Opinion
DOCKET NO. A-3065-12T4
03-31-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BARRY J. CARNEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-12-1108. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Barry J. Carney was convicted of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b). On November 27, 2012, defendant was sentenced to a six-year term of imprisonment subject to the mandatory five years parole ineligibility required by N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.
The indictment also charged defendant with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f), and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1(b). We assume the State dismissed these counts prior to trial; the record is silent on the point. In any event, this appeal relates only to defendant's certain persons not to possess conviction.
I
A.
At approximately 11:47 p.m. on August 25, 2008, Trenton police officers were dispatched to respond to a call regarding gunshots. Thirteen-year veteran Sergeant Jason Woodhead testified at the suppression hearing that the neighborhood in question was "one of the highest crime areas in the city[,]" a characterization with which the second officer who testified, Sheehan Miles, agreed.
Woodhead, who was familiar to community residents as he had worked there for a number of years, was driving a black-and-white police sport utility vehicle that evening. As he approached the location, he stopped by a group of people standing on the sidewalk and asked if they had heard anything. They told him shots were heard in the 200 block of a particular street. Woodhead drove on, and as he arrived at the location, he saw that the street was empty but for a woman standing on a porch. Woodhead stated it was unusual for the street to be empty in the summer at that time of night. The deserted street, he testified, "gave more credence to the call."
Woodhead noticed a man riding a mountain bicycle traveling towards him on the opposite side of the street. The cyclist was African American, dressed in a white t-shirt and jeans. As the man passed the police vehicle and approached the corner, Woodhead heard a woman standing on a nearby porch make a "psst" sound. When he looked at her, she gestured with her left hand towards her stomach area, "mimicking a person holding a handgun." She told him "the guy on the bike, that's who you want." The cyclist appeared to pedal faster as he rode further away from the patrol vehicle.
Woodhead radioed the cyclist's location and direction of travel, and that the individual might be armed. Almost immediately he heard two other officers on the radio responding to his dispatch. When they attempted to stop the cyclist, a foot pursuit ensued. Woodhead drove to the location of the stop, approximately three blocks away. He estimated that the time between his transmission regarding the man on the bicycle and the time of the stop was no longer than one to three minutes. Upon arriving at the location where the suspect was in custody, Woodhead heard more shots. The arresting officers immediately left the area and drove the prisoner, defendant, to the station.
Miles also testified at the suppression hearing. He was partnered that evening with Detective James Udijohn in an unmarked Crown Victoria. He and Udijohn were responding to the dispatch about gunfire on the 200 block, when they heard Woodhead's transmission. Within thirty seconds, they saw a man who matched the description riding a bike, activated their emergency lights, and called out "stop, police, stop." According to Miles, the suspect looked right at them from a distance of two to three feet, started riding even faster, jumped off his bike, and ran.
Miles and Udijohn apprehended the cyclist, defendant, within a minute or two of giving chase. Before his capture, he had made his way through a parking lot while discarding objects from his pockets. After the arrest, Udijohn inspected the area where defendant had been seen running, and Miles cuffed defendant and escorted him back to the police car. Miles searched defendant, "incident to [his] arrest[,]" and found a silver .44 caliber handgun with a black handle, loaded with five hollow point bullets, in defendant's right pocket.
Udijohn only located a baseball cap and defendant's cell phone on the ground. Miles remained with defendant at the car. When additional shots were heard, he and Udijohn immediately drove defendant to the station.
Judge Edward M. Neafsey denied defendant's pretrial motion to suppress. Judge Neafsey found both officers to be highly credible, noting that they "testified in a straightforward, direct[,] and honest manner."
Among other reasons, the judge concluded that the arrest and ensuing search were lawful because defendant disobeyed a police order to halt. Because defendant matched the description that Woodhead had relayed, Miles and Udijohn's initial command that he stop was lawful. Judge Neafsey relied upon State v. Williams, 192 N.J. 1 (2007), and State v. Crawley, 187 N.J. 440 (2006), reiterating the principles enunciated in those cases that a suspect "cannot be the judge of his own case and take matters into his own hands and resist or take flight." Judge Neafsey observed that a defendant's flight not only constitutes obstruction, it also breaks the link in the chain between the initial stop, even if unconstitutional, and any subsequent seizure of contraband. Thus defendant's failure to comply amounted to obstruction and justified the chase, making his arrest reasonable and subsequent warrantless search unobjectionable. See State v. Moore, 181 N.J. 40 (2004). Accordingly, he denied the motion.
