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State of New Jersey v. Tysean Tamar Clarke

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 9, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYSEAN TAMAR CLARKE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-00558.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 30, 2011

Before Judges Payne and Messano.

Defendant, Tysean Clarke, appeals from his conviction for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:15-1a(2), and for first-degree armed robbery, N.J.S.A. 2C:15-1b. He also appeals as excessive his sentence for the first-degree armed robbery of sixteen years in custody with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following issues:

POINT I BOTH CONVICTIONS SHOULD BE REVERSED BECAUSE THE STATE FAILED TO PROVIDE CORROBORATION OF DEFENDANT'S CONFESSION.

POINT II THE TRIAL COURT ERRED BY NOT CHARGING THE JURY CORRECTLY REGARDING THE STATE'S REQUIREMENT TO CORROBORATE DEFENDANT'S STATEMENT.

POINT III THE TRIAL COURT ERRED IN NOT CHARGING THEFT AS A LESSER-INCLUDED OFFENSE.

POINT IV THE COURT ERRED BY ALLOWING THE OFFICERS TO TESTIFY ABOUT THE ARREST OF TONYA WOOD AS IT WAS INADMISSIBLE HEARSAY. (Partially Raised Below.)

POINT V THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO ELICIT RELEVANT EVIDENCE REGARDING ANOTHER POSSIBLE SUSPECT.

POINT VI THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

We affirm.

I.

Defendant's prosecution arises from an armed robbery, at approximately 9:40 p.m. on June 24, 2004, of an Ultra cosmetics store in Watchung, New Jersey, allegedly perpetrated by defendant, his brother, Oshea Clarke, and Troy Keets and facilitated by store employee Tonya Wood, who purported to be a victim of the robbery.

The case was tried previously, resulting in a jury's determination that defendant was guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:15-1a(2), and first-degree armed robbery, N.J.S.A. 2C:15-1b. The verdict was appealed, and we reversed. State v. Clarke, No. A-0382-06 (App. Div. June 21, 2007). We found that the judge's charge on accomplice liability was insufficient because it failed to instruct the jury that it could find defendant guilty of robbery in the second degree while finding his co-defendants guilty of robbery in the first degree and that the omission constituted plain error. State v. Clarke, supra, slip op. at 9-14. We also found testimony by police officers that they had taken a statement from Wood and, thereafter, they sought and arrested defendant, Oshea Clarke, and Keets impermissibly raised the inference that defendant had been identified by Wood as someone who participated in the crime, id. at 14-15, and we required, in any retrial, that police testimony "must be significantly limited and should not be admitted unless it serves to rebut a claim that the police acted unfairly in investigating or arresting defendant." Id. at 15. As a final matter, we observed that we could not "divine how the testimony may evolve at any future trial." Ibid. However, we indicated that, based on the testimony given at the first trial, "the judge appropriately denied defendant's request to instruct the jury on theft as a lesser-included offense of robbery." Ibid. In reaching that conclusion, we stated that "[w]e fail to see how the evidence could reasonably support the conclusion that defendant committed a theft." Id. at 16.

II.

A retrial of the matter occurred from March 3 to 6, 2008. At that trial, testimony was presented by the victim of the robbery, Nicole Hoffman, administrative manager of the Ulta store and salon, and police witnesses Andrew Hart, Timothy Wenzel and William Kelly.

Hoffman testified that at 9:00 p.m. on June 24, 2004, the store was closed to the public. Just before the store closed, Hoffman observed Wood using her cell phone while completing a customer purchase. Because use of cell phones on the floor was prohibited, Hoffman instructed Wood to put the phone away, which she did. Thereafter, three employees left, but Hoffman and Wood remained to finish closing up the store. Some time later, Wood asked for permission to leave the store to smoke, which was granted. Hoffman walked Wood to the door and unlocked it so that she could exit, leaving the door unlocked for Wood's re-entry. As Hoffman was gathering up paperwork from the front registers, Wood returned to the store. Hoffman testified that she heard the door lock snap upon her return.

