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State v. Self

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARLON J. SELF, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0888.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges Axelrad, R. B. Coleman and Lihotz.

Defendant Marlon J. Self appeals from his conviction, following a jury trial, for the third-degree offenses of distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(13) (count one), possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(13) (count two), and possession of a CDS, N.J.S.A. 2C:35-10a(1) (count three). Defendant also appeals from the imposed sentence.

On appeal defendant presents these issues for our consideration:

POINT I

IT WAS AN ABUSE OF DISCRETION TO ADMIT IN EVIDENCE IDENTIFICATION RECORDS THAT WERE NOT PROPERLY PRESERVED AND THAT DENIED MR. SELF THE ABILITY TO CHALLENGE AND RECONSTRUCT IDENTIFICATION.

POINT II

THE COURT'S FAILURE TO APPLY THE 14TH AMENDMENT FUNDAMENTAL FAIRNESS STANDARD TO MR. SELF'S AUDIO TAPE STATEMENTS DENIED HIM A FAIR TRIAL AND DUE PROCESS, IT WAS PLAIN ERROR, NOT RAISED [BELOW.]

POINT III

UNDULY SUGGESTIVE IDENTIFICATION PROCEDURES TAINTED THE IN-COURT IDENTIFICATION OF MR. SELF AND WERE NOT BASED ON VIEWINGS AT THE TIME OF THE CRIME, THE[IR] ADMISSION WAS AN ABUSE OF DISCRETION.

POINT IV

IDENTIFICATION EVIDENCE IN MR. SELF'S CASE LACKED RELIABILITY AND THE VIDEO'S PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF PREJUDICE, IT WAS PLAIN ERROR TO ADMIT THEM, NOT RAISED [BELOW.]

POINT V

SHAW'S DATA BASE IDENTIFICATION AND FALSE AFFIDAVIT OF PROBABLE CAUSE WERE ACTS IN BAD FAITH THAT DENIED MR. SELF DUE PROCESS AND A FAIR TRIAL, DISMISSAL OF THE INDICTMENT IS REQUIRED, PLAIN ERROR, NO[T] RAISED BELOW.

POINT VI A

THE ADMISSION OF VOICE IDENTIFICATION EVIDENCE WITHOUT A COMPARATIVE IDENTIFICATION PROCEDURE VIOLATED MR. SELF'S RIGHT TO DUE PROCESS AND A FAIR TRIAL, IT WAS PLAIN ERROR, NOT RAISED BELOW.

POINT VI B

IT WAS PLAIN ERROR TO ADMIT THE USE OF A VIDEOTAPE WHEN IT WAS NOT AN ACCURATE . . . [MISSING SENTENCE] THAT MR. SELF SOLD DRUGS, NOT RAISED BELOW.

POINT VII

SHAW'S DATA BASE IDENTIFICATION PROCEDURE WAS A CRITICAL STAGE IN THE CRIMINAL PROCEEDINGS THAT DENIED MR. SELF THE RIGHT TO COUNSEL AND A FAIR TRIAL, PLAIN ERROR[,] NOT RAISED BELOW.

POINT VIII

THE COURT'S FAILURE TO APPLY A MITIGATING FACTOR SUPPORTED BY CREDIBLE EVIDENCE AND TO DETERMINE THE SIGNIFICANCE OF MR. SELF'S MENTAL DISORDER AND COMPETENCY RELATED TO HIS SENTENCING WAS PLAIN ERROR, NOT RAISED BELOW.

Following our review of the arguments presented, in light of the record and the applicable law, we affirm.

In October 2005, the Cinnaminson Township Police Department (CTPD) conducted undercover drug investigations, specifically targeting motel parking lots along the Route 130 corridor. Burlington County Detectives, Robin Lindenmuth and Michael Krug, were assigned to the CTPD investigation as part of the Narcotics Task Force (NTF).

On October 26, 2005, the NTF commenced its investigation of suspected drug sales occurring in the vicinity of the Northern Motor Lodge (the motel). It was agreed Lindenmuth and Krug would be the undercover operatives, posing as potential purchasers. They were responsible to record the events using hidden video and audio equipment. The detectives wore plain clothes and were provided with "operational buy funds" and a vehicle outfitted with the necessary recording devices.

