STATE OF NEW JERSEY VS. SAUL A. MILLSÂ (13-08-1210, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1258-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAUL A. MILLS,
Defendant-Appellant.
_____________________________
Submitted September 25, 2017 – Decided October 3, 2017
Before Judges Sabatino, Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
13-08-1210.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah C. Hunt, Deputy
Attorney General, of counsel and on the
briefs).
PER CURIAM
Following the trial court's denial of his motion to suppress
incriminating evidence that police had seized in a warrantless car
search, defendant Saul A. Mills conditionally pled guilty to
second-degree robbery, N.J.S.A. 2C:15-1, and second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Other
charges were dismissed and defendant preserved his right to appeal
the suppression ruling. The trial court sentenced defendant to
concurrent seven-year custodial terms on the two offenses, subject
to statutory parole ineligibility periods.
On appeal, defendant contends that the warrantless search of
the car in which he had been riding as a passenger was
unconstitutional. He submits that the trial court also erred in
rejecting his request to draw an adverse inference against the
State because one of the two separate video recordings of the
motor vehicle stop was not preserved. He further argues that his
sentence is excessive, and that the sentencing judge improperly
applied aggravating factor twelve (concerning a defendant's
knowledge or reason to know a victim was over the age of sixty),
N.J.S.A. 2C:44-1(a)(12).
For the reasons that follow, we remand the suppression issues
to the trial court for reconsideration, and possible further
development of the factual record, in light of the Supreme Court's
recent opinion in State v. Robinson, 228 N.J. 529 (2017)
(illuminating the requirements for a permissible warrantless
"protective sweep" of a motor vehicle). We affirm, however, the
2 A-1258-15T1
trial court's rejection of the requested adverse inference. We
also uphold the sentence imposed, subject to the outcome of the
reconsideration motion, which if favorable to defendant could
result in him having the option of withdrawing his guilty plea.
I.
Because we are remanding this matter in light of recent case
law, and additional facts may be developed and clarified on remand,
we need not detail the factual record at length.
At approximately 2:00 in the morning on August 25, 2012,
defendant was in the rear passenger seat of a car when it was
stopped by several Fairview Township police officers for a broken
headlight. One of the Fairview officers spoke with the driver,
while another officer spoke to defendant and the front passenger,
who was later identified as defendant's boss. The driver provided
his identification, although the two passengers had none in their
possession.
As the officers began to write summonses for motor vehicle
violations, they heard radio dispatch reporting a robbery. The
dispatch stated that a robbery had been committed minutes earlier
by three men, at a social club in the neighboring town of Cliffside
Park.
The Fairview officers responded on the radio that they had
just pulled over three men and were waiting for backup. Meanwhile,
3 A-1258-15T1
a sergeant from Cliffside Park drove from the scene of the robbery
to the location of the motor vehicle stop. The sergeant spoke to
the men, who he perceived to match the description of the robbers,
and ordered them out of the car. Once out of the car, the men
stood near its trunk with their hands on the vehicle, under guard
of three separate officers. Shortly after the sergeant arrived,
several other officers were on the scene providing backup.1
The men were frisked and a warrantless search of the passenger
compartment was conducted. Wallets and a mask were found. Another
officer, who came from the nearby town of Ridgefield to provide
backup, looked into the trunk with a flashlight through the
partially opened, backseat armrest. That officer reported seeing
the butt of a gun, and he alerted his fellow officers to the
weapon's presence. A full search of the trunk revealed two guns,
as well as money, wallets, cell phones, and another mask. The
three men were arrested.
The judge who presided over the suppression hearing
considered the testimony of four of the police officers who had
participated in the motor vehicle stop and warrantless search of
the car's interior. The judge found the officers' testimony to
1
Although it is not precisely clear from the evidence in the
record, it appears that there could have been seven or more
officers present at the point in time when the protective sweep
of the car turned up firearms.
4 A-1258-15T1
be generally credible, although she expressed some concerns about
various uncertainties in the testimony of the officer who had
probed into the trunk area. The judge also considered the video
recording ("MVR") of the stop filmed from one of the Cliffside
Park squad cars.
