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State of New Jersey v. Ismael Binbow

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ISMAEL BINBOW, A/K/A BRIAN NORFLET, WILLIAM JOHNSON, ISMEAL BIMBOW, ISHMEAL BIMBOW, ISHMAEL BOMBOW, ISMAEL K. BIMBOW, ISMEL BIMBOW, ISMAEL BINBOW, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3317.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2011

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Defendant Ismael Binbow appeals from his conviction following a jury trial on all charges set forth in a nine-count indictment, which included several offenses of drug possession with intent to distribute, eluding, and resisting arrest. He also appeals from the sentence imposed for the commission of those offenses. Defendant presents these arguments for our consideration on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE STATE'S FAILURE TO REVEAL THAT LIEUTENANT MINOVICH AND SERGEANT COSTA WERE THE SUBJECT OF AN INVESTIGATION BY THE ESSEX COUNTY PROSECUTOR'S OFFICE INTO WHETHER OR NOT THEY HAD BEATEN A PRISONER TO DEATH IN AN UNRELATED MATTER; ALTERNATIVELY THE TRIAL COURT SHOULD HAVE CONDUCTED AN INQUIRY INTO THE CIRCUMSTANCES OF ANY SUCH INVESTIGATION. POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE STATE ELICITED TESTIMONY FROM DETECTIVE MINOVICH SUGGESTING THAT THE DEFENDANTS HAD PREVIOUSLY BEEN THE SUBJECT OF POLICE INVESTIGATION.

POINT III

THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO OFFER FACTS NOT IN EVIDENCE IRRELEVANT TO THE ISSUES IN THE TRIAL OF THIS MATTER; TO OFFER ANY OPINION ON THE ULTIMATE ISSUE OF DEFENDANT'S GUILT AND TO BASE HIS OPINION ON FACTS NOT IN EVIDENCE (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN FAILING TO EXPLAIN TO THE JURY IN ITS FLIGHT CHARGE THAT IT WAS LIMITED TO OFFENSES WHICH OCCURRED PRIOR TO DEFENDANT'S ALLEGED FLIGHT AND NOT TO THE CHARGES OF ELUDING AND RESISTING ARREST (NOT RAISED BELOW).

POINT V

DEFENDANT'S SENTENCE IS EXCESSIVE AND THE COURT FAILED TO ARTICULATE ITS REASONS FOR IMPOSING A PAROLE DISQUALIFIER CLOSE TO THE MAXIMUM DEFENDANT WAS EXPOSED TO ON COUNT SIX AND THE MAXIMUM SENTENCE AND PAROLE DISQUALIFIER ON COUNT NINE.

Additionally, in a pro se supplemental submission, defendant reiterates:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AND THE TRIAL COURT'S REFUSAL TO CONDUCT AN IN-CAMERA INSPECTION OF TESTIFYING OFFICER'S FILES WHERE DEFENDANT ADVANCE[D A] FACTUAL PREDICATE[,] WAS AN ABUSE OF DISCRETION.

POINT II

THE PREJUDICIAL TESTIMONY OF LT. MINOVICH [DENIED] DEFENDANT A "FAIR TRIAL" AND THE TRIAL COURTS "FAILURE" TO PROVIDE A CURATIVE INSTRUCTION REGARDING SAID TESTIMONY WAS "ERROR."

We have considered each of these contentions in light of the record and the applicable law. We affirm.

I.On June 14, 2007, defendant and co-defendant Ricky Williams were arrested by Lieutenant Neal Minovich, the commander of the Newark Police Department Narcotic Enforcement Team (the team), and Sergeant Costa, another member of the team, who observed the two participate in a hand-to-hand narcotics transaction. At the time of their observation, Lieutenant Minovich and Sergeant Costa were on routine patrol, wearing plain clothes and driving an unmarked white Ford Explorer. They were followed by two plain clothes team members, Officers Kevin Matthew and Jobani Dumangyne,*fn1 who were driving an unmarked blue Ford Crown Victoria. As the officers turned onto West Alpine Street where it intersects with Milford Avenue in Newark, they saw a man, later identified as co-defendant Williams, standing at the driver's side door of a green Chevy Lumina. Defendant, who was observed sitting in the driver's seat of the Lumina, handed a package to Williams of what the officers believed to be a block of heroin. Williams, spotting the officers approaching, handed the package back to defendant through the driver's side window and began walking away from defendant's car.