A "pinhole" digital video camera was concealed in the front console of the detectives' vehicle. The camera could record black and white images but not sound and was aimed at the driver's side window. Audio was separately captured by a concealed transmitter worn by Krug, which sent the audio signal to a remote receiver and recording device, commonly referred to as a "Kel," monitored nearby by CTPD officer Jarvis. CTPD Patrolman Brandon Joseph Shaw was positioned in the parking lot of the adjacent Caroline Motel, approximately twenty yards away. Because he patrolled the motel on a regular basis, Shaw was assigned as the "identification officer." From his position, Shaw had a clear line of sight to view the transaction and observe the seller. The team tested the audio and video equipment then Krug drove to the motel parking lot, with Lindenmuth sitting in the passenger seat.

At 7:44 p.m., Krug and Lindenmuth's vehicle entered the motel driveway and headed toward the motel buildings. Krug noticed three individuals walking South on Route 130 toward the motel parking lot. Krug drove toward them and engaged a woman, who was adjacent to the driver's side window, in conversation while the other two stood by the passenger's side door. The woman offered to sell crack cocaine. One of the two men, who stated his name was "Amir," walked toward Krug's car door to talk to him. The man offered to sell Xanax. He returned to the passenger side window, outside of the camera's view. Krug watched as Lindenmuth paid the man $10 for two oval pink pills, later determined to be Xanax, and Krug paid $20 for four pills. There was no direct interaction with the third individual.

Krug and Lindenmuth left the parking lot and radioed a description of the seller to the nearby CTPD officers. They described the seller as an African-American male, around 5'6", weighing approximately 160 pounds, and wearing jean shorts and a red-hooded sweatshirt. Shortly thereafter, Shaw met with Krug and Lindenmuth to review the video. Based on prior police encounters, Shaw recognized the seller as a resident of one of the nearby motels; however, he did not know his name.

Later that evening, Shaw was on routine patrol when he spotted the suspect standing near a motel. Shaw recognized the man's face and noted his clothing was the same as the suspect he saw sell Krug and Lindenmuth Xanax. Consequently, Shaw approached the suspect and asked for his name, date of birth, and Social Security number. Defendant willingly provided the requested information, which Officer Shaw entered into the Department of Motor Vehicles (DMV) database to confirm defendant's identity. Shaw did not detain defendant, as he learned no warrants for his arrest were outstanding.

Thereafter, Officer Shaw drafted an affidavit of probable cause based on the evidence gathered from the undercover investigation. Once the warrant was issued, he arrested defendant on January 6, 2006.

Prior to trial, Judge Richmond LeBon*fn1 held a Driver*fn2 hearing to determine the admissibility of the video and audio recordings. Defendant objected to the admissibility of both recordings, arguing the material was highly prejudicial as it included sounds and images of the woman offering to sell crack cocaine and another alleged to be defendant, who stated his name was "Amir." In addition, defendant argued neither recording conclusively showed he was the individual engaged in the sale of CDS. Defendant offered to stipulate he was at the motel parking lot on the evening in question, nullifying the use of the recordings to establish that fact.

The State did not dispute that neither the video nor the audio tapes conclusively showed defendant sold the pills to the detectives, noting that as a result of the angle of the digital video device, defendant's face briefly appeared in view and the sales transactions were not recorded. Likewise, the audio recording was, at times, unintelligible because of background noise and a confusing mix of voices when the detectives, defendant, and the other individuals spoke simultaneously. Nevertheless, the recordings were relevant to prove identity and to substantiate the officers' testimony of criminal conduct.

The court acknowledged some parts of the audio recording were "unintelligible" or "inaudible." However, Judge Richmond found the tape was "sufficiently audible, [and] sufficiently intelligible" with regard to portions of the conversation between defendant and the detectives to withstand defendant's attacks on its admission. The court did limit its use, ordering any irrelevant or prejudicial portions, including the segments of the conversation regarding the woman's offer to sell cocaine, not be played for the jury. The tape transcript was reviewed to denote those portions to be redacted.

