Opinion
DOCKET NO. A-3943-11T3
08-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. JAMES BAKER, Defendant-Appellant.
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, on the brief). Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-00087. Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, on the brief). Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, on the brief). PER CURIAM
Defendant James Baker appeals his conviction and sentence for second-degree eluding of a law enforcement officer, N.J.S.A. 2C:29-2(b), based on his fleeing police in his vehicle after being commanded to stop. In the ensuing chase, defendant drove recklessly until he could go no further. At that point, officers removed defendant from his car and placed him under arrest. They also recovered a glassine envelope of heroin from the car floor.
A Union County grand jury returned an indictment charging defendant with second-degree eluding of a law enforcement officer, N.J.S.A. 2C:29-2(b) (count one), and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count two). Defendant was subsequently tried before a jury, which convicted him of eluding, but acquitted him of possession. The court sentenced defendant to eight years imprisonment subject to four years parole ineligibility. Defendant received jail credit for one day.
The indictment also charged defendant's passenger, Alex Knowles, with the same CDS offense, but the court later granted Knowles' motion for a judgment of acquittal.
The court found defendant guilty of reckless driving, N.J.S.A. 39:4-96, and suspended his license for two years.
On appeal, defendant argues the following:
POINT I
THE TRIAL COURT'S CURATIVE INSTRUCTION WAS INSUFFICIENT TO REMEDY THE PREJUDICE CAUSED BY OFFICER MARTINEZ'S TESTIMONY IMPLICATING BAKER IN CRIMINAL ACTIVITY.
POINT II
THE TRIAL COURT ERRED BY FAILING TO CONSIDER SANITIZING BAKER'S PRIOR CONVICTIONS, RESULTING IN UNDUE PREJUDICE AND DENYING BAKER A FAIR TRIAL.
POINT III
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE POLICE OFFICERS' CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
POINT V
THE TRIAL COURT ERRED BY FAILING TO CREDIT BAKER WITH ACCRUED JAIL CREDITS IN VIOLATION
OF STATE V. HERNANDEZ AND RULE 3:21-8.
POINT VI
THE TRIAL COURT ERRED BY FINDING AGGRAVATING FACTOR ONE AND BY FAILING TO FIND MITIGATING FACTORS FOUR AND ELEVEN; THE COURT WAS THEREFORE UNABLE TO CONDUCT A PROPER WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.
A. The Trial Court Improperly Found Aggravating Factor One by Double-Counting the Risk of Harm and by Concluding that the Crime was Outrageous Compared to Others in its Class.
B. The Trial Court Erred by Failing to Find Mitigating Factors Four and Eleven, Which are Amply Supported by the Record.
C. A Proper Balancing of the Aggravating and Mitigating Factors Supports a Sentence in the Lower Part of the Second-Degree Range Without a Period of Parole Ineligibility.
We have considered these contentions in light of the record and affirm, except that we remand for a proper calculation of defendant's jail credits.
I.
We derive the following facts from the record developed at trial. On October 2, 2009, at about 9:57 p.m., Elizabeth police officer Jose Martinez was on patrol with his partner Anthony Gural. The officers were in an unmarked police vehicle and had their badges displayed around their necks. They were advised by dispatch to respond to a specific location. They activated their emergency lights and siren, and proceeded west on Magnolia Avenue. When the officers stopped at a red light, they noticed a black Cadillac Escalade waiting on the opposite side of the intersection. As the officers went through the light, Gural shined his spotlight on the Escalade and recognized the driver as defendant, and Knowles as the passenger.
In a radio dispatch from police headquarters, the officers were evidently advised to look for a black Escalade in connection with a nearby shooting. However, the trial court did not allow the officers to testify as to what dispatch told them.
The officers then radioed dispatch and informed them that they had observed the Escalade, and said they were going to conduct a motor vehicle stop. They stopped their vehicle in front of the Escalade, and exited the car with their guns drawn. The officers identified themselves as police and ordered the occupants to show their hands. At that point, defendant put his car in reverse, backing away from the officers, and maneuvering around the car directly behind him. Defendant drove backwards at high speed, while swerving and nearly striking vehicles in traffic and parked cars. The officers radioed to dispatch that defendant was fleeing in reverse on Magnolia, and returned to their car to pursue him.
Defendant stopped at the next intersection, as there was too much traffic to continue. He then sped forward toward the officers' vehicle, and stopped directly in front of them. The officers got out and again approached the Escalade, identified themselves as police, and ordered defendant and Knowles to show their hands. Instead of exiting the vehicle, defendant maneuvered around the officers and drove away. The officers radioed dispatch that the Escalade was fleeing and they returned to their vehicle, and continued pursuit. The officers, however, lost sight of the Escalade.
Officers David Turner and James Lugardo were also on patrol that night, in a marked police car. At 9:57 p.m., they received the same dispatch as the other officers. They first observed the black Escalade on Route 1 & 9. Turner and Lugardo then tried to stop the Escalade. As they closed in on the Escalade, other cars pulled over and yielded to them. However, the Escalade continued at a high speed, switching lanes, and passing other cars. It did not slow down or pull off the road. Turner shone the spotlight on the Escalade, and the officers continued their pursuit. They finally stopped the Escalade at the intersection of North Avenue and 1 & 9, as the light was red and the Escalade could not go around the traffic.
Turner approached the Escalade's driver side with his gun drawn, identifying himself as police, and ordered the passengers to show their hands. Defendant complied. Turner opened the driver-side door, removed defendant, and handcuffed him. Lugardo removed Knowles from the passenger side. On the Escalade's passenger-side floorbed, the officers found $468 in cash and a gold watch. Officer Lugardo picked up the money and the watch, and found one glassine envelope of heroin within the money.
