July 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS J. ADAMCEWICZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011 -
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant was convicted by a jury on all counts of a four-count indictment charging him with second-degree aggravated arson, N.J.S.A. 2C:17-1a, third-degree criminal mischief, N.J.S.A. 2C:17-3a(1), third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. Defendant was sentenced to a total of ten years incarceration, with a parole ineligibility period of eight-and-a-half years subject to the No Early Release Act (NERA).
Defendant appeals his conviction and sentence based on numerous trial errors. We affirm.
We summarize the salient facts elicited at the five-day trial, and present additional facts and procedural history in the context of our legal discussion below.
On February 6, 2008, around 5:30 a.m., Jamesburg Police Officer Jason Muller discovered a pickup truck on fire near an abandoned factory on High Street in Helmetta. Officer Muller ran the license plate and determined the truck belonged to Lance Air Conditioning and Heating (Lance AC), a local business, located nearby on Main Street. Arson investigators ultimately determined that the truck had been set on fire with accelerant, specifically, gasoline.
When Officer Muller arrived at Lance AC, he observed a broken lock. He contacted both the business owner Robert Lance and Detective Kevin Wilson of the Jamesburg Police Department. Lance confirmed the locks were cut, tools and copper tubing were missing from the yard, trucks were broken into, and a truck was missing. According to Lance, the missing copper tubes were worth about $400. The truck, which was found burnt and destroyed at an abandoned factory, was valued at $5,492.
That morning, Helmetta Police Officer Howard Messler, Jr. noticed a "white substance" on the streets through town while patrolling the area. The substance created a trail from Lance AC into a condominium development. The trail led to a cul-desac on Meadow Court where a large puddle was created, and then went out of Meadow Court and ultimately led to another puddle near a home on Tanglewood Court where a 1978 black Ford van was parked. Police later concluded the trail of white substance was hydraulic fluid that dripped from a hydraulic line of the burned truck. The truck had been attached to a snow plow, which was found at the Lance business with the line removed. The cul-desac on Meadow Court was a short walk along a path across railroad tracks to Main Street and Lance AC.
Det. Wilson was directed to the home where the black van was parked. He encountered William Marshall, the father of defendant's girlfriend and owner of the home. Det. Wilson determined that Marshall owned the van. At a suppression hearing and at trial, Marshall and Det. Wilson both testified that Marshall was standing outside when the police arrived. Det. Wilson explained that they were investigating the burglary, and the white fluid trail had led to his van. Marshall then volunteered to open the doors of the van. He explained the van was unregistered and used for storage. The keys to the van were kept on a hook in his home, accessible to anyone in the home.
Once the van door was open, Det. Wilson and Marshall observed spools of copper, and plumbing fixtures that Marshall explained did not belong to him. Marshall later signed a consent form permitting a search inside the van. Ultimately, police recovered from the van buckets of copper fittings, tools, bolt cutters, a battery, and a drill with the word "Lance" on the drill battery. Lance identified the items as his company's property.
Det. Wilson testified at the suppression hearing, (but did not repeat at trial), that when Marshall opened the van doors and saw the items inside, he exclaimed, "Holy shit. T.J. [defendant, Thomas J. Adamcewicz] is at it again." Marshall invited Det. Wilson into his home, and to the living room where defendant had been sleeping on a mattress on the floor.
After reading him his Miranda*fn1 warning and obtaining his signature on the waiver form, police asked him whether he was home that night, and defendant answered that he was home sleeping all night. Police told defendant to get dressed. Officer Muller noticed a white substance on the black jeans defendant put on. Police arrested defendant and transported him to headquarters, where they seized the pants.
After receiving a call from Marshall later that day, Det. Wilson returned to the home and obtained written consent to search the house and storage closet or shed; he recovered a pair of boots, a blue t-shirt, and a stained, damp blue sweatshirt from the shed. Police also seized a black sweatshirt with suspected hydraulic fluid on it in plain view on a clothes hamper.
Brandy Brown, Marshall's daughter and sister of defendant's girlfriend, was also at the home in the early morning of February 6, 2008. Brown testified she had been awakened by her infant at around 3:30 a.m., and saw defendant climb over the balcony at 3:45 a.m. Brown gave Det. Wilson some clothes out of defendant's hamper, including a sweatshirt and a shirt she said he was wearing when he returned.
