August 6, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GIANCARLO BONILLA, A/K/A ELEX BLANKS, GIANCARIO BONILLA, JAJAINCAR L. BONILLA, JOSE MENDEZ, CARLOS ORTIZ, and JOSE SOLER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0102.
Susan Remis Silver, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).
Before Judges Graves, Ashrafi, and Espinosa.
In a four-count indictment, defendant Giancarlo Bonilla was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count four). Following a jury trial, defendant was acquitted of count four but convicted of the remaining counts.
At sentencing on March 25, 2011, the court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging counts one and two into count three, the court sentenced defendant to life imprisonment, with thirty years of parole ineligibility pursuant to N.J.S.A. 2C:11-3(b)(1), and an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant presents the following arguments on appeal:
THE TRIAL COURT DEPRIVED THE DEFENDANT OF HIS CONFRONTATION RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS WHEN THE TRIAL JUDGE REFUSED TO ALLOW THE DEFENDANT TO IMPEACH STATE WITNESSES WITH EVIDENCE SHOWING THEIR BIAS AND MOTIVE TO LIE.
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS WHEN IT INSTRUCTED THE JURY THAT IT COULD IMPEACH THE DEFENDANT'S CREDIBILITY BY CONSIDERING HIS PRETRIAL SILENCE TO LAW ENFORCEMENT AUTHORITIES.
THE TRIAL JUDGE IMPROPERLY INFLUENCED THE JURY AND DENIED DEFENDANT A FAIR TRIAL WHEN THE JUDGE CROSS-EXAMINED THE DEFENDANT AND QUESTIONED HIS CREDIBILITY BEFORE THE JURY.
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR CONSPIRACY AND ROBBERY, THE PREDICATE OFFENSES FOR HIS FELONY MURDER CONVICTION, AND THE DEFENDANT SHOULD HAVE BEEN ACQUITTED ON ALL COUNTS. (NOT RAISED BELOW).
DEFENDANT'S LIFE SENTENCE IS EXCESSIVE AND BASED ON AN OFFENSE FOR WHICH THE JURY ACQUITTED DEFENDANT, AND THE SENTENCE IS CONFUSING AND POTENTIALLY ILLEGAL. (NOT RAISED BELOW).
We have considered these arguments in light of the record and the applicable law and affirm.
The facts are relatively straightforward. On May 17, 2009, the day of the incident, defendant was an inmate at Delaney Hall, a housing facility associated with the Essex County jail. The victim, Derek West, Vincent Caputo, and Ibin Goodman and Luis Gonzalez, two co-defendants who are not parties to this appeal, were also inmates at Delaney Hall.
The rooms in Delaney Hall are organized like a dormitory, with several bunk beds in each room. At trial, Caputo testified he overheard Goodman speaking with Gonzalez about robbing West. On cross-examination, Caputo testified, "I didn't know Bonilla was involved. I mean I didn't see him. I didn't see anybody go in the room, so I don't know who did what."
Gonzalez testified as a State's witness pursuant to a plea agreement, in which the State agreed to recommend that he "serve no more than eight years in custody" for conspiracy, robbery, and felony murder. Gonzalez confirmed the plan to rob West for "some cigarettes and some money":
[It] was me, [Goodman], [defendant], we was in Delaney Hall. Me and [defendant] was in the same room. I believe [Goodman] came in the room and he said he had a . . . scheme for some cigarettes and some money. I said, "All right, come on, let's go."
Me, [Goodman], and [defendant] went into the [room] . . . . [Goodman] went and talked to [West]. . . . He came up with some change and the dude tried to run. I booty bumped him so he wouldn't get out the door. That's when [defendant], he started choking him. [Defendant] started choking him and said, "Check, start searching." We start searching. We wind up falling on the floor with the dude while he was choking him and once he finished choking him, we all ran out. Gonzalez denied the three men planned to murder West:
[Q.] Mr. Gonzalez, do you admit freely that you agreed with Mr. Goodman and Mr. Bonilla to rob Derek West of whatever money he had that day?
[A.] Yes, sir.
[Q.] That was your plan?
[Q.] Was it your plan that he should be choked to death?
[A.] No, sir.
[Q.] Who choked Derek West to death?
On cross-examination, defense counsel asked Gonzalez if he was "a gang member, " and the State objected. At side bar, defense counsel argued that Goodman and Gonzalez named defendant as the primary attacker because they were "in a gang together" and defendant was "not in the gang." However, the court sustained the objection, reasoning as follows:
[Defense counsel] seeks to elicit from Mr. Gonzalez the fact that he is a gang member. . . . It has nothing to do whatsoever with this alleged murder.