Defendant and his witness testified to a different version of the events that led to defendant's arrest. According to them, between 9:30 and 10:00 p.m., defendant was driving a black Escalade and dropped off another person at the witness's house. Defendant testified that he then left the witness's house, and saw a police car drive past. Defendant then drove down Reade Street, and proceeded onto a highway, but was not approached by any officers. While he drove on the highway, a police car pulled out of a gas station and pulled up behind him, put on the lights, and told defendant via speaker to put the car in park. Defendant testified that he pulled over, and the officer approached and asked for his license. The officer then told the dispatcher that defendant's car had New York plates, although his Escalade had New Jersey plates, and asked for all units to respond.
Defendant stated that six or seven police vehicles responded to the scene, and the officer asked defendant to exit his vehicle. Defendant got out of the car and was placed in a different squad car from Knowles. Defendant then saw an officer get into his car and park it on a nearby street. He also testified that the officers who testified against him were not the officers who pulled him over that night. He said that he did not know how the heroin wound up in his car, and emphasized that two other people, Green and Knowles, had sat in the passenger seat in the course of the evening.
II.
Defendant argues that comments made by Martinez during his testimony were unduly prejudicial, and that the prejudice was not cured by the judge's subsequent instructions. Martinez testified that Magnolia and Catherine Street is "a high crime area . . . with narcotics and prostitution activity [and] armed robberies, car jackings, shooting[s]." He said he had made "numerous" or "at least 20 or 30" arrests related to weapons and CDS in that area. Martinez testified that he was "responding to an emergency" that was radioed to him from dispatch. When he stopped at the traffic light, his "attention was drawn to a black Cadillac Escalade." Officer Martinez also said that when he initially passed the Escalade at the intersection, he and Gural "recognized the occupants," and decided to make a motor vehicle stop. The officers stopped the vehicle and approached with guns drawn because of "the nature of what [they] were responding to, safety." When he approached the vehicle, Martinez reiterated that he "knew that the passenger was Alex Knowles, an individual that [he] dealt with in the past."
Knowles' counsel objected to the line of questioning that prompted these answers, but was overruled.
At this, Knowles' counsel raised an objection which the court sustained. The judge called counsel to sidebar:
THE COURT: Doesn't he know he's not supposed to say anything like that[?]
KNOWLES' COUNSEL: Judge, I let it go the first time because it could have easily been maybe —
COURT: He recognized, and he said it.
KNOWLES' COUNSEL: You know he recognized both people he said. And I let it go because I didn't want to highlight but I didn't think he was going to go into a colloquy later about who he knows and why he knew who. He's dealt with him on the streets.
PROSECUTOR: Well, certainly he knows him from the area, which is an --
DEFENDANT'S COUNSEL: That area which is described as a high crime area.
COURT: . . . Yes, but you have to be careful. I mean that was prejudicial.
PROSECUTOR: I didn't intend that, Judge.
COURT: I don't even know how to give a curative instruction on that[]. . . .
. . . .
COURT: I think if you don't have any objection, I'm going to just tell the jury that he knows them from the community and they shouldn't draw any inferences from that as to any prior incidents.
. . . .
KNOWLES' COUNSEL: Judge, I don't know how we can cure the harm done [by Officer Martinez's testimony]. I mean it's a specific type of phrase. It means a certain thing.
COURT: Well, what would you like me to do[?]
KNOWLES' COUNSEL: I'm trying to think of a way to correct it. I find it hard to do given that kind of language. . . . [I]f you highlight it, it makes it worse[.]
COURT: The only other thing to do is a mistrial and start over again. And I don't see that that's necessary. I'm going to give the curative instruction and hope that they will follow it.
. . . .
KNOWLES' COUNSEL: Judge, can I ask the officer a question[?]
COURT: Yes.
KNOWLES' COUNSEL: Are you or have you ever been a resident of Elizabeth?
MARTINEZ: Yes.
. . . .
PROSECUTOR: Were you ever a resident of Elizabeth while you were working as a police officer?
MARTINEZ: Yes.
. . . .
KNOWLES' COUNSEL: Judge, I think I can deal with it that way on cross given the fact that he might not have dealt with him in a law enforcement capacity.
COURT: Okay. You really can't bring that out because you understand, don't you, that if they were convicted after a trial that could very well be reversible error and it would be reversed by [the] Appellate Division and returned for a trial in front of some other judge. And what would be the point of that, right. Okay. Now that we're clear.
At this point, the judge excused the jury and continued the discussion outside of the jury's presence.
Thereafter, the judge gave the following curative instruction:
Before we go on ladies and gentlemen I want to give you what's called a curative instruction based on some of the testimony that came out from Officer Martinez. Okay.
He did testify he recognized the defendant. He does know them from the community. He works and lives in Elizabeth. You should not speculate that he knows them because of any prior wrongdoing on their part. Okay. That's not part of this case whether or not they were involved in anything else.
Later in the proceedings, the prosecutor returned to the subject of defendant's prior dealings with Officer Martinez, to which defense counsel did not object:
PROSECUTOR: Officer, we understand that you are familiar with [defendant] and Mr. Knowles from the community.
MARTINEZ: Yes.
PROSECUTOR: . . . [W]hen you have seen Mr. Baker in the community how did you look?
MARTINEZ: On one occasion I was dressed very similar to the way I was dressed on the
evening where we encountered him at Catherine and Magnolia.
PROSECUTOR: Okay. And --
COURT: Was there a time you were wearing a police uniform?