The suppression judge issued a written opinion upholding the
warrantless search of the car interior. Specifically, the judge
concluded that the search was justified under both the automobile
exception to the warrant requirement and the "protective sweep"
doctrine. The judge further ruled that principles of inevitable
discovery would independently enable the State's admission of the
fruits of the search, even if the other exceptions to the warrant
requirement had not been fulfilled.
The suppression judge rejected defendant's claim that the
failure of the Ridgefield Police Department to preserve its own
squad car's MVR of the scene compelled an adverse inference against
the State. The judge agreed with the prosecution's argument that
such a second MVR, recorded from a car that was behind a Fairview
squad car, was unlikely to have provided more probative evidence
of the activities at the scene.
As we have noted, having lost his suppression motion,
defendant entered into a negotiated guilty plea with the State,
subject to his right to appeal the suppression ruling. See R.
5 A-1258-15T1
3:5-7(d). Under the plea agreement, the State agreed to recommend
a custodial sentence within the second-degree range of five to ten
years. The seven-year concurrent sentences imposed by the trial
court2 were consistent with that agreement.
On appeal, defendant raised the following arguments for our
consideration in his merits brief:
POINT I
THE WARRANTLESS SEARCH AND SEIZURE OF THE CAR
IN WHICH THE DEFENDANT WAS A PASSENGER
VIOLATED THE DEFENDANT'S STATE AND FEDERAL
CONSTITUTIONAL PROTECTIONS AGAINST UNLAWFUL
SEARCH AND SEIZURE, NECESSITATING
SUPPRESSION. U.S. CONST., AMENDS. IV, XIV;
N.J. CONST. (1947), ART. 1, PAR. 7.
A. The Warrantless Search Was Not Justified
by the Automobile Exception.
1. The Requisite Probable Cause Did Not
Exist.
2. The Requisite Exigent Circumstances
Also Did Not Exist.
B. The Search Exceeded the Bounds of a
Permissible Protective Sweep.
C. This Wholly Unlawful Search Is Not Saved
By the Inevitable Discovery Doctrine.
D. The Court Erred In Refusing to Draw an
Adverse Inference From the Loss of a
Recording of the Incident.
2
A different judge, who is now retired, imposed the sentence.
6 A-1258-15T1
POINT II
THE COURT IMPOSED AN EXCESSIVE SENTENCE,
NECESSITATING REDUCTION.
In addition, at this court's request, defendant and the State
filed supplemental briefs addressing the Supreme Court's recent
2017 opinions in Robinson, supra, regarding protective sweeps, and
State v. Bacome, 228 N.J. 94 (2017), regarding the authority of
police to order passengers to step out of a vehicle. Both of
those opinions were issued by the Court after the parties' merits
briefs in this matter had been filed.
Defendant argues that the Court's opinion in Robinson,
focusing on fact-sensitive questions relating to the risks of
danger and a defendant's access to weapons inside a vehicle,
requires reversal of the trial court's ruling. 3 The State's
supplemental brief counters that the facts that led the Court to
invalidate the protective sweep in Robinson are materially
distinguishable from those presented here.
II.
A.
We address defendant's arguments in revised sequence, and
begin with the protective sweep issue. In considering that subject
3
Defendant concedes that under the standards expressed in Bacome,
supra, 228 N.J. at 106-08, that the police in this case had
sufficient justification to order all three men out of the car.
7 A-1258-15T1
and the other search-and-seizure issues, we are mindful that
individuals are protected under both the Fourth Amendment of the
United States Constitution and under Article I, paragraph seven
of the New Jersey Constitution from unreasonable governmental
searches and seizures that infringe upon their privacy interests.
U.S. Const., amend IV, N.J. Const., art I, para. 7. Our courts
have expressed a "preference that police officers secure a warrant
before they execute a search." State v. Witt, 223 N.J. 409, 422
(2015) (citing State v. Frankel, 179 N.J. 586, 597-98, cert.
denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).
Warrantless searches may be permitted if they fall within "one of
the 'few specifically established and well-delineated exceptions'
to the warrant requirement." Ibid. (quoting Frankel, supra, 179
N.J. at 598).
The protective sweep doctrine is one such recognized
exception to the warrant requirement. The exception derives from
the United States Supreme Court's holding in Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (authorizing the
limited intrusion of a police "stop and frisk" of a pedestrian
where there is reasonable suspicion that the individual may have
engaged in criminal activity).