Judge Neafsey also determined that under the totality of the circumstances, Woodhead possessed a reasonable suspicion to conduct an investigatory stop of the individual on the bicycle pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The cyclist's conduct and the woman's tip, along with Woodhead's training, experience, and knowledge of the area, provided the officer with a reasonable and particularized suspicion to believe that the individual had engaged in criminal activity. Based on these circumstances, Woodhead's resulting radio transmission to have the suspect pursued was also lawful.
B.
Judge Thomas Sumners, Jr., presided over the trial and sentenced defendant. The State presented Woodhead, Miles, and Udijohn as its witnesses. Miles denied seeing anyone else on a bike that night, pulling out the Crown Victoria's bench seat, looking for contraband in the vehicle after defendant's arrest, and removing defendant's shirt or pulling his pants down during the post-arrest search. Miles said no such search could be safely conducted on the street.
Udijohn explained that he searched the Crown Victoria as a matter of routine protocol at the beginning of the shift at 5:00 p.m. and found no contraband. The interior of the car included a steel and Plexiglas partition separating the front of the vehicle from the rear, making the front inaccessible from the rear because a small sliding window on the partition was kept locked.
Udijohn described watching defendant accelerate away from their vehicle after being told to stop, jump off his bicycle, and run into a parking lot. He found defendant's baseball cap and cell phone while Miles remained with defendant by the car. When Udijohn returned, Miles reported finding the gun while searching defendant. Udijohn also testified that he saw defendant within a minute of Woodhead's transmission and that he did not recall seeing anyone else on the streets. He denied observing Miles doing anything to the vehicle's rear bench seat after their shift began.
Following the officers' testimony, defense counsel requested that the jury be presented with an inference that Woodhead prepared his investigation report on a later date than the one to which he testified. To establish this inference, defendant sought to introduce evidence that the prosecution submitted Woodhead's report more than one year after it provided the initial discovery in the case. Judge Sumners denied this request, finding that there was no indication, beyond the date the report was turned over, to suggest that it was intentionally withheld.
Defendant testified, in addition to presenting two witnesses. His first witness, K.A., who was then nineteen, claimed that he was in the same area that night, fleeing police because he possessed crack cocaine, while riding a bicycle and wearing jeans and a white t-shirt. K.A. said that he had been arrested and was at the station when defendant arrived shortly after him, without shoes, wearing his pants open and hanging below his torso.
Defendant testified that the reason he fled from Miles and Udijohn was because he had an outstanding arrest warrant for unpaid fines. He agreed that the officers stopped him mid-flight, cuffed him, and walked him back to the police car. From that point on, his narrative diverged from that given by the officers. For example, he claimed that there were other officers and police cars at the scene and that the officers were milling about. Defendant also claimed his sister, Bernice L. Carney, walked past the police car after he had been seated inside.
Additionally, defendant said that after being initially placed in the car, he was pulled back out and searched more thoroughly. This search included the officers removing his shoes, checking his socks, loosening his belt, and unbuttoning the top of his pants. While Udijohn was removing defendant's shirt and thoroughly searching him, Miles returned to the car. When Miles came back, he whispered in Udijohn's ear. Defendant alleged that the two officers went back to the car and that Miles pulled out the vehicle's rear bench seat, finding the gun. When the officers returned with the weapon, defendant claimed he told them, in no uncertain terms, that the weapon did not belong to him.
Carney, defendant's sister, testified that when she was informed that her brother had been arrested, she went to the scene and attempted to talk to the officers to tell them that he was not the shooter. Carney also said several officers were searching the ground, and that there were many officers and others at the location. She added that the responsible parties were in a nearby park, and that shots were still being fired.
C.