MARTINEZ: A variation of a police uniform.
Defendant argues that Martinez's testimony created significant prejudice, as it cast defendant as a dangerous person who had been involved in prior criminal activity, and who was well-known to police. It indicated that the stop was due to the recent commission of a serious crime, for which defendant was a suspect. He argues that the curative instruction failed to remedy the prejudice, because it did not specifically advise the jury to disregard the improper testimony; it did not warn the jury of the dangers of improperly admitted evidence; and it was not sufficiently clear and firm as required by State v. Vallejo, 198 N.J. 122, 134 (2009).
He also contends that the curative instruction improperly presented a fiction that Martinez knew defendant from the "community," rather than from defendant's interactions with law enforcement. Moreover, defendant asserts Martinez's later testimony, that his prior encounters with defendant occurred when he was dressed in uniform, effectively negated the instruction. Defendant also argues that this was not harmless error, as the trial was essentially a credibility contest between police and defendant, and the proof in this case was not so overwhelming as to foreclose the possibility that the jury gave decisive weight to Martinez's improper testimony. In support, defendant notes the jury's later request for a read-back of Martinez's cross-examination by Knowles' counsel. We reject these arguments.
In general, we review evidentiary rulings for abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). But where a defendant has raised no objection to an evidentiary ruling, or to the content of a curative instruction, we review for plain error — that is, error "clearly capable of producing an unjust result." Vallejo, supra, 198 N.J. at 139-40 (quoting R. 2:10-2). "[N]ot every admission of inadmissible . . . evidence can be considered to be reversible error[;] instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." Id. at 132 (quoting State v. Winter, 96 N.J. 640, 646 (1984)) (internal quotations omitted). The possibility of an unjust result "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
N.J.R.E. 404(b) prohibits "evidence of other crimes, wrongs, or acts [when used] to prove the disposition of a person in order to show that such person acted in conformity therewith." "[S]uch evidence creates the strong potential for prejudice because of its natural 'tendency to demonstrate a criminal predisposition.'" State v. Blakney, 189 N.J. 88, 93 (2006) (quoting State v. G.S., 145 N.J. 460, 468 (1996)). It "may indelibly brand the defendant as a bad person and blind the jury from a careful consideration of the elements of the charged offense." Ibid. (citing G.S., supra, 145 N.J. at 469).
Where such evidence is revealed to the jury, a curative instruction may remedy the potential prejudice. Vallejo, supra, 198 N.J. at 134-35. "[F]or an instruction to pass muster in such circumstances, it must be firm, clear, and accomplished without delay." Ibid. Instructions must identify the particular testimony or evidence it is meant to address, see id. at 136-37, and "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" State v. Winder, 200 N.J. 231, 255 (2009) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). When testimony is "only slightly improper," a general charge may be sufficient; but in the face of cumulative errors, a single curative instruction may not suffice. State v. Frost, 158 N.J. 76, 86-87 (1999); see also Vallejo, supra, 198 N.J. at 136. However, "[t]here can be no assumption that a jury did not faithfully follow the admonition." State v. Manley, 54 N.J. 259, 271 (1969); Winder, supra, 200 N.J. at 256.
Here, defendant's argument regarding the cumulative prejudicial effect of Martinez's testimony is without merit. As a preliminary matter, defendant did not object to Martinez's initial remark that he "recognized the occupants" of the Escalade. Rather, it was Martinez's later testimony, that he recognized Knowles as "an individual [Martinez] had dealt with in the past," that led to the objection and curative instruction. Martinez did not refer to defendant in that instant.
Martinez never clearly and affirmatively testified that defendant had been previously convicted or charged with any crime or committed any prior wrongdoing. Vallejo, supra, 198 N.J. at 132; Winder, supra, 200 N.J. at 255-56. There was no evidence that the jury presumed defendant was a criminal or dangerous person because he was with Knowles, or that the evidence impacted the verdict.
Also, we are satisfied that any potential for prejudice was cured by the judge's clear and firm instructions. Vallejo, supra, 198 N.J. at 134-35. The judge promptly addressed the matter, clearly identified the testimony at issue, and firmly communicated to the jury that they could not use that testimony as proof that defendant had a criminal propensity. There is nothing in the record to indicate that the jury was unable to follow the judge's curative instruction or jury charges, see Winder, supra, 2 00 N.J. at 256, nor does it demonstrate that any alleged error was "clearly capable of producing an unjust result." See Vallejo, supra, 198 N.J. at 139-40.
Defendant further argues that the judge should have granted a mistrial rather than hide the truth from the jury, citing State v. Yough, 208 N.J. 385, 401 (2011). "'[A]n appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice.'" State v. Jackson, 211 N.J. 394, 407 (2012) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). We discern no abuse of the court's discretion from our review of the record in this case.
We are also not persuaded that, as defendant argues, the Supreme Court's holding in Yough, supra, should change the result in his case. While we recognize the Court's warning in that case against a trial court allowing "a fiction — even if beneficial to defendant — to be presented to the jury," Yough, supra, 208 N.J. at 401, we are satisfied that the trial court in defendant's case here did not create a fiction. In this case, the judge's curative instruction stated that Martinez knew defendants from the community. This was not untrue. Rather, it merely sanitized the nature of their prior relationship.
