January 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERBERT COWAN, DEFENDANT-APPPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Parrillo and Messano.
Tried by a jury, defendant Herbert Cowan was convicted of conspiracy to commit robbery in the first degree, N.J.S.A. 2C:5-2a and 2C:15-1; four counts of robbery in the first degree, N.J.S.A. 2C:15-1; possession of a handgun for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4a; unlawful possession of a firearm in the third degree, N.J.S.A. 2C:39-5b; and aggravated sexual assault in the first degree, N.J.S.A. 2C:14-2a. After returning its verdict on these charges, the same jury convicted defendant of possessing a firearm having previously been convicted of certain crimes, N.J.S.A. 2C:39-7b, a crime of the second degree.
Judge Ronald G. Marmo sentenced defendant to an extended term of imprisonment of fifty years on the aggravated sexual assault conviction, and ran all other sentences on the substantive charges concurrently. He imposed a mandatory 85% period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. On the "certain persons" conviction, N.J.S.A. 2C:39-7b, the judge imposed a consecutive eight-year term of imprisonment with a mandatory five-year period of parole ineligibility.
Defendant raises the following points on appeal:
POINT I THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN ADMITTING "OTHER BAD ACTS" EVIDENCE AS PROOF OF THE DEFENDANT'S MOTIVE.
POINT II THE PROSECUTOR COMMITTED PLAIN ERROR BY IMPROPERLY BOLSTERING THE CREDIBILITY OF CO-DEFENDANT MITCHELL AND THE VERACITY OF HIS TESTIMONY INCULPATING THE DEFENDANT. (NOT RAISED BELOW)
The Prosecutor Improperly Injected "Judge Marmo" Into The Jury's Evaluation Of Co-Defendant Mitchell's Credibility And Veracity. (Not Raised Below)
The Prosecutor Improperly Injected Himself Into The Jury's Evaluation Of Co-Defendant Mitchell's Credibility And Veracity. (Not Raised Below)
POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION. (NOT RAISED BELOW)
POINT IV IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 58 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.
The Trial Court Abused Its Discretion In Sentencing The Defendant To An Extended Term As A Persistent Offender.
Imposition Of A Base Extended Term Of 50 Years Was Manifestly Excessive.
The Court Abused Its Discretion In Imposing A Consecutive Sentence On The Defendant's Conviction On Count Nine For Being A Person Prohibited From Having A Weapon.
The Court Abused Its Discretion In Applying "A Total Package" Analysis.
POINT V THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING PROOF OF THE DEFENDANT'S DNA BECAUSE THE EVIDENCE TESTED WAS NOT RELIABLE AND BECAUSE A "CHAIN OF CUSTODY" COULD NOT BE ESTABLISHED. (NOT RAISED BELOW)
POINT VI THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW WAS VIOLATED. (NOT RAISED BELOW)
POINT VII THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY AN IMPARTIAL JURY BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A RECHARGE. (NOT RAISED BELOW)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We summarize the substantial, incriminating evidence introduced by the State at trial. Larry Jones, David E. Edwards, and Dondray Goodwin were in the first-floor apartment of 31 Holsman Street, Paterson, at approximately midnight on May 16, 2003. The apartment, which various witnesses described as a "crack house," was occupied by Rosemary James and her cousin, Sheryl Leach. Jones, Edwards, and Goodwin all knew James and Leach for many years from the neighborhood, knew they were drug dealers, and knew both had significant drug habits. On the night in question, Jones, Edwards, and Goodwin were in the living room of the apartment smoking crack cocaine. James, and her boyfriend Donald Ferrar, were in one bedroom in the apartment, and Leach was in a second bedroom.
The various witnesses testified that they heard a knock on the front door, and when Jones asked who it was, a voice identified himself as "Nick," or "Nicky," the name of James' former boyfriend. Jones opened the front door and two men armed with handguns entered the apartment. One was dressed in dark clothing, the other wore a light colored jacket, and both had masks or stocking caps that covered their faces.