In Long, the Court applied the protective sweep exception in
an automobile setting. Michigan v. Long, 463 U.S. 1032, 1049, 103
8 A-1258-15T1
S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983). There, the
Court authorized a limited search of a vehicle's passenger area
for purposes of officer safety. Ibid. The Court observed in Long
that such a "protective sweep" should be restricted to those areas
where a weapon could be hidden or placed if an officer "possesses
a reasonable belief based on specific and articulable facts, which
taken together with rational inferences from those facts,
reasonably warrant" the officer’s belief that the suspect poses a
danger and "may gain immediate control of weapons." Ibid. (quoting
Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906) (internal quotation marks omitted).
In State v. Lund, 119 N.J. 35, 48-50 (1990), our State Supreme
Court adopted the federal test for vehicular protective sweeps
that had been articulated in Long. Hence, the coterminous federal
and state constitutional standard for a valid protective sweep is
whether the State demonstrates "specific and articulable facts
that, considered with the rational inferences from those facts,
warrant a belief that an individual in the vehicle is dangerous
and that he or she 'may gain immediate control of weapons.'"
Robinson, supra, 228 N.J. at 547 (quoting Long, supra, 463 U.S.
at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220). See also
State v. Gamble, 218 N.J. 412, 432 (2014). The police may perform
a warrantless protective sweep of a vehicle's passenger
9 A-1258-15T1
compartment where the totality of circumstances support "a
reasonable suspicion that a driver or passenger 'is dangerous and
may gain immediate access to weapons.'" Robinson, supra, 228 N.J.
at 534 (quoting Gamble, supra, 218 N.J. at 432).
Several months before the motion judge's December 2014
suppression ruling in the present case, the New Jersey Supreme
Court issued its opinion in Gamble applying these standards. The
Court concluded on the factual record in Gamble that a warrantless
protective sweep of a car interior was justified. In that case,
the police conducted an investigatory stop of a vehicle matching
the reported description of a van in which a man had been seen
sitting with a gun in his lap. Id. at 418-19. As the two police
officers on the scene approached the van, the defendant driver and
his passenger were "moving frantically inside the vehicle, as if
trying to hide something." Id. at 419 (internal quotation marks
omitted). When the lead officer ordered the occupants out of the
vehicle, the defendant aborted his exit from the vehicle and tried
to return to the driver's seat. Id. at 420. The lead officer
pulled the defendant from the van, frisked him for weapons, and
placed him under the supervision of the other officer who was also
guarding the passenger. Id. The Court held in Gamble that, in
light of defendant's defiant conduct and the officers' failure to
find a weapon on the person of either occupant, a protective sweep
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of the vehicle was justified at that point. Id. at 433. That is
so because, as the Court reasoned, the officers had a reasonable
basis to believe that the individuals were dangerous and could
gain immediate access to weapons. Id. at 434.
In its later May 2017 opinion in Robinson, the Court reached
an opposite conclusion, striking down as illegal the warrantless
search of a passenger compartment after a valid motor vehicle
stop. We shall proceed to discuss the factual setting in Robinson
– the Court's newest pronouncement on the protective sweep doctrine
in a vehicle context – in extensive detail for comparative purpose.
In Robinson, a single officer in a marked patrol car conducted
a valid motor vehicle stop, saw four people in the car, and noticed
that none of the occupants wore a seatbelt. Robinson, supra, 228
N.J. at 536. Shortly after making the stop, the officer was
advised by his department's dispatcher that the driver of the car
had an outstanding warrant for a drug offense. Id. at 537. The
dispatcher also told the officer to use caution because the
defendant was known to carry weapons. Ibid. The dispatcher
further advised the officer that one of the passengers also had
an outstanding traffic warrant. Ibid. The officer called for
backup and was met by four other uniformed officers, who assisted
in directing two of the four occupants out of the car, as well as
handcuffing, and arresting them. Id. at 537-38. The officers
11 A-1258-15T1
detained, but failed to arrest, the other two occupants. Id. at
538.
The officers in Robinson then patted down the two detained
individuals, but found no weapons. Ibid. The two men, who
remained un-cuffed, were then told to stand on the roadside as the
officers monitored them. Ibid. The testifying officer stated
that he did not see either of the detained passengers reach for a
weapon, attempt to hide anything, or resist the officers'
directions. Ibid. The sergeant on the scene then directed one
of the officers to conduct a sweep of the car's interior to check
for weapons. Ibid. After searching the front driver and passenger
areas, the officer lifted a purse found on the front passenger
seat. Ibid. The officer testified that he felt the outline of a
gun when he felt the bottom of the purse. Id. at 538-39. The gun
was retrieved by the officer, all passengers were secured, and the
five officers on the scene then decided to seek a search warrant.
Id. at 539.
The Court found that the on-the-spot search of the car that
produced the handgun was not within the warrant requirement's
protective sweep exception. Robinson, supra, 228 N.J. at 549.
The Court concluded that, although the circumstances justified a
reasonable suspicion that a weapon was in the vehicle, the five
officers' "swift and coordinated action eliminated the risk that
12 A-1258-15T1
any of the four occupants would gain immediate access to the
weapon." Id. at 535.
The Court recognized in Robinson that there was "no doubt"
that the officers had justifiable support for a reasonable
suspicion that at least some of the occupants were armed and that
a weapon was present, especially given the late hour of the stop,
among other considerations. Id. at 548. The Court also recognized
that although no weapons were found on the occupants when they
were frisked, the absence of weapons did not remove the need for
concern. Ibid.; see Gamble, supra, 218 N.J. at 432-33. Even so,
the Court emphasized that this potential danger had been met at
the scene with effective and prompt police action. Robinson,
supra, 228 N.J. at 549.
Among other things, the Court noted in Robinson that because
the original responding officer had "summoned four backup
officers, the officers outnumbered the occupants of the vehicle."
Ibid. Two of the occupants were handcuffed, while those that
remained unsecured "were cooperative" and "carefully monitored."
Ibid. The Court concluded that the officers collectively were
therefore able to maintain control of the vehicle and the scene
generally. Ibid. Because of this prudent police work, none of
the car's former occupants realistically had the opportunity to
access the car or a weapon. Ibid. The Court remanded the case,
13 A-1258-15T1
however, for the trial court to address the unresolved issue of
inevitable discovery. Id. at 552-54.
In her written opinion in the present case, the suppression
judge concluded that "[t]he officers at the scene had gathered
more than enough facts to warrant a protective sweep." Among
other things, the judge noted that a reported armed robbery had
recently occurred in a neighboring town involving three men wearing
masks and brandishing handguns, that the three men in the stopped
vehicle were likewise wearing dark clothing, that the two
passengers lacked identification, that a pat-down of the driver
had revealed a wad of cash, and that an initial warrantless foray
into the vehicle had turned up a mask covered underneath a
sweatshirt.
Perhaps most importantly, the suppression judge concluded
that the officers "had reason to believe that they were dealing
with armed and dangerous individuals." Moreover, the judge
specifically found that the vehicle's trunk area, where the guns
and other contraband were ultimately found during the second
interior search, was a location as to which the occupants could
have gained "immediate access." Citing Gamble and other protective
sweep decisions, the court reasoned that "[w]hile no
precedent[ial] case addresses the permissibility of a [protective
14 A-1258-15T1
sweep] search of the trunk through the interior of the vehicle,
the same legal foundation for the exception exists."
In their supplemental briefs, defendant and the State differ
on whether the facts in the present case are akin to, or materially
distinguishable from, those in Robinson. Defendant stresses,
among other things, that by the time the protective sweep of the
trunk compartment was undertaken here: (1) all three men were
outside of the car under the supervision of at least three
officers; (2) by the time the gun was found at least seven officers
were present; (3) the men had been cooperative; (4) the driver was
not intoxicated; and (5) the trunk was closed. The State counters
that: (1) at least two of the officers who had been standing guard
were holding flashlights; (2) at least one of the officers who
could have stood guard was shown on the video being temporarily
distracted by other activities away from the car; and (3) that it
was feasible for one of the men standing at the rear of the car
to suddenly obtain a weapon, presumably either by overtaking an
armed officer or somehow gaining access to the trunk.