In Yough, supra, the victim witness implied in testimony that he had encountered defendant on several occasions after the robbery, which was inconsistent with his statement to police. 208 N.J. at 391-93. At trial, defense counsel claimed surprise. Id. at 392. The judge granted counsel's request to withhold from the jury testimony that would have explained the discrepancy, and defense counsel exploited the inconsistency in summation by stating, as the Court described, that the victim "embellished his in-court testimony . . . having convinced himself of the correctness of his identification of defendant and his guilt and he wanted the jury to convict defendant." Id. at 393-94. The Supreme Court did not find error in the trial court's denial of a mistrial as this was not "clearly capable of producing an unjust result." Id. at 404 (citing R. 2:10-2).
We are satisfied, therefore, that the trial court did not abuse its discretion in declining to grant a mistrial, as the record does not reveal any errors related to Martinez's testimony or the court's instructions sufficient to render the trial unfair, see Winter, supra, 96 N.J. at 646-47, as any alleged errors were not "clearly capable of producing an unjust result." See Yough, supra, 208 N.J. at 404 (citing R. 2:10-2).
III.
Defendant also challenges the court's refusal to sanitize the evidence of his prior convictions before allowing the State to use it for impeachment purposes. Specifically, the court admitted defendant's 1987 convictions for second-degree robbery, second-degree attempted kidnapping, first-degree kidnapping, and first-degree aggravated sexual assault. For these crimes, defendant was sentenced to twenty-seven years imprisonment, and was released from custody in 2004. The court considered defendant's release date and the severity of his crimes, and determined that they were not so remote as to warrant exclusion. The court also declined to sanitize defendant's convictions, as required under State v. Brunson, 132 N.J. 377 (1993), reasoning that sanitation is only required for similar crimes.
As a result of the court's ruling, defense counsel elicited testimony from defendant about his prior convictions on direct examination, and the prosecutor highlighted his convictions on cross-examination. Prior to deliberations, the court gave the jury a thorough limiting instruction, advising it to use the evidence of defendant's prior crimes only for the limited purpose of assessing his credibility, and not as evidence of his criminal propensity.
On appeal, defendant claims he was denied a fair trial. He says the court failed to acknowledge its discretion to sanitize evidence of non-similar prior crimes, under State v. Hamilton, 193 N.J. 255, 268-69 (2008). He argues that the un-sanitized evidence highlighted Martinez's prejudicial testimony concerning defendant's prior criminal activity. He says that the court should have weighed the undue prejudice of the un-sanitized evidence against its probative value; and that had it done so, his prior crimes would likely have been sanitized. We agree with defendant's contention that the court should have exercised its discretion to sanitize his prior conviction evidence. But, we disagree that its admission in an unsanitized form resulted in his conviction.
A trial court retains discretion to admit or exclude prior conviction evidence for impeachment purposes, and "to prevent the occurrence of undue prejudice" if such evidence is admitted. Hamilton, supra, 193 N.J. at 256-57; see N.J.R.E. 609. Generally, a decision to admit prior crimes evidence is left to the sound discretion of the trial court, and will only be overturned upon a showing of a mistaken exercise of that discretion. State v. Brown, 170 N.J. 138, 147 (2001) (citing State v. Marrero, 148 N.J. 469, 484 (1997)); State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010).
If the trial judge decides to admit prior crimes evidence that is the same or similar to the crime charged, the judge must "sanitize" that evidence by limiting it "'to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted.'" Hamilton, supra, 193 N.J. at 266 (quoting Brunson, supra, 132 N.J. at 391). In its discretion, a trial court may also sanitize dissimilar but highly prejudicial prior convictions, after weighing the probative value against the prejudicial effect of the evidence. Id. at 268-69.
In this case, the court failed to recognize it had the discretion to do so. The court found that under Brunson, supra, 132 N.J. at 391, only the same or similar crimes require sanitizing, and that "there's no case that would require sanitization of these crimes because of [their] disparate nature from the crime that's charged here." The court therefore failed to recognize its authority to sanitize defendant's convictions under Hamilton, supra, 193 N.J. at 268-69.
We consider a question as to a court's failure to recognize its discretion as we do an alleged mistaken application of the law. As we have previously observed, "[i]t is well settled that discretion means legal discretion, in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly." State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966) Because the trial court's decision implicates legal principles, if it "is based on a misconception of the law, a reviewing court owes that decision no particular deference." Lyons, supra, 417 N.J. Super. at 258. We independently evaluate those legal assessments de novo, and in order to "ensure there is no manifest denial of justice, [we] decide the controversy in the proper light of the applicable law." Ibid. (citing Steele, supra, 92 N.J. Super. at 507). See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).
If we determine, as we do here, that a court failed to recognize its authority, we then review its decision for harmful error — error which was "clearly capable of producing an unjust result." R. 2:10-2. We will find such error to be harmless, even if the error is of a constitutional dimension. State v. Slobodian, 57 N.J. 18, 23 (1970), unless under "all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits," State v. Macon, 57 N.J. 325, 338 (1971).
We are satisfied from our review that a harmful error did not occur here because the court gave a thorough limiting instruction to the jury prior to deliberations thereby alleviating any potential harm. The court instructed the jury that the prior crimes evidence should be considered "for a very limited purpose . . . only to determine [defendant's] credibility or believability." The court further advised the jury to "not conclude that [defendant] committed the crimes charge[d] in this case or is more likely to have committed the crimes charge[d] because he committed crimes on [other] occasions." Nothing in the record indicates that the jury was unable to follow the court's instructions. See Winder, supra, 200 N.J. at 256.
Finally, the jury acquitted defendant on the CDS charge, demonstrating that it did not merely rubber-stamp the State's charges in the belief that defendant had a criminal propensity. The acquittal indicates that the jury was able to impartially assess the evidence before it and come to just conclusions. The court's decision to admit the prior convictions un-sanitized was not "so wide of the mark that a manifest denial of justice resulted." See Brown, supra, 170 N.J. at 147.