At that point, Hoffman proceeded to the salon area at the back of the store and was sitting at the salon computer when she heard somebody running. She looked up and saw a man with a gun pointed at her. Hoffman described the gun as a black automatic of the sort carried by the police. The man carrying the gun was wearing jeans, a white t-shirt and a ski mask with the eyes and mouth cut out. The man yelled at Hoffman to get down, which she did, dropping to her knees and looking toward Wood, who appeared to be frightened. The man then started dragging Hoffman by the back of her pants to the location where Hoffman indicated the money was kept at the front of the store. At all times, he held a gun to her head. As this process proceeded, two additional men ran past her toward the back of the store. Hoffman then asked to be permitted to stand, and she proceeded with the man holding the gun to her head to the location of the store's safe. Hoffman was ordered to enter the digital code for the safe, which she did. Shortly after the safe was opened, one of the other men came up to aid in removing money from the safe and then from the registers, which Hoffman believed they then stuffed in their pockets, taking approximately $3,000 from the safe and an additional $200 from the registers. Although by this time Hoffman had come to the conclusion that the gun used to threaten her might be fake, she "wasn't about to find out if it was real or not" and continued to comply with the gunman's demands.

After the two men had retrieved the money, the gunman walked Hoffman back to the stockroom, which was to the right of the sales space. As they proceeded, Hoffman saw Wood with the third man crouched in one of the aisles. They followed Hoffman and the gunman holding his gun to Hoffman's head to the stockroom, and then into the manager's office at the back of the stockroom, where "they" handcuffed Hoffman and Wood by one arm each to a filing cabinet, and one of the men took the store's security videotape. At the time, according to Hoffman, all three robbers were in the manager's office with her and Wood. The robbers then ripped out the fax machine and the phone and, telling Hoffman and Wood not to call the police, the three men left.

Once the men left the office and Hoffman heard the stockroom door close, she inserted a new tape in the security system to try to record the culprits' exit from the store. She then took out her cell phone, which was grabbed by Wood, who commenced to "fumble around" with it. Upon its retrieval, Hoffman called the Watchung police.

Officer Kelly was the first to arrive and, upon locating Hoffman and Wood, he commenced an attempt to remove the handcuffs. Thereafter, three other officers arrived. Once freed, the women were instructed to wait for the police at the curb. Wood was thereupon taken to the police station for questioning while Hoffman remained at the store to re-enact for Detective Wenzel what had occurred. She was then taken to the station to give a statement.

Hoffman testified that she could not see any of the men's faces because they all wore masks. However, she could see their skin through the holes for eyes and mouths in the masks and on their hands, and by that means could tell that they were African-American. All were wearing jeans. The gunman and the other man at the safe wore white T-shirts; the third man who remained with Wood wore a white T-shirt with red stripes. The gunman was approximately five foot ten inches; the other man at the safe was approximately six feet, and the third man was five foot six or seven inches. All were of average build and in their twenties.

Once at the station, Hoffman gave a written and recorded statement to Detective Hart. While there, Officer Kelly came in with a tape recorder and asked her to listen to a voice, which she identified as that of the gunman, later identified as Troy Keets, stating that she was 99.9 percent sure of that identification. Hoffman testified that she had heard Wood speak of Keets as a friend.

Detective Wenzel testified that he was the last police officer to arrive at the store, and that he, assisted by Officer Hart, processed the crime scene. In answer to questions by the prosecutor, he testified that no arrests were made on the night of the robbery, but on July 2, 2004 and in the early morning of July 3, Oshea and Tysean Clarke were arrested, as was Wood, and that "[a]ctually, she would have been the first to be arrested that day." Wenzel testified that he witnessed the reading by Detective Kelly to defendant of his Miranda*fn1 rights, as well as defendant's consent to waive those rights.

Detective Sergeant Kelly testified that he was working, in uniform, as a private security guard when informed of the robbery at the Ulta store. He proceeded to that location, where he found no evidence of forced entry into the premises. Detective Hart concurred with that observation. After scanning the store's retail space, Kelly proceeded through the stockroom to the rear office, where he found Hoffman and Wood cuffed to the file cabinet. Kelly freed the two women and directed them to sit on the curb in front of the store. Upon the arrival of Detective Wenzel, Kelly was ordered to return to headquarters with Wood for questioning. At headquarters, Wood told Kelly that she had contacted Keets, who agreed to pick her up. Upon his arrival, Keets, as well, was interviewed as a witness, giving a taped statement that Kelly played for Hoffman.