The officers stopped their vehicles; however, before they exited, defendant put his car in gear and began traveling "at a high rate of speed in reverse[,]" headed the wrong way down Milford Avenue. Sergeant Costa ordered Officer Matthew to arrest Williams while the other officers chased after defendant in their two vehicles.

After losing sight of defendant's vehicle briefly, Lieutenant Minovich spotted Officer Dumangyne in close pursuit of defendant's car through Hayes Circle, using his lights and siren. Traveling in excess of fifty miles per hour, Lieutenant Minovich pursued defendant as he drove onto Clinton Avenue and collided with an oncoming van in an attempt to turn left onto Quitman Street. Defendant jumped from his vehicle holding the package and ran north on Quitman Street. Officer Dumangyne pursued defendant in his vehicle while Lieutenant Minovich chased him on foot. Next, defendant turned around and began running south on Quitman Street toward Lieutenant Minovich. Defendant then threw the package over a chain link fence into a vacant lot. Lieutenant Minovich captured and arrested defendant and Officer Dumangyne retrieved the package.

The discarded package was confirmed to contain 751 glassine envelopes of heroin, including one "sampler pack," which was taped to the outside of the block. The envelopes were bundled in packs of ten, called a "deck," which were then packed into bricks of five decks. Each deck was stamped in red ink with the words "Bad Apple." In total, the block contained fifteen bricks.*fn2 At the time of arrest, defendant possessed $928: one $100 bill, three $50 bills, five $20 bills, thirty-one $10 bills, forty-three $5 bills, one $2 bill, and fifty-one $1 bills; Williams possessed $618: one $20 bill, twenty-six $10 bills, sixty-seven $5 bills, and three $1 bills.

Following trial, the jury convicted defendant of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one)*fn3 ; second-degree possession of more than one-half ounce and less than five ounces of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with the intent to distribute within one-thousand feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within five-hundred feet of a public park, N.J.S.A. 2C:35-7.1 (count four); second-degree distribution of more than one-half ounce and less than five ounces of heroin, N.J.S.A. 2C:35-5(b)(2) (count five); second-degree distribution of heroin within one-thousand feet of school property, N.J.S.A. 2C:35-7 (count six); third-degree d istribution of heroin within five-hundred feet of a public park, N.J.S.A. 2C:35-7.1 (count seven); second-degree eluding, N.J.S.A. 2C:29-2(b) (count eight); and the lesser included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1)(a) (count nine).

Prior to sentencing, defendant filed a pro se motion for a new trial, arguing the State ignored discovery requests by failing to reveal that Lieutenant Minovich and Sergeant Costa were the subjects of an investigation by the Essex County Prosecutor's Office, as reported in a recent newspaper article detailing a civil suit brought by the family of a man who died during an unrelated drug arrest. On August 3, 2009, the trial court denied defendant's motion.

After merging counts one, two, three, four, six, and seven into count five, the court sentenced defendant to sixteen years imprisonment on count five, with an eight-year parole ineligibility period and a concurrent ten-year term on count eight, with a five-year parole ineligibility period. Finally, on count nine, defendant was sentenced to a concurrent six month sentence. The required fines and penalties were also imposed. This appeal ensued.

II.A.The first issue defendant challenges relates to the State's failure to disclose that Lieutenant Minovich and Sergeant Costa were the subject of an Essex County Prosecutor's Office investigation in an unrelated matter "into whether or not they had beaten a [suspect] to death." Prior to trial, defendant's counsel requested "[a]ny and all internal affairs complaints/ investigations involving any of the law enforcement officers involved in this matter." Defendant argues the trial court erred by denying his motion for a new trial based on the newly discovered evidence, which amounted to a Brady*fn4 violation, because any evidence that negatively impacted "a State's witness's credibility is 'exculpatory evidence,' which the State is bound to disclose."