IV.
Defendant argues that the prosecutor's summation improperly vouched for the testifying officers' credibility, and that such conduct was unduly prejudicial because the case's outcome hinged on credibility. The State argues that the prosecutor's comments were a fair response to defense counsel's summation, and that they were not capable of affecting the verdict. The State further notes that defendant did not object to its comments at trial.
In their summation, the defense raised the issue of the officers' credibility based on the State's failing to offer any evidence of radio transmissions between the officers and police headquarters. He then speculated:
And the reason why it's not coincidence is because it never happened. . . . How do we know it never happened? One, because we don't have any recorded transmission. And during the course of the trial you heard all kinds of excuses why there wasn't. . . .
. . . .
I know you have to be sitting here saying to yourself, why, why. Why would [the officers] put this story together to accuse [defendant]. . . .
. . . . Things happen. For whatever reason people have their motives for doing what they do.
Remember, they are law enforcement officers. They have a duty. Their main
purpose is to fetter out crime . . . . But if they are involved in one to make sure that a conviction arises out of it. . . .
It means that everything that they said may have been untrue. . . .
The prosecution later told the jury in summation:
. . . What we have here is the State and the defendant. Talk about embellishment. Why would officers come to Court and tell you they acted in a manner that sounds very bold. Guns. Not even paying attention to drugs in the car. They came in here and testified that's what happened. That's the truth. . . .Defense counsel did not object to any of the prosecutor's remarks.
. . . .
Should you take the defendant's testimony as credible and the officers' testimony as not, then you would need to find that Officer Martinez has psychic abilities for him to have known that two minutes later, . . . a black Cadillac Escalade would be stopped travelling northbound on Route 1 & 9 with [defendant] driving that car in an orange hoodie and [Knowles] to be in the passenger seat wearing a blue and grey hoodie.
Is Officer Martinez a psychic[?] Did he know that was going to happen two minutes later[?] . . .
. . . . Officer Martinez is psychic in that he knew [defendant] was driving his car down Magnolia, across Catherine, over Magnolia bridge and turn on to 1 & 9 and heading north[?] The State submits this is not an act of divine intervention; but rather an observation of an officer that was working on October 2nd, 2009 who lived the incident . . . .
. . . .
. . . Officer Turner as well would need to be psychic to have known that [defendant] had $648 [sic] in his pocket. . . .
The State submits similarly that Officer Turner does not have psychic ability, but that he was there that day. He was the one who effected the stop on the defendant's car. . . .
. . . .
. . . . Ladies and gentlemen, to believe the defendant's testimony you would have to believe that the officers that came before you made up a story, made up a bold face story that they broadcast over the radio. That they then went back to the police station and wrote reports about that and that they then came here and presented to you. . . .
. . . .
Who took the stand and told the truth? The State submits to answer that inquiry is Officer Turner and Officer Martinez who took the stand yesterday and testified truthfully and accurately about what happened . . . .
In the context of their summations, we are satisfied that the prosecutor's remarks did not deprive defendant of a fair trial. A prosecutor's primary duty is to seek justice, not to obtain convictions. State v. Smith, 212 N.J. 365, 402-03 (2012) (citing State v. Daniels, 182 N.J. 80, 96 (2004)), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Therefore, "prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (quoting State v. Smith, 167 N.J. 177, 178 (2001)). Nonetheless, our courts recognize that "'prosecutors, as lawyers, are engaged in an oratorical profession[,]'" and are afforded "'latitude for forceful and graphic advocacy.'" State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting Reddish, supra, 181 N.J. at 640-41), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Comments about the implausibility of a defendant's version of events are generally not so egregious as to deprive the defendant of a fair trial. Id. at 443. A prosecutor may also properly comment on the credibility of a testifying defendant. See, e.g., State v. Bauman, 298 N.J. Super. 176, 209 (App. Div.) (prosecutor's summation remarks that defendant's insanity defense was "concocted" were not improper), certif. denied, 150 N.J. 25 (1997); State v. Darrian, 255 N.J. Super. 435, 458 (App. Div.) (prosecutor's summation remarks that defendant lied in his testimony and police statement were not improper and did not constitute derogatory "name calling"), certif. denied, 130 N.J. 13 (1992); State v. Robinson, 157 N.J. Super. 118, 120 (App. Div.) (prosecutor's summation remarks that defendant's testimony seemed "incredible," "unbelievable," and "fabricated" were not improper), certif. denied, 77 N.J. 484 (1978).
However, "it is [generally] improper for a prosecutor to contend in summation that the police had no motive to lie." State v. R.B., 183 N.J. 308, 331-32 (2005). "[I]t is [also] 'obviously improper' to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'" State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) (quoting State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969)).
A prosecutor's remarks cannot be considered in isolation. In reviewing a prosecutor's summation, a court "'must also take into account defense counsel's opening salvo,'" to determine if the prosecutor's remarks were made as a measured response to defendant's summation in an attempt to "'right the scale.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (citing United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)) (prosecutor's remarks, "although forcefully put, were in response to defense counsel's lengthy summation in which they characterized the State's case as a 'big lie,' 'a disgrace,' 'an outrage,' [and t]he entire thrust of defense counsel's attack was that the State was attempting to 'frame' the defendants"), certif. denied, 130 N.J. 393 (1991).