The present record in this case, including the DVD of the
video recording – which was presented to the motion judge and
which we have likewise observed as an exhibit – is simply not
amenable to resolving these fact-laden matters conclusively. For
example, one plausible interpretation of the video may be that the
15 A-1258-15T1
police had already started to handcuff the three men as the
protective search of the trunk compartment was being undertaken. 4
Other material factual questions, such as the number of officers
who were actually present when the protective sweep began, the
number of officers who were holding flashlights, whether the trunk
feasibly could have been opened by one of the occupants with or
without a key while under police guard, and so on, have not been
clearly resolved.
We recognize that the Supreme Court has instructed that it
is generally not a reviewing court's function to second-guess
factual findings made by trial judges on suppression motions based
on independent appellate review of video evidence. See State v.
S.S., 229 N.J. 360, 364-65 (2017). We are equally cognizant that
the motion judge in this case lacked the benefit of the Supreme
Court's analytic guidance concerning protective sweeps in
Robinson, an opinion which was issued over two years after the
trial court's ruling.5 As counsel have now helpfully spotlighted
through their supplemental briefs, there are numerous material
4
In this regard, we suggest the trial court review the videotape
at approximately time stamp 2:06:50.
5
Notably, the State has not argued that Robinson, which was
decided while the present case was in the appellate pipeline, does
not apply to the present facts. Nor does the Court's opinion in
Robinson state that its holding applies only prospectively.
16 A-1258-15T1
factual aspects of this matter affecting this case which are either
disputed, unclear, or which were not the subject of express
findings in the motion judge's pre-Robinson decision.
For these many reasons, we conclude that the appropriate
course of action is to remand this matter to the trial court to
reconsider its original suppression ruling in light of Robinson.
As part of the remand, the record should be developed with more
precision on the critical factual matters relating to the actual
scope of danger posed when the two protective sweeps were
undertaken, including but not limited to, the important question
of whether the men were already being handcuffed when the trunk
search was being conducted.
To the extent the trial court deems it appropriate, one or
more of the arresting police officers may be re-called on remand
to clarify or amplify their testimony. In addition, the trial
court is invited to review again the video recording, this time
with the guidance of Robinson. We do not intimate any advisory
opinion on the outcome of the remand. Instead, we leave it to the
trial court in the first instance to make another careful
assessment of the course of events and the legality of the search,
with specific associated factual findings.
17 A-1258-15T1
B.
We turn briefly to defendant's remaining arguments. First,
we conclude that the question of whether the search of the
vehicle's interior is justified under the "automobile exception"
to the warrant requirement is likewise dependent on the trial
court's renewed factual assessments on remand. Because the search
here predates State v. Witt, supra, 223 N.J. at 449 (noting that
Witt is a "new rule of law" to be applied "purely prospectively"),
the analysis under the automobile exception is guided by the former
multi-factor test set forth in State v. Peña-Flores, 198 N.J. 6,
28 (2009).
We agree with the trial court that the State sufficiently
established probable cause indicating a "fair probability that
contraband or evidence of a crime" would be found within the car,
given that the police had a very recent report of the local robbery
and their observations of the three car occupants'
characteristics. See State v. Moore, 181 N.J. 40, 46 (2004).
However, the question of whether "exigent circumstances" were
present at the scene to justify the immediate search of the car's
interior substantially overlaps with the issues of danger and
realistic access to weapons that need to be re-analyzed under the
protective sweep doctrine. Consequently, we defer to the trial
court in reconsidering this exigency issue on remand, including,
18 A-1258-15T1
among other things, consideration of the actual ratio of officers
to passengers at the scene when the car was twice searched without
a warrant. See State v. Dunlap, 185 N.J. 543, 545-46 (2006)
(focusing on the ratio); see also Peña-Flores, supra, 198 N.J. at
29-30.
C.
Next, we likewise defer to the trial court in reconsidering
the applicability of the doctrine of inevitable discovery. To
obtain the benefit of that doctrine, the State must establish, by
clear and convincing proof, that: "(1) proper, normal and specific
investigatory procedures would have been pursued in order to
complete the investigation of the case; (2) under all of the
surrounding relevant circumstances the pursuit of those procedures
would have inevitably resulted in the discovery of the evidence;
and (3) the discovery of the evidence through the use of such
procedures would have occurred wholly independently of the
discovery of such evidence by unlawful means." State v. Sugar,
100 N.J. 214, 238 (1985) (citations omitted); see also State v.
Holland, 176 N.J. 344, 361-62 (2003) (reaffirming these
requirements).