The trial judge disagreed, stating defendant does not have the right to do any kind of due diligence into someone's personnel records unless he has some arguable . . . basis for [] asking for the court to do an in camera review of personnel records. What has been provided to the court to date, which is a complaint about excessive force in an arrest would not give rise to the court demanding the personnel records for an in camera review.

We agree with the trial judge's assessment of the facts presented.

The evaluation of "whether police personnel records should be disclosed" as evidence of an arresting police officer's prior bad acts "involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause" of the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the New Jersey Constitution. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998) (citation omitted).

A criminal defendant "'must be afforded the opportunity through effective cross-examination to show bias on the part of adverse state witnesses.'" State v. Williams, 403 N.J. Super. 39, 49-50 (App. Div. 2008) (quoting State v. Sugar, 100 N.J. 214, 230 (1985)), aff'd as modified, 197 N.J. 538 (2009). Any "witnesses' credibility may be attacked by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate to issues in the case at bar." Harris, supra, 316 N.J. Super. at 397 (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974)). Specifically, "[c]courts have permitted the disclosure of police personnel records where they may reveal prior bad acts that bear 'peculiar relevance' to the issues at trial." Id. at 398. For example, courts "allow either direct or in camera inspection of police personnel records when the defense claims the officer was the aggressor and the court finds that parts of the officer's personnel history may be relevant to the officer's credibility or to the defendant's claim of self-defense." Ibid.

"In order to establish a Brady violation the defense must demonstrate that (1) the prosecution failed to disclose the evidence; (2) the evidence was of a favorable character for the defense; and (3) the evidence was material." State v. Carter,85 N.J. 300, 311 (1981). Because the kinds of evidence that can be considered favorable to a defendant vary greatly, the standard of materiality for determining whether a Brady violation is established also varies depending on whether counsel requested the disclosure of specific evidence. Id. at 311-12. Where the defense has made only a general request prior to trial, the burden is on the defense to show "the omitted evidence creates a reasonable doubt that did not otherwise exist." Id. at 312 (internal quotation and citation omitted).

In this matter, defendant made a discovery request for "[a]ny and all internal affairs complaints/investigations" involving the team members. The prosecutor's office does not have an obligation to release personnel files requested by a defendant. Defendant did not pursue the requested disclosure or move for an in camera review of the officers' respective personnel files to discern whether the records sought "revealed possible biases, prejudices, or ulterior motives" or otherwise had a "peculiar relevance" to defendant's case. The court's denial of the motion stemmed from the fact that in camera inspection of an officer's personnel file would not have been granted because defendant failed to shoulder "his burden of advancing some factual predicate that would make it reasonably likely that the information in the file could affect the detectives' credibility[.]" Harris, supra, 316 N.J. Super. at 399. We conclude no Brady violation occurred.

If a Brady violation is not established, "there nevertheless remains the question whether the evidence accumulated since the trial, taken together with the facts to be developed at the hearing on remand, satisfies the test for a retrial based on newly discovered evidence." Carter, supra, 85 N.J. at 311. We conclude the newly discovered information of a two-year-old investigation into the officers' conduct does not require a new trial as the evidence was neither material to the issue of defendant's guilt nor the sort of evidence that would probably change the jury's verdict if a new trial were granted. Id. at 314.

B.

Next, defendant asserts the trial court erred by denying his motion for a mistrial following Lieutenant Minovich's testimony, claiming it suggested defendant was previously involved with the police. Defendant submits "it is likely that the jury inferred from [Lieutenant] Minovich's response that [d]efendant[] had prior problems with law enforcement."

