December 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHADEE ALEXANDER A/K/A NAIEM SCUDDER AND ASMAR TINNEY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT K. WILSON A/K/A WILSON KWAME AND ROMEO WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-2876.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Parrillo, Grall and Alvarez.
A jury found defendants Shadee Alexander and Robert Wilson guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; second-degree possession of a handgun without having obtained a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm with the purpose of using it unlawfully against another, N.J.S.A. 2C:39-4a. Their co-defendant, Kashif Holt, pled guilty to hindering apprehension and testified on behalf of the State in accordance with a plea agreement that called for his release on probation following his testimony.
The judge merged defendants' convictions for conspiracy, receiving stolen property and possession of a firearm for an unlawful purpose with their convictions for first-degree robbery. He then sentenced defendants as follows. Based on Alexander's prior convictions, which qualified him for a discretionary term pursuant to N.J.S.A. 2C:44-3a, the judge sentenced him to a thirty-year extended term for first-degree robbery that is subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the judge sentenced Alexander to a concurrent five-year term for possession of a handgun without a permit. He sentenced Wilson to an eighteen-year term of imprisonment for robbery, subject to NERA periods of parole ineligibility and supervision, and to a concurrent five-year term for possession of a handgun without a permit. In both cases, the judge imposed appropriate fines, penalties, fees and assessments.
Defendants' separate appeals were submitted to us on the same calendar. We now consolidate the appeals and affirm the defendants' convictions and sentences.
The robbery occurred at about 9:00 p.m. on March 29, 2008, in a deli owned by Mr. and Mrs. McElveen. The McElveens and their nine-year-old granddaughter were preparing to close the store for the night when the men entered and announced their intention to commit a robbery. Their faces were covered; one man used a black scarf that had balls on its ends. Two of the three men brandished guns; the one wearing the black scarf with balls stuck his gun in Mrs. McElveen's face.
All three members of the McElveen family followed the intruders' instructions. Mrs. McElveen opened the register, and the McElveens got onto the floor. When the men complained about how little money they found and demanded more, the McElveens told them to lift up the register's change tray. Under that tray, they found more cash. One of the men threatened to take the McElveen's granddaughter if they did not produce more money. Thereafter, they searched Mr. McElveen's pants' pockets. As the intruders left the store with the cash taken from the register and Mr. McElveen, they grabbed cigarettes, lighters, "Black and Mild" cigars, and the cash register's change tray.
Once the men were outside, the McElveens took action. Mr. McElveen got up from the floor and saw the intruders get into a black Honda Civic. His granddaughter called 911. As Mr. McElveen watched the Honda Civic back out of the parking lot, he saw its bumper catch on the pavement.
An officer responding to the 911 call noticed a Honda Civic with a hanging bumper driving in the opposite direction. Although the driver turned without stopping for a red light, the officer continued on to the deli. When he arrived, the victims gave him a general description of the skin color and approximate heights of the three men and their make-shift face coverings.
Mr. McElveen also described the getaway car and its exit from the scene.
Upon hearing about the car, the officer suspected that it was the one he had passed en route, and he relayed the information he had. Detectives who heard the transmission spotted a car matching the description pull into the parking lot of a convenience store. Two of the men, defendants Wilson and Holt, got out of the front seat and went toward the store. The third, defendant Alexander, remained in the back seat. The detectives spoke to the men and looked into the car; they saw a cash register drawer, currency and a black scarf with balls in the back seat. Wilson, Alexander and Holt were arrested and searched. Wilson had several Black and Mild cigars, two lighters and about $200 in crumpled bills in his pocket.
Mr. McElveen was taken to the convenience store, where he identified the car and the black scarf with balls worn by the perpetrator who held the gun to his wife's face, but he could not identify any of the suspects. The cigars and lighters had bar code stickers that permitted the officers to later identify the items as merchandise from the McElveen's deli.