The intruder in the dark coat shot a round into the ceiling of the apartment because the occupants in the living room, all of whom were "high," were not paying attention to him. Everyone was made to strip to their underwear and lay on the floor as the man in the light-colored jacket searched their clothes for money, other valuables, or drugs. At one point, the dark-clothed individual ordered James into the room, calling her by her nickname, "Punchy." When she came in the room, the intruder made her lean over a chair and raped her while holding a gun to her head. Shortly thereafter, both men left. Jones, Edwards, and Goodwin could not identify either of the assailants. With the exception of some minor discrepancies, the testimony of the three men as to these events was remarkably consistent.
Leach testified, as did Edwards and Goodwin, that Lena Coleman, another drug addict that they all knew from the neighborhood, came to the apartment earlier in the evening and asked for change of a fifty dollar bill. She was accompanied by another neighborhood drug user, Tyrone Williams. Leach grew suspicious because the apartment had been robbed several times in the past. So, after Coleman left, she hid all her drugs and money in her bedroom. She was in the bedroom when the intruders entered, so she did not see any of the actual events that took place in the living room. Leach did hear a gunshot, heard someone say "[e]verybody get on the floor," heard someone ask for "Punchy," and later saw a very upset James who claimed she had been raped. Leach left the apartment with her drugs before the police arrived.
James also testified that Coleman came to the apartment earlier looking for change for a fifty-dollar bill. Later in the evening, as she left her bedroom to go to the bathroom, James saw everyone in the living room lying on the floor. She saw two men, one in light clothing and one in dark clothing, standing over them. The man in the dark clothing fired a bullet into the ceiling, and the other man took the jewelry she was wearing. James testified that the intruder in the dark clothing pointed a gun to her head, forced her to bend over a chair, vaginally penetrated her, and ejaculated.
On cross-examination, James acknowledged that she knew defendant from the neighborhood, but by his nickname, "Hameen." Defendant had never come to the apartment to buy any drugs from her. She also testified that she knew Matthew Mitchell from the neighborhood and that he had come to her apartment to buy drugs. James was unable to identify either of the assailants.
After the intruders left, the Paterson police were called to the scene, and James was taken to St. Joseph's Hospital to undergo a sexual assault examination. Inside the living room of 31 Holsman Street, police found a .380 caliber shell casing on the floor, and they recovered a pair of blue sweatpants, a white coat, and two pieces of black cloth in a nearby backyard.
Both Matthew Mitchell and Lena Coleman, who were indicted with defendant, entered plea bargains with the State and testified at trial. Mitchell claimed that he met defendant and Coleman earlier in the evening and that Coleman said she knew that the "bitches" that lived at 31 Holsman Street had drugs and money. Mitchell, Coleman, and defendant agreed to rob the occupants of the crack house, and it was decided that Coleman would go there first to make sure James and Leach were home.
Mitchell testified that Coleman left and returned shortly thereafter advising that everyone was in 31 Holsman Street as planned. Mitchell put on a white jacket, defendant put on black sweatpants, and both put on black face masks; defendant was armed with a gun. When they arrived at the apartment, defendant knocked on the door and used the name "Nick," which Coleman had told him to use. After Mitchell and defendant were let in the apartment, defendant ordered everyone on the ground, fired a shot into the ceiling, and Mitchell frisked everyone's clothing for money, jewelry or drugs. Mitchell claimed that defendant ordered James to bend over a chair and then raped her.
Mitchell testified that this was unplanned and it upset him. He told defendant they should leave, and both men left the apartment, rendezvousing as planned in the backyard of a nearby house. There, he and defendant split approximately $100 in cash, some jewelry, and some crack pipes, and they gave Coleman some jewelry because she threatened to tell the police. Mitchell identified the white coat found by police at that location as the one he wore during the robbery.
