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State of New Jersey v. Michael B. Franklin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL B. FRANKLIN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-03-0480.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Wefing, Payne and Koblitz.

Defendant Michael B. Franklin appeals from his convictions after a jury trial on Bergen County Indictment No. 07-03-0480, of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -b(3) (count one), third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2) (count four), a lesser-included offense of the original charge of third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2a(3)(a). Defendant was acquitted of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (count three). All acts giving rise to the charges in the indictment occurred on November 15, 2006. After a hearing conducted prior to the jury trial, the trial court denied defendant's motion to suppress the cocaine found in his car and on his person and granted his motion to exclude his prior convictions from use by the State on cross-examination due to remoteness. State v. Sands, 76 N.J. 127, 147 (1978).

Defendant was also charged in Saddle Brook Municipal Complaint No. W-06-3020257 with two disorderly persons offenses stemming from the same incident, being under the influence of a controlled dangerous substance, N.J.S.A. 2C:35-10b, and possession of drug paraphernalia, N.J.S.A. 2C:36-2. After the jury trial, the court conducted a bench trial on the charges in the municipal complaint, finding defendant not guilty of being under the influence of drugs, but guilty of possession of drug paraphernalia.

Defendant was sentenced as a persistent offender to an eight-year mandatory extended term with a four-year period of parole ineligibility on count one of the indictment. N.J.S.A. 2C:43-6f. Count two was merged into count one, and he received a consecutive eighteen-month term with a nine-month period of parole ineligibility on count four. The disorderly persons offense of possession of drug paraphernalia was merged into count one. Statutory fees and penalties were imposed on all counts, including those that were merged, and a six-month suspension of defendant's driver's license was imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions, but remand for a new sentencing hearing.

Defendant testified to the following facts. He worked at Ideal's Lounge, a diner in Newark. During the early morning of November 15, 2006, he drove to various homeless shelters to drop off leftover food from the diner. Defendant kept the passenger and driver side windows of the car rolled down because he knew that they were illegally tinted, and he did not want to be pulled over. As he was driving eastbound on Route 46 at approximately 4:00 a.m., he was stopped by Saddle Brook Police Officer Leigh Cadigan. Defendant produced the requested documentation and asked the officer why he had pulled him over.

The officer replied, "Don't ask f'in questions. I ask f'in questions." The officer later told defendant that he pulled him over because he was "swaying on the road" and then asked him to exit the vehicle and submit to a sobriety test.

Officer Cadigan offered a different version of the events that transpired after he stopped defendant's car. After he asked defendant for his license and registration, defendant began to act erratically, yelling and punching the steering wheel and center console of his car, and repeatedly moving his hands out of the officer's view, causing the officer to fear for his safety. Cadigan then asked defendant to exit the vehicle. Cadigan escorted defendant behind the vehicle, in the area of the back-up officer, Patrolman Jeffrey Panagia. At this time, defendant again became erratic and appeared to attempt to remove his clothes, then suddenly became calm. The officers suspected defendant was under the influence of narcotics.

Cadigan inspected defendant's vehicle by shining his flashlight into the open driver's side door and observing the inside of the car. The officer observed a "blue translucent ziploc bag," which appeared to contain crack cocaine, on the driver's side floor of the vehicle. He also observed another bag, which was partially inside a change drawer in the car, which appeared to contain several smaller bags similar to the one observed on the floor. Finally, the officer observed what appeared to be two crack pipes on the center console. He collected these pieces of evidence and put them in a cargo pocket in his uniform. After arresting defendant, Cadigan patted defendant down and discovered another clear Ziploc bag containing a golf-ball sized rock, which he suspected to be crack-cocaine.

Defendant testified that when the officers arrested him, they "crushed the handcuffs on [his] hand . . . so tight [that his] hands turned blue." He testified that he asked the officers to loosen the cuffs, but they ignored him. Officer Cadigan testified that he did not recall defendant asking for him to loosen his handcuffs, but he would not have loosened them anyway. Officer Panagia testified that he did not hear defendant complain that the handcuffs were too tight.

Officer Cadigan testified to the following facts occurring after defendant was put into handcuffs and patted down. Cadigan attempted to place defendant in the patrol vehicle. Defendant began to yell and push back. After defendant's torso and head were inside the vehicle, defendant began kicking Cadigan's hand against the vehicle door, causing a cut, which later became infected. Eventually the officers were able to get defendant into the vehicle using hand strikes to his legs.