[Counsel] advised the court that he seeks to establish the fact that Gonzalez and Goodman were gang members and Mr. Bonilla was not a gang member and therefore [counsel] says the jury can draw inferences that . . . they are lying about Mr. Bonilla because he wasn't a gang member.
There is not a scintilla of evidence in this record to establish that proposition. In order to draw an inference [there] has to be [a] fundamental rudimentary fact. . . .
There's no such fact in this record to draw an inference that in fact gang membership was the motive for Mr. Gonzalez or Mr. Goodman lying.
Indeed, if there is any relevancy at all, the court concludes that it would be excludable under [N.J.R.E.] 403 . . . .
In this particular case there is clear undue prejudice and also I submit to you confusion of the issues . . . the objection registered by the State is sustained.
Ronald Davis, another inmate at Delaney Hall, testified that on May 17, 2009, he lived in the same room as West. At approximately 10:00 p.m., three men, whom he identified as defendant, Goodman, and Gonzalez, entered the room and demanded money from West. Davis testified that defendant held West by the neck in a choke hold, as Goodman was punching him. Davis said that when West tried to break loose, defendant "choked him harder." During the struggle, West and defendant fell to the floor. Davis also testified that while the two men were struggling, West "reached back grabbing . . . trying to get [defendant] to let him go, " and West was scratching defendant's "arm, his face . . . anything to get [defendant] off him."
According to Davis, the attack lasted seven or eight minutes until the men "ran out [of] the room." On cross-examination, Davis acknowledged the lights were off but maintained the room was illuminated by the hallway light. Davis testified there were "about nine of us in the room" who "just watched." When the attackers left, Davis got out of bed and located a Delaney Hall counselor to help West. Davis testified he saw defendant later that evening and noticed "scratches on his face."
Philip Annese was also West's roommate, and he provided the following testimony:
[Q.] What is it that you saw?
[A.] I saw Derek West being choked and I heard him screaming. That was it. I remember seeing the other two guys, they were standing right by him, I guess kicking him. The other guy was around him.
[Q.] Did you see the person who was choking him?
[Q.] Is the person who was choking Derek West in court today?
[Q.] Where is he?
[A.] Right there.
[The Court:] Identifying Mr. Bonilla.
Annese also testified he saw scratches on defendant's face after the attack.
West was pronounced dead at 1:53 a.m. on May 18, 2009. Detective Thomas Kelly of the Essex County Prosecutor's Office arrived at Delaney Hall at around 2:00 a.m. to investigate. Kelly testified that West's room "had been disturbed" and there were "blood stains on the floor." Kelly further noted that Delaney Hall has security cameras, but they were not working at the time. Kelly observed defendant and noticed several "fresh" scratches on defendant's "face, cheek, eye, [and] ear area." Kelly testified that the Prosecutor's Office collected samples from underneath West's fingernails and also collected a buccal swab of defendant's DNA.
The court permitted Melissa Johns, a forensic scientist, to testify as an expert in the field of DNA testing analysis. Johns performed DNA testing of the samples taken from West and defendant's buccal swab. Based on her analysis, Johns determined there was a second person's DNA on West's right-hand fingernail clipping, and it was at least "40.2 trillion times more likely" that the DNA collected from West's fingernails came from defendant rather than any other "randomly selected individual."
Dr. Lyla Perez, the supervisor of the doctor who performed the autopsy of West, testified regarding the autopsy. The autopsy revealed that West had hemorrhaging to his face consistent with strangulation. Dr. Perez also testified the cause of death was "manual strangulation and blunt force injury to the chest." At the close of the State's case-in-chief, the court noted there was a "significant quality and quantity of evidence which would indicate that the State has sustained its burden of proof at this stage with respect to all four counts."
Defendant was the only witness to testify on his behalf. He acknowledged multiple convictions for controlled dangerous substance offenses. Defendant testified that, while he was in West's room on the night of May 17, 2009, he was also a victim of an attack. According to defendant, "about four [or] five dudes" ran into the room with "their faces wrapped up." Defendant testified the men were asking, "Who got it? Where it at?" and attempting to search him and West:
First [West] start[s] to resist, you know, he start[s] to resist. He start[s] kicking up, by that I mean he started like trying to push hands away, smack hands to stop them from going in his pockets. He's calling for the counselors. At the same time I am trying to get away. They start grabbing me trying to hold me down. I am a big guy so, you know, three more guys they had to get really physical with me so when it started getting physical with me and them, then all hell broke loose.