Judge Sumners instructed the jury on flight, Model Jury Charge (Criminal), "Flight" (2010), over defense counsel's objection. In the instruction, he included the defense theory that defendant fled "because he knew there was an active warrant for his arrest based on an unpaid municipal court fine." He added that defendant asserted that "[h]e did not evade or attempt to evade the police because of the acts alleged in the indictment or any criminal conduct alleged on August 25, 2008." As he explained to the jury, if they found defendant's explanation credible, they "should not draw any inference of [] defendant's consciousness of guilt from [] defendant's departure." The instruction went on to explain to the jury that
[i]f, after consideration of all the evidence, you find that [] defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of a consciousness of guilt.
It is for you, as the judges of fact, to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all of the other evidence in the case.
After being convicted, defendant filed a motion for a new trial premised on three theories: that had Judge Neafsey been aware of K.A.'s similar appearance, clothing, and use of a bicycle as a mode of transportation, the suppression outcome would have been favorable; that the manner in which alternate jurors were selected was not random and did not comply with court rules; and that the trial judge's vacation schedule impacted the jury deliberations.
As to the first argument, defendant contended that if Judge Neafsey had known about K.A.'s arrest on the night in question, while K.A. was similarly dressed and on a bicycle in the same area, he would have suppressed the evidence. As to the second point, trial counsel alleged in his certification in support of the motion that, contrary to practice around the state, the court clerk drew the alternate jurors' names not from a wooden tumbler, but from a small cloth bag. The attorney also certified that the two alternates chosen were the only two African American residents of Trenton on the jury, that one of them made a derogatory comment to the effect that the alternate selection process was not random, and that the clerk had deliberately eliminated two African American residents from the deliberating jury. The deliberating jury did include two other African Americans who were not residents of Trenton.
Lastly, in that same certification, counsel asserted that the jurors were aware of the fact that the judge's vacation started a few days after the trial's end date. Defense counsel asserted that in order to accommodate the judge's schedule, the jurors did not fully deliberate, but simply reached a verdict to end the trial.
The attorney's certification did not indicate how or why the court clerk manipulated the alternate juror selection process so as to eliminate African Americans who lived in Trenton from the jury panel. Nor did defense counsel explain if he overheard one of the alternates comment upon the selection process, or why he was claiming they were suspicious of the process. Nor did the attorney explain how it came to his attention that the deliberating jurors knew about the judge's forthcoming vacation, as it had not been mentioned in court.
In a detailed written decision, Judge Sumners denied the motion. He reasoned that although K.A.'s testimony raised the specter that Woodhead mistakenly identified defendant as the person on the bicycle, confusing him with K.A., it made no difference to the outcome of the motion. Once Miles and Udijohn ordered defendant to stop and he fled, the officers had an independent basis to arrest him because of a potential obstruction charge.
The court noted that counsel's accusation that the alternate juror selection process was rigged was unfounded. The clerk's use of a soft cloth bag, as opposed to a wooden tumbler, was neutral, as the court rules do not require any particular mechanism for drawing names, so long as the process is random. The judge also noted that he never told the jurors about his vacation schedule, and that counsel had no facts supporting the claim.
At sentencing, Judge Sumners found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), & (9). He did not find any mitigating factors. Nonetheless, he imposed a six-year term of imprisonment, declining to sentence defendant to an extended term. He did impose the statutorily mandated five-year term of parole ineligibility.
On appeal, defendant raises the following points for our consideration:
Point 1
The trial court erred in denying defendant's motion to suppress.
Point 2
Other-crimes evidence placed before the jury infringed defendant's right to a fair trial.
Point 3
The prosecution committed a discovery violation; the trial court improperly restricted defendant's cross-examination into the timing of the prosecution's disclosure of discovery materials to the defense.
Point 4
The flight charge was improper and prejudicial.
Point 5
The trial court erred in denying defendant's motions to re-open the suppression hearing because of late disclosed evidence and for a new trial.
Point 6
Defendant's sentence is improper and excessive.
II
A.
When reviewing a motion to suppress, an appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). If, however, the trial court's findings are clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction," then we should "appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964). We are "neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010).
Both the United States and New Jersey Constitutions guarantee an individual's right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search is "presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Wilson, 178 N.J. 7, 12 (2003) (citing State v. Cooke, 163 N.J. 657, 664 (2000)). The State bears the burden of proving that a warrantless search or seizure "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19-20 (2004) (internal quotation marks and citation omitted).