Kelly testified additionally that no arrests were made on June 24 or in the early morning of June 25. However, he testified over defense objection that Wood was arrested on the afternoon of July 2, and that Oshea Clarke was arrested on the evening of July 2, 2004. Upon notification that an arrest warrant had been issued, defendant gave himself up to the police in the early morning hours of July 3.

After defendant was read and waived his Miranda rights, Kelley commenced to question him, obtaining first an unrecorded statement and then a taped one. The taped statement was played for the jury. In it, defendant admitted that he participated in the robbery with his brother, Keets and Wood. He stated that the robbery was planned by Wood and Keets, and that Wood had arranged to have the doors unlocked to facilitate the crime. Although defendant stated that, when the three men met before the robbery, Keets did not have a plastic handgun, he acknowledged that Keets eventually had one, as well as handcuffs. The three utilized Wood's car to drive to the scene of the robbery, parking it on the other side of Route 22 and crossing that highway on foot. During the robbery, he and the others wore ski or Ninja masks. Although defendant acknowledged that money had been taken from the safe, he stated that he did not know who had done so. He also stated that he had no knowledge of the girls' handcuffing, but stated that they were taken away by Troy and Oshea. Thereafter, defendant asserted that he "didn't see nobody" after he got to the store and that he knew it was time to leave when he "didn't see nobody."

Following the robbery, defendant, Oshea and Keets returned to Wood's car, the money was split up, and they all left. Defendant stated that he believed the proceeds of the robbery were $1200. In conversation with Detective Kelly, prior to his recorded statement, defendant said that he thought Wood disposed of the masks, gun, gloves, and store security videotape.

At the conclusion of the evidence, and after closing arguments were made and the jury was instructed, a verdict was returned against defendant, as previously stated, finding him guilty of second-degree conspiracy to commit robbery and first-degree armed robbery. This appeal followed.

III.

Defendant first argues that his confession lacked corroboration, and therefore it was error to have admitted it.

The requirement of corroboration was extensively discussed by the Supreme Court in State v. Lucas, 30 N.J. 37 (1959). There, the Court acknowledged the principle that "an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." Id. at 51. To establish corroboration, the Court held, "the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury." Id. at 56. However, the Court also observed:

Confessions, like other admissions against interest, stand high in the probative hierarchy of proof. It is for this reason that the law imposes various safeguards designed to assure that the confession is true. But safeguards for the accused should not be turned into obstacles whereby the guilty can escape just punishment. No greater burden should be required of the State than independent corroborative proof tending to establish that when the defendant confessed he was telling the truth, plus independent proof of the loss or injury. [Id. at 57-58.]

In the present matter, defendant admitted in his confession to participating with his brother Oshea, Keets, and Wood in an armed robbery at 10:00 p.m. at the Ulta store. He stated that he and the others knew that "the robbery was gonna go down" as the result of a phone call from Wood to Keets. Additionally, he stated that it was pre-arranged that Wood would have the store door unlocked. When they arrived at the store, two persons were present, one of whom was Wood, and the other was a white woman. Additionally, defendant agreed that Keets had a plastic gun and handcuffs, and that the three men all wore ski or Ninja masks while in the store. He also suggested that Keets and Oshea were the active participants in the robbery. Further, he stated that, following the robbery, the "money got split up and we left." Independent evidence, given by Hoffman, fulfilled the requirement that there be evidence that an armed robbery, conducted by three masked men, had taken place at the store on the night in question.

Our review of the record in this matter satisfies us that the occurrence of a crime and defendant's confession to having participated in that crime were sufficiently corroborated to permit the introduction of the confession into evidence. State v. Ordog, 45 N.J. 347, 364 (1965). In reaching that conclusion, we discern "no rational explanation of how . . . defendant could have learned of [the] details [that he provided] other than by having been involved in the offense." State in Interest of J.F., 286 N.J. Super. 89, 104 (App. Div. 1995).

Defendant suggests that the details of the crime were fed to him by Kelly, and indeed, his recorded interrogation contains many leading questions by that detective. While it would have been preferable if Kelly had posed open-ended questions, we are unwilling to accept the proposition that defendant suggests, noting that the recorded confession was preceded by a pre-interview. As a result, Kelly knew what defendant would be saying in his recorded confession. In contrast to the facts of State in the Interest of B.D., 110 N.J. Super. 585, 596 (App. Div. 1969), aff'd o.b. 56 N.J. 325 (1970), upon which defendant relies, nothing in the record of this case supports the position that, in questioning defendant for purposes of the recorded confession, Kelly did more that reiterate what defendant had already told him.

Defendant also notes that some details given by defendant differed from those established elsewhere. In particular, defendant stated that he surmised that Wood had disposed of gloves, but Hoffman stated that she had known the robbers' skin color by looking at their hands. At a Miranda*fn2 hearing, Kelly testified that defendant told him that only the eyes were cut out of the ski masks, whereas Hoffman stated that she observed the skin around the robbers' eyes and mouths, and Kelly stated that he was told by defendant that the men wore dark clothes, whereas Hoffman testified that two wore white T-shirts and the other wore a white T-shirt with red stripes. Additionally, defendant was considerably taller than Hoffman recalled, the amount of money stolen differed from Hoffman's report, and defendant gave varying accounts as to whether it was split three or four ways. While those facts certainly should have been considered by the jury in determining whether to credit defendant's confession, we find them of insufficient magnitude to have fatally undermined the conclusion that defendant's confession was sufficiently corroborated to permit its introduction into evidence as a basis for defendant's conviction.

Similarly, we find defendant's admission that he entered the store, but thereafter had no knowledge of the conduct of his brother or Keets to raise questions of credibility for consideration by the jury. However, we are satisfied that defendant's omission of significant detail with respect to his involvement or that of his compatriots to be insufficient to render defendant's confession uncorroborated.

IV.

Defendant argues additionally that the trial judge committed reversible error in rejecting his counsel's request for a corroboration charge, determining that such a charge was subsumed in the then-current Model Jury Charge (Criminal), Statements of Defendant.*fn3 In seeking a corroboration charge, counsel argued that, because Hoffman was unable to identify defendant, the only thing that established defendant's participation in the crime was his own statement. Further, counsel noted that an uncorroborated out-of-court statement could not provide the evidential basis necessary to sustain defendant's conviction, and in this case, defendant's confession lacked detail and in some respects differed from facts that were otherwise established by the evidence. As a consequence, a corroboration charge was required.

The judge disagreed, determining that it was sufficient to instruct the jury to take into consideration all of the other evidence in the case that bore on the issue of whether defendant's confession was credible in part or in its entirety. As a consequence, the judge gave the following instruction:

There is for your consideration in this case a statement allegedly made by the defendant. It's your function to determine whether or not the statement was actually made by the defendant and, if made, whether the statement or any portion thereof is credible. In considering whether or not the oral statement was actually made by the defendant and/or taped statement in this case [was] made by the defendant, and, if made, whether it is credible, you should receive, weigh, and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer and the ability of the hearer to recall accurately the words used by the defendant. The specific words used, the ability to recall them, are important to a correct understanding of any oral communication because the presence, the absence, the change of even a single word can substantially change the true meaning of even the shortest sentence. And, therefore, receive, weigh, consider the evidence with caution. And in considering whether or not the statement is credible, you should take into consideration the circumstances, the facts as to how the statement was made, as well as all of the other evidence in the case relating to these issues.

If, after considering all of these factors, you determine that the statement was not actually made or that the statement is not credible, then disregard it completely. If you find that the statement was made, or that part or all of the statement is credible, you may give what weight you think is appropriate to that portion of the statement you find to be truthful and credible.

The absence of a corroboration charge was discussed by the Court in State v. Reddish, 181 N.J. 553 (2004), a case in which the defendant did not request such a charge, and therefore its absence was judged under a plain error standard. There, the Court stated:

In Di Frisco I, [State v. Di Frisco, 118 N.J. 253 (1990)] the Court noted that "a defendant [is] entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration." 118 N.J. at 274. In light of the State's proofs in this case, which relied heavily on defendant's statements and evidence corroborating those statements, the trial court most certainly would have given an instruction on corroboration had defendant requested one. However, as Di Frisco I makes clear, the primary onus is on the defense to request such a charge. Furthermore, we have noted on several occasions that the failure of the trial court to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and "[t]he entire thrust of the defense" was that the statements at issue were untrue. State v. Roach, 146 N.J. 208, 229, cert. denied, 510 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); Lucas, supra,, 30 N.J. at 63. As we have noted: "The argument of counsel, although not a substitute for a correct charge, can mitigate the prejudicial effect of an erroneous charge." State v. Morton, 155 N.J. 383, 423 (1998) (Morton I), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). [Reddish, supra, 181 N.J. at 631-32.]

Turning to the present case, we are satisfied that it would have been the better practice for the trial judge to have given a corroboration charge, as requested by the defense. However, we are satisfied that, in the context of this case, the judge's mistaken omission of the requested charge constituted harmless error, determining that the error did not deny defendant a fair trial and a fair decision on the merits - a standard applicable to plain and harmless error, alike. State v. Macon, 57 N.J. 325, 338 (1971).

In reaching this conclusion, we note the extensive arguments raised by defense counsel in his closing with respect to the lack of detail in defendant's confession, its divergence from allegedly established facts, and its claimed lack of corroboration. As a result, the jury was clearly cognizant of the defense's position with respect to the issue of the credibility of defendant's unrecorded and recorded statements. As quoted approvingly by the Di Frisco Court, Professor Wigmore has admonished: "'No one doubts that the warning which conveys [the need for corroboration of accused's confession] is a proper one, but it is a warning which can be given with equal efficacy by * * * the judge in his charge on the facts.'" Di Frisco, supra, 118 N.J. at 275 (quoting 7 Wigmore on Evidence, § 2070, at 510 (Chadbourn rev. 1978)). We thus find no harmful error to have occurred.

V.

Defendant next claims that the trial judge erred in failing to charge theft as a lesser-included offense arguing that: "Theft is a logical lesser included offense to robbery." However, to warrant a charge on a lesser-included offense, there must be a rational basis for such a charge in the record.

N.J.S.A. 2C:1-8e; State v. Sloane, 111 N.J. 293, 299 (1988). Here, we find none. In this regard, we note that in his confession, defendant admitted to participating in "the armed robbery at the Ulta store with [his] brother Oshea Clarke and Troy Keets and Tonya Wood." He also admitted that, although Keets did not have a gun with him at the time that Wood's call commenced the activities that culminated in the robbery, Keets "eventually" had a plastic handgun, as well as handcuffs. Further, Hoffman testified that, following the removal of the money from the store's safe and registers, she was pushed at gunpoint into the store's rear office, that she passed defendant as she went, and that all three men were present in the office when she and Wood were handcuffed to the file cabinet. And finally, defendant admitted to sharing in the proceeds of the robbery.

In the circumstances presented, as in the first trial, we find no evidentiary basis for a theft charge, which would be required only if there were no evidence that the robbers used force upon Hoffman or purposely put her in fear of immediate bodily injury. See N.J.S.A. 2C:15-1a. As the State notes, if the jury were to believe that defendant was not one of Hoffman's assailants, it would have to acquit defendant, not convict him of theft. The facts of this matter do not support defendant's claim.

VI.

Defendant next argues that the trial judge erred in allowing the police witnesses to testify regarding the arrest of Tonya Wood. We again disagree. Unlike the first trial, in the proceeding on appeal, no statement or inference suggested that Wood had, prior to or following her arrest, incriminated defendant or any of the other perpetrators of the robbery. Although the fact of her arrest prior to the arrest of the others was disclosed, the judge carefully limited the evidence in this regard, thereby avoiding the violation of State v. Bankston, 63 N.J. 263, 271 (1973) that led to our prior reversal. "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Ibid. Such was not the case here.

VII.

In defendant's last argument challenging his conviction, he claims that the trial judge erred when he precluded defense counsel, during cross-examination of Hoffman, from eliciting evidence allegedly suggesting third-party guilt, arising from an incident on the day before the robbery. On that day, a store employee named David had an argument with a woman in the shopping center's parking lot during which the woman called David a derogatory name. Thereafter, according to defense counsel, "[t]hree black males come into the store the night before this robbery looking for him, coincidentally." Their presence was recorded by the store's security video. Although it does not appear that Hoffman was present at the time, the incident may have been reported to her, and she may have turned the security tape over to the police.

The State objected to counsel's line of questioning, and after a proffer setting forth the facts that we have just recited, the trial judge sustained the State's objection, determining pursuant to N.J.R.E. 403 that the prior incident was not relevant to the robbery. According to the judge the evidence would simply "lead the jury off on a goose chase." Although defendant claims this discretionary ruling was erroneous, we disagree.

As the Court stated in State v. Fortin, 178 N.J. 540 (2004):

The right to argue third-party guilt --that someone in general, or in particular, other than the defendant committed the crime -- does not address whether specific evidence is admissible in support of such a defense. Evidence in support of third-party guilt, or any theory offered by the prosecution or defense, must satisfy the standards of the New Jersey Rules of Evidence. [Id. at 591.]

To be admissible, the proof must have "'a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Ibid. (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Here, there is nothing that would suggest a relationship between the episode on the day before the robbery and the robbery itself other than the "coincidental" fact that three African-American males were involved in each. The earlier episode appears to have involved a confrontation during store hours between a store employee and a female customer, and an effort by three males to settle the score in some manner with that employee. The later episode, which occurred after that employee, David, had left for the night and the store was closed, had as its goal robbing the store of money held in its safe and cash registers. Nothing suggests that the three men involved in the earlier episode intended to act against anyone except David or that they harbored an intent to commit armed robbery. As the Supreme Court has recognized, "[t]he connection between the third party and the crime cannot be left to conjecture." Ibid. (citing Sturdivant, supra, 31 N.J. at 179. Here, that is all that exists. Given the deferential standard of review applicable in this circumstance, ibid., we find no abuse of discretion to have occurred in barring the proffered evidence. State v. Koedatich, 112 N.J. 225, 300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

VIII.

In his final argument, defendant challenges his sentence for first-degree robbery of sixteen years, subject to NERA, as excessive. In imposing that sentence, the trial judge found aggravating factors 3 (the risk of reoffense), 6 (the extent of defendant's prior record) and 9 (the need to deter). N.J.S.A. 2C:44-1a(3), (6) and (9). The judge found no mitigating factors. Defendant's Presentence Report indicates that he committed three offenses as a juvenile, consisting of acts that, if committed as an adult, would have constituted burglary, for which he received thirty days of probation and, following his violation of probation, a two-year sentence at the Jamesburg Youth Correctional Training Center; receipt of stolen property, for which he received a one-year custodial sentence; and two counts of burglary, theft of movable property and receipt of stolen property, for which he received a one-year custodial sentence. As an adult, he had been convicted in 2003 of theft by unlawful taking for which he had received a probationary sentence that was violated, resulting in a four-year prison term. Additionally, defendant was charged in two other Superior Court matters that were remanded, and in two Municipal Court matters, one involving a violation of a local ordinance and the other consisting of a disorderly persons offense. Defendant used alcohol and drugs, including marijuana, ecstasy and cigarettes dipped in embalming fluid, and he had been previously enrolled in a thirty-day in-patient drug treatment program.

On appeal, defendant contends that the trial judge should have found mitigating factor 2, that defendant did not contemplate that his actions would cause serious harm. N.J.S.A. 2C:44-1b(2). We are satisfied that the cited factor is inapplicable in this case. While the evidence may have suggested that defendant was unaware that Keets had a gun at the commencement of the robbery, it appears that he later became aware of that fact, and at that time, did nothing either to dissuade Keets from his threatening course of conduct or to relinquish his participation in the crime. Instead, he remained on store premises, evidently "guarding" Wood, throughout the course of the robbery, and he shared in the proceeds taken from the store.

Further, we are satisfied that the judge's choice of a sentence of sixteen years, subject to NERA, which was near the midpoint of the sentencing range, was within the judge's discretion and that our interference with his sentencing discretion is not factually or legally warranted. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

Affirmed.


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