We were trying to swing for the fences, all of a sudden I got tired, I am all winded real fast, within a minute I am all winded. My arms getting tired and they grabbing, punching, kicking. I am on the floor. I don't know if [West is] on the floor, all this is happening so fast, stomped on, kicked on, you know, but we all screaming for the counselors. We don't hear no counselor, we calling for help.
Defendant testified the attack lasted "five minutes tops" before everyone fled the room. Defendant said he went directly to his room to clean himself after the incident was over. According to defendant, a counselor noticed he was bleeding and took him to the office of a Delaney Hall Supervisor. Goodman and Gonzalez were also in the office.
Defendant testified he spoke with Warren Bethea, a Delaney Hall supervisor, while he was in the office. According to defendant, he did not remember if he told Bethea anything about the accident, and he was "afraid to open his mouth" because Goodman and Gonzalez were in the room. Defendant was later interviewed by Kelly, and testified he did "not make a statement" and told Kelly if he looked "at the video [he would] really see what happened."
Prior to cross-examination, the court addressed whether the State could impeach defendant using his pretrial silence. The State argued defendant had "opened the door to being cross-examined on his failure to disclose" any exculpatory information prior to trial. Over defense counsel's objection, the court ruled as follows:
The point is he can't hide under his Fifth Amendment right to remain silent. The fact is that he alleged he was . . . accosted by five individuals, hit and beat and so forth and immediately after, before the investigation was commenced or even concluded, he never raised that to anybody whatsoever. None of the Delaney Hall personnel, nobody whatsoever and indicating, for example, "Five people attacked me. This is what happened and so forth and so on." His subsequent arrest occurred some time after and there's nothing in the record to suggest to me or even indicate clearly when that happened but certainly . . . he had ample time at that point to bring that to the attention of the authorities which would be exculpatory in nature and would be a natural thing for somebody to do under those facts.
On cross-examination, defendant testified that when Bethea asked him what happened to his face, defendant said he "didn't give [Bethea] an answer." The Prosecutor then questioned defendant as follows:
[Q.] So did you feel any reason to tell [Delaney Hall personnel] at that time when [Goodman and Gonzalez] weren't around terrifying you that you were actually a victim and had been beaten up?
[A.] To be honest with you the detective came up to me to interview me, he came to me, "help yourself, " Mr. Thomas Kelly [said, ] "Help yourself. You don't know what . . . we have on you . . . ."
[Q.] Okay. Now the truth is what you told us today, correct?
[A.] Yes, sir.
[Q.] But you didn't tell that to Detective Kelly then?
[A.] No, Sir.
On redirect, defendant testified he would not give Kelly a statement "without an attorney present":
[Q:] Did you ask Officer Kelly for a lawyer?
[A:] When Detective Kelly offered me protection and all these things I was a little skeptical about it and I did ask him to let me have a lawyer present. I will do what you want me to do, but let me have an attorney present and from that point on he said no.
Following defendant's testimony, the court provided the jury with the following limiting instruction:
Ladies and gentlemen, I want to give you an instruction. The State . . . has cross-examined Mr. Bonilla regarding his testimony as elicited on direct examination . . . . [The State] has . . . raised the fact that Mr. Bonilla failed to offer his version of the offense, meaning an exculpatory account at any time prior to today.
Mr. Bonilla's prior silence can only be used by you, the jury, as bearing upon Mr. Bonilla's credibility and must be assessed in light of all the facts and surrounding circumstances. Thank you.
The court then asked defendant several questions:
[Q.] The people that attacked you all had gloves on?
[A.] All of them didn't have gloves on, only the ones that was attacking me.
[Q.] All of the people that attacked you had gloves on?
[Q.] You never had any contact with Mr. West yourself? Never had any physical contact; Is that right?
[A.] I don't remember.
[Q.] You don't remember?
[A.] I don't remember because we were standing next to each other and we're fighting, swinging, so I don't know. It could be a possibility, you know, we were right there fighting next to each other, I probably rubbed him, pushed him or whatever while we are going at it. We're next to each other, you know, he's handling his business and I am trying to handle mine and we are not like talking to each other.
[Q.] Did you ever have any physical confrontation with him? That's my question.