Although Mr. McElveen had not described or been asked to identify the clothing worn by a perpetrator prior to trial, during a hearing conducted mid-trial when the jury was not present, he was shown the jacket Wilson was wearing at the time of his arrest. At that hearing McElveen asked to see the back of the jacket and identified it as one worn by a perpetrator. In the presence of the jury, McElveen testified that the jacket looked "like one of the jackets one of the guys was wearing."
Holt, in accordance with his plea agreement, testified for the State. According to his account of the events, Wilson called him for a ride and he picked up Wilson, Alexander and a friend of theirs. They asked Holt to stop at the deli, which he did. Holt waited in the Honda Civic while the others went into the deli. Seven or eight minutes later they jogged out of the store and asked Wilson to "pull off," which he did. Holt then took the men back to the house. En route, the third man got out of the car. When Holt, Alexander and Wilson reached the house, Holt waited while the others talked to people on the porch and then drove to the convenience store where they were arrested.
Holt estimated that they reached the convenience store about seventeen minutes after leaving the deli. He claimed that he did not know that the cash register drawer, Black and Mild cigars, lighters and a scarf were in the backseat of the Honda Civic until he saw the officers remove those items at the convenience store.
Following his arrest, Holt gave the police a statement, which was recorded. At trial, Wilson's attorney was permitted to introduce the recording of Holt's statement to demonstrate inconsistencies between his trial testimony and his earlier account of the events. The transcript of the recording was given to the jurors to follow as they listened to the statement in court, but the transcript was not introduced into evidence. During deliberations, the jurors asked for the transcript of Holt's recorded statement. The judge denied that request but told the jurors they could listen to the recording.
The defendants presented an alibi defense. Wilson and Alexander's sister, Nafeesah Alexander, gave testimony tending to exonerate Wilson and Alexander. According to them, Alexander, Wilson and Nafeesah were at a house-party when the robbery occurred; they testified that Wilson and Alexander left the party sometime after 9:30 p.m.
Wilson also gave testimony tending to shift the blame for the robbery to Holt and to explain his possession of the incriminating evidence - the cigars, lighters and crumpled currency. He testified that the lighters were in the backseat of the car when Holt arrived and that he had the items in his coat pocket because Holt said he could have them. Wilson further explained that the $200 in crumpled bills found in his pocket was the remainder of a $1250 gift given to him by his uncle in December 2007. He produced the checks his uncle had written, and they were marked for identification. Wilson gave this testimony after the judge denied his requests to present his uncle as a witness and admit the cancelled checks into evidence.
On the foregoing evidence, the jurors found defendants guilty of all charges.
On appeal, Wilson and Alexander challenge their convictions and their sentences. Wilson raises the following issues:
I. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE STATE'S APPLICATION TO CROSS-EXAMINE DEFENDANT'S ALIBI WITNESS ON HER FAILURE TO PROVIDE A TIMELY ACCOUNT OF THE ALIBI TO THE AUTHORITIES, IN PERMITTING THE PROSECUTOR TO CROSS-EXAMINE HER ON HER FAILURE TO PURSUE EFFORTS TO PROVIDE SUCH AN ACCOUNT, IN PERMITTING THE PROSECUTOR TO ARGUE ON SUMMATION THAT HER TESTIMONY LACKED CREDIBILITY BECAUSE SHE DID NOT PURSUE SUCH EFFORTS, AND IN FAILING TO PROVIDE REQUIRED JURY INSTRUCTIONS REGARDING THE PROSECUTOR'S CONTENTION.
III. RULINGS BY THE COURT CUMULATIVELY DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE, TO COMPULSORY PROCESS AND TO THE OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION.
IV. DEFENDANT WAS ENTITLED TO JUDGMENTS OF ACQUITTAL, AND HIS CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE.
V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Alexander raises several of the claims raised by Wilson. He presents these issues:
I. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTOR TO CROSS-EXAMINE NAFEES[AH] ALEXANDER REGARDING HER FAILURE TO INFORM LAW ENFORCEMENT REGARDING INFORMATION SHE POSSESSED ESTABLISHING AN ALIBI FOR THE DEFENDANT (HER BROTHER) AND CO-DEFENDANT ROBERT WILSON.