Coleman corroborated much of Mitchell's testimony regarding the planning of the robberies and her earlier visit to the apartment with Williams to survey the situation. Coleman also knew defendant as "Hameen," and after finding out that James had been raped, decided to cooperate with the police. Coleman acknowledged that she was a long-time drug addict, and that she pled guilty to conspiracy to commit robbery with a three-year sentence recommendation as part of a plea bargain with the State in which she was required to testify against defendant.
The State introduced evidence of the investigation that followed the events through the testimony of several law enforcement and forensic witnesses. The results of the sexual assault examination of James revealed that sperm was present in her vagina. Subsequent DNA testing excluded Mitchell and Williams as the source, but defendant could not be excluded as a partial contributor of the sperm. Semen found in James' panties was positively identified by DNA analysis as defendant's.
Defendant did not testify, or offer any witnesses on his behalf. After summations, jury instructions, and deliberations, defendant was found guilty of all charges as we have detailed above.
During Mitchell's testimony, the prosecutor asked:
Q: Okay. I forgot to ask you a question. I'm sorry to back track a little bit. Do you know from personal knowledge from what you saw or what he may have told you over the years, do you know if [defendant] had a drug problem?
Q: Do you know what he used?
There was no immediate objection from defense counsel, though some time later he moved for a mistrial at sidebar as follows:
Judge, I--I have to reluctantly make a motion for mistrial. The State elicited from this witness about [fifteen] minutes ago that my client . . . did heroin. Up until this point in time, that question had been asked of a couple of witnesses all in the negative.*fn1 I didn't say anything at the time because the answer in the negative obviously would not be prejudicial. But . . . this answer in the positive . . . is extremely prejudicial.
. . . I did not object immediately because . . . I was concerned that if I immediately reacted to that information,  it might even highlight it more . . . .
[M]y thought process . . . was to just let that go for now and hope for the minimum impact.
The prosecutor opposed the application, arguing that defendant's drug use demonstrated "he [wa]s somebody who was familiar with the area, and that . . . [was] his motivation for going there. Just like  Mitchell said, 'I needed more drugs, I had no more money to use drugs, we were going to commit this robbery.'"
The judge noted that "the correct way to do this was for this to have [been] brought to the Court's attention before the testimony came out . . . ." He then evaluated the evidence utilizing "the criteria under . . . [State v.] Caulfield (sic)."*fn2
The judge concluded that the evidence was relevant to "motive," that it was "clear and convincing," and that the jury had already "heard a great deal about the drug culture that [wa]s very much a part of all of the people involved, the victims and the perpetrator." He noted further that the prejudice to defendant was "very minimal," "[b]ecause . . . without any mention of it from the witness stand, the jury would obviously come to th[e] conclusion that the motive for this crime was to get drugs and money--and the money for drugs." When the judge asked defense counsel if he wanted the jury to receive an immediate limiting instruction, defense counsel asked the judge to "reserve on" that. The judge included a limiting instruction in his final charge to the jury, the propriety of which is not challenged on appeal.
Defendant argues that the admission of this single question and answer violated N.J.R.E. 404(b), and that his conviction should be reversed as a result of the denial of his motion for a mistrial. We disagree.
The trial judge correctly noted that the evidence should have been the subject of a N.J.R.E. 104 hearing outside the presence of the jury since that is the appropriate procedure to be employed whenever the State seeks to introduce evidence of other crimes or bad acts. See State v. Hernandez, 170 N.J. 106, 130 (2001); see also Kemp v. State, 174 N.J. 412, 432 (2002)(holding that the trial judge should conduct a N.J.R.E. 104 hearing even if the proponent of the challenged evidence fails to request such a hearing). However, the failure to conduct the hearing beforehand is not a bar to admission if the evidence otherwise meets the Cofield analysis. State v. Lykes, 192 N.J. 519, 534-37 (2007)(noting further that the appropriate standard of review is de novo if the trial judge fails to conduct any N.J.R.E. 404(b) analysis) (emphasis added). In our review, we accord "great deference to the decision of the trial [judge]" regarding the admissibility of N.J.R.E. 404(b) evidence. State v. Barden, 195 N.J. 375, 390 (2008).
Cofield requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 389; State v. Williams, 190 N.J. 114, 122 (2007).]
"Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.'" Lykes, supra, 192 N.J. at 534-35 (quoting N.J.R.E. 403).
Defendant contends that Mitchell's testimony did not tend to prove any motive for the robbery because even if he was addicted to heroin, there was no evidence to suggest that the apartment contained heroin or that defendant thought it did. Additionally, he argues the judge never considered the second prong of the Cofield test, and that any evidence of his heroin use was neither "similar in kind" nor "close in time" to the crimes with which he was charged.
However, there was actual testimony from both Mitchell and Coleman that defendant agreed to participate in the robbery specifically to obtain drugs from the apartment, as well as money. Thus, unlike the facts in State v. Mazowski, 337 N.J. Super. 275, 282-86 (App. Div. 2001), where we reversed the defendant's conviction because repeated references to his drug addiction was not evidence of a motive to commit burglary, Mitchell's testimony that defendant used drugs explains his desire to participate in a crime, the objective of which was to obtain drugs. This also serves to distinguish the case from Barden, supra, 195 N.J. at 392, where the Court reversed defendant's conviction finding that testimony regarding six months of prior drug sales by defendant was unnecessary to establish defendant's motive for participating in the robbery. In this case, the evidence provided a clear link to the motive for the robbery.
As to defendant's alternative argument--that the evidence was not of like kind or close in time to the events--Cofield's second prong, the Court has recently noted that "the second prong of Cofield is not applicable in every case and its 'usefulness as a requirement is limited to cases that replicate the circumstances in Cofield.'" Barden, supra, 195 N.J. at 391 (quoting Williams, supra, 190 N.J. at 131). "When motive, rather than pattern, is sought to be shown through other-crime evidence . . . similarity between the alleged other act and the one for which defendant is currently on trial is not a requirement for admissibility." State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd o.b. 162 N.J. 27 (1999). Any argument that Mitchell's failure to state that defendant's heroin use was current at the time of the robbery made the testimony inadmissible is likewise not persuasive.
Lastly, the trial judge appropriately considered the fourth prong of the Cofield analysis, noting the minimal prejudice associated with Mitchell's comments in light of all the other evidence of the "drug culture" in the case. Mitchell's and Coleman's testimony that defendant consciously agreed to commit a robbery to obtain drugs made this fleeting testimony regarding his drug use relevant, and more probative than prejudicial.
We next consider the arguments raised in Points II and III regarding the conduct of the prosecutor. We find none of them provide a basis for reversal.
The State elicited testimony from Mitchell that he entered his guilty plea before the same judge that was presiding over the trial.
Prosecutor: [Y]ou agreed to plea (sic) guilty to one count of robbery, which was amended to include all four victims. The agreement was . . . you will get  ten years in prison. You have to serve approximately eight and a half years before you can see the Parole Board, and it's conditional upon providing truthful testimony at the trial of any open co-defendant of which [defendant] . . . is the one. Is that correct?
Mitchell: Yes, sir.
Prosecutor: I'm going to show you a copy . . . . [of the] [p]lea [f]orm Matthew Mitchell before Judge Marmo . . . .
It goes on to indicate the defendant agrees to testify truthfully for the State against both co-defendants Cowan and Coleman consistent with the factual basis that was given. Is that correct?
Mitchell: Yes, sir.
Prosecutor: When you pleaded (sic) guilty, did you tell Judge Marmo through your attorney, as well as through me when I asked some questions, what happened that particular night?
Mitchell: Yes, sir. (Emphasis added.)
After Mitchell testified that he was unarmed during the events and that only defendant had a gun, the prosecutor elicited the following testimony:
Prosecutor: Now, having read . . . the transcript, does that refresh your recollection as to what you told Judge Marmo that, yes, you had a gun as well?
Prosecutor: And what did you say to Judge Marmo about whether or not you also had a gun?
Mitchell: I told him yes because my attorney stated to me that it was the only way that he would give me the plea bargain.
Prosecutor: All right. Now I was the Prosecutor who was in court then, correct?
Mitchell: Yes, sir.
Prosecutor: And you have seen me a couple of times in court in front of Judge Marmo. Is that right?
Mitchell: Yes, sir.
Prosecutor: So in the statement to the police you said you didn't have a gun?
Prosecutor: The plea factual basis before Judge Marmo you said you did have a gun, correct?
Mitchell: Yes, sir.
Prosecutor: When you spoke with me at the jail in preparation of trial, you said you did not have a gun, correct?
Mitchell: Yes, sir.
Prosecutor: And now here in court you're saying you did not have a gun?
Mitchell: Yes, sir. I did not have a gun.
Prosecutor: What's the truth, Mr. Mitchell?
Mitchell: I did not have a gun. The only reason I said I had a gun because my attorney told me what you stated to him about me getting a plea bargain.
Prosecutor: All right.
Mitchell: That . . . I had to say I had a weapon in my possession.
Prosecutor: Now you and I went over this contradiction, right, --Mitchell: Yes.
Prosecutor: And what did I tell you to say?
Mitchell: You told me to tell the truth. (Emphasis added.)
Defendant contends that the prosecutor's repeated references to the trial judge's involvement with Mitchell's guilty plea, and asking Mitchell what instructions he had given him, interfered with the jury's impartial consideration of, and sought to bolster, Mitchell's credibility. Since there was no objection at trial, we must consider whether the comments were not only improper, but whether they amounted to plain error, i.e., that they were "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). We conclude they were not.
While it may have been preferable for the prosecutor to have refrained from indicating Mitchell had pled guilty before the trial judge, there is nothing that logically leads to the conclusion that this bolstered his credibility in the jury's eyes. In fact, as the testimony played out, Mitchell was now contending he was unarmed during the robberies despite having said otherwise during the factual basis he supplied at the time of the plea. Defendant has failed to articulate how the mere mention of the judge's name imbued Mitchell's trial testimony with more credibility.
As for the prosecutor's rehabilitation of Mitchell, it would have perhaps been preferable for the testimony to have been adduced on re-direct, after Mitchell had been cross-examined about his prior inconsistent statements. However, we see no error in permitting the prosecutor to have the witness tell the jury that the State did not "coach" him to testify in a certain way. In doing so, the State was not vouching for the witness' credibility. Compare State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195 N.J. 493 (2008).
We find the argument raised by defendant in Point III to be of insufficient merit to warrant any extensive discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that the prosecutor's summation comments, which were not objected to by defense counsel, were not so egregious as to deprive 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).
In Point V, defendant contends that the DNA evidence should not have been admitted because the State failed to establish a "chain of custody," and because the evidence was not reliable. Since he did not object to the evidence at trial, we must assess whether its admission was plain error. R. 2:10-2.
"Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). Any "defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." State v. Morton, 155 N.J. 383, 446 (1998)(citation omitted).
Here, there was ample evidence regarding the collection of buccal swabs from defendant, Mitchell, and Matthews, as well as the handling of that evidence by the various law enforcement agents. The State produced the forensic chemist who first identified the presence of sperm on James' panties and in the vaginal smear taken at the hospital. The trial judge did not mistakenly exercise his discretion in permitting the evidence to be admitted.
In Point VI defendant claims he was denied his "due process right to full appellate review" because the entirety of the prosecutor's summation was not transcribed. However, defendant does not allege that he was prejudiced in any way by the missing portions of the transcript nor has he attempted to reconstruct the record below in any fashion. The failure to allege specific prejudice and to reasonably attempt to reconstruct the record makes defendant's argument entirely unpersuasive. State v. Paduani, 307 N.J. Super. 134, 141-42 (App. Div.), certif. denied, 153 N.J. 216 (1998).
In Point VII, defendant claims that the trial judge abused his discretion by "failing to comply with the jury's request for a recharge." During deliberations, the jury sent out a note asking for a "[l]ist of definitions of each crime." After conferring with counsel, and without objection, the judge told the jury that he did not understand their note, and that he needed "something more precise" before he could answer. The jury sent out a second note delineating a number of issues for which they wanted clarification. The judge responded by providing in writing those portions of the original charge on each issue. Defense counsel neither objected to the response nor the procedure employed. We find no mistaken exercise of the judge's discretion in this regard.
Defendant contends that the sentence imposed "was manifestly excessive and an abuse of judicial sentencing discretion." He argues that the imposition of an extended term was a mistaken exercise of the judge's discretion, the imposition of a base term of fifty years on the aggravated sexual assault charge was excessive, and the imposition of a consecutive sentence for defendant's "certain persons" conviction was an abuse of the trial judge's discretion. We disagree and affirm defendant's sentence.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
The State moved to have defendant sentenced to an extended term on the aggravated sexual assault conviction based upon his status as a "persistent offender." N.J.S.A. 2C:44-3a. Defendant conceded at sentencing that based upon his prior record, he was eligible for the discretionary extended term of life imprisonment. N.J.S.A. 2C:43-7a(2). To the extent he now raises before us for the first time that he was not eligible, we reject the contention based upon defendant's pre-sentence investigation report that clearly reveals the extent of his prior criminal convictions.
In State v. Dunbar, 108 N.J. 80 (1987), the Supreme Court set forth the analytic paradigm to be used by the trial judge in consideration of a discretionary extended term.
First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility. [Id. at 89.]
In deciding whether to impose an extended term in the first instance, under Dunbar, the judge was to focus primarily on "the interest of public protection." Id. at 91 (quoting N.J.S.A. 2C:1-2b(3).
However, in State v. Pierce, 188 N.J. 155 (2006), the Court modified the framework. It held that in order to comport with "recent Sixth Amendment decisions,"
The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process. [Pierce, supra, 188 N.J. at 168.]
"[T]he range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. Thus, in this case, defendant faced a possible sentence on the aggravated sexual assault charge of between ten years and life imprisonment.
Here, the judge appropriately determined that defendant met the statutory eligibility criteria, and considered the appropriate aggravating sentencing factors based upon defendant's "enormous criminal history of  at least [twenty] years of unrelenting criminal activity." The judge found no mitigating factors. Defendant does not contest either finding in this regard. We conclude that the imposition of a fifty year extended term for this heinous aggravated sexual assault was not a violation of the broad discretion accorded the trial judge and that the judge adequately explained his reasons for imposing the sentence.
Defendant next argues that the judge mistakenly exercised his discretion by imposing a consecutive term on the "certain persons" conviction. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "'the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims.'" State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). However, "[t]he Yarbough guideline that provides the clearest guidance to sentencing courts faced with a choice between concurrent and consecutive sentences . . . focuses on the 'facts relating to the crimes.'" Carey, supra, 168 N.J. at 423 (quoting State v. Rogers, 124 N.J. 113, 121 (1991)).
Here, the judge noted that it was defendant who introduced a gun onto the scene of the robberies and sexual assault, and that he decided to do so "after having been convicted of all these crimes." The judge assessed the use of the firearm in commission of the underlying crimes, and found that defendant's prior criminal record added a significant additional fact that required the imposition of a consecutive sentence. Defendant has pointed to no authority that prohibits this consecutive sentence, and our research has not disclosed any either. In short, when viewed through the prism of our standard of review, we cannot conclude that the trial judge mistakenly exercised his discretion by imposing a consecutive sentence on the "certain persons" conviction. Defendant's other arguments regarding the sentence imposed are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).