Defendant testified to the following, somewhat different facts. After the officers got his torso into the car, defendant refused to allow them to put his legs into the car until they loosened the handcuffs. Cadigan hit him in the ankles with a "baton or antenna type thing." The officer was hitting his own hand against the door while hitting defendant. The officers were eventually able to get defendant into the vehicle by pulling him in from the driver's side.

Cadigan testified that after they arrived at the police station, defendant was placed in an ambulance, which transported him to a hospital for an examination of his legs. Defendant, however, testified that the officers left him in the back of the patrol vehicle for almost an hour before calling the ambulance. After defendant was placed in the ambulance, Cadigan turned all of the evidence recovered from defendant's person and car over to Detective John Fontana. An ambulance was then called for Cadigan, due to concern about his hand injury.

Detective Fontana testified that he was called into the police station at approximately 5:00 a.m. to assist by processing defendant. He stated that the evidence in this case, the bags with suspected narcotics and the drug paraphernalia, was left with the desk sergeant. Fontana said that he took the evidence, packaged it in larger evidence bags, labeled the bags, and then placed them into an evidence locker.

On November 17, 2006, two days after the arrest, Fontana transported the evidence to the State Police Laboratory where one of the specimens from one of the thirty-two bags and the rock found in defendant's pocket tested positive for cocaine. An expert in narcotics for the State testified that a person possessing the amount of cocaine found in defendant's car would possess it with the intent to distribute.

At the end of the State's case, defendant moved for a judgment of acquittal, arguing that his alleged actions in struggling against being placed into the patrol vehicle could not constitute resisting arrest as a matter of law because he was already arrested. The State argued that the arrest was not complete at that point, and the court agreed, denying defendant's motion.

Defendant raises the following issues on appeal,

POINT I

THE PROSECUTOR'S QUESTIONS TO DETECTIVE FONTANA REGARDING DEFENDANT'S PROCESSING, FONTANA'S RESPONSES THERETO AND THE PROSECUTOR'S ACCOMPANYING REMARKS TO THE COURT IMPROPERLY IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT WHICH THE COURT ERRONEOUSLY FAILED TO DISPEL.

POINT II

THE PROSECUTOR IMPARTED INFORMATION TO THE JURY ON DEFENDANT'S CROSS-EXAMINATION AND MADE REMARKS ON SUMMATION WHICH IMPERMISSIBLY SUGGESTED THAT DEFENDANT HAD PREVIOUSLY ILLEGALLY INGESTED DRUGS AND IMPUTED A GENERAL CRIMINAL PREDISPOSITION TO HIM. (Partially raised below).

POINT III CUMULATIVE ERROR IN THIS MATTER REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.

POINT IV THE COURT ERRONEOUSLY FAILED TO ENTER A JUDGMENT OF ACQUITTAL ON THE RESISTING ARREST CHARGE.

POINT V THE CHAIN OF CUSTODY FOR THE COCAINE ADMITTED AT TRIAL WAS NOT SUFFICIENTLY ESTABLISHED.

POINT VI DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

I

In Point I of his brief, defendant argues that the State improperly elicited testimony from Detective Fontana about fingerprinting defendant and "tak[ing] his mug shot" for the purpose of identification, implying defendant had a criminal record. The prosecutor asked the detective whether he fingerprinted defendant and then asked him to describe the purpose of fingerprinting. Defense counsel objected, and the court sustained the objection. The prosecutor then asked the detective if he received confirmation from the fingerprint analysis that the person he was processing was, in fact, defendant. Defense counsel objected and, at sidebar, argued that:

It's absolutely irrelevant to the issue before the court and can establish, I think prejudicial and improperly [sic] when the Prosecutor asked for identification it's obviously calling for a conclusion with respect to a state database as to identity and I believe it can improperly lead to the conclusion that [defendant] had prior involvement with the law and we've already determined those issues are not before the court.

The judge sustained the objection and stated to the jury:

We've had a short sidebar outside the presence of the jury. I sustained the objection of defense counsel. We've previously stipulated, the defendant previously stipulated this detective was able to identify the defendant.

Defense counsel did not object to this instruction or seek a different instruction. Defendant now argues that the court should have instructed the jury "not [to] conclude that a fingerprint comparison was made to fingerprints on record," and should also have given the model jury charge for fingerprints, which enumerates circumstances unrelated to criminal activity where law enforcement may acquire an individual's fingerprints. Model Jury Charge (Criminal), "Fingerprints" (1992).

The parties stipulated in the presence of the jury that defendant was the person processed at the police station by Fontana. Defendant argues that Fontana's testimony improperly communicated to the jury that defendant had been previously arrested, by inferring that he could be identified through his fingerprints. Fontana did not testify that defendant was, in fact, identified through fingerprints.

Under N.J.R.E. 404(b), "the State may not admit any evidence concerning defendant's fingerprinting and incarceration for unrelated crimes." State v. Dishon, 297 N.J. Super. 254, 285 (App. Div.), certif. denied, 149 N.J. 144 (1997). However, no evidence of defendant's prior fingerprintings or arrests was admitted as the court sustained defendant's objections to the prosecutor's questions. If the jury did get the impression that defendant had been fingerprinted previously, they may well have realized that individuals may be fingerprinted for reasons other than an arrest. See State v. Manley, 54 N.J. 259, 271 (1969).

Defendant did not request the jury charge on fingerprints that he now argues was required, and thus we review this argument under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Vallejo, 198 N.J. 122, 140 (2009) (quoting State v. Burns, 192 N.J. 312, 341 (2007) (citation omitted)). "[A] trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011). The lack of jury charge on fingerprints does not constitute error, let alone plain error, because no evidence of defendant's prior fingerprinting was admitted nor did the State assert that defendant was identified by his fingerprints.

II

In Point II of his brief, defendant argues first that the prosecutor, while cross-examining defendant, impermissibly attempted to elicit the fact that he refused to a give a urine sample at the hospital. Defendant also argues in this point that during summation, the prosecutor drew impermissible inferences from the fact that defendant's illegally tinted windows were rolled down.

Over defense counsel's objection, the prosecutor cross-examined defendant about whether he refused to give a urine sample or sign a consent for diagnosis and treatment while he was at the hospital. Although provided with his medical records to refresh his recollection, defendant said he did not remember due to his ingestion of pain medication, but that he "never refused anything." The medical records were not placed into evidence, although the prosecutor through questioning communicated to the jury the likelihood that defendant did not comply with the hospital protocol as well as defendant's lack of credibility in his seeming disagreement with the records.

This testimony was not evidence of a prior bad act as argued by defendant, in that it was not evidence of bad behavior on another occasion introduced to prove the disposition of defendant to commit the crimes charged. N.J.R.E. 404(b). Instead, the cross-examination concerned defendant's behavior immediately following his arrest that was elicited to create inferences regarding his behavior prior to his arrest.

All relevant evidence is generally admissible, but may be excluded "if its probative value is substantially outweighed by the risk of undue prejudice." N.J.R.E. 402, 403. The burden is on the party seeking to exclude evidence to convince the court that undue prejudice outweighs the probative value of the evidence. State v. Castagna, 400 N.J. Super. 164, 174-75 (App. Div. 2008); see also Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). In order for evidence to be excluded under N.J.R.E. 403, any probative value must be "so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues in the case. State v. Thompson, 59 N.J. 396, 421 (1971).

The prosecutor's questions, in an attempt to elicit defendant's refusal to provide a urine sample or consent to other treatment, were proper to show that defendant may have recently consumed narcotics before his arrest and, as a result, was unwilling to cooperate with the hospital. This evidence would tend to make it more probable that defendant knew of the presence of drugs on his person and in his car. It would also tend to support the State's position that defendant was uncooperative with the police at the time of his arrest.

Defendant also argues in this point of his brief that the prosecutor "impermissibly imputed a general criminal predisposition to defendant in her summation" when she referenced defendant's testimony about intentionally leaving his tinted windows rolled down to avoid police confrontation. Defendant contends that by stating that defendant's actions reflect a criminal state of mind, the prosecutor was making a statement about defendant's general propensity to commit crimes.

A prosecutor's "primary duty . . . is not to obtain convictions, but to see that justice is done." State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted). In summation, prosecutors may "make vigorous and forceful closing arguments to juries" based on the evidence and all reasonable inferences. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858. 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Also, they may vigorously rebut specific arguments made by defense counsel. State v. Mahoney, 188 N.J. 359, 376 (2006).

During her closing argument, the prosecutor stated:

Something struck me as very important about defendant's testimony today and I would hope that it strikes you. He was very clear in stating that he had knowledge when he was driving that night that his windows were tinted and that it was illegal to have tinted windows and with that knowledge he purposely had his windows down to avoid apprehension.

That was his testimony. I ask you if I couldn't have had or you couldn't have had better evidence of state of mind handed to you on a silver platter. That is a criminal state of mind. He said it himself. He knew he was committing an offense with regard to the tinted windows and he was trained - trying to avoid being stopped by the police.

I wonder why.

Presumably, the prosecutor was suggesting to the jury that defendant did not want to be pulled over for his tinted windows because he knew he had almost ten grams of crack cocaine in the car. Defendant concedes that this would have been a permissible argument for the State to have made. However, defendant argues that the State went beyond this, implying that defendant has a propensity to commit criminal offenses based upon this evidence.

In the context in which the above quoted statements were made, it is clear that the prosecutor was referencing defendant's knowing possession of controlled dangerous substances. Immediately before those remarks, she said:

Now, this is the state of mind. You're going to hear criminal charges are nothing without establishing a state of mind, state of mind of the defendant. You'll hear terms like "purpose[,]" "knowledge[,]" "recklessness." It's necessary for criminal charges. You have to establish a criminal intent.

Defendant did not object to this remark when it was given. If defense counsel does not raise a timely objection to remarks in summation, this "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made [and] deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84 (citation omitted).

However, failure to object will not bar reversal if the offending remarks are so egregious that they deprived defendant of a fair trial. State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003). Inappropriate prosecutorial remarks must be viewed in the context of the summations and trial as a whole to decide if they amount to prejudicial error. United States v. Young, 470 U.S. 1, 11-12, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1, 10 (1985).

The argument that the prosecutor's reference to defendant being aware he had illegally tinted windows was intended to indicate that he had a criminal mindset is rather far-fetched. The jury would not likely be convinced that awareness of a minor traffic violation makes one more likely to be a criminal. A concern about being stopped by the police for a motor vehicle violation, however, could imply an awareness of illegal drugs in the car. The prosecutor's comments during summation did not deprive defendant of his right to a fair trial.

III

Defendant argues in Point III of his brief that the errors in permitting the prosecutor to imply that he had a prior arrest, was a drug-user, and had a general criminal state of mind, as he argued in Points I and II of his brief, collectively served to deprive him of a fair trial. He notes that his acquittal of aggravated assault, and guilty finding on only non-violent resisting arrest indicate that the jury must have credited at least some of his testimony over that of the officers. He argues that there is therefore a likelihood that the jury would have found more of his testimony credible were it not for the improper arguments of the prosecutor.

"[W]here any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of this court to reverse." State v. Orecchio, 16 N.J. 125, 134 (1954) (citations omitted). As discussed above, we find none of the arguments advanced by defendant to constitute error. Thus, his claim of cumulative error must fail. State v. Wakefield, 190 N.J. 397, 538 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

IV

In Point IV of his brief, defendant argues that he could not be convicted, as a matter of law, for resisting arrest because his alleged resistance occurred after his arrest. Defendant also asserts that no evidence was presented of the flight required for a conviction of fourth-degree resisting arrest. N.J.S.A. 2C:29-2a(2).

An individual is guilty of resisting arrest "if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a(1). Defendant argues that because he struggled and caused injury to the officer after he was placed in handcuffs, he cannot be guilty of this offense. For purposes of invoking constitutional rights, "arrest" has been defined as police "restraint of [an individual's] person and the restriction of his liberty of movement." State v. Judge, 275 N.J. Super. 194, 203 (App. Div. 1994). In the context of convicting a defendant of resisting arrest, the State must prove beyond a reasonable doubt that the defendant knew he was being arrested and acted intentionally to prevent his arrest. See State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003); State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).

Although defendant could have been charged with the more serious offense of attempted escape, N.J.S.A. 2C:5-1, N.J.S.A. 2C:29-5, because he was already handcuffed, he had not yet been completely subdued by the police, which allowed for the less serious charge of resisting arrest. When the same behavior may constitute different offenses, the State has discretion to select an appropriate charge. State v. Pessolano, 343 N.J. Super. 464, 475 (App. Div.) (citations omitted), certif. denied, 170 N.J. 210 (2001). The jury could have reasonably found, based on defendant's own testimony, that after he was handcuffed, defendant impeded the officers from completing the arrest, perhaps because he believed the handcuffs were too tight.

The State concedes that the trial court erred by sentencing defendant to resisting arrest as a fourth-degree offense. The charge of resisting arrest by flight was never explained to the jury in the court's charge, and defendant correctly notes that no evidence of flight was produced at trial. Thus, defendant was guilty only of the disorderly persons offense of resisting arrest. N.J.S.A. 2C:29-2a(1). We remand for the court to correct the judgment of conviction to reflect a conviction for the lesser-included offense and impose a sentence on this count in conformity with a disorderly persons conviction. N.J.S.A. 2C:43-8.

V

In Point V of his brief, defendant argues that the thirty-two bags of cocaine and the single, large rock of cocaine were improperly admitted because the State had not sufficiently established the chain of custody. Defendant highlights two irregularities from the testimony at trial: first, Officer Cadigan testified that he "handed" the drugs to Fontana, while Fontana testified that he picked the drugs up from the police desk and did not see Cadigan that morning; second, defendant notes that the arresting officer usually processes the arrest and the evidence, but that was not done in this case.

A party introducing tangible evidence at trial must lay a proper foundation for its admission. State v. Brunson, 132 N.J. 377, 393 (1993). Such foundation should include evidence of an uninterrupted chain of custody. Ibid. A trial court should admit tangible evidence if it finds that there is a reasonable probability that "the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Id. at 393-94 (citation omitted). Whether a sufficient chain of custody has been established is a matter within the trial judge's discretion, whose "determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Morton, 155 N.J. 383, 446 (1998) (citation omitted). Furthermore, a defect in the chain of custody affects weight, not admissibility. Ibid.

As detailed above, testimony at trial established an unbroken chain of custody of the drugs from the time that Cadigan found them in defendant's vehicle until the drugs were tested at the police lab. The only discrepancy in testimony was Cadigan's recollection that he handed the drug evidence directly to Fontana and Fontana's testimony that he obtained the evidence from the police desk when he arrived at the police station to process defendant. Fontana testified that no other evidence was at the police desk when he arrived immediately after defendant's arrest. The court and jury were free to give little or no weight to this difference in recollection, given that the evidence, which was the only evidence at the desk after defendant's arrest, was identified by both Cadigan and Fontana at trial.

Although Fontana testified that the arresting officer would normally process defendant, Cadigan went to the hospital for treatment of his hand after defendant's arrest and was thus unavailable to process either defendant or the evidence.

When the court admitted the evidence over defendant's objections, it appropriately instructed the jurors:

The weight that the jurors will give this evidence based upon the testimony and the examination and cross-examination is up to the jurors. You may give it great weight.

You may give it slight weight or you may give it no weight but it is in evidence.

It's for you to determine as jurors in the jury room.

We find no error in the admission of the drug evidence, as the chain of custody as well as Cadigan's unavailability to process the evidence was well explained.

VI

Finally, defendant argues in Point VI of his brief that the sentence he received was manifestly excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 358 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a court adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

In State v. Bieniek, 200 N.J. 601 (2010), the Supreme Court reminded appellate judges to avoid substituting their preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]

Based on defendant's prior drug conviction, the State filed an application for a mandatory extended term pursuant to Rule 3:21-4(e) on count one, possession of cocaine with the intent to distribute. N.J.S.A. 2C:43-6f. Defendant did not contest the imposition of this mandatory extended term, which must include a term of parole ineligibility of one-third to one-half of the sentence, or three years, whichever is greater. N.J.S.A. 2C:43-6f. The eight-year sentence with a four-year term of parole ineligibility on this count is two years less than the maximum and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

The trial court sentenced defendant on count two of the indictment and count two of the municipal complaint before merging them into count one of the indictment, thereby improperly assessing the monetary penalties for the merged offenses. Also, as previously indicated, the court improperly sentenced defendant for fourth-degree resisting arrest rather than the disorderly persons offense.

We find no fault with the court's application of aggravating factors three, the risk that defendant will commit another offense, six, his prior criminal record, and nine, the need to deter. N.J.S.A. 2C:44-1a(3), (6) and (9). The court also found mitigating factors two, that defendant did not contemplate his conduct would cause or threaten serious harm, and eleven, that incarceration would entail excessive hardship to defendant. N.J.S.A. 2C:44-1b(2) and (11). It was within the court's discretion to find these mitigating factors as well.

However, the court also found aggravating factor eight, that defendant committed the offense against a police officer, which was impermissible because the police status of the victim is an element of resisting arrest. N.J.S.A. 2C:44-1a(8); see State v. Link, 197 N.J. Super. 615, 619-20 (App. Div. 1984), certif. denied, 101 N.J. 234 (1985). The court found aggravating factor eleven, a fine without imprisonment would be perceived as the cost of doing business, which is not permitted when imposing a mandatory extended term of incarceration. N.J.S.A. 2C:44-1a(11); State v. Dalziel, 182 N.J. 494, 502-03 (2005) ("By its very terms, that provision is inapplicable as an aggravating factor unless the judge is balancing a non-custodial term against a prison sentence."). The State concedes that these sentencing errors require a remand to the trial court for another sentencing hearing.

Affirmed in part, and reversed and remanded for a new sentencing hearing.

20110705

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