[A.] No, no physical confrontation.
[Q.] Your testimony is he was a victim, correct? Like you were?
[Q.] You were separate and apart from him; correct?
[Q.] The people that were attacking you had gloves on; is that correct?
[A.] Not all of them.
[Q.] The ones attacking you?
[A.] Me, yes.
[A.] You just told me before that the people that were attacking you all had gloves on?
[A.] Yes, yes, had gloves.
[Q.] You were present when Dr. Perez and Ms. Johns testified in this case?
[THE COURT:] Any further questions?
[ASSISTANT PROSECUTOR:] Nothing else.
[DEFENSE COUNSEL:] No.
The State then called Bethea as a rebuttal witness. Bethea testified that after the incident he noticed scratches on defendant's face and Bethea asked him, "What happened to [your] face?" According to Bethea, defendant said he got the scratches from "playing basketball earlier that day."
In addition, Kelly testified in rebuttal that he never offered to "do anything at all for [defendant]" and defendant never said he would be willing to make a statement "if he had a lawyer." When questioned by defense counsel, Kelly said that after defendant was advised of his Miranda rights, "he remained silent, [and then] asked to return to his cell."
At the close of defendant's case, defense counsel made a motion for a mistrial based on "the court's inappropriate questioning" of defendant. The court found that its questions were not improper, but agreed that it should not have asked defendant if he was "present when Dr. Perez and Ms. Johns testified." The court found there was "no manifest injustice" and denied defendant's motion for a mistrial, but it instructed the jury as follows:
Before we begin summations, I want to make a couple of comments to you.
The court at the conclusion of the testimony of Mr. Bonilla posed limited questions to the defendant, Mr. Bonilla. The purpose of which was to aid you in your understanding of the evidence and to clarify the evidence.
Remember, ladies and gentlemen, credibility determinations are solely a jury function. However, at the end of that questioning the court also stated the following:
"[THE COURT]: You were present when Dr. Perez and Ms. Johns testified in this case?
That comment by me was totally inappropriate . . . and I am striking it from the record.
I shouldn't have made that statement. It's something that was not called for. It was a mistake on my part and I am going to strike it from the record.
Having said that I am going to give you the following instruction: I direct that you not use this stricken testimony in your deliberations.
By striking the question and the answer and directing that you disregard it and not use this information I am not asking you to forget it. That's beyond human mental gymnastics to do it. I am not asking you to forget it. I am asking that [you] remember what was stricken and understand that if during your deliberations you realize that the information is necessary to your decision you may not use it.
In addition, during the general jury charge, the court instructed the jury as follows:
As I indicated to you earlier, the court posed limited question[s] to the defendant Mr. Bonilla, the purpose of which was to aid you in your understanding of the evidence and to clarify that evidence.
Remember the credibility determination is solely a jury function.
The fact that I may have asked questions of a witness in the case must not influence you in any way in your deliberations. The fact that I asked such questions does not indicate that I hold any opinion one-way or the other as to the testimony given by that witness.
In his first point, defendant primarily argues the court erred by not allowing defense counsel to impeach Gonzalez "by demonstrating that his gang membership gave him a bias and motivated him to lie." We do not agree.
A trial court's evidentiary rulings "should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). We will not substitute our judgment for that of the trial court, "unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Brown, supra, 170 N.J. at 147 (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). Testimony regarding gang membership is treated as other crimes evidence. See State v. Goodman, 415 N.J.Super. 210, 227 (App. Div. 2010) ("Although evidence of membership in a street gang is not . . . evidence of actual criminal activity, it is at the very least strongly suggestive of such activity."), certif. denied, 205 N.J. 78 (2011).
In this case, the trial court determined there was no evidence that West's murder was gang-related. Therefore, it was improper for defense counsel to suggest that Gonzalez "is a bad fellow because he's involved in a gang" and that "his motive for lying is because Bonilla wasn't in the gang." The court also found that any possible relevancy was outweighed by the risk of undue prejudice under N.J.R.E. 403. We are satisfied the trial court properly exercised its discretion, and there is no reason to disturb its ruling.
Defendant next argues the trial court violated his Fifth Amendment right against self-incrimination when it allowed the State to impeach his credibility with his pretrial silence. The New Jersey Constitution does not specifically grant the privilege against self-incrimination contained in the Fifth Amendment. U.S. Const. amend. V. However, the Court has stated "a suspect is under no duty to give a statement; on the contrary he is privileged to say nothing." State v. Ripa, 45 N.J. 199, 204 (1965) (citing Escobedo v. Illinois, 378 U.S. 478, 485, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977, 983 (1964)). The privilege is codified in N.J.S.A. 2A:84A-19 and N.J.R.E. 503:
Subject to waiver in certain circumstances, and with four exceptions that are irrelevant here, N.J.S.A. 2A:84A-19 and N.J.R.E. 503 provide that "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his esate."
[State v. Stas, 212 N.J. 37, 50-51 (2012).]
"[E]ven silence that precedes the administration of Miranda warnings—if it is 'at or near' the time of a defendant's arrest— cannot be used for any purpose at trial." Id. at 57-58 (citing State v. Elkwisni, 190 N.J. 169, 181 (2007); State v. Muhammad, 182 N.J. 551, 567-68 (2005); State v. Deatore, 70 N.J. 100, 108-09 (1976)).
Pre-arrest silence is treated differently than post-arrest silence:
[W]hen there is no governmental compulsion associated with defendant's pre-arrest conduct or silence, when the defendant testifies at trial, and when the objective circumstances demonstrate that a reasonable person in defendant's position would have acted differently, the State may attempt to impeach defendant on that pre-arrest conduct or silence. Further, when the circumstances warrant the admission of such evidence, the trial court should instruct the jury that the evidence of defendant's pre-arrest conduct or silence is admitted for the limited purpose of impeaching defendant's credibility and that it cannot be used as evidence of defendant's guilt.
[State v. Brown, 190 N.J. 144, 158-59 (2007).]
"[T]here is no legal constraint one way or the other—either to speak or not to speak—prior to an arrest. Consequently, evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination." State v. Brown, 118 N.J. 595, 613 (1990). Pre-arrest silence is admissible to impeach a defendant's credibility "(1) 'if that silence significantly preceded his arrest and did not arise in a custodial or interrogation setting, ' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." State v. Taffaro, 195 N.J. 442, 455 (2008) (quoting Muhammad, supra, 182 N.J. at 571-72).
Here, defendant spoke with Bethea following the attack and, when asked about the scratches on his face, defendant did not present his account of the attack; instead, he told Bethea his injuries were from a basketball game. Moreover, after the attack, defendant fled the scene and went straight to his room to clean blood from his hands and body. We agree with the trial court's determination that defendant's pre-arrest failure to disclose his exculpatory version of the events to Bethea was admissible to affect his credibility. In addition, Kelly's testimony regarding defendant's silence was also admissible, because it was offered to rebut defendant's testimony during his direct examination that he would have given a statement to Kelly if an attorney was present. Under these circumstances, any possible error was harmless beyond a reasonable doubt given the overwhelming evidence of defendant's guilt. State v. Macon, 57 N.J. 325, 338 (1971).
In his third point, defendant argues the trial judge improperly influenced the jury "when the judge cross-examined the defendant and questioned his credibility before the jury." "N.J.R.E. 614 specifically authorizes judges to question witnesses 'in accordance with law and subject to the right of a party to make timely objection.'" Taffaro, supra, 195 N.J. at 450. However, "[t]here is a point at which the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice." Vill. of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958).
The decision to grant a mistrial is discretionary, State v. Winter, 96 N.J. 640, 647 (1984), and will not be disturbed absent a clear abuse. "A mistrial motion is granted only when the trial court finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J.Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). When the error is curable by a cautionary jury instruction, it is not an abuse of discretion for the trial judge to choose that course of action. Winter, supra, 96 N.J. at 646-48. In view of the trial court's curative instructions, we are satisfied its questions could not have affected the outcome of the case. See State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions.").
In his fourth point, defendant argues "the record contains insufficient evidence to support a conviction for conspiracy and robbery, the predicate offenses for his felony murder conviction, and the defendant should have been acquitted on all counts." This argument is without merit. R. 2:11-3(e)(2). The testimony of Caputo, Gonzalez, Davis, and Annese, together with the scratches on defendant's face which were observed by Davis, Bethea, and Kelly, and the DNA evidence, provided proof of defendant's guilt beyond a reasonable doubt.
Defendant also challenges his sentence. "An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996).
In this case, there is sufficient credible evidence to support the trial court's findings regarding the aggravating factors and the absence of mitigating factors; the court correctly applied the sentencing guidelines enunciated in the Criminal Code; and the court reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.