B.
In support of his argument that the suppression motion should have been granted, defendant argues that the trial court erred because the initial stop was not based on a reasonable suspicion of criminal activity, therefore defendant's subsequent arrest based on his flight was unlawful, making the search incident to arrest invalid. Certainly, as Judge Neafsey found, one of the exceptions that makes a warrantless search lawful is an investigatory stop. See Terry, supra, 392 U.S. at 1, 88 S. Ct. at 1868, 20 L. Ed. 2d at 889. Such stops must be based on "specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." Pineiro, supra, 181 N.J. at 20 (internal quotation marks and citation omitted). A reasonable suspicion of criminal activity "must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced." State v. Davis, 104 N.J. 490, 504 (1986). In this case, the State had ample proofs which satisfied that reasonable suspicion standard.
When a tip is furnished by an ordinary citizen, rather than a criminal informant, "New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability." State v. Stovall, 170 N.J. 346, 362 (2002) (citation omitted). This is because there is an assumption that a report by an ordinary citizen "is motivated by factors that are consistent with law enforcement goals." Davis, supra, 104 N.J. at 506; see also Wildoner v. Borough of Ramsey, 162 N.J. 375, 391 (2000) (explaining that "[i]nformation given by the criminal informant is usually given in exchange for some concession, payment[,] or simply out of revenge against the subject") (internal quotation marks and citation omitted).
Additionally, a tip received in person is generally considered more reliable than one received from an anonymous telephone caller because the officer "can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning." State v. Basil, 202 N.J. 570, 586 (2010) (internal quotation marks and citation omitted).
In this case, while Woodhead was responding to a dispatch about shots being fired in a high crime neighborhood, a citizen discreetly and surreptitiously informed him that the man that he had noticed, who avoided looking at his marked police vehicle, had a gun. That Woodhead did not know the woman's name and did not go back to attempt to locate her was reasonable in light of his opinion, based on the woman's demeanor, that she was concerned about her safety. See Basil, supra, 202 N.J. at 587.
Even before Woodhead arrived at the location, he had confirmed the report that shots had been fired in that particular block from citizens that he encountered in the neighborhood. The street's relative emptiness, aside from the woman on the front porch and the man on the bicycle, corroborated the report that gunshots were heard. Given these factors, Judge Neafsey properly found the totality of the circumstances provided Woodhead with a sufficient reasonable and articulable suspicion justifying his radio transmission to have the suspect stopped.
Had defendant fled upon seeing the police officers, in the absence of any instruction, then the investigatory stop would not have been supported. State v. Dangerfield, 171 N.J. 446, 457 (2002); State v. Tucker, 136 N.J. 158, 173 (1994). But flight "in combination with other circumstances . . . may support reasonable and articulable suspicion." Pineiro, supra, 181 N.J. at 26. Our Supreme Court has interpreted the obstruction statute to mean that a citizen must stop upon being commanded to do so by police. Williams, supra, 192 N.J. at 11. A citizen's failure to comply results in an offense which warrants lawful arrest.
The risks that the obstruction doctrine is designed to avoid are great. "[T]he law should deter and give no incentive to suspects who would endanger the police and themselves by not submitting to official authority." Id. at 17 (emphasis in original). Here, unlike in Tucker, defendant was told to stop and ignored the officers' commands. Shots continued to be heard, even after defendant's arrest, adding to the significant danger faced by citizens, the officers, and defendant himself. Had the officers continued to give chase to defendant while shooting was ongoing, they would have placed his life and their own in jeopardy.
Furthermore, defendant's flight broke the chain between Woodhead's original observations and defendant's subsequent arrest and search. In Williams, the defendant responded to police officers' commands to stop by pushing an officer and fleeing. That defendant here did not assault one of the officers is a distinction without a difference. Only two or three minutes elapsed between Woodhead's initial dispatch to stop the individual suspected of having a gun and defendant's encounter with Miles and Udijohn. Defendant's refusal to stop when commanded to do so was an intervening circumstance. Nothing about the police conduct in this fast-breaking and highly dangerous scenario constituted police misconduct. See id. at 15. The officers had, as Judge Neafsey put it, a "good faith basis to order [defendant] to stop." Under these circumstances, any causal connection between Woodhead's initial observation and the subsequent arrest was broken.