II. THE TRIAL COURT ERRED IN REFUSING THE JURY'S REQUEST FOR A COPY OF THE TRANSCRIPT OF CO-DEFENDANT HOLT'S TAPED STATEMENT TO THE POLICE DURING DELIBERATIONS DESPITE THE FACT THE TAPE WAS MARKED INTO EVIDENCE AND GIVEN TO THE JURY WHILE A TRANSCRIPT OF ITS CONTENTS HAD BEEN GIVEN TO IT AS AN AID WHEN IT WAS PLAYED DURING TRIAL.
III. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF SEVERAL RULINGS BY THE TRIAL COURT REGARDING CO-COUNSEL'S MOTIONS WHICH EQUALLY IMPACTED THE DEFENDANT'S CASE AS WELL.
A. THE TRIAL COURT ERRED BY PRECLUDING CO-COUNSEL FROM CROSS-EXAMINING ONE OF THE VICTIMS REGARDING HIS FAILURE TO MENTION A JACKET IN HIS INITIAL STATEMENT TO THE POLICE WHICH HE SUBSEQUENTLY IDENTIFIED AT TRIAL.
B. THE TRIAL COURT ERRED BY PRECLUDING CO-COUNSEL FROM PRESENTING AN IMPORTANT DEFENSE WITNESS AS WELL AS DENYING HIS REQUEST TO ADMIT CERTAIN DOCUMENTARY EXHIBITS INTO EVIDENCE.
IV. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The common claims of error are addressed in this section of the opinion.
There was no error in the cross-examination of defendants' alibi witness, Nafeesah Alexander, the prosecutor's closing argument on her testimony or the trial judge's instruction to the jury on her testimony. The Supreme Court addressed this form of cross-examination in State v. Silva, 131 N.J. 438 (1993), and the principles, procedures and rule established in Silva were followed here.
Cross-examination directed at an alibi witness's delay in coming forward is a challenge to that witness's credibility on the ground that the prior silence is sufficiently inconsistent with subsequent testimony to permit an inference of recent fabrication. Id. at 444-48. The question for the trial court is whether, under circumstances of the particular case, the "'silence may reasonably be viewed as inconsistent with [the witness's] testimony.'" Id. at 447 (quoting State v. Marshall, 260 N.J. Super. 591, 598 (App. Div. 1992)). Like other "questions of the admissibility or relevance of a line of questioning," the propriety of this mode of cross-examination and its scope "are reposed in the sound discretion of trial courts." Id. at 448. In the absence of an objection, the trial court's rulings are reviewed for abuse of discretion resulting in "prejudicial error." Id. at 449 (internal quotation marks omitted).
A witness's silence gives rise to an inference of inconsistency when the circumstances permit a finding that it would have been "reasonably natural" for the alibi witness to come forward with information. Id. at 448. Thus, when the trial court finds that an alibi witness who "appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure." Id. at 442. A trial court can find a proper foundation for this line of questioning when the witness: knew the importance of the alibi information - that the defendant was charged with a crime committed when the defendant was elsewhere; knew how to get the information to law enforcement; and had a reason to come to the defendant's assistance, like a close personal relationship. Id. at 447-48 (internal quotation marks omitted).
Generally, because the determination of the permissibility of an inference of inconsistency from silence depends on the facts of the particular case, there are no hard and fast rules upon which the trial court can rely. Id. at 448. For example, it may not be "reasonably natural" for a witness who has reason to believe the authorities will not listen to make a futile attempt to provide information. Id. at 446-47 (discussing Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass. App. Ct. 1981)). When the factual circumstances present preliminary questions of this sort, the trial court must determine whether the jurors could reasonably infer that the witness's prior recalcitrance is inconsistent with the witness's testimony, which is a question "'of logic and common sense.'" State v. Samuels, 189 N.J. 236, 246 (2007) (quoting State v. Powell, 84 N.J. 305, 314 (1980)).