A prosecutor's comments require reversal only if they were "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Wakefield, supra, 190 N.J. at 438; State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
In our review, we also consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). "If no objection [was] made, the remarks usually will not be deemed prejudicial." Id. at 323 (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)); Timmendequas, supra, 161 N.J. at 575-76. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made[ and] also deprives the court of the opportunity to take curative action." Timmendequas, supra, 161 N.J. at 576 (citing State v. Irving, 114 N.J. 427, 444 (1989)). Where the defense fails to object to a remark, a defendant must demonstrate plain error creating "'a clear capacity to bring about an unjust result[.]'" Id. at 576-77 (citing Irving, supra, 114 N.J. at 444).
Applying these principles, defendant's argument that the prosecutor improperly vouched for the officers' credibility is without merit. Objectionable remarks about police officers' testimony usually arise from the prosecutor's claims that the police are credible — not because of what they said, but because they are police officers and therefore have no motive to lie. See, e.g., Staples, supra, 263 N.J. Super. at 606. However, in this case, the prosecution was not vouching for the credibility of the officers. Rather, a fair reading of both summations demonstrates that the prosecutor was addressing the implausibility of defendant's assertions that the police were illegally framing him. This is not prosecutorial misconduct, as the prosecutor was simply attempting to "right the scale." See Engel, supra, 249 N.J. Super. at 379 (quoting Young, supra, 470 U.S. at 13, 105 S. Ct. at 1045, 84 L. Ed. 2d at 11).
Furthermore, the prosecutor's reference to "psychic abilities," arguing that defendant's version of events was implausible, was not so "clearly and unmistakably improper" that defendant was "substantially prejudiced [in his] fundamental right to have a jury fairly evaluate the merits of his defense." See Wakefield, supra, 190 N.J. at 438. Defendant has not demonstrated that the prosecutor's remarks created "a clear capacity to bring about an unjust result." Timmendequas, supra, 161 N.J. at 576-77.
V.
Defendant also argues that the cumulative impact of the above-noted errors denied him a fair trial, as they "had the combined effect of classifying [defendant] as a dangerous, untrustworthy criminal while bolstering the character of the testifying officers." We disagree.
Criminal defendants are "'entitled to a fair trial but not a perfect one.'" Feaster, supra, 156 N.J. at 84 (quoting State v. Marshall, 123 N.J. 1, 170 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). However, "where 'legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury.'" Wakefield, supra, 190 N.J. at 538 (quoting State v. Orecchio, 16 N.J. 125, 129 (1954)); see also State v. Koskovich, 168 N.J. 448, 540 (2001) (reversing based on three errors relating to jury instructions); but see Timmendequas, supra, 161 N.J. at 639-40 (finding no cumulative error "in the context of a trial that produced overwhelming evidence of defendant's guilt.").
In reviewing for cumulative error, we do not simply count mistakes, as "even a large number of errors, if inconsequential, may not operate to create an injustice." Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55-56 (2009) (reversing because errors pervaded the trial; shifted the jury's focus from a fair evaluation of the evidence; appealed repeatedly to inappropriate and irrelevant considerations; treatment of parties was not even-handed; and a review of the complete record indicated that defendants were not accorded justice). The critical question is whether any or several of the alleged errors were sufficiently prejudicial to render the trial unfair. Id. at 52 (citing Orecchio, supra, 16 N.J. at 129).
As previously stated, the alleged errors were not individually capable of rendering defendant's trial unfair. We also find that their cumulative impact did not deny him a fair trial. The subject trial does not suffer from the same defects as those in Koskovich, supra, 168 N.J. at 540, or Pellicer, supra, 200 N.J. at 55-56, as any errors alleged in this case were not nearly as pervasive or serious. The court gave curative and limiting instructions relating to both Martinez's testimony and defendant's prior crimes evidence. There was nothing objectionable in the prosecutor's summation. Finally, we note that defendant was acquitted of the CDS charge, and he has not explained why the cumulative error would only impact his conviction for eluding. We find no cumulative error that would warrant reversal of defendant's conviction.
VI.
Defendant also argues that under State v. Hernandez, 208 N.J. 24, 28 (2011), he was entitled to additional jail credits for time spent in custody on an unrelated offense pending sentencing for the instant conviction. Defendant notes that the Hernandez holding is prospective, and was decided after his sentencing and prior to his appeal. However, he says Hernandez should be applied in his case, as he raised the issue of jail credits at sentencing and this is his direct appeal. We agree.
Defendant was released on the same day as his arrest for the subject charges. He was subsequently arrested for an unrelated offense and remained in custody on that charge until he was sentenced for the eluding conviction. At the sentencing hearing, defendant argued for additional jail credits. However, the court noted that the probation department had only given defendant one day of jail credit, because he was in custody on an unrelated charge.
Rule 3:21-8 provides that "[t]he defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." See also State v. Garland, 226 N.J. Super. 356, 361 (App. Div.) (citing R. 3:21-8), certif. denied, 114 N.J. 288 (1988). Where the rule applies, the credit is mandatory. State v. Grate, 311 N.J. Super. 544, 548 n.3 (Law Div. 1997), aff'd, 311 N.J. Super. 456, 459 (App. Div. 1998). Where the rule does not apply, the court still has discretion to award credit based upon considerations of fairness, justice and fair dealings. Id. at 548-50.
Prior to the court's decision in Hernandez, supra, 208 N.J. 24, credit was given only for time spent in custody for the crime for which the sentence was imposed. See, e.g., In re Hinsinger, 180 N.J. Super. 491, 499-500 (App. Div.), certif. denied, 88 N.J. 494 (1981). In Hernandez, supra, the Supreme Court interpreted Rule 3:21-8 as permitting jail credits for multiple charges if the charges were pending during a defendant's pre-sentence incarceration. 208 N.J. at 47-49. The Court noted that "'Rule 3:21-8 expresses the public policy of the State and should be liberally construed.'" Id. at 36 (quoting State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974)). However, the Hernandez Court provided for prospective application with only limited pipeline retroactivity for "those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 50-51; see also State v. Natale, 184 N.J. 458, 492-496 (2005). Pipeline retroactivity allows the court's holding to be applied "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised [the issue] at trial or on direct appeal." Natale, supra, 184 N.J. at 494.