During Lieutenant Minovich's redirect testimony, the assistant prosecutor asked whether he knew defendant or co-defendant Williams. Before he answered, a defense objection was made and sidebar held. The State represented Lieutenant Minovich's answer would be a "no," and the objection was withdrawn. Lieutenant Minovich actually responded, "I could have had contact in the past with either one of the males. I just don't recall." No further objection was made. When the witness stepped-down, out of the presence of the jury, the court inquired as to whether a curative instruction should be presented to the jury. After a lengthy discussion, co-defendant's counsel moved for a mistrial, which was denied. It was agreed that additional cross-examination would be permitted to clarify the issue:

[ATTORNEY FOR CO-DEFENDANT]: Lieutenant, just a little background, is it fair to say that you've worked in that general area in other part-time jobs? [Lieutenant Minovich]: Yes.

Q: You worked there in a hospital I think.

A: Yes.

Q: Supermarket.

A: Yes.

Q: Anything else?

A: That's pretty much . . .

Q: Right, so -- so you've seen people come and go from -- from that area for years, --A: Yes.

Q: -- right? Is it fair to say that as you sit here today, you have no knowledge of ever investigating either one of these defendants for any criminal offenses, is that so?

A: Yes.

Q: And you have no knowledge of ever arresting either one of these individuals for any criminal offense, is that so?

A: Yes.

Q: So, when you say -- you said before, you know, you weren't quite sure, you might have seen one or both around the neighborhood, but never for anything criminal. Is that correct?

A: That's correct.

A court should grant a mistrial "only when the trial court finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). See R. 3:20-1. The denial of a request to enter a mistrial will not be disturbed on appeal absent a clear showing of mistaken use of discretion by the trial court or a finding of manifest injustice. State v. Labrutto, 114 N.J. 187, 207 (1989); Greenberg v. Stanley, 30 N.J. 485, 503 (1959). Accordingly, a "trial court's decision is granted great deference on appeal." Hogan, supra, 297 N.J. Super. at 15.

Our review requires a determination of whether the denial of the motion for mistrial raises a reasonable doubt that an error contributed to the jury's verdict. State v. Macon, 57 N.J. 325, 338 (1971); R. 2:10-2. We conclude it does not.

Nothing suggests the jury's verdict was a product of bias because of Lieutenant Minovich's first statement that he might have had past contact with defendant or his co-defendant. Further, the series of follow-up questions elucidated neither defendant had been involved in criminal activity. A mistrial was not warranted because we fail to discern any error that would mislead the jury to an incorrect result.

C.Defendant also claims error in the trial court's admission of the expert testimony of Detective Reginald Leon Holloway regarding the street distribution of narcotics. More specifically, Detective Holloway's credentials as an expert were stipulated by all parties and he explained the various forms of heroin, its typical packaging when sold on the street, and the purpose of using logos stamped on the envelopes. Additionally, based upon a hypothetical scenario mirroring the facts of the present case, Detective Holloway rendered his expert opinion that "subject A possessed the recovered narcotics with the intent to distribute [] for monetary gain[.]"

Defendant argues Detective Holloway offered "facts not in evidence [that were] irrelevant to the issues in the trial of this matter." Further, he asserts Detective Holloway impermissibly parroted the statutory language using the phrase "possession with the intent to distribute" in stating his conclusions that were nothing more than a net opinion that defendant was guilty. We are not persuaded by defendant's arguments suggesting the State's presentation deviated from the permitted use of such a narcotics expert.

Detective Holloway's testimony largely concerned the quantity of narcotics found in defendant's possession, their packaging, and Detective Holloway's opinion as to what inferences should likely be drawn from those facts. The thrust of Detective Holloway's testimony was that someone possessing 751 packets of heroin bundled in ten packs, with each pack containing five decks, was most likely intending to distribute the narcotics for monetary gain.