With regard to the video recording, the judge determined it briefly showed a man resembling defendant, verified the location of the events, and showed Krug leaning towards the passenger window, apparently negotiating the purchase of a CDS -- all of which corroborated the detectives' testimony. Concluding these facts were relevant to the State's burden to prove defendant sold the CDS to the detectives that evening, the court ruled the limited portions of the video showing defendant were admissible. The State was ordered to "pre-cue[]" the recording so as to display only the relevant portions of the video and not the unrelated offer to purchase cocaine.

At trial, Detective Lindenmuth was the State's first witness. She detailed the undercover operation, initially referencing her police report prior to giving her response to the prosecutor's questions. Following a defense objection, Lindenmuth continued her testimony without benefit of her report.

Lindenmuth explained that while seated in the passenger's seat she had the opportunity to view defendant's appearance, including what he was wearing. She identified defendant as the individual who sold her the two Xanax pills. On cross-examination, she stated her memory was prompted by the details recorded in her report, which she reviewed prior to testifying. Lindenmuth admitted that without the report she had no independent recollection that the suspect encountered on October 26, 2005 wore a red sweatshirt and dark pants, was 5'6" tall, weighed 160 pounds, "or in fact [defendant w]as even him."

Defendant moved to strike Lindenmuth's testimony, including her in-court identification, arguing she had no personal knowledge of the events and merely read from her report. Further, Lindenmuth admitted that without the use of the report, she would not have been able to identify defendant.

The court denied the motion, noting Lindenmuth's testimony may be attacked as unreliable, which affects its weight, not its admissibility. The court further noted Lindenmuth did not read her testimony; she used the report to refresh her memory, only looking at the document during the first few questions on direct, otherwise she testified based on her recollection as prompted by that review. The court also denied defendant's motion to strike Lindenmuth's in-court identification testimony. Because the report was not moved into evidence, it was unclear whether it contained identification information, except the detail such as the color of defendant's clothing.

Detective Krug testified next. Based on his observations on October 26, 2005, and a review of the videotape, he identified defendant as the man who called himself "Amir" and sold him the Xanax pills. Krug summarized the audio and video recording procedure. After addressing a defense objection as to authenticity, the court admitted the recording into evidence and the State played the audio tape for the jury. Krug confirmed the content of the recording was a fair and accurate account of the incident. Krug also discussed the video, explaining he removed the surveillance tape from the recorder, signed and dated the original copy, and requested a duplicate, which he reviewed to confirm its accuracy. The relevant portions of the video recording were played for the jury as Krug narrated the events depicted by the silent images. Krug agreed the video was a fair and accurate depiction of the events from that evening.

On cross-examination, Krug acknowledged the transcription of the audio recording, which had been prepared by a staff member of the prosecutor's office, did not identify the voices on the recording. He listened to the tape and marked the speakers on the transcript. Krug also conceded the video was recorded in black and white making it impossible to distinguish the color of defendant's sweatshirt. Finally, he agreed the video did not show the actual Xanax sale.

The State also presented the testimony of Officer Shaw. He too made an in-court identification of defendant based on his observations on October 26, 2005, and his review of the video tape. Shaw testified the parking lot was well-lit, which enabled him to observe defendant's appearance, including the clothes he was wearing, from his observation point. On cross-examination, he too conceded the video did not show defendant selling CDS to the detectives and admitted he saw defendant approach the detectives' vehicle and speak to Krug and then Lindenmuth, but did not see the exchange.

The jury convicted defendant of all charges. After granting the State's application for an extended term sentence, the trial judge merged counts two and three into count one, and imposed a five-year term of imprisonment with a three-year parole ineligibility period. The court additionally assessed applicable fines and costs. This appeal ensued.

Several arguments raised on appeal cite as error the admission of the recording evidence. In our review of these issues, we accord substantial deference to a trial court's evidentiary rulings, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001), reversing only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000). We remain mindful that a trial judge, when making relevance and admissibility determinations, exercises his or her broad discretion which will not be disturbed, absent a manifest denial of justice. See State v. Carter, 91 N.J. 86, 106 (1982) (stating a trial court's evidential decisions will not be reversed unless the "finding was so wide of the mark that a manifest denial of justice resulted"). With these standards in mind, we review defendant's challenges.