Silva provides one firm rule limiting cross-examination about non-disclosure, and that rule includes an exception. "[O]nce a notice of alibi had been furnished by defendant's attorney, thereby making the witness available to questioning by prosecution investigators, there is, from the date of notice of alibi to trial, no longer an inconsistency from which to infer fabrication unless the witness refuses to discuss the matter with the prosecution after the notice of alibi." Silva, supra, 131 N.J. at 442 (emphasis added).
Finally, in Silva the Court held that when cross-examination about delayed disclosure is permitted, the trial court should instruct the jury "that an alibi witness has no duty to communicate with the authorities and that the witness's silence is relevant only for impeachment of credibility . . . ." Id. at 451.
With the foregoing foundation, we consider defendants' specific arguments. They first argue that the trial court erred because it denied their request for a preliminary hearing outside the presence of the jury.
Silva does not require a preliminary hearing in every case. In Silva, this court noted that "to ensure that the jury is not misled by information revealed during an unsuccessful effort by the State to lay a proper foundation [for cross-examination of an alibi witness about delay], it may be appropriate in some cases to order a voir dire hearing to ascertain if the proper foundation exists." State v. Silva, 252 N.J. Super. 622, 630 (App. Div. 1991). This does not suggest a hearing is always needed. In any event, the Supreme Court stated that the proper foundation may be established by question and answers "[d]uring routine cross-examination." Silva, supra, 131 N.J. at 449. The Court reasoned that defense counsel would have the opportunity to "object to any question or argument that fails to follow from that foundation." Ibid.
Assuming that there may be cases in which a trial court might deem it appropriate to have the foundation for this mode of cross-examining an alibi witness laid in a preliminary hearing, the trial court did not abuse its discretion in rejecting this request. The trial court made an initial determination to permit the cross-examination on undisputed proffers offered outside the presence of the jury. The attorneys agreed that Nafeesah would testify that she gave the information to the police on the night of the arrest at the convenience store and again at police headquarters and would admit that she did not follow up thereafter because she did not know what to do. On that proffer, the trial court determined that it was obvious Nafeesah knew the information was important and how to convey it because she had done so. The trial court further determined that it would have been natural for this witness to make additional efforts to exonerate defendants after formal charges were filed. On those findings, the court concluded that there was no need for a preliminary hearing.
At trial, Nafeesah's direct testimony was consistent with the proffer and confirmed the foundation for the cross- examination. Her testimony was as follows. Wilson and Alexander were with her at a party on the night of the robbery and did not leave the house until after 9:30 p.m. Minutes after they left, she received a phone call and went to the convenience store. There, she approached an officer and told him that defendants had been with her and had just left the house. The officer directed her to step away and told her the defendants were being taken to police headquarters. She drove there, learned that defendants were arrested for robbery and told the officer at the reception desk that they could not have committed the crime because they were not there.
On cross-examination, the prosecutor established Nafeesah's relationship with the defendants and her interest in seeing them exonerated. Without objection, the prosecutor asked Nafeesah if she went back to the police station during the months between the arrest and the filing of the notice of alibi. Nafeesah said she did not "know the system" and was "just waiting for someone to contact" her. The prosecutor, again without objection, asked Nafeesah if she had gone to the prosecutor's office during the same period, and the witness said she had not.
This foundation was adequate, and defendants were in no way prejudiced by the foregoing cross-examination or the court's decision to proceed without an evidentiary hearing. If anything, the prosecutor's questions gave the witness an opportunity to reiterate and stress her prior consistent statements, which could have only aided the defense by serving to rebut any inference of recent fabrication. Accordingly, we reject these claims.
Defendants also argue that the trial court violated Silva's ban against cross-examination about non-disclosures after the filing of a notice of alibi, but they do not address the exception to this rule applicable to an alibi witness's refusal to speak to the prosecution. Id. at 442.
The prosecutor asked Nafeesah if they had met on a date after the alibi notice was filed. Defense counsel did not object, and Nafeesah testified that they had met. In response to a follow-up question, which also passed without objection, Nafeesah admitted that she had agreed to schedule another appointment. On further questioning, again without objection, Nafeesah acknowledged that two appointments had been made and not kept - one which was cancelled by the detective, and one which she cancelled because she did not have anyone to watch her child. The prosecutor then asked Nafeesah if she rescheduled the appointment she cancelled. There was no objection. Nafeesah said she did not recall, but she also testified that she had given the prosecutor a statement before she testified at trial. There were no further questions.
Because there was no objection, the trial court had no reason to explain why the questions about Nafeesah's post-notice delay were permitted. Presumably, the trial court viewed the questions as an attempt to lay a foundation based on a refusal to talk to the prosecution. On these facts, there was no clear abuse of the court's discretion. Nafeesah did not give the prosecution a statement until the trial was underway; there is a point when cancellation of an appointment with the prosecutor followed by failure to reschedule is fairly viewed as the functional equivalent of a refusal to speak to the prosecution. Accordingly, we reject this claim of abused discretion.
Defendant Wilson also objects to the prosecutor's reference to Nafeesah's failure to provide alibi information during her summation. The prosecutor's credibility argument on Nafeesah's efforts to convey the alibi information was limited. She asked the jurors to think about whether someone with "important information" about defendants' whereabouts would go back to the police station and try to reschedule appointments right away, and the prosecutor argued that these things were "just something" for the jurors "to consider when [they were] considering the veracity, the believability, the credibility of [the] testimony before you." In light of the testimony supporting these arguments, they were neither improper nor of the sort that had any capacity to deprive the defendants of a fair trial. R. 2:10-2; State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
Finally, defendant Wilson contends that the judge should have directed the jurors to disregard Nafeesah's failure to provide details about defendants' alibi if they determined she made efforts that the police rebuffed. There are good reasons why the defense did not request and the trial court did not give an instruction on that point. First, Nafeesah did not testify that she declined to follow-up in the months that followed defendants' arrest because the police initially rebuffed her. She said she did not know the system and was waiting for someone to call her. Second, contrary to defendants' claim, N.J.R.E. 104(b) does not require such an instruction. That rule requires a special instruction when the relevance of the evidence is conditioned on a fact that the jurors must find. N.J.R.E. 104(b). It does not apply here. As discussed above, under Silva the trial judge, not the jury, determines whether the totality of the circumstances permit the jurors to infer that pre-trial silence is inconsistent with the witness's testimony.
Silva, supra, 131 N.J. at 447. Thus, a witness's reasonable perception that efforts to provide the information will be futile does not preclude this line of questioning, and absence of a perception of futility is not a condition that must be established to permit it. The general jury instruction on inconsistent statements relevant to credibility provides the necessary direction; it directs the jurors to consider all of the circumstances surrounding the omission and bearing on credibility in deciding relevance to credibility, including where, when and why the witness stated or omitted the information and the reasons the witness gave. Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994).*fn1
As noted above, Silva requires one special instruction: Where the State questions an alibi witness about non-disclosure, the jurors must be told that an alibi witness has no obligation to speak to the authorities and told the witness's silence is relevant only on the question of credibility. 131 N.J. at 451. That instruction was given.
Finding no error related to the testimony of the alibi witness, we reject defendants' arguments to the contrary.
Defendants have other claims of trial error that we have considered in light of the arguments and record and found lacking in sufficient merit to warrant more than brief comments in a written opinion. R. 2:11-3(e)(2).
They contend the trial court erred in precluding the defense from cross-examining Mr. McElveen about his identification of the jacket as one worn by one of the intruders who robbed his deli. Defendant Wilson sought leave to challenge this identification as a statement inconsistent with his prior failure to describe the jacket. As noted above, questions on the scope of cross-examination are left to the sound discretion of the trial court and reviewed for abuse of discretion. Silva, supra, 131 N.J. at 448. A claim of inconsistency requires a foundation; because nothing in the record indicates that Mr. McElveen was ever asked to describe or identify clothing worn by the perpetrators other than the black scarf, we cannot conclude the trial court abused its discretion in precluding this line of cross-examination.
Defendants also argue error based on the trial court's decision to bar the defense from admitting evidence about checks written to him by his uncle - specifically his uncle's testimony about the checks and the checks themselves. As noted above, defendant Wilson testified that the cash in his pocket when he was arrested was cash he obtained by cashing checks his uncle wrote to him months before this robbery and identified the checks. The probative value of the uncle's gift as an explanation for the cash stuffed in Wilson's pocket months later was so limited that we cannot conclude that the court abused its discretion in excluding the checks or the uncle's testimony.
N.J.R.E. 403. Considering that Wilson also had merchandise from the deli in his pocket and that the cash register drawer was found in the car, even if the court erred we have no doubt that the verdict would have been the same if the checks and testimony had been admitted. R. 2:10-2; State v. Taffaro, 195 N.J. 442, 454 (2008); State v. Macon, 57 N.J. 325, 336 (1971).
Defendants assert that the trial court erred by declining to grant the jurors' request to review a transcript of Holt's recorded statement. That recording was only eighteen minutes long. Out of concern that the jurors would rely on the transcript rather than the recording, the court had admitted the recording but not the transcript into evidence. Thus, the judge told the jurors they could listen to the recording in the jury room as often as they wished. He further directed, "If you have any difficulty with the audio equipment, the laptop, we can assist you with that."
Although the jurors asked nine questions after receiving that direction, only one of them addressed Holt's statement; they asked for the password needed to access the recording. With the agreement of counsel, the court had a technical expert demonstrate how to play the recording. There were no further questions.
Although Rule 1:2-2 calls for a different approach, the trial court's reasoning about the evidential value of the transcript was correct. See State v. De Bellis, 174 N.J. Super. 195, 199 (App. Div. 1980) (finding no abuse of discretion in giving the jurors the transcript when they were told the transcript was only a guide and the recording was the primary evidence).
Furthermore, given the brevity of the recording and the trial court's direction to bring any problems to its attention, we can presume that the jurors followed the judge's instruction and would have asked for additional guidance if they had difficulty hearing or following the recording. State v. Nelson, 173 N.J. 417, 478 (2002). Accordingly, we reject this claim of error.
We turn to consider the claims raised only by defendant Wilson.
Wilson argues that he is entitled to reversal of his conviction because he did not receive effective assistance of counsel. Specifically, he asserts that but for his attorney's failure to file an appeal on a separate conviction, that appeal would have been pending and the State could not have impeached his testimony with a prior conviction. We decline to consider this issue because its resolution requires consideration of matters outside the record. State v. Preciose, 129 N.J. 451, 460 (1992).
The arguments defendant Wilson offers to support his claim of entitlement to a judgment of acquittal or reversal of his conviction on the ground that the verdict is against the weight of the evidence lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). It suffices to refer to the summary of the evidence introduced by the State and the defense that is set forth above.
In considering defendant Wilson's objections to his sentence - an eighteen-year term of imprisonment for first-degree robbery subject to NERA and a concurrent four-year term for possession of a handgun without a permit, this court has a limited role. We must affirm so long as the trial court has explained the sentence as required by Rule 3:21-4(g) and the case law, State v. Bieniek, 200 N.J. 601, 608 (2010), adhered to the Code's sentencing scheme as construed by our courts, State v. Roth, 95 N.J. 334, 365-66 (1984), and set a sentence that does not shock the judicial conscience and is based on findings of aggravating and mitigating factors and a balancing of those factors that is "'supported by competent credible evidence in the record,'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Because this sentence is a reasonable one that conforms with those standards, we affirm.
Defendant Alexander's only remaining challenge is to his thirty-year sentence for first-degree robbery, which is subject to NERA. As noted above, the discretionary extended term was imposed pursuant to N.J.S.A. 2C:44-3a. In this circumstance, this court's review is for abuse of sentencing discretion, and we may not disturb a sentence if the criteria for the extended term stated in N.J.S.A. 2C:44-3a are established and the record supports the trial court's findings and balancing of any danger to the public and the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1. State v. Pierce, 188 N.J. 155, 169- 70 (2006). We find no deviation that would permit us to disturb this sentence.
Pursuant to N.J.S.A. 2C:44-3a, a discretionary extended term may be imposed if the defendant was over the age of twenty-one at the time of the crime and has two prior convictions for crimes of the first, second or third degree. We have held that the trial court may consider "judgments of conviction entered chronologically after the defendant committed the instant crime." State v. Cook, 330 N.J. Super. 395, 422 (App. Div.), certif. denied, 165 N.J. 486 (2000).
There was no dispute that defendant, who was twenty-seven when these serious crimes were committed in March 2008, was eligible for a discretionary extended term. N.J.S.A. 2C:44-3a. When defendant was sentenced on August 10, 2009, he had more convictions than the statute requires, which is two entered on separate occasions for crimes of the first, second or third degree committed within ten years of commission of the crime. N.J.S.A. 2C:44-3a. Defendant committed this crime on March 29, 2008, and he had convictions for third-degree possession of a controlled dangerous substance committed in 2003, for which he was sentenced in 2004; third-degree aggravated assault and unlawful possession of a handgun committed in 2006, for which defendant was sentenced on April 3, 2009; and third-degree distribution of drugs and unlawful possession of a handgun committed in 2007, for which defendant was sentenced on April 3, 2009.
Under Pierce, once the trial court has determined that defendant is eligible for an extended term, it must select a sentence within a range that starts with the minimum term authorized for an ordinary term and ends with the maximum extended term. 188 N.J. at 169. In doing so, the trial court must consider the need to protect the public and the aggravating and mitigating factors supported by the record. Id. at 170.
On appeal, defendant argues that the trial court impermissibly double counted his criminal record as the justification for the imposition of the extended term and as an aggravating factor. The trial court's findings, however, were more nuanced and contradict the assertion that the court simply double counted the prior convictions. When the court relies on facts beyond those essential to a conviction to find an aggravating factor, there is no impermissible double counting. State v. Carey, 168 N.J. 413, 425-27 (2001). The same analysis is appropriate in considering whether the court has found aggravating factors by double counting convictions essential to an extended term.
In fixing this thirty-year term, the court relied on findings beyond those essential to imposition of this extended term: 1) defendant's crimes demonstrated a pattern of escalating criminality and violence, culminating in this armed robbery, which represented a danger to the public and reflected the need to deter defendant; 2) defendant had more than two prior convictions; and 3) defendant had violated probation on four occasions. The court's finding of a need for deterrence and a risk of recidivism were based on those findings not essential to imposition of an extended term.
We also reject defendant's claim that the trial court erred by not finding a mitigating factor based on his status as a father and by failing to consider the implications of his NERA parole ineligibility term in imposing a thirty-year term. The court did not ignore those facts; both were mentioned before sentence was imposed. Moreover, the record does not support a mitigating factor based on hardship to defendant's children or their mother. The pre-sentencing report indicates that at the time of this crime defendant was single, not living with his children, unemployed, owed $8023.30 in child support on a $66 weekly obligation and resided with his grandmother who provided his room and board.
After considering the record and the arguments presented on appeal, we conclude that the sentence is a reasonable one entitled to our deference. Because the sentence is consistent with the sentencing guidelines and supported by the record, it does not shock the judicial conscience. Cassady, supra, 198 N.J. at 180-81.