The familiar parameters of expert testimony used "to assist a jury in understanding the evidence or determining a fact in issue" are set forth in N.J.R.E. 702. The Supreme Court has long held that expert testimony in drug cases is generally to be admitted, provided the trial court is satisfied that such testimony will assist the jury in resolving a material dispute of fact. State v. McLean, ___ N.J. ___ (2011) (slip op. at 13). Courts have repeatedly recognized that the nature and purpose of the possession of illegal drugs is a subject not generally known to laypersons, but rather is a subject within the specialized knowledge of experts. Ibid. An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged, State v. Odom, 116 N.J. 65, 77 (1989), but may express an opinion that "embraces an ultimate issue to be decided by the trier of fact." State v. Summers, 176 N.J. 306, 312 (2003) (Summers II).

Odom first set forth the strict limitations to be employed when the State relies on an expert to express an opinion on the issue of an intent to distribute narcotics, suggesting the use of a hypothetical adduced from the facts presented at trial and a query to the expert whether, in his opinion, the drugs described in that hypothetical were possessed for the purpose of distribution or personal consumption. Odom, supra, 116 N.J. at 81-82. The question posed must be limited to the evidence presented at trial, and focus on the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution]. [Ibid. (quotation and citation omitted).]

Once such a foundation has been established, the State may "ask the expert to express an opinion on whether, based on those facts, the drugs were possessed for distribution purposes or personal use." State v. Reeds, 197 N.J. 280, 293 (2009). The use of such a factually aligned hypothetical has recently been confirmed as permissible in this connection. McLean, supra, ___ N.J. ___ (slip op. at 13-15); Reeds, supra, 197 N.J. at 293; State v. Nesbitt, 185 N.J. 504, 511-12 (2006); Summers II, supra, 176 N.J. at 314-15.

In the present case, defendant argues Detective Holloway gave an "extraordinary dissertation" on the various methodologies employed for drug distribution, which far exceeded the factual underpinnings adduced at trial. Defendant asserts the purpose of this irrelevant narrative was to imply defendant and co-defendant were involved in other nefarious and criminal activity. Moreover, defendant argues that when asked the hypothetical question of whether the heroin found was for personal use, Detective Holloway parroted the statutory language of the charged offense.

Our review of the record reveals the complained of "narrative" served as foundational background, displaying the Detective's range of experience upon which he was basing his opinion. At no time was the testimony connected to defendant, and Detective Holloway never used defendant's name. Further, we conclude the prosecutor, when eliciting Detective Holloway's opinion, employed a mirror-image hypothetical as permitted by Odom and Detective Holloway's testimony fell within the bounds that the Court has recognized as proper expert opinion. No explicit statement of defendant's guilt was made by Detective Holloway; it was argued only by the prosecutor.

D.Defendant next asserts the jury instruction was flawed. He argues "the flight charge given by the trial court, although conforming to the model jury charge on flight, constituted plain error because it failed to distinguish among the charges listed in the indictment," and "did not instruct the jury that the inference of consciousness of guilt did not apply to the eluding or resisting arrest charges." Because there was no objection, we must determine whether the error was "clearly capable of producing an unjust result." R. 2:10-2.

When reviewing a jury charge to determine if it is free of legal impropriety, we read the charge as a whole, State v. Wilbely, 63 N.J. 420, 422 (1973), assuring that the charge is accurate, State v. Thompson, 59 N.J. 396, 411 (1971), and correctly relates the elements of the offenses charged. State v. Vick, 117 N.J. 288, 291 (1989). We reverse only when errors made in the charge prejudicially affect the substantial rights of the defendant and are sufficiently grievous to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

It is well-established that a court may instruct the jury regarding a defendant's flight because "certain conduct . . . subsequent to the commission of a crime may [exhibit] his consciousness of guilt." State v. Phillips, 166 N.J. Super. 153, 159 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). In particular, flight from custody or the scene of a crime is generally admissible to draw an inference of guilt, if done with the purpose of avoiding apprehension, prosecution, or arrest. State v. Ingram, 196 N.J. 23, 46 (2008); State v. Mann, 132 N.J. 410, 418-19 (1993); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure" is not enough. State v. Long, 119 N.J. 439, 499 (1990).