Det. Wilson testified the clothes were sent to the State lab, revealing "traces of accelerant which is gasoline" on the blue t-shirt and sweatshirt found in the shed. Although Det. Wilson testified he believed the substance on the pants was hydraulic fluid, they were never tested for the presence of hydraulic fluid. The pants, however, did test negative for gasoline or accelerants. Likewise, the stained grey t-shirt that Brandy Brown gave to the police and the stained black sweatshirt the officer seized were not tested for hydraulic fluid, but tested negative for gasoline or accelerants. The forensic scientist from the State Police who conducted the test of the clothing testified that in his thirty years experience, he did not recall ever testing for the presence of hydraulic fluid as its presence was not detectible using the tests the lab performed. He opined that it would be possible, after conducting "a little research," to formulate a test for the substance, but no one asked him to do so.
After a two-day hearing, Judge Barbara C. Stolte denied defendant's motion to suppress the items seized from the van and the home, and the pants he wore to the police station. Judge Stolte denied the motion on October 1, 2009, finding there was valid consent for the searches of the van and home, and a proper search incident to a lawful arrest.
Defendant was tried before Judge Joseph Paone and a jury. The State presented the testimony of the following witnesses and experts: Muller, Wilson, Lance, Marshall, Brown, Helmetta Police Officer Howard Messler, Jr., Middlesex County Prosecutor Investigator Todd O'Malley, forensic science expert Thomas Lesniak, arson investigations expert James Mennuti, and fingerprint analysis expert Ronald Rinaldi. The defense did not present any witnesses. The jury convicted defendant of all counts in the indictment.
The State moved for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and asked the court to impose a fifteen-year term on the aggravated arson, consecutive to the sentences for theft and burglary. Defense counsel had argued for a sentence of five years. The court declined to impose an extended term. On April 29, 2010, Judge Paone sentenced defendant to ten years imprisonment on the aggravated arson count, with eight-and-a-half years of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the criminal mischief conviction under count two into the aggravated arson conviction under count one, and imposed sentences of five years imprisonment each for burglary and theft by unlawful taking under counts three and four, to run concurrent with the ten-year sentence for aggravated arson. The sentence was also to run consecutive to a three-year term defendant was serving after he was resentenced following a probation violation.
Defendant appealed. He raises the following points on appeal.
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS INFRINGED BECAUSE THE JURY HEARD DURING THE PROSECUTION'S CASE-IN-CHIEF THAT DEFENDANT "CONFESSED TO ALL HIS FELONIES."
POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.
POINT III THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS DEFENDANT'S ALLEGED STATEMENTS TO POLICE ON MIRANDA AND FIFTH AMENDMENT GROUNDS.
POINT IV HEARSAY INTRODUCED DURING THE PROSECUTION'S CASE-IN-CHIEF DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT PRIOR INCONSISTENT STATEMENTS BEFORE THE JURY.
POINT VI DEFENDANT'S RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM WAS INFRINGED.
POINT VII DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY TRIAL WAS INFRINGED BECAUSE A JUROR MAY
HAVE OBSERVED DEFENDANT ABOUT TO BE HANDCUFFED AT THE END OF A TRIAL DAY.
POINT VIII PROSECUTORIAL MISCONDUCT CAUSED AN UNFAIR TRIAL.
POINT IX DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Defendant argues he was entitled to a mistrial after the jury heard, as part of defendant's custodial interview, an officer's statement to defendant, "You just said you confessed to all your felonies." We disagree.
We first review the circumstances under which the statement was presented to the jury. Near the end of its case, the State proposed to play excerpts of defendant's video-recorded custodial interview.*fn2 In particular, the State sought to include a statement by defendant that, the State argued, reflected defendant's awareness that the police were investigating a crime at Lance AC, before the police mentioned Lance AC. This, the State argued, reflected defendant's consciousness of guilt.*fn3
After the interrogating officer highlighted that defendant was the first to mention Lance AC, defendant denied doing so and asserted that the police had mentioned Lance AC first. The State also sought to admit defendant's statement because he admitted storing copper in Marshall's van, and possessing bolt cutters.
Utilizing a transcript of the recorded interview, the court reviewed the State's proposed redactions of various references to defendant's drug use, and considered defense objections. The court overruled the defense objection to including defendant's statement, "I was never arrested for breaking into Lance or whatever."