Defendant argues the poor quality of the audio and video recordings compromised his ability to dispute their content. He maintains that even if he were present, the video's limitations made it impossible to discern he sold the Xanax. As to the audio, it was noisy, difficult to differentiate many statements and their speaker, and included a prejudicial mention of a coke dealer. Thus, defendant contends it was error to admit the flawed surveillance recordings and to allow the officers' testimony to reconstruct the gaps of the unfolding events. We disagree.

In its review, a trial court must determine whether the recording evidence "is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, [or] whether it contains any improper and prejudicial matter which ought to be deleted." Driver, supra, 38 N.J. at 288. Video evidence must "accurately reproduce[] phenomena actually perceived by the witness." State v. Wilson, 135 N.J. 4, 14-17 (1994). Audio recordings are admissible when the movant demonstrates: (1) the device was capable of recording the audio, (2) the operator of the device was competent, (3) the recording accurately reflects what was said, and (4) no additions or deletions were made. Driver, supra, 38 N.J. at 287; see also State v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.) certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed. 2d 120 (1973) (ruling that audio recordings are admissible even when partially inaudible provided they bear probative value).

Here, after reviewing both recordings, Judge Richmond held a hearing to view the video. She determined limited portions of the recording could be played to the jury after properly excluding irrelevant content. So too, she carefully reviewed the audio recording, noting some portions of the audio tape were "unintelligible" or "inaudible," but overall the content was sufficient to withstand the challenge to its admissibility. The judge also played the tape while reviewing the prepared transcript to identify prejudicial portions, and properly excluded them.

More important, defendant's argument incorrectly suggests the State sought to rely on the recordings as the most significant evidence of defendant's criminal conduct or identity. The State readily admitted neither recording conclusively showed defendant was the individual who sold the detectives Xanax. The purpose of the recordings was to substantiate the testimony of the officers who participated in the investigation and who identified defendant, and also to show defendant's presence at the motel and the circumstances of the CDS sale.

Following our review of the record, we conclude Judge Richmond did not abuse her discretion by admitting the audio and video recordings. State v. Erazo, 126 N.J. 112, 131 (1991). The evidence was relevant to the pending charges. N.J.R.E. 401. The recordings were properly identified and authenticated, pursuant to N.J.R.E. 901, and the manner in which they were created and preserved was properly shown. The quality of the recordings was not so poor that it was necessary to exclude them and they were found to have accurately captured the events perceived by the witnesses. Further, the trial court properly deleted prejudicial and irrelevant material, Driver, supra, 38 N.J. at 287; Zicarelli, supra, 122 N.J. Super. at 239, assuring the probative value of the evidence was not substantially outweighed by any risk of "undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a); State v. Koskovich, 168 N.J. 448, 498 (2001).

Defendant next attacks the recordings' use as identification evidence, suggesting the video was similar to a police photo array such that the recordings' suggestive reference to drug transactions makes it impermissibly suggestive, giving rise to a substantial likelihood of misidentification. We conclude this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We also reject as meritless defendant's numerous challenges arguing, for various reasons, that the officers' in-court identifications were tainted by prior unduly suggestive identification procedures involving the surveillance tapes. We add these brief comments.

Officer Shaw testified he recognized defendant from his prior patrols of motels along Route 130, not from Krug's description or the subsequent DMV database look-up. Detectives Lindenmuth and Krug dealt directly with defendant during the drug sale. Defendant stood by both the driver's side window when he talked to Krug and the passenger's side window when he sold Xanax to Lindenmuth. A few hours later, Shaw spotted defendant in the area, immediately recognized him and asked for his credentials. Shaw proceeded to apply for an arrest warrant. While none of the officers knew defendant's name when the transaction took place, they could identify him based on their personal interactions and observations. Defendant's suggestion that the officers identified him solely from the video ignores the facts of record.

Defendant next argues Lindenmuth's and Krug's inability to immediately attach a name to the man who sold them drugs, coupled with Lindenmuth's admission that she needed to review her report to recall the details of the operation, show the subsequent in-court identifications were not based on independent recollection of the drug transaction and must be stricken. We disagree.

Again, defendant's argument mistakenly conflates the detectives' lack of familiarity with the suspect's name to an inability to identify the individual with whom they dealt. We reject the notion that one officer relied upon the other's description in lieu of independently identifying defendant. This argument ignores the fact that Shaw viewed the drug sale, clearly saw defendant, and recognized his face from prior patrol encounters. When Shaw came across defendant later that evening, he obtained his credentials, applied for a warrant and arrested him.

It belies logic to equate the employment of police training and experience when identifying a criminal suspect to a citizen-victim who selects a perpetrator from a police photo array. Finally, it was not improper for Krug and Lindenmuth to prompt their memory by reviewing their police reports, still photographs taken from the video, and the surveillance recording of the events prior to trial.

Defendant lists other facts that he asserts make the identifications unreliable. These include that distance and darkness impeded Shaw's ability to accurately identify defendant; Shaw's trial testimony did not match his affidavit of probable cause; and only Krug's report contained a physical description of defendant. We view these as credibility challenges, which affect the weight to be given to the officers' testimony, areas which the jury is bound to determine. See State v. Rhoda, 206 N.J. Super. 584, 594 (App. Div.) ("It is for the trier of fact to determine the probative value of that testimony."), certif. denied, 105 N.J. 524 (1986).

Defendant alternatively argues the officers' out-of-court identifications were not reliable because "[a] neutral officer was not used to test Lindenmuth, Krug and Shaw's ability to independently identify [defendant] by a photo array or line up procedure." Defendant raises a comparable challenge to the audio tape, stating no comparative procedure tested Krug's identification of his voice. We are not persuaded.

Defendant lodged no objection during trial, requiring our review utilizing the plain error standard. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (noting to obtain reversal an error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached"). The admissibility of Krug's recognition of defendant's voice on the audio tape and the officers' identification of defendant as the suspect do not require third-party corroboration. Driver, supra, 38 N.J. at 287.

As to the myriad of arguments generally attacking the admissibility and reliability of the identification evidence, our review does not support defendant's contention. We conclude the identifications -- both in and out of court -- were not impermissibly suggestive, and were properly admitted. See State v. Madison, 109 N.J. 223, 244 (1988).

Defendant raises a different challenge to the recordings' admissibility, arguing a portion of the audio constituted a confession necessitating the application the Fourteenth Amendment standard of fundamental fairness prior to allowing its admission. Defendant argues the court's failure to do so denied him a fair trial and violated his rights of due process.

Defendant also ties to this an assertion that because Shaw's affidavit of probable cause falsely stated the video recording showed defendant participated in a drug sale, he was denied a fair trial. Finally, defendant maintains indicia of Krug's incompetence as the operator of the recording equipment made the tapes evidentially unreliable.

Defendant failed to raise these issues at trial. We conclude no error occurred, let alone plain error. R. 2:10-2.

The statement on the surveillance audio cited by defendant as constituting a confession subject to constitutional protections was transcribed as follows: "I swear to God, you ain't going to -- you ain't to deal with you if he don't know you." Defendant contends the court should have done more than merely review whether the tape was sufficiently audible. He maintains the court also should have reviewed admissibility under the fundamental fairness test when considering challenges to the admission of a confession. See State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003).

We reject the premise that defendant's elusive statement, possibly insinuating the criminal conduct of others, is a conclusive statement of wrongdoing. The statement is an admission, suggestive of drug dealing that is admissible pursuant to N.J.R.E. 803(b)(1). See State v. Mays, 321 N.J. Super. 619, 628-29 (App. Div.) (finding defendant's statements made to a testifying witness over the phone were properly admitted as an admission), certif. denied, 162 N.J. 132 (1999).

Equally unpersuasive is the assertion that Krug was an incompetent operator of the surveillance equipment. At trial, Krug described the procedures he followed in installing, testing, and retrieving the audio and video recording devices and their content. He conceded the inability to set the time and date stamp on the video resulted because "it was not working," not because of unfamiliarity. Krug's testimony, tested by vigorous cross-examination, delineated the steps taken to secure the evidence, including that he placed each tape in a separate envelope, initialed the pouches, catalogued each tape, secured the originals and used copies to review content. At trial he reviewed and authenticated each tape's contents, verifying it accurately reflects the events as he experienced them. The court's finding that the tape played for the jury was unequivocally the tape of the events of October 26, 2005 will not be disturbed.

Defendant's last challenge, supporting his request for reversal, suggests Officer Shaw's use of the DMV database lookup to verify defendant's credentials "was a critical stage in the criminal proceedings" requiring the right to counsel. Equating the database identification retrieval "with a corporeal pretrial lineup, because [defendant's] identity had to be checked against thousands of Department of Motor Vehicle similar sounding name[s]," defendant argues his right to counsel was infringed.

Defendant's analogy comparing a DMV records check to a pretrial lineup is flawed. It is well settled that an out-of-court identification during the investigatory phase, prior to arrest or custodial detention, does not trigger the right to counsel. State v. Moore, 111 N.J. Super. 528, 532 (App. Div.), certif. denied, 57 N.J. 210 (1970). Also, a police officer's "field interrogation, without more, . . . does not involve 'detention' in the constitutional sense so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.Ct. 83, 38 L.Ed. 2d 121 (1973).

Shaw's uncontroverted trial testimony was that a few hours after the Xanax sale, he saw the suspect whom he recognized from his previous patrols of the motel area and after a review of the surveillance video. Approaching defendant, Shaw asked for his identification information, which defendant willingly provided. Defendant was neither detained nor arrested and the encounter was not a pretrial lineup triggering the right to counsel. See Sheffield, 62 N.J. at 447. We perceive no evidence of a constitutional deprivation.

Finally, defendant seeks reconsideration of his sentence, which was at the lower end of the extended term range. Defendant does not challenge the court's application of aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1(a)(3), (6) and (9),*fn3 or suggest the sentence was illegal. The court applied mitigating factors (1), (2) and (4). N.J.S.A. 2C:44-1(b)(1), (2) and (4). Defendant identifies two additional mitigating factors he claims the court failed to fully consider when imposing sentence.

First, he asserts his bipolar schizoaffective disorder necessitated a competency determination. Second, defendant contends the court rejected evidence of excessive hardship that extended incarceration would have on his minor children. We are not persuaded to vacate the sentence, which we find was legally imposed.

When reviewing sentences, we consider whether the trial court's exercised discretion was based on findings that are grounded in competent, reasonably credible evidence and applied correct legal principles. We also determine whether the court followed the sentencing guidelines. We modify a sentence only when the record shows "such a clear error of judgment that [] shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Roach, 146 N.J. 208, 236, certif. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).

Defendant's mental illness was specifically considered by Judge Richmond when applying mitigating factor four, N.J.S.A. 2C:44-1(b)(4), which permits a court to consider whether "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." The court discussed defendant's diagnosis of bipolar schizoaffective disorder, mentioned for the first time in the pre-sentence report. Appropriately, she found "the extent of [defendant's] mental health issues" justified application of mitigating factor four as it helped explain, but did not excuse his criminal conduct.

The newly presented suggestion of incompetence was never raised at trial court and no expert's opinion on the issue is now offered. Defendant's general assertion that his mental condition made him incompetent to stand trial is unfounded. R. 2:11-3(e)(2).

Similarly, evidence showing "the imprisonment of the defendant would entail excessive hardship to himself or his dependents," may be presented to support application of mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11). However, a sentencing court may not consider the factor when the record lacks such supportive evidence. Roth, supra, 95 N.J. at 363-64; State v. Setzer, 268 N.J. Super. 553, 567-68 (App. Div.), certif. denied, 135 N.J. 468 (1994). Here, there was no evidence that supported the argument that harm would inure to defendant's children, aside from his absence due to incarceration. State v. Dalziel, 182 N.J. 494, 505 (2005). His mother was the caretaker of his children. Although she had been diagnosed with cancer, she was pursuing treatment and not prevented from continuing their care. We conclude no error is presented warranting the imposed sentence be vacated or reconsidered.

Affirmed.


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