Defendant was sentenced on April 26, 2011. Hernandez, supra, 208 N.J. 24, was decided on June 8, 2011. Defendant filed his pro se notice of appeal on March 16, 2012. The State argues that although defendant raised the issue of jail credits at sentencing, he is not entitled to the benefit of Hernandez, as he was sentenced before the decision, and he filed his appeal after the decision. Thus, the State argues, his matter was not "still on direct appeal" for purposes of pipeline retroactivity.
Although a strict reading of Hernandez supports the State's argument, the Court in Hernandez expressed that public policy required a liberal construction of Rule 3:21-8. See id. at 36 (citing Beatty, supra, 128 N.J. Super. at 491). Applying that standard, we are satisfied that defendant is entitled to additional jail credits, as he raised the issue at sentencing and he is raising it on direct appeal rather than, for instance, in a post-judgment motion or an application for post-conviction relief.
Furthermore, as stated above, even if the rule does not apply, credit may be awarded in the interest of fairness, and defendant should receive the benefit of his time served. Grate, supra, 311 N.J. Super. at 548-50.
VII.
Defendant also challenges his sentence. He argues that the court (1) improperly double-counted the danger defendant posed to himself, the officers, and the public in finding aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense), because the risk of death or injury is an element of second-degree eluding; (2) failed to find mitigating factors four and eleven; and (3) failed to properly balance the applicable factors, which resulted in an improper sentence above the mid-range for a second-degree crime and the wrongful imposition of a parole disqualifier. We disagree.
At defendant's April 26, 2011 sentencing hearing, the court made the following findings regarding aggravating and mitigating factors:
if it wasn't on three separate occasions that the police claim[,] and obviously they were credible because they were believed by the Jury[,] and frankly I believe them too. . . .
On three separate occasions with different police officers[,] you tried to get away and that you were driving so erratically, easily you could have been killed. Some of the police officers could have been killed, bystanders could have easily been killed. It really was outrageous conduct. And I do note you're facing three more cases. And you've got to deal with that too.
Your prior conviction is very very serious, obviously. That was robbery, criminal attempt, kidnapping, and aggravated sexual assault. I do see you're a high school graduate. You apparently have no drug use past. And you were working according to your attorney at least until you were arrested. But the aggravating factors are the nature of the offense. It's particularly outrageous driving and eluding.
So it's 1, 3, 6 and 9, the risk of re-offense and your prior record and the need to deter that sort of driving and trying to elude the police because of the danger it poses. So I find clearly and convincingly those aggravating factors substantially outweigh what I find are non-existent mitigating factors.
So on Count 1, . . . I think it's appropriate to sentence you above the mid-range and also to a parole disqualifier[,] . . . you're [sentenced to] a term of eight years. You are ineligible for parole for a period of four years.
We review sentencing determinations for abuse of discretion. State v. Robinson, 217 N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). For each degree of crime, N.J.S.A. 2C:43-6(a) sets forth "sentences within the maximum and minimum range." Id. at 359. The sentencing court must "undertake[] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)." Ibid.; State v. Kruse, 105 N.J. 354, 359 (1987). "'[W]hen the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting Natale, supra, 184 N.J. at 488). Furthermore, "[e]ach factor found by the trial court to be relevant must be supported by 'competent, reasonably credible evidence'" in the record. Id. at 72 (quoting Roth, supra, 95 N.J. at 363). If the sentencing court is "clearly convinced that the aggravating factors substantially outweigh the mitigating factors," it has discretion to impose a parole disqualifier. N.J.S.A. 2C:43-6(b). After the court determines the appropriate sentence, it must set forth its reasoning and "the factual basis supporting its findings of particular aggravating or mitigating factors affecting the sentence." N.J.S.A. 2C:43-2(e).
We accord deference to the sentencing court's determination. Fuentes, supra, 217 N.J. at 70 (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm defendant's sentence unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting Roth, supra, 95 N.J. at 364-65). We will remand for resentencing if the sentencing court fails to provide a qualitative analysis of the relevant sentencing factors, ibid. (citing Kruse, supra, 105 N.J. at 363), or if it considers an inappropriate aggravating factor. Ibid. (citing State v. Pineda, 119 N.J. 621, 628 (1990)).
A.
We find defendant's argument about aggravating factor one to be without merit. Aggravating factor one requires consideration of "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). When assessing whether this factor applies, "the sentencing court reviews the severity of the defendant's crime, 'the single most important factor in the sentencing process,' assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public." State v. Lawless, 214 N.J. 594, 609 (2013) (quoting State v. Hodge, 95 N.J. 369, 378-79 (1984)). The court may also consider "'aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior.'" Fuentes, supra, 217 N.J. at 75 (quoting State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)). In determining whether a defendant's conduct was "'heinous, cruel, or depraved,' a sentencing court must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Id. at 74-75; see also State v. Yarbough, 100 N.J. 627, 645 (1985).