The State did not propose to redact Det. Wilson's statement to defendant during the interrogation, "You just said you confessed to all your felonies." Nor did defense counsel expressly seek its deletion. When the video-recorded statement was played to the jury, defense counsel sought a sidebar immediately after the jury heard the statement.*fn4 Counsel asserted, "We are supposed to delete portions about felonies." The judge noted that the sentence had not been crossed out in the transcript provided to the court. The assistant prosecutor conceded, "It should have been[,]" and asserted that both attorneys overlooked the sentence. Defense counsel denied an oversight on his part, but conceded that he did not read every part of the State's proposed deletions apparently distributed that day to the court and counsel, and relied on a version from the previous evening. Defense counsel stated he was inclined to move for a mistrial, but agreed that a curative instruction at that point would only call attention to the statement. The balance of the tape was played and the trial day ended soon thereafter.
At the start of the next day's proceedings, defense counsel moved for a mistrial, arguing a jury would not be able to disregard the statement that defendant had prior felony convictions, and a curative instruction would only highlight the matter. The State argued that the sentence was "cryptic," it was fleeting in the context of a statement of over an hour long, and it was not evidence of defendant's criminal record.
Judge Paone denied the motion, concluding the inclusion of the statement was "inadvertent," "difficult to decipher," "cryptic" under the circumstances, and a "fleeting reference." The judge reasoned that if the jury noticed the statement, "I don't believe that it would lead to an unjust result in this case." The statement was "not the equivalent of evidence of a prior conviction." It was only a "suggestion or an inference" that defendant "may have been involved in what he characterized as a felony." Therefore, the judge gave defense counsel the option of requesting a curative instruction. Defense counsel deferred to the court, insisting that the error was not susceptible to a curative instruction.
When the jury reconvened, the court delivered the following instruction:
Before we start I just want to, we're in the middle of [defense counsel's] cross examination but I want to talk to you about defendant's statement that you heard and saw yesterday. You heard the statement of the defendant and saw it. Now, you are to consider it only for what the defendant said and not for what Detective Wilson said.
What Detective Wilson said under our rules is considered hearsay because it's an out of court statement. The statement is not played while testifying in court to you and it's not admissible. However, what the defendant said is admissible as an exception to our hearsay rule because it is a statement made by the accused. That's our exception. You also remember that Detective Wilson said that he injects information into his questioning in order to elicit responses from a suspect. At one point you may have heard Detective Wilson make reference to prior felonies. You are not to consider in any way that reference made by Detective Wilson. It is not admissible or relevant to your decision.
Several principles guide our review of a trial court's denial of a mistrial. The decision to grant or deny a motion for mistrial is a discretionary decision reviewable under an abuse of discretion standard. State v. Goodman, 415 N.J. Super. 210, 234-35 (App. Div. 2010) (citing State v. Witte, 13 N.J. 598, 611 (1953)), certif. denied, 205 N.J. 78 (2011).
Inadmissible evidence "frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). A mistrial is an "extraordinary remedy that should be used only to prevent a manifest injustice." Goodman, supra, 415 N.J. Super. at 234 (citing Winter, supra, 96 N.J. at 646-47). When an error is not of constitutional dimension, "it shall be disregarded by the appellate court 'unless it is of a nature to have been clearly capable of producing an unjust result.'" Winter, supra, 96 N.J. at 648 (quoting State v. La Porte, 62 N.J. 312, 318-19 (1973)).
The decision whether the admission of inadmissible evidence can be cured by a limiting instruction or whether it requires a mistrial is within the trial judge's discretion because the trial judge "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 646-47. Generally, for an instruction to be effective, "it must be firm, clear and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). It is important for an instruction to be immediate and specific in order to alleviate the potential prejudice of exposing a jury to inadmissible evidence. Id. at 135.
We are also mindful that evidence of a prior conviction is inherently prejudicial. See, e.g., State in the Interest of K.P., 167 N.J. Super. 290, 294 (App. Div. 1979) (reversing conviction on plain error grounds where State elicited prior juvenile adjudication, stating "There is probably little else, if anything, as prejudicial to a defendant, whether an adult or a juvenile charged with delinquency, as proof of prior antisocial activity"), certif. denied, 87 N.J. 394 (1981). Evidence of other crimes and wrongs is generally excluded. N.J.R.E. 404(b). When admitted pursuant to the exceptions under N.J.R.E. 404(b), a court must deliver a clear and appropriate instruction to prevent the misuse of such evidence. State v. Cofield, 127 N.J. 328, 341-42 (1992) ("Because the trial court's instruction did not cure the prejudicial impact of the other-crime evidence the error was clearly capable of producing an unjust result.").
Applying these principles, we discern insufficient grounds to reverse Judge Paone's exercise of discretion in denying the mistrial, and reject defendant's argument that no curative instruction could effectively avoid the prejudice flowing from the statement.
Particularly in the absence of the redacted recording itself, we do not question the judge's conclusion that the statement appeared as a "fleeting reference" in the recording of over an hour. We agree that the statement was cryptic. It did not clearly, and affirmatively set forth the fact that defendant had previously been convicted of any crime.
If the jury did consider Det. Wilson's statement for the truth of the matter asserted, then the jury would have concluded that defendant accepted responsibility for wrongs he actually committed. Yet, defendant refused to take responsibility for the Lance AC burglary and arson. Thus, the jury's hearing of the statement was not clearly capable of producing an unjust result.
To cure any potential harm caused by the statement, the trial judge provided a curative instruction at the beginning of the next day's proceedings. While the instruction was not immediate, as the objectionable statement was played the preceding afternoon, the court did not delay its curative instruction until its final charge. Particularly inasmuch as a curative instruction immediately after the statement may have drawn undue attention to it, providing the instruction the next day was reasonable, to prevent the jury's misuse of the statement.
Overall, the substance of the instruction was firm, clear and effective. See Vallejo, supra, 198 N.J. at 134. The judge told the jurors they may have heard Det. Wilson "make reference to prior felonies" and that those statements were not relevant and inadmissible. Not only did the judge direct them to disregard the statement, he provided them additional reasons to disregard. The judge instructed the jury that the statement was hearsay, and none of Det. Wilson's statements in the recording were admitted for their truth. Also, the judge reminded the jury that Det. Wilson himself admitted that he injected statements in his interview simply to elicit responses from the person he questioned.
Neither Vallejo, supra, nor State v. Farquharson, 321 N.J. Super. 117 (App. Div.), certif. denied, 162 N.J. 129 (1999), cited by defendant, mandates a different result. In Vallejo, during a short trial in which the defendant was charged with kidnapping, robbery and assault against his girlfriend, the jury heard repeated references to prior instances of domestic violence and an adjudication resulting in a restraining order. The Court held that the trial court's vague curative instruction, given at the end of the case, was insufficient to prevent the misuse of repeated references to other crimes and wrongs. 198 N.J. at 136-37. By contrast, the statement in this case was an isolated and fleeting one; the reference to felonies was non-specific and unconnected to the nature of the offense charged; and the court delivered a curative instruction the next day. See Vallejo, supra, 198 N.J. at 136 (noting that a single error is more susceptible to correction than multiple errors).
In Farquharson, supra, we reversed a conviction after a retrial, in which the defendant did not testify, but the State introduced the defendant's testimony from the first trial, including cross-examination using sanitized evidence of his prior convictions as impeachment. We held that since the defendant did not testify at the second trial, the prior convictions could not be used to impeach, and there was no other permitted purpose of the evidence. The court simply did not address the issue presented here, whether the inadvertent, as opposed to deliberate, and fleeting, as opposed to explicit, reference to prior criminal activity was susceptible to a curative instruction.
In sum, the trial judge did not abuse his discretion in denying defendant's motion for a mistrial.
We discern no merit in defendant's challenge to Judge Stolte's order denying his motion to suppress the items seized from the search of the van, home and shed, and the pants that defendant wore to the police station. We affirm substantially for the reasons stated in Judge Stolte's cogent oral decision.
Judge Stolte's findings that Marshall voluntarily and knowingly consented to the search of his van, home, and shed were amply supported by sufficient credible evidence in the record. See State v. Elders, 192 N.J. 224, 245 (2007) (appellate court defers to trial court's factual findings on motion to suppress); State v. Sugar, 108 N.J. 151, 156 (1987) (consent to search must be "unequivocal, voluntary, knowing and intelligent"); State v. Johnson, 68 N.J. 349, 354 (1975) (requiring proof that a defendant knew he had the right to refuse consent to search, in order to establish that consent was voluntary).
As for the stained pants, we agree with Judge Stolte that police were entitled to seize them because defendant wore them in plain view of the police upon defendant's arrest. See State v. Eckel, 185 N.J. 523 (2006) (search incident to arrest justified in part by need to preserve evidence); State v. Johnson, 171 N.J. 192, 206-07 (2002) (police may seize items in plain view if they are lawfully in the viewing area, discover the items inadvertently, and it is immediately apparent the items viewed are evidence of criminal activity). Also, Brown's decision to turn over defendant's clothing was not the product of a search at all. See State v. Humanik, 199 N.J. Super. 283, 304-05 (App. Div.) (denying suppression where defendant's sister, in response to police inquiry as to defendant's whereabouts, voluntarily turns over incriminating letter), certif. denied, 101 N.J. 266 (1985), rev'd on other grounds sub. nom. Humanik v. Beyer, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989).
We briefly address defendant's argument that Marshall's consent to search the van was ineffective because it was executed after Marshall opened the van doors and exposed the stolen items. According to Det. Wilson, Marshall had opened the doors as he approached the van. According to Marshall, the police were already standing near his van. He testified, "I asked them what was going on. They said they had a break-in last night and the trail of the fluid led to the van. I said, 'Let's open it up and look and see what's in there.'"
Since Marshall voluntarily opened the van before police requested the opportunity to enter, the issue of consent did not arise. "Before there can be a question of consent, there must be an express or implied request to see or enter." State v. McGivern, 167 N.J. Super. 86, 90 (App. Div. 1979). In McGivern, supra, a trooper asked the defendant if luggage were in a car, without asking defendant to open the vehicle for a search. Instead of answering the trooper's question, the defendant voluntarily opened the trunk of the car. Our comments in McGivern apply with equal force here:
The issue of a knowing consent, or for that matter any consent, is not involved in the case at bar. If a person chooses to disclose contraband or evidence thereof as to which he ordinarily would be protected by virtue of his constitutional rights, without that course being initiated by the police, he does so at his peril. Here defendant failed to respond to the trooper's question as to whether he had luggage in the vehicle. Instead, he, for some reason known only to himself, chose to open the trunk. Once that occurred, the trooper was free to act on the basis of what his senses revealed. Cf. State v. Mason, 164 N.J. Super. 1 (App. Div. 1979).
To hold otherwise would give license to persons to rush to display evidence of crime and thereafter prevent the use thereof for the purposes of prosecution. [Id. at 89-90.]
Under the circumstances, the initial view of the van's interior was authorized by Marshall's voluntary decision to open. As noted, the subsequent entry and search proceeded pursuant to Marshall's valid written consent.
We briefly address defendant's remaining arguments that are worthy of comment.
We are unpersuaded by defendant's argument that the court erred in admitting defendant's statement to police when he was arrested at the Marshall home. Judge Paone credited police officers' testimony that they gave defendant his Miranda rights orally, and defendant signed a waiver form (which was not included in the record before us). Judge Paone also noted that in his subsequent recorded statement at headquarters, defendant acknowledged that he had previously been given his Miranda warnings. The court found beyond a reasonable doubt that defendant waived his rights knowingly, intelligently, and voluntarily. Based on the court's ruling, the judge allowed the State to introduce defendant's statement that he had been sleeping all night, which was contrary to Brown's statement that he returned to the house at 3:45 a.m. by climbing over the balcony. We defer to Judge Paone's fact findings and affirm his decision substantially for the reasons set forth in his clearly stated oral decision. See State v. Yohnnson, 204 N.J. 43, 62 (2010) (in Miranda hearing, appellate court shall defer to trial court's fact findings supported by sufficient credible evidence).
We also reject defendant's argument that the court erred in permitting the State to read portions of Marshall's prior statement to police. Although defendant argues it was erroneously admitted as a prior inconsistent statement, N.J.R.E. 803(a), the court expressly held it was admissible as a past recollection recorded, N.J.R.E. 803(c)(5). The court nonetheless held a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), and found the statements reliable after applying the Gross factors to fact-findings adequately supported by the record. See Id. at 17 (stating a court should conduct a hearing outside the jury to determine the reliability of a prior inconsistent statement); N.J.R.E. 803(a)(1) (providing for admitting into evidence prior inconsistent statements made "in circumstances establishing its reliability"). We defer to Judge Paone's evidentiary ruling. State v. Morton, 155 N.J. 383, 453 (1998).
We are also unpersuaded by defendant's argument that the trial court did not take the necessary steps to ensure the jury did not learn defendant was incarcerated and in restraints when escorted in and out of the courtroom. At the end of a trial day, after the jury had been dismissed, juror nine asked to speak to Judge Paone about a scheduling issue. Although a sheriff's officer was positioned by defendant, prepared to place him in handcuffs, the officer had not done so. Defense counsel himself conceded that he did not believe the juror saw the handcuffs. The next morning, the trial judge questioned the juror, and the juror said he did not notice anything unusual or that raised a concern during his conversation with the judge.
Judge Paone took appropriate measures to assure that the juror did not observe the sheriff preparing to place restraints on defendant. In State v. R.D., 169 N.J. 551, 557-58 (2001), the Court held that when the court is alerted "that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." The court should do so by interrogating the juror in counsel's presence, "to determine if there is a taint[.]" Id. at 558. Judge Paone did just that and we discern no basis to upset his determination that the juror did not observe the restraints and no further curative measures were necessary.
We also discern no error in the court's decision to bar the defense from impeaching Marshall with evidence of his thirty-two-year-old conviction. The court found the conviction too remote. See N.J.R.E. 609 (stating that a witness' criminal conviction may be admitted to affect credibility "unless excluded by the judge as remote or for other causes"). Particularly inasmuch as Marshall's conviction did not involve dishonesty or fraud, we find no abuse of discretion. State v. Leonard, 410 N.J. Super. 182, 187 (App. Div. 2009) (no abuse of discretion barring use of prosecution witness's fifteen-year-old conviction of third-degree aggravated assault), certif. denied, 201 N.J. 157 (2010); State v. Minter, 222 N.J. Super. 521, 526-27 (App. Div. 1988) (no abuse of discretion barring use of prosecution witness's twenty-year-old convictions for atrocious assault and battery and carrying a concealed weapon), rev'd on other grounds, 116 N.J. 269 (1989).
Defendant's remaining arguments regarding trial error do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
The court found aggravating factors three (defendant's risk of re-offending), six (defendant's criminal record), nine (the need to deter), eleven (the inadequacy of a fine), and thirteen (the use or possession of a stolen motor vehicle), N.J.S.A. 2C:44-1a(3), (6), (9), (11), and (13), substantially outweighed mitigating factors, N.J.S.A. 2C:44-1b, none of which he found present. In finding that defendant posed a risk of re-offending, N.J.S.A. 2C:44-1a(3), the court referred to defendant's extensive criminal record including seventeen arrests and three prior adult convictions for theft, his failure to comply with probation, his untreated drug abuse, and the serious nature of his latest offense. In finding that defendant used a stolen vehicle, the court found, "Although Mr. Adamcewicz wasn't charged with the stolen motor vehicle, clearly he had stolen the motor vehicle, in which this crime occurred."
We address defendant's argument that his sentence was excessive; the court inadequately explained the basis for its findings of aggravating factors; and erroneously applied aggravating factors eleven, pertaining to the inadequacy of a fine, penalty or restitution order, and thirteen, pertaining to the use of a stolen motor vehicle in committing the offense. N.J.S.A. 2C:44-1a(11) and (13).
We disagree, except with respect to the trial court's application of aggravating factor eleven, which applies only if the sentencing court is balancing a non-custodial term against a state prison sentence. State v. Dalziel, 182 N.J. 494, 502-03 (2005). Defendant faced a presumptive prison term for his second-degree conviction, and he did not seek to overcome that presumption under N.J.S.A. 2C:44-1f(2); defense counsel argued at sentencing for a five-year term. Even so, we do not disturb the sentence on that ground. Although the court mistakenly applied factor eleven, it is clear to us the sentence would have remained the same without that factor. Cf. Dalziel, supra, 182 N.J. at 506 (remand necessary where "it is unclear how this case would have turned out if the trial judge had applied the proper standards"). Defendant's recidivism and failure to take advantage of drug treatment loomed largest in the court's finding that the aggravating factors substantially outweighed the non-existent mitigating factors.
The court amply supported its findings of aggravating factors. There was sufficient evidence in the record to justify reliance on factor thirteen, N.J.S.A. 2C:44-1a(13), use or possession of a stolen motor vehicle, inasmuch as the jury convicted defendant of arson involving the Lance AC pickup truck, which was removed from the Lance AC property. See State v. Bieniek, 200 N.J. 601, 608 (2010) (appellate court determines whether competent credible evidence supports findings of aggravating and mitigating factors).
Particularly in light of the court's discretionary decision to deny an extended term and to impose a sentence within the normal second-degree range, defendant's ten-year term was justified, and does not represent an abuse of the judge's sentencing discretion, nor does it shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).