Defendant draws our attention to the consciousness of guilt portion of the instruction, suggesting the jury could not know the charge had no application to the charges of resisting arrest and eluding. The charge states in relevant part:

[T]here has been some testimony in the case from which you may infer that [defendant] fled shortly after the alleged commission of some of the crimes. The defendant denies any flight . . . . The question of whether the defendant fled after the commission of the crime is another question of fact for your determination.

Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or arrest would be made against him . . . on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the other evidence in the case as an indication or proof of consciousness of guilt.

Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment. It is for you as . . . judges of the facts to decide whether or not evidence of flight shows consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.

Defendant argues the instruction as given applied the inference to all charges. Even though the court did not specifically differentiate the charges' applicability to the drug offenses, that omission was not "clearly capable of producing an unjust result." R. 2:10-2.

The court's instructions expressed to the jury that defendant fled after "some of the crimes" (emphasis added). By implication, the inference could not apply to all nine offenses. Further, the judge told the jury it must determine whether defendant fled "after the commission of the crime," limiting the consciousness of guilt inference drawn from defendant's flight to those offenses other than eluding or resisting arrest. See Mann, supra, 132 N.J. at 418 ("Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt.").

We are satisfied the charge adequately instructed the jury "to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Mann, supra, 132 N.J. at 421. Defendant has not shown the jury charge as recited was "clearly capable of producing an unjust result,"R. 2:10-2, wrongfully leading to his conviction.

E.Finally, defendant maintains the sentence imposed was excessive. He states the court "made no finding that the aggravating factors 'substantially outweigh' the mitigating factor it found[,]" and "imposed the maximum sentence and maximum parole disqualifier without any explanation of its reasons for doing so[,]" necessitating resentencing. We disagree.

Our review of sentences is limited. State v. Bieniek, 200 N.J. 601, 607-08 (2010). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]' 'when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)); State v. Evers, 175 N.J. 355, 386 (2003)(citation, internal quotations marks and editing marks omitted)). When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . ., they need fear no second-guessing." Id. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984)). To that end, a reviewing court will only "modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364.

The trial court granted the State's application after finding defendant qualified for an extended-term sentence as a persistent offender. N.J.S.A. 2C:44-3. The statute defines persistent offender as a person who has been convicted of two crimes on two separate occasions and was charged with the present crime within ten years of the last release from confinement. N.J.S.A. 2C:44-3(a). If the statutory requirements for an extended-term sentence are met, "the 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." State v. Pierce, 188 N.J. 155, 169 (2006). Consequently, the range of sentencing available for the second degree conviction in this matter was between five and twenty years.

In fixing the term within the extended range, the trial judge assessed the aggravating and mitigating factors, explaining:

[I]n terms of aggravating and mitigating factors, I do find aggravating factor-3, [N.J.S.A. 2C:44-1(a)(3),] the risk that you will commit another crime, but that's based on the sequencing of your prior criminal history. Aggravating factor-6, [N.J.S.A. 2C:44-1(a)(6),] the extent of your prior criminal record and the seriousness of the offenses for which you have been convicted, which I just put on the record; and 9, [N.J.S.A. 2C:44-1(a)(9),] the need for deterring you and others from violating the law.

I do find the following mitigating factor, which is mitigating factor 11, [N.J.S.A. 2C:44-1(a)(11),] that your imprisonment would entail excessive hardship to you. But I . . . do make the finding that it's excessive hardship to your 13-year-old son[, mitigating factor 11, N.J.S.A. 2C:44-1(b)(11).]

However, I find that the aggravating factors do preponderate over any mitigating factors, and this would weigh in favor of a custodial term higher than the mid-range.

We discern no abuse of discretion. In sentencing defendant to sixteen years on count six, the judge's findings were amply supported by the evidence, and the term imposed fell within the extended-term range.

III.Following our review of the record, we discern no basis to interfere with defendant's conviction or alter the sentence imposed.

Affirmed.


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