Here, the suppression judge concluded that the State met the
requirements of inevitable discovery because the officers had
sufficient proof to arrest defendant and his two cohorts, and to
19 A-1258-15T1
impound the vehicle, which would then be subject to an inventory
search. However, that analysis may have been affected in part by
an assumption that the ski mask uncovered in the first warrantless
entry into the car had been lawfully seized. Depending on how the
trial court rules on remand concerning the protective sweep and
exigent circumstances issues, that evidential aspect of probable
cause to arrest defendant may be inapplicable.6
In addition, the protective sweep analysis may be affected
by the State's following statement it recently advanced within its
supplemental brief:
As defendants were not under arrest until
probable cause was definitely established by
the discovery of the guns, and it had already
been determined that [the driver] had a valid
driver's license and was not under the
influence, there was no reason he would not
have been permitted back into the car to drive
himself and the other two defendants away. In
fact, before learning of the armed robbery,
Officers Napolitano and Schmitt had every
intention of letting defendants go after
issuing the summonses, as evidenced by the
fact they had already allowed [the driver]
back in the vehicle after determining he was
not under the influence.
[Ssb7 (emphasis added)].
6
We distinguish in this regard between the level of probable cause
needed to support a search under the automobile exception, and the
probable cause required to support an arrest of a vehicle's former
occupants.
20 A-1258-15T1
This statement arguably suggests that the State now concedes that
the occupants would have been allowed by the police to reenter the
car and drive it away, but for the fact that guns were discovered
in the trunk during the second protective sweep. If this apparent
concession is accepted at face value, it may undermine the analytic
support for a finding of inevitable discovery. Rather than resolve
the legal significance of the State's above-quoted assertion here,
we refer this subject to the trial court's consideration.
D.
Defendant's final non-sentencing argument is that the trial
court should have applied an adverse inference against the State
pursuant to State v. Hollander, 201 N.J. Super. 453, 479 (App.
Div.), certif. denied, 101 N.J. 335 (1985), because the Ridgefield
Police Department did not preserve the MVR of the squad car that
responded to the motor vehicle stop after the Fairview officers
had already arrived. This argument lacks sufficient merit to be
discussed in detail. R. 2:11-3(e)(2).
It will suffice for us to note that we concur with the trial
court's assessment that the failure to preserve the Ridgefield
recording – which had not been requested – was not intentionally
done to prejudice defendant's rights, but instead the recording
had been erased in the "normal course" of the municipality's data
21 A-1258-15T1
maintenance procedures. Moreover, it is exceedingly unlikely that
an MVR recording from the Ridgefield squad car, which was parked
behind the Fairview squad car two cars behind defendant's vehicle,
would have presented non-cumulative information of any
consequence. The MVR recording from the Cliffside Park squad car
was ample video evidence under the circumstances.
E.
Lastly, we reject defendant's challenge to his sentence. We
acknowledge that the sentencing judge lacked a sufficient
evidential basis to find, under aggravating factor twelve, that
defendant knew or had reason to know that one of the robbery
victims was over the age of sixty just because an elderly man's
identification was found in the vehicle. Nonetheless, the court's
finding on this discrete point manifestly could not have undermined
the overall fairness and propriety of the sentence. Apart from
this incidental finding, the aggravating and mitigating factors
otherwise identified by the sentencing judge clearly justified the
seven-year custodial term imposed. See State v. Case, 220 N.J.
49, 65 (2014); see also State v. Fuentes, 217 N.J. 57, 73 (2014).
22 A-1258-15T1
We further observe that the sentence was below the midpoint of the
five-to-ten-year range set forth in the negotiated plea agreement.7
Affirmed in part, and remanded in part. Pending the outcome
of the remand, defendant's conviction and sentence remain in force.
We do not retain jurisdiction.
7
On remand, we direct the trial court to amend the judgment of
conviction to omit aggravating factor twelve.
23 A-1258-15T1