Even if Judge Neafsey had been convinced that somehow either the woman on the porch or Woodhead mistook K.A. for defendant, Miles and Udijohn had an independent good faith basis for an investigatory stop. By his flight after they issued their order, defendant gave them a separate and independent basis for arrest.
C.
We next address defendant's argument that the State improperly presented "other-crimes evidence," the dispatch regarding shots being fired in the area, in derogation of his right to a fair trial. Defendant also characterizes Miles's testimony about the officers' unsuccessful attempts to stop defendant as "other-crimes evidence."
Defendant mistakenly asserts that Woodhead testified at trial about the tip he received from the woman on the porch; that is a mischaracterization of the record. Woodhead testified about the tip only during the course of the motion to suppress hearing.
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Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The concern in admitting evidence of other crimes is that "the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992). "[O]ther crimes evidence may be admissible if offered for any nonpropensity purpose, including the need to provide necessary background information about the relationships among the players" involved. State v. Rose, 206 N.J. 141, 180-81 (2011) (internal quotation marks and citations omitted).
Under N.J.R.E. 404(b), the threshold determination "is whether the evidence relates to other crimes, and thus is subject to continued analysis under [the rule], or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy." Id. at 179. An uncharged offense is intrinsic evidence of a charged crime if it: (1) "directly proves the charged offense," or (2) was "performed contemporaneously with" and "facilitate[d] the commission of the charged crime." Id. at 180 (internal quotation marks and citation omitted).
In this case, the testimony that shots were being fired explained the officers' initial presence at the scene. Woodhead testified during the trial that the cyclist avoided any eye contact and appeared to be hurrying away. The context of audible shots, which continued even after defendant was in custody, does not constitute uncharged acts performed contemporaneously with the charged crime. Defendant could not be in two places at one time, so the jury had no reason to believe he was involved in any gunfire.
With regard to defendant's flight, it was not presented to the jury as an uncharged crime. Rather, it was proffered by the State as further indicia of guilt, as set forth in the jury instruction.
Counsel did not object to the admission of either the testimony regarding the shots or defendant's flight. They were not, however, "other crimes evidence" requiring N.J.R.E. 403 consideration before admission. In any event, their admission did not present to the jury evidence which was "clearly capable of producing an unjust result." See R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).
D.
Defendant also contends that the State's failure to provide Woodhead's incident report with the original discovery package, providing it approximately sixteen months later, was a discovery violation which should have been sanctioned and which fatally hampered the defense. Although the argument is not entirely clear, defendant proffers by way of a related harm that the trial court restricted Woodhead's cross-examination by refusing to allow defendant to introduce evidence regarding this delay.
The judge observed that although the additional report was turned over months after the other discovery, it was not submitted on the eve of trial. He further noted that there was no indication that the report was deliberately held back, or prepared at a time other than when Woodhead claimed he wrote it.
Nonetheless, the judge did allow Woodhead to be cross-examined extensively regarding the procedures he follows to prepare and submit investigation reports, as well as the particular report in question. Defendant has not identified any prejudice as a result of the late report or the limited cross-examination. We do not consider the point to merit further discussion in a written opinion. R. 2:11-3(e)(2).
E.
Defendant challenges the flight instruction which included his alternate explanation. He contends there was insufficient evidence supporting the instruction being given at all.
It is clear that "[f]light of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt." State v. Long, 119 N.J. 439, 499 (1990). However, "mere departure from the scene of the crime does not itself constitute flight." State v. Wilson, 57 N.J. 39, 48 (1970). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Ingram, 196 N.J. 23, 46 (2008). Accordingly, an adequate jury instruction on flight would require the jury to find not only a departure, but also "a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." State v. Mann, 132 N.J. 410, 421 (1993).
Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. Long, supra, 119 N.J. at 499. Evidence of flight need not establish that the accused "fle[d] from custody or that he be found hiding" from the authorities. Wilson, supra, 57 N.J. at 49. A flight instruction is appropriate when an inference may be drawn that a defendant's motive for leaving the scene was to avoid apprehension for offenses charged in the indictment. Ibid.
