended-term sentence. Defendant also asserts that the judge failed to consider as mitigating factors that he was a drug addict in need of rehabilitation and that imprisonment would impose excessive hardship on his ailing wife. We disagree. The judge properly determined the aggravating and mitigating 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." Thomas, supra, 188 N.J. at 154. 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). Based on defendant's extensive criminal history, including repetitive convictions of robbery, we are satisfied that the trial judge correctly found aggravating factors (3), (6), and (9) applicable.

Nor do we discern any reason to conclude that the judge erred by not considering the alleged mitigating factors asserted. A defendant's drug dependency and the need for drug rehabilitation are not mitigating sentencing factors. State v. Ghertler, 114 N.J. 383, 390 (1989).*fn4 As to mitigating factor (11), "[t]he imprisonment of the defendant would entail excessive hardship" to his wife, the record does not support finding that factor applicable. Although the pre-sentence report contains statements of defendant that his present wife suffers from scoliosis and arthritis and that he has three children, we are satisfied that the trial judge did not err in not finding mitigating factor (11) applicable. The three children are emancipated, and for the most part, the record is devoid of any evidence that defendant contributes financially to the support or care of his wife, having been incarcerated a majority of time from 1982 until January 12, 2001, when he was released to the Intensive Supervision Program, a program which he did not complete.

V.

In Point IV of his pro se brief, defendant argues that the trial judge's instruction to the jury was inadequate and misleading, violating his right to a fair and impartial trial. Defendant contends that the judge failed to properly instruct the jury: 1) on how to analyze and consider the facts and issues of identification, including the State's burden of proof; 2) on how to evaluate the testimony of police officers; and 3) on cross-racial identification. We find the arguments meritless.

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.

"[C]lear and correct jury instructions are essential for a fair trial." State v. Koskovich, 168 N.J. 448, 507 (2001) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "The charge must be read as a whole in determining whether there was any error." Torres, supra, 183 N.J. at 564. Accordingly, we must read the charge "as a whole in determining whether there was" plain error. State v. Brown, 190 N.J. 144, 160 (2007).

In reviewing the charge as a whole, we find no error, much less plain error. The trial court provided the jury with the Model Criminal Jury Charge: "Identification: In-Court and Outof-Court Identifications," including the provisions governing the burden of proof and cross-racial identification. Concerning the instructions on evaluating the testimony of police officers, the trial court instructed the jury, generally, on how to evaluate all witnesses who testified in the matter, including police officers.

VI.

Lastly, defendant argues that even if we were to find that the individual errors alleged did not rise to reversible errors, that when considered in combination to each other, the cumulative effect rises to reversible error. See State v. Jenewicz, 193 N.J. 473 (2008). Because we do not find any errors in the trial proceeding, we find the argument meritless.

R. 2:11-3(e)(2).

Affirmed.


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