Defendant is correct in his assertion that if the court had based its finding of aggravating factor one on the risk of death or injury resulting from defendant's conduct, it would be improperly double-counting, as the risk of death or injury is an element of second-degree eluding. See Fuentes, supra, 217 N.J. at 74-75; N.J.S.A. 2C:29-2(b). However, the record reveals that the court found aggravating factor one based on defendant's particularly outrageous conduct on three separate occasions, with different police officers. By finding that there were three separate eludings that were all "outrageous," the sentencing court obviously concluded that "'defendant's behavior extended to the extreme reaches of the prohibited behavior.'" Fuentes, supra, 217 N.J. at 75 (quoting Henry, supra, 418 N.J. Super. at 493). Under these circumstances, we are satisfied that the court's application of aggravating factor one was appropriate, as it did not double-count an element of the charged crime, and was supported by the court's express findings as placed on the record. See Fuentes, supra, 217 N.J. at 73.
Defendant cites State v. Mendez, 345 N.J. Super. 498, 502-03 (App. Div. 2001), aff'd, 175 N.J. 201 (2002); State v. Dixon, 346 N.J. Super. 126, 129-30 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002); and State v. Bunch, 180 N.J. 534, 538-39 (2004), in which the reviewing courts affirmed equal or lower sentences, for cases of eluding with more egregious conduct. However, none of these cases discuss findings of aggravating or mitigating factors.
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B.
Defendant claims he should have been sentenced to the lower range for a second-degree crime rather than the eight years he received. Again, in light of his prior convictions for serious crimes, we find no merit to this claim. We have previously noted that "[i]n view of [a] defendant's extensive criminal history, [a] court's decision to impose a sentence one year higher than the [mid-range] seven-year term for second-degree crimes does not shock the judicial conscience." See Bunch, supra, 180 N.J. at 550 (citations and internal quotation marks omitted). Accordingly, we take no issue with the court's sentence of eight years.
C.
Defendant argues that the court should have found mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse conduct), because of certain events that defendant discussed at sentencing, that were not disclosed at trial. He also argues that the court should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship), because defendant was employed at the time of his arrest and caring for his elderly mother and uncle.
"[W]here 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). Application of mitigating factor four is proper when "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). Application of mitigating factor eleven is proper when "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). As stated above, "[e]ach factor found by the trial court to be relevant must be supported by 'competent, reasonably credible evidence'" in the record. Fuentes, supra, 217 N.J. at 72 (quoting Roth, supra, 95 N.J. at 363).
According to defendant, application of mitigating factor four, grounds to excuse conduct, was warranted because of events that preceded his arrest. Specifically, at sentencing, counsel and defendant told the court that when defendant was leaving the witness's house on Irvington Avenue, a group of men approached him. One of the men pulled out a gun and fired five shots at him. Defendant drove away, and then received a phone call that the gunmen were coming after him. Defendant said that when he was initially stopped by the police, he could not see the officers due to the spotlight being shone on him. He thought that the officers were the people who were following him, and he tried to get away. Defendant also noted the police report that night indicating that shots were fired near Irvington Avenue, and the gun found near the scene which tested negative for defendant's and Knowles' DNA. Defense counsel also stated that defendant's version of events "didn't come out at trial because [they tried] to curtail as much of that [evidence] as possible."
The court found defendant's version of events not credible because defendant eluded the police on three separate occasions — not once just to avoid his pursuers — and because the jury had not found him credible at trial. We agree with the trial court's determination, especially because defendant's unsupported statements at sentencing were not competent, credible evidence which the court could have relied upon to support a finding of mitigating factor four. See Dalziel, supra, 182 N.J. at 504; Fuentes, supra, 217 N.J. at 70. Furthermore, even if there were some truth to defendant's explanations, it did not provide a justification for eluding police three times, especially in the manner defendant conducted himself. If he was being pursued by others, it would have benefitted him to pull over to obtain police protection.
Regarding mitigating factor eleven, hardship, defense counsel stated that defendant was a high school graduate, and was employed. Counsel said defendant was caregiver to his elderly mother and uncle, who relied on him for care and transportation to medical appointments. Defendant was also engaged to be married. The court did not specifically address factor eleven, but ultimately found no mitigating factors. We agree with its determination.
As to mitigating factor eleven, there was no evidence, beyond defense counsel's assertions, that a lengthy imprisonment would cause hardship to defendant's elderly mother and uncle. Defendant's claims are not supported by the record and, even if they were, the hardships asserted do not amount to a "serious injustice that overrides the need to deter others." See State v. Jabbour, 118 N.J. 1, 7 (1990). The court did not err in not finding any of the mitigating factors that defendant claimed should have applied.
D.
Defendant next argues that aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), six, (a)(6) (extent of defendant's criminal record and seriousness of convictions), and nine, (a)(9) (deterrence), are inextricably linked, found in most cases where a defendant has a prior conviction, and should therefore be given little weight. Thus, after properly rejecting aggravating factor one, and finding mitigating factors four and eleven, the court should have imposed a sentence in the lower part of the second-degree range. Defendant further contends that the appropriate aggravating factors do not "substantially outweigh" the mitigating factors such that a parole disqualifier should apply. For the reasons already discussed, we disagree.
The court properly applied the sentencing guidelines, basing its findings upon competent and credible evidence in the record. It imposed the four-year parole disqualifier after thoroughly and cogently explaining its reasons for finding aggravating factors one, three, six, and nine; and that those aggravating factors substantially outweighed the non-existent mitigating factors. The court did not abuse its discretion in determining that a period of parole ineligibility applied, N.J.S.A. 2C:43-6(b), and the overall sentence was appropriate.
Affirmed in part, reversed in part and remanded only for a recalculation of jail credits in accordance with Hernandez, supra, 208 N.J. at 47-49. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION