October 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES E. POE, A/K/A CHARLES E. WILLIAMS, A/K/A CHARLES E. POE HASS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-03-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez, Yannotti and Chambers.
Defendant Charles Poe was tried before a jury and found guilty of murder, in violation of N.J.S.A. 2C:11-3a(2). The court sentenced him to life in prison, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on March 23, 2007, as amended, and challenges his conviction and the sentence imposed. For the reasons that follow, we affirm.
We begin with a statement of the relevant facts, drawn from the evidence presented at defendant's trial. On the afternoon of August 3, 2004, Amanda Dembowski (Dembowski) was walking down Calhoun Street in Trenton, New Jersey with a friend, Charlene. They ran into defendant, who knew Charlene. They spoke briefly outside defendant's house. Later, Charlene and Dembowski went to defendant's house, where they spent some time drinking and talking. After several hours, Charlene left. Defendant and Dembowski engaged in sexual relations and Dembowski stayed the night. Dembowski agreed to live with defendant.
On August 6, 2004, Dembowski went shopping with her good friend, Kenyatta Ward (Ward). The following day, at about 4:00 p.m., Dembowski phoned Ward and asked if she wanted to "hang out" at defendant's house. Ward agreed. Defendant and Dembowski drove to Ward's house to pick her up. Defendant drove to a liquor store, where he purchased liquor and cigarettes. Defendant then stopped at "the projects" so they could purchase marijuana. They returned to defendant's house and went to his room. Defendant's cousin, Zoran Beal (Beal), who also lived in the house, came home and joined them.
According to Dembowski, Ward and Beal smoked marijuana while she and defendant drank liquor. Beal left around 6:30 p.m. Ward was sitting in a chair watching a movie. Dembowski and defendant laid down on the bed and Dembowski fell asleep. At around 7:00 p.m., Dembowski woke up.
Dembowski heard Ward ask defendant if she could use his cell phone to call her boyfriend because she was ready to go home. Defendant refused. Defendant and Ward then argued for several minutes. Ward also argued with Dembowski because Ward wanted Dembowski to walk her home but Dembowski told Ward that she should wait for defendant to drive her home.
Ward continued arguing with defendant, insisting that she wanted to leave the house. Defendant told her to wait until Beal returned. Ward agreed but she and defendant continued to argue. Ward then stopped speaking. Defendant told Ward that, because she was in his house, he could do whatever he wanted to her. Dembowski said that defendant began to speak to Ward in an aggressive manner. Ward was sitting in a chair. Defendant sat on the bed in front of Ward and began to rub her legs and thighs. Ward told defendant not to touch her but defendant ignored her.
Ward got up from the chair and yelled to Dembowski that she should walk her home. Dembowski told her to wait because it was too cold outside to walk. Defendant and Ward continued to argue. Defendant then said that he was going to lock the door and "[n]obody's leaving now." He went downstairs, locked the front door, came back upstairs and locked the door to his room. Ward stood near the bed and remained quiet. Defendant yelled at Ward and said that no one "is leaving now."
Defendant took a pair of handcuffs from a dresser drawer. He threw them at Ward and told her to put them on. Ward did not comply. She remained quiet. Defendant continued to demand that Ward put on the handcuffs but Ward did not do so. Defendant took out a BB gun from the dresser. He put the gun in his waistband and told Ward to put on the handcuffs. Defendant instructed Dembowski to "grab the knives" that were hanging on the wall behind the bed. Dembowski retrieved the knives and handed them to defendant. Defendant waived one of the knives in front of Ward's face and demanded that she put on the handcuffs.
Ward began to cry. She pleaded with defendant to let her leave. Defendant waved the knife in front of Ward's face. He also waved the gun. Ward became more upset. Dembowski testified that defendant was "amused" by this and "liked it." Ward was shaking when she put one of the handcuffs on. Defendant yelled at her to put on the other handcuff. Ward stood in the corner, cried and pleaded with defendant to let her leave. Defendant grabbed Ward's arm and put on the handcuff.
Dembowski testified that she was "really scared." Defendant told her to get a plastic bag. She said that she retrieved a white, plastic bag that was hanging on the doorknob. Defendant told Dembowski to put the bag on Ward's head. She threw the bag and it landed on top of Ward's head. Dembowski told Ward that she had to comply with defendant's demands or he would kill them both. Defendant and Ward struggled as he attempted to pull the plastic bag down around Ward's head.
According to Dembowski, Ward fell on the bed and defendant fell down next to her. Ward was crying and kicking. Defendant sat on top of Ward, held her down and tied the bag over her head. He twisted the bag and tied it in a knot. Ward bit through the bag. Defendant told Dembowski to get another plastic bag. Defendant placed the second bag over Ward's head. Ward was kicking and struggling.
Defendant told Dembowski to hold Ward's ankles. Dembowski complied. Dembowski handed defendant another plastic bag. Defendant took the first two bags off of Ward's head, placed the third bag on her head and tied it. Ward continued to struggle and bit through the third bag. Dembowski handed defendant another bag, which he placed on Ward's head. Eventually, Ward stopped moving. She was dead.
Defendant and Dembowski placed Ward in a sheet and carried her body to the basement. They returned to defendant's room, where they briefly discussed what to do with the body. Defendant left the house and returned about thirty to sixty minutes later with food. Dembowski suggested that they take Ward's body to Pennsylvania and "drop" it there. Defendant agreed.
Dembowski further testified that she and defendant then: started to talk about, like, you know, I guess how we was feeling about it, or just what happened, so we was discussing that.
And then he was, like, you know, that he -- it came out in the discussion, like, he shot somebody before, so, you know, I guess, like, this wasn't really nothing.
Q: He told you that?
Q: When did he tell you that?
A: That same night we was in the room when we was talking about what to do with her.
Q: How was he acting when he told you that he had shot someone?
A: To me, it felt as thought like he didn't really think it was a big deal, just the way that he just came out and said it.
Defendant and Dembowski carried Ward's body from the basement, tied it up with an orange extension cord and covered it with two large, heavy-duty garbage bags. They placed the body in defendant's car and drove to Pennsylvania, where they disposed of the body. Ward's body was found on August 9, 2004, by a person working on his property. He reported the matter to the police.
The police commenced an investigation that eventually led them to defendant and Dembowski. On August 11, 2004, defendant and Dembowski were taken to the police station. Defendant gave the police a statement in which he admitted that he had handcuffed Ward. He said that he held Ward down as Dembowski suffocated her with plastic bags.
Defendant and Dembowksi were both charged with murder. Dembowski pled guilty of aggravated manslaughter and she agreed to testify for the prosecution. She was sentenced to fifteen years of incarceration, with a period of parole ineligibility prescribed by NERA.
In this appeal, defendant raises the following issues for our consideration:
POINT ONE DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT.
POINT TWO THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE STATE TO ELICIT TESTIMONY THAT DEFENDANT HAD PREVIOUSLY KILLED SOMEONE ELSE.
POINT THREE THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY REFUSING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED HOMICIDE OFFENSE OF AGGRAVATED MANSLAUGHTER.
POINT FOUR THE ABSENCE OF A LIMITING INSTRUCTION THAT THE CO-DEFENDANT'S GUILTY PLEA CAN ONLY BE USED TO ASSESS THE CO-DEFENDANT'S CREDIBILITY AND NOT AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.(Not Raised Below).
POINT FIVE PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
POINT SIX THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A LIFE YEAR TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
Defendant also has filed a pro se supplemental brief in which he raises the following arguments:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE DEFENDANT'S ALLEGED STATEMENT AND THEREFORE VIOLATED BOTH HIS FOURTH AND FIFTH AMENDMENT RIGHTS.
II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO CHARGE THE JURY ON AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE.
III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE DEFENDANT'S ALLEGED STATEMENT TO THE CO-DEFENDANT THAT HE SHOT SOMEONE IN THE PAST.
IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE'S ASSERTIONS THAT THE DEFENDANT WAS CLAIMING A CONSPIRACY THEORY.
V. THE TRIAL COURT ERRED IN DENYING THE ADMISSION OF THIRD PARTY EVIDENCE, WHERE THE VICTIM WAS A RECENT VICTIM OF DOMESTIC VIOLENCE AND HAD A RESTRAINING ORDER CAUSING HER TO FLEE STATEN ISLAND.
VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE UNRELATED WEAPONS AND AMMUNITION IN DEFENDANT'S ROOM THAT WERE NOT USED IN THE CRIME AND THEREFORE VIOLATED THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION, ARTICLE 1, [PAR.] 7.
A. The officers conducted an illegal search and seizure of the home by not having a search warrant.
B. The weapons and ammunition were irrelevant, inflammatory and bore no connection to the incident because the cause of death was strangulation.
C. The search and seizure was illegal because the officers based their investigation on an unreliable and unverifiable informant's tip.
VII. THE CUMULATIVE EFFECT OF THE ERRORS AT THE DEFNDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO A FAIR TRIAL UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONSTITUTION, ARTICLE ONE, [PAR.] TEN.
We first address defendant's contention that the trial court erred by denying his motion to suppress the statement that he gave to the police.
The following facts are relevant to our consideration of this contention. On August 11, 2004, Detective James McMillan (McMillan) of the Trenton Police Department, Detective Matthew Norton (Norton) of the Mercer County Prosecutor's Office and other law enforcement officers transported defendant and Dembowski to the police station. McMillan and Norton placed defendant in an interview room. McMillan informed defendant of his Miranda*fn1 rights. Defendant agreed to waive his rights and McMillan questioned him.
Defendant initially denied knowing Ward but McMillan confronted him with information he had obtained from Dembowski which refuted that assertion. McMillan continued to question defendant but, according to McMillan, defendant began to answer the questions by repeating the questions or posing questions of his own. This continued for about two hours.
McMillan then left the interview room and informed Detective Edgar Rios (Rios) that defendant was not cooperating. Rios entered the room, introduced himself to defendant and confirmed that defendant had previously had been informed of his Miranda rights. Defendant told Rios that he did not kill anyone. Rios informed defendant that Dembowski had already told them what happened. After about fifteen or twenty minutes, defendant said that he would tell Rios what happened.
Defendant gave Rios an oral statement. Rios prepared a formal written statement, which defendant initially agreed to sign. Defendant read the statement but before he signed it, said that he wanted to call his grandmother. After the call, defendant told Rios that he would not sign the statement until after he had an opportunity to speak with an attorney. Rios wrote "refused" on the statement and Rios signed it. Defendant's interview ceased.
Defendant argues that the trial court should have suppressed his statement because the police failed to "scrupulously" honor his assertion of his right to remain silent. Defendant contends that his lack of cooperation and reluctance to answer questions was "the functional equivalent" of an assertion that he was not waiving his right to remain silent. He maintains that he "clearly communicated" to the police that "he was not a willing participant" in the interview process. According to defendant, the police were required to terminate the interview at that point. We disagree.
It is well established that an individual who is accused of a crime may invoke his right to remain silent at any point during a custodial interrogation. Miranda, supra, 384 U.S. at 460-61, 86 S.Ct. at 1620-21, 16 L.Ed. 2d at 715-16. Furthermore, "[i]f the individual indicates in an any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Id. at 473-74, 86 S.Ct. at 1627, 16 L.Ed. 2d at 723.
Once an individual has invoked his right to remain silent, the police must "scrupulously honor" that right and cease further questioning. State v. Hartley, 103 N.J. 252, 261 (1986) (citing Michigan v. Mosely, 423 U.S. 102-03, 96 S.Ct. 321, 325-26, 46 L.Ed. 2d 313, 320-21 (1975)). A request to terminate a custodial investigation, "'however ambiguous,'" must be "diligently honored." State v. Jackson, 272 N.J. Super. 543, 559 (App. Div. 1994) (quoting State v. Kennedy, 97 N.J. 278, 288 (1984)), certif. denied, 142 N.J. 450 (1995).
Here, the record shows that, before he gave his statement to the police, defendant never requested the detectives to cease their questioning. Indeed, after being informed of his Miranda rights, defendant agreed to waive his right to remain silent. He answered McMillan's questions and, although he began to answer the questions with questions of his own or by repeating the questions, defendant never said that he wanted the questioning to cease.
Moreover, after Rios took over the questioning, Rios confirmed that defendant had been informed of his Miranda rights before he continued the interview. Defendant did not refuse to answer the detective's questions, ask to speak to an attorney or remain silent when questioned. To the contrary, defendant gave Rios a statement.
We are convinced that the record establishes that defendant was informed of his Miranda rights and knowingly, voluntarily, and intelligently agreed to waive those rights before being questioned. We reject defendant's assertion that his responses to McMillan's questions were the "functional equivalent" of an assertion of a right to remain silent. We are convinced that defendant did not invoke his right to remain silent at any point prior to giving his statement. We therefore conclude that the trial court did not err by denying defendant's motion to suppress.
Next, defendant argues that the trial court erred by permitting Dembowski to testify that, while she and defendant were planning to dispose of Ward's body, "it came out in the discussion, like, he shot somebody before, so, you know, I guess, like, this wasn't really nothing." Defendant additionally argues that the court erred by failing to provide the jury with an instruction limiting the use of this evidence.
N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule further provides that such evidence may be admitted for the limited purpose of demonstrating "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident" when relevant to a material issue in the case." Ibid.
In State v. Cofield, 127 N.J. 328, 338 (1992), the Court established a four-prong test for determining whether "evidence of other crimes or wrongs" is admissible. The evidence must be: relevant to a material issue in dispute, 2) similar in kind and reasonably close in time to the offense charged, 3) clear and convincing, and 4) the probative value of the evidence outweighs its apparent prejudice. Ibid. (citation omitted). The decision of whether to admit evidence of other crimes or wrongs is committed to the sound discretion of the trial court. State v. Covell, 157 N.J. 554, 568-569 (1999).
We are satisfied that the trial court did not err by admitting Dembowski's testimony regarding defendant's statement. Defendant's assertion that he previously shot someone was relevant to defendant's intent and state of mind. As Dembowski explained, defendant's statement was made in the context of his assertion that killing Ward "wasn't really nothing." Defendant's statements tended to support the State's contention that defendant killed Ward purposely, knowingly and deliberately.
Furthermore, defendant's statement was made shortly after defendant and Dembowski killed Ward, as they discussed disposing of the body. Dembowski's testimony also was clear and convincing evidence that defendant had admitted that he previously shot another person. Moreover, the probative value of the evidence in assessing defendant's intent and state of mind outweighed any prejudicial impact it might have had. Thus, Dembowski's testimony was admissible under Cofield.
Even were we to conclude that the trial court erred by admitting the evidence and by failing to provide the jury with a limiting instruction concerning the use of the evidence, the errors were harmless. As we have explained, there was overwhelming evidence of defendant's guilt, specifically Dembowski's detailed testimony concerning Ward's murder and defendant's statement to the police.
In our judgment, Dembowski's testimony that defendant admitted he previously shot another individual and the judge's failure to provide the jury with a limiting instruction on the use of this evidence were not errors "clearly capable of producing an unjust result." R. 2:10-2.
Defendant also argues that he was deprived of a fair trial because the court refused to instruct the jury on the lesser-included offense of aggravated manslaughter. Again, we disagree.
"'A defendant in a criminal case is entitled to have the jury consider any legally recognized defense theory which has some foundation in the evidence, however tenuous[.]'" State v. Hollender, 201 N.J. Super. 453, 473 (App. Div. 1985) (quoting State v. Powell, 84 N.J. 305, 317 (1980)), certif. denied, 101 N.J. 235 (1985). A trial court should give a manslaughter charge "'even though the charge is inconsistent with the defense, if a different scenario with some foundation in the evidence would reduce the homicide to manslaughter[.]" Ibid. There must, however, be a rational basis for the charge. State v. Choice, 98 N.J. 295, 298 (1988).
In this case, defendant was convicted of first-degree murder, contrary to N.J.S.A. 2C:11-3a(2). A person is guilty of this offense if he "knowingly causes death or serious bodily injury resulting in death[.]" According to N.J.S.A. 2C:2-2b(2), a person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.
On the other hand, "[c]riminal homicide constitutes aggravated manslaughter when . . . the actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4. Furthermore, N.J.S.A. 2C:2-2b(3) states that:
[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
Here, a charge on aggravated manslaughter was not warranted because there was an insufficient foundation in the evidence for such an instruction. Indeed, the evidence established that defendant's conduct was purposeful and knowing rather than reckless.
As we stated previously, Dembowski testified that defendant threatened Ward with a knife and a gun, forced her to wear handcuffs, held her down on the bed and asphyxiated her by placing several plastic bags over her head. Dembowski explained that Ward struggled and bit through several of the plastic bags. Ward stopped struggling and died only after the fourth bag was placed over her head.
Although defendant maintained at trial that Dembowski was not a credible witness, the evidence did not rationally support an inference that Ward's death was brought about by recklessness conduct. The manner in which Ward was slain implies knowing and purposeful rather than reckless conduct. Therefore, we conclude that a charge on aggravated manslaughter was not required in this case.
We turn to defendant's contention that the court erred by failing to instruct the jury that Dembowski's guilty plea could not be used as substantive evidence of defendant's guilt.
A co-defendant's guilty plea may not be admitted at the trial of another defendant "as substantive evidence of the latter's complicity." State v. Stefanelli, 78 N.J. 418, 430 (1979). When, however, a co-defendant testifies at the trial of another defendant, the guilty plea is admissible for the limited purpose of assessing the co-defendant's credibility as a witness. Id. at 433.
If such testimony is presented, the court must instruct the jury that the co-defendant's guilty plea may only be considered "for credibility purposes[.]" Id. at 434. When that instruction is not given to the jury, the appellate court must evaluate "whether, in the context of the trial, the [omission] was sufficiently harmful to justify a reversal of the convictions, that is, whether it was clearly capable of producing an unjust result." Id. at 435 (citing R. 2:10-2; State v. DiPaglia, 64 N.J. 288 (1974)).
Here, the trial court provided the jury with the following instruction after Dembowski's testimony:
The State called as a witness Amanda Dembowski who in the indictment is charged with the co-defendant in the murder of Kenyatta Ward. Amanda Dembowski entered a plea of guilty to aggravated manslaughter with a recommended sentence of [fifteen] years conditioned upon her cooperation with the state.
A jury may convict based upon an accomplice's testimony alone if it finds the accomplice testimony to be credible and worthy of belief. However, the testimony of an alleged accomplice is to be carefully scrutinized and assessed in the context of the accomplice's special interest in the case.
Defendant argues that this instruction was insufficient because it merely told the jury that it should "carefully" scrutinize Dembowski's credibility and never informed the jury that it could not consider her guilty plea as substantive evidence of defendant's guilt. We are convinced that, although the trial court erred by failing to instruct the jury regarding the use of Dembowski's guilty plea, the error was not "clearly capable of producing an unjust result." R. 2:10-2.
Here, the State did not allege that defendant should be found guilty because Dembowski pled guilty to aggravated manslaughter as a result of her involvement in Ward's death. Rather, Dembowski provided extensive and detailed testimony concerning Ward's murder. Weighed against that testimony, Dembowski's plea had little additional evidential value. Thus, the admission of Dembowski's testimony on this point does not rise to the level of plain error.
Our conclusion on this point is consistent with the Supreme Court's decision in Stefanelli. In that case, the defendants were found guilty of conspiracy, entering with intent to steal, and larcery. Stefanelli, supra, 78 N.J. at 422. One of the co-defendants pled and he was called as a witness for the prosecution. Id. at 423. The Court held that the plea was properly admitted for the purpose of challenging the co-defendant's credibility. Id. at 433. The Court also held that the trial court's failure to instruct the jury that it could not consider the plea as substantive evidence of the defendant's guilt was harmless error. Id. at 437. The Court explained that the co-defendant's complicity in the crime charged against defendants was established independently by his detailed testimony concerning his involvement in the crime; the jury was specifically made aware that the guilty plea was based only upon the facts to which he testified, namely, his criminal conversations with [one of the defendants] and nothing more. Moreover, he was thoroughly cross-examined and his credibility severely tested. In this context, his guilty plea adds little, if any, extra evidential weight to the proofs establishing the existence of a conspiracy as between himself and [one of the defendants].
[Id. at 436.]
The same reasoning applies in this case. Dembowski's guilty plea was based on the facts to which she testified at trial. She was extensively questioned on her role in Ward's death and thoroughly cross-examined by defendant's attorney, who vigorously challenged her credibility. Here, as in Stefanelli, the fact that Dembowski pled guilty added little additional evidential weight to the evidence which established that defendant knowingly caused Ward's death.
Defendant also argues that the trial court erred by imposing a life sentence.
Here, the trial court found aggravating factors under N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense and the role of the defendant therein, including whether the offense was committed in an especially heinous, cruel or depraved manner); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.
Defendant argues that the trial court placed too much weight on the aggravating factors. He contends that the court failed to consider the "real-time" consequence of the life sentence, in view of the period of parole ineligibility established by NERA. Defendant also says that the court should have provided a more precise and detailed statement of the reasons for the sentence.
We disagree with these contentions. We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
We have considered all of the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).