At trial, Miles and Udijohn both testified that while responding to a call about shots being fired, they received Woodhead's radio alert about a potentially armed African American male wearing a white t-shirt and jeans leaving the area on a bicycle. Seeing a man that fit the general description of the suspect, the officers activated the police vehicle's emergency lights and called out "stop, police, stop." The man looked at the officers, jumped off his bicycle, and took off running.
It is plausible, as defendant testified, that he ran from the police officers because there was an outstanding warrant against him. It is equally plausible, however, that defendant fled from the officers because he possessed a handgun. The fact that defendant's testimony supports alternate interpretations of his conduct does not rule out an instruction on flight.
Where a defendant produces evidence from which an alternative explanation for departure may be inferred, a "trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Mann, supra, 132 N.J. at 421. The judge did that in this case. Given the circumstances of the arrest, providing the flight instruction was not an abuse of discretion.
F.
Defendant claims the trial judge erred in denying his application to reconsider denial of the suppression motion based on K.A.'s arrest. For the reasons we have stated, we consider K.A.'s testimony to have been fundamentally irrelevant to the issues Judge Neafsey correctly resolved during the course of the hearing. We consider the point so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
G.
In support of his contention that the denial of his new trial application was error, defendant asserts that the procedure for the selection of alternates was improper because the court clerk used a small cloth bag rather than a "large, rotating cylinder" drum. Although it is true that there is no evidence the numbers were randomized within the bag, it is also true that there is no evidence they were not. It is inconsequential that out of four African American jurors, two were selected to act as alternates. It does not establish some impropriety in the selection process. Nor are there any facts supporting the allegation that one of the alternates was "skeptical" about the selection process.
Under the New Jersey Constitution, a defendant has a right to trial by an impartial jury, which "entails the right to trial by a jury drawn from a representative cross-section of the community." State v. Gilmore, 103 N.J. 508, 524 (1986). This right, however, does "not [] guarantee proportional representation of every diverse group on every jury, [or] mandate disproportional representation by setting aside a spot for every discrete group on every jury." State v. Watkins, 114 N.J. 259, 263 (1989) (quoting Gilmore, supra, 103 N.J. at 525). Defendant is not entitled to a selection process other than the one which occurred.
H.
Defendant claims, without providing any record support other than his trial attorney's certification, which itself recited no facts underpinning the assertion, that the deliberating jurors were aware of the trial judge's impending vacation and that such knowledge affected their deliberations. The trial judge charged that the jury was under no time constraints and should take all the time that they required in order to reach a verdict. Nothing in the record indicates awareness of the judge's schedule or that they rushed their deliberations in any fashion.
I.
Additionally, defendant claims that the trial judge did not adequately explain his findings of aggravating factors or explain why he did not weigh mitigating factors seven and nine, N.J.S.A. 2C:44-1(b)(7) and (9), in calculating the sentence term. Our review of a judge's sentencing decision is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). Under this standard, a criminal sentence must be affirmed unless: (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on "competent credible evidence in the record"; or (3) the application of the guidelines made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). "[A]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (internal quotation marks and citation omitted). Additionally, the trial court need not "explicitly reject each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). However, "where mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005).
A court may impose an extended term if "[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). A persistent offender is a person: who is at least twenty-one years old at the time of the crime; previously convicted on at least two separate occasions of two crimes while at least eighteen years old; and whose latest crime or release from confinement is within ten years of the crime for which he is being sentenced. Ibid.
Where a defendant is sentenced as a persistent offender for a second-degree crime, the sentence term available for imposition ranges from the minimum of the ordinary term, five years, to the maximum of the extended term, twenty years. State v. Pierce, 188 N.J. 155, 169 (2006). After granting the State's application for an extended term and finding aggravating factors three, six, and nine but none in mitigation, the judge sentenced defendant at virtually the lowest end of the sentencing range.
The mitigating factors that defendant now proposes on appeal are entirely lacking support in the record. Mitigating factor seven, for example, is clearly inapplicable as defendant has a prior criminal history.
The sentence imposed on defendant does not shock our judicial conscience. See Roth, supra, 95 N.J. at 364-65.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION