STATE OF NEW JERSEY VS. CHELSEY G. WHITE(13-11-1472, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0718-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHELSEY G. WHITE, a/k/a
CHESLSEY G. WHITE,
CHELSEY WHITE,
Defendant-Appellant.
____________________________________
Submitted September 12, 2017 – Decided September 27, 2017
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
13-11-1472.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah C. Hunt, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Chelsey White was tried before a jury and found
guilty of third-degree possession of a controlled dangerous
substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count two);
and fourth-degree unlawful possession of hollow-nosed bullets,
N.J.S.A. 2C:39-3f (count three). Defendant later pled guilty to
fourth-degree certain persons not to possess weapons, N.J.S.A.
2C:39-7a (count four). Defendant appeals from the judgment of
conviction dated September 2, 2015, and challenges his convictions
and the sentences imposed.
I.
Following his indictment, defendant filed a motion to
suppress the evidence obtained by the police incident to his
arrest. At the suppression hearing, the State presented testimony
from Sergeant Brian Suschke and Detective Joseph D'Ambrosio of the
Trenton Police Department (TPD). Defendant did not present any
witnesses.
Suschke testified that on June 15, 2013, at approximately
11:00 p.m., he received a tip from a "citizen contact" who told
him "there was a black male wearing a white t-shirt holding a
black jacket in his hand" who was standing in front of a housing
project at an address on Oakland Street. The citizen contact stated
that the person was in possession of a handgun. Suschke said
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citizen contacts are individuals with whom he has established
working relationships and who have voluntarily approached him to
assist the police.
Suschke testified that citizen contacts are not confidential
informants, since there is no quid pro quo exchange for their
information, and these contacts are neither registered nor
documented. Suschke stated that he provides his phone number to
these individuals. Suschke said these contacts are the TPD's eyes
and ears "out there in the streets."
Suschke further testified that he knew the contact who
provided the tip in this matter. He said the contact had provided
information to him on four or five prior occasions, and the
information had always been reliable. Suschke stated that when he
receives such information, it must be acted upon quickly, since
he does not know how long the suspect will remain at a particular
location.
After he received the tip, Suschke called Detectives
D'Ambrosio and Stuart Owens of the TPD's Crime Suppression Unit
and passed the tip along to them. He felt these officers "could
go out there and . . . corroborate the information." Suschke also
said that working with citizen contacts and calling upon an officer
to investigate a tip is a common practice.
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D'Ambrosio testified that on June 15, 2013, at around 11:00
p.m., Suschke called him on his cell phone and relayed the tip.
D'Ambrosio was familiar with the housing project on Oakland Street,
which was in a high crime area in West Trenton. He testified that
based on his experience, housing projects present many "avenues
of escape." He contacted two other officers in the Crime
Suppression Unit to help investigate the tip.
D'Ambrosio and Owens drove past the location. They saw the
person who matched the description that had been provided to them.
The officers later identified defendant as the person they
observed. The officers parked about twenty feet away. The area was
well lit. They could see defendant standing in the open door to
the building.
D'Ambrosio and Owens approached the door. Defendant turned
around quickly, entered the building, and proceeded to walk up a
staircase. The officers followed defendant into the building and
up the stairs. They remained several feet behind defendant, and
defendant walked quickly up the stairs.
Because the stairs wrapped around, the officers lost sight
of defendant for a second as they ascended to the first floor and
defendant was walking up to the second floor. Defendant stopped
when he reached the second-floor landing because his path was
blocked by persons who were sitting on the steps to the third
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floor. When the officers reached the second-floor landing, which
was well lit by a ceiling light, defendant turned to face them.
D'Ambrosio saw a bulge in defendant's front waistband, which
he described as a "large object protruding out from . . .
[defendant's] belt line." Defendant's white t-shirt covered the
bulge. D'Ambrosio "strongly believed" the bulge was a firearm
because it was "consistent with the handle of a weapon." He
testified that he had seen guns in waistbands before, and he had
been on numerous gun-possession assignments.
D'Ambrosio said he was familiar with weapons and the waistband
was "a common spot for a weapon to be." D'Ambrosio repeatedly
ordered defendant to show his hands to ensure that his hands were
away from the suspected weapon. Defendant did not obey. Defendant
dropped the black jacket, placed his right hand on the bulge, and
took a step back.
Defendant turned his back to the officers. D'Ambrosio ran
towards defendant, placed him in a "bear hug," and seized what he
felt was the butt of a gun. D'Ambrosio yelled "gun" to Owens, who
moved defendant's hand away from the gun. The officers arrested
defendant, and defendant was found in possession of crack cocaine
and the gun, which was loaded with hollow-nose ammunition.
The judge placed an oral decision on the record. The judge
found that Suschke and D'Ambrosio were credible witnesses. The
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judge rejected defendant's claim that the officers did not have
reasonable and articulable suspicion to stop him in the stairwell
or even to approach him outside the building. Defendant argued
that the information provided by Suschke's contact lacked the
required specificity and corroboration to justify the stop.
The judge found, however, that the officers had reasonable
and articulable suspicion that defendant was engaged in, or about
to engage in, criminal activity. The judge determined that the
officers had reasonable suspicion that defendant was in possession
of a weapon, which posed a threat to the officers.
The judge determined that the officers' stop and frisk of
defendant, discovery of the gun, and defendant's arrest were valid.
The judge also found that the officers properly seized the CDS in
defendant's pocket after conducting a lawful search incident to
defendant's arrest.
At the trial, the State presented testimony from D'Ambrosio
and Investigator Randolph Toth, a firearms examiner with the New
Jersey State Police. D'Ambrosio essentially testified to the same
facts he had recounted at the suppression hearing. D'Ambrosio
noted that while he, Owens, and Officer Charles Steever were
struggling with defendant, Officer Samuel Johnson detained Rahkeem
Ortiz, who was on the second-floor landing in the stairwell, but
closer to the stairs leading to the third floor of the building.
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D'Ambrosio explained that because his observations and
encounter with defendant led to defendant's arrest and the seizure
of the weapon, he saw no reason to question Ortiz or other persons
who were on the landing at the time, or submit the gun and
ammunition for DNA or fingerprint tests. Ortiz was not brought to
the police station, and D'Ambrosio did not know if he was arrested.
Defendant testified that on June 15, 2013, he arrived at the
Oakland Street housing project at 7:00 p.m. to visit a friend who
resided on the second floor. He was speaking with Ortiz on the
second-floor landing when the police came up the stairs. Defendant
said the officers drew their weapons and ordered him and Ortiz to
put up their hands and place them against the wall.
Defendant said he and Ortiz complied and the officers searched
them, but found nothing. The officers then picked up a jacket from
the stairwell and said, "gun." According to defendant, the officers
asked him and Ortiz whose gun it was. Defendant claimed he told
the officers it was not his gun, but Ortiz nodded in his direction.
The officers then arrested him. Defendant denied that he was
outside the building at any time between 7:00 p.m. and his arrest.
He also denied that the officer recovered the gun from his
waistband.
The State called Owens as a rebuttal witness. He said there
was no way defendant and Ortiz could have been mistaken for each
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other because defendant is a black male with a bald head, and
Ortiz is a very light-skinned black male with shoulder-length
braids. Owens stated that he had been involved in about 100 gun
arrests, including arrests where several individuals had been
found in the area where the gun was found.
The assistant prosecutor asked Owens whom he would charge in
a situation where a gun is found on the ground in close proximity
to two individuals. The judge overruled defense counsel's
objection to the question, and Owens testified that he would charge
both individuals because he did not know whose gun it is.
The jury found defendant guilty on counts one (possession of
CDS), two (possession of the handgun), and three (possession of
hollow-nose ammunition). Thereafter defendant pled guilty to count
four (certain persons not to possess weapons).
When he entered his plea, defendant admitted that on June 15,
2013, he was in possession of a handgun, which was in his
waistband. He also admitted that he knew he was prohibited from
doing so, as a result of a conviction in 2004 for possession of
CDS.
The judge later granted the State's motion to sentence
defendant on count two to an extended term as a persistent offender
pursuant to N.J.S.A. 2C:44-3(a), and sentenced defendant on that
count to twelve years of incarceration with six years of parole
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ineligibility. The judge also imposed concurrent terms of four
years on count one, twelve months on count three, and eighteen
months on count four. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. 7
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE POLICE SEIZURE OF THE DEFENDANT WITHOUT
REASONABLE SUSPICION.
POINT II
THE DEFENDANT'S MOTION TO COMPEL DISCLOSURE
OF RELEVANT EVIDENCE SHOULD HAVE BEEN GRANTED
BECAUSE THE DEFENDANT HAS A RIGHT TO PRESENT
A COMPLETE DEFENSE.
POINT III
THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE
PROSECUTOR'S FAILURE TO ABIDE BY THE
REQUIREMENT THAT OPENING STATEMENTS BE
SUCCINCT.
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY IMPROPER ADMISSION OF EXPERT
WITNESS TESTIMONY BY A FACT WITNESS.
POINT V
THE DEFFENDANT'S SENTENCE IS EXCESSIVE:
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO
AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE
AGGRAVATING AND MITIGATING FACTORS.
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C. THE TRIAL COURT IMPROPERLY MADE FINDINGS
OF FACT TO ENHANCE THE SENTENCE.
II.
We first consider defendant's contention that the judge erred
by denying his motion to suppress. Defendant argues that the police
lacked reasonable and articulable suspicion sufficient to justify
stopping him. He contends the citizen contact's information lacked
specificity and corroboration of that information was required to
justify the police in stopping defendant in the stairwell, or even
to approach him outside the building.
"Appellate courts reviewing a grant or denial of a motion to
suppress must defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the
record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citations
omitted). "We defer to those findings of fact because they 'are
substantially influenced by [an] opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (alteration in original) (quoting
State v. Johnson, 42 N.J. 146, 161 (1964)).
We do not, however, defer to the trial court's legal
conclusions, which we review de novo. Id. at 263 (citation
omitted). Regarding "mixed questions of law and fact, we give
deference . . . to the supported factual findings of the trial
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court, but review de novo the lower court's application of any
legal rules to such factual findings." State v. Harris, 181 N.J.
391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185, 522
U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), cert. denied,
545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Here, the record shows that the police officers initially
made an investigatory, or so-called Terry stop of defendant. Such
a stop occurs when the police approach an individual, who does not
reasonably feel free to leave, even though the encounter does not
constitute a formal arrest. State v. Stovall, 170 N.J. 346, 355-
56 (2002). Under Terry, a law enforcement officer may detain an
individual without a warrant for a brief period, if the stop is
"based on 'specific and articulable facts which, taken together
with rational inferences from those facts,' give rise to a
reasonable suspicion of criminal activity." State v. Rodriguez,
172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21,
88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).
A Terry stop "is valid only if the officer has a
'particularized suspicion' based upon an objective observation
that the person stopped has been or is about to engage in criminal
wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). In
determining whether the officer had reasonable and articulable
11 A-0718-15T4
suspicion to make the stop, the court considers the totality of
circumstances. Stovall, supra, 170 N.J. at 370.
Here, there is sufficient evidence in the record to support
the judge's finding that the officers had reasonable and
articulable suspicion that defendant had engaged in, or was about
to engage in, criminal wrongdoing. As explained previously,
Suschke had received information from a citizen contact that a
person was in possession of a handgun.
The contact provided Suschke with a description of the
individual and gave him the location where he could be found.
Previously, the contact had provided Suschke with reliable
information. Suschke relayed the information to other officers,
for investigation. The officers found defendant, who matched the
description the contact had provided, outside a building in a
housing project on Oakland Street, which was located in a high-
crime area.
The officers observed defendant enter the building and
followed defendant up the stairs. They did not stop defendant
until D'Ambrosio observed a bulge in the waistband of defendant's
pants. D'Ambrosio knew, from his experience and training, that
weapons are often carried there.
Based on these facts, the motion judge correctly found that
the officers validly made a Terry stop. Contrary to defendant's
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contention, the information the citizen contact provided to
Suschke was not the sole basis for the stop. The judge noted that
the officers did not stop defendant until D'Ambrosio observed the
bulge in defendant's waistband, and found that D'Ambrosio
reasonably believed defendant was in possession of a weapon. The
record supports the judge's determination that the officers were
justified in stopping defendant to investigate.
Moreover, the record supports the judge's finding that the
officers properly frisked defendant after the stop because the
officers reasonably believed their safety was at risk. See State
v. Smith, 134 N.J. 599, 621 (1994) (noting that a bulge is
sufficient to "validate a protective pat-down"); State v. Wanczyk,
201 N.J. Super. 258, 264 (App. Div. 1985) (holding that the
officers had the right to frisk the defendant after observing a
bulge in his jacket).
We conclude that the investigatory stop, the ensuing pat-
down, and defendant's arrest were lawful. Therefore, the judge did
not err by denying defendant's motion to suppress the evidence
seized incident to his arrest.
III.
Defendant argues that the judge erred by denying his motion
to compel the State to disclose the identity of the citizen
contact. Defendant asserts that a citizen contact is not a
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confidential informant and, therefore, is not entitled to the
protections afforded by court rule and statute. Defendant further
argues that examination of the citizen contact was essential to
his defense because the police allegedly relied solely on the
contact's tip to establish probable cause. Defendant therefore
argues the citizen contact had more than a marginal role in the
incident that led to his conviction.
Because informants can serve an indispensable role in law
enforcement, their continued cooperation should be encouraged.
State v. Milligan, 71 N.J. 373, 381 (1976). "For this reason, the
so-called 'informer's privilege' has long been considered
essential to effective enforcement of the criminal code." Ibid.(internal citations omitted). The privilege to withhold the
identity of an informer is not, however, absolute. Id. at 383.
New Jersey recognizes the need to protect the identity of
informants in N.J.R.E. 516, which tracks the language of N.J.S.A.
2A:84A-28. The rule and statute provide that:
[a] witness has a privilege to refuse to
disclose the identity of a person who has
furnished information purporting to disclose
a violation of a provision of the laws of this
State or of the United States to a
representative of the State or the United
States or a governmental division thereof,
charged with the duty of enforcing that
provision, and evidence thereof is
inadmissible, unless the judge finds that (a)
the identity of the person furnishing the
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information has already been otherwise
disclosed or (b) disclosure of his identity
is essential to assure a fair determination
of the issues.
[N.J.R.E. 516; N.J.S.A. 2A:84A-28.]
The privilege applies to all persons who give information to
the police regarding a violation of the law, not simply those "who
do so on a regular basis or pursuant to a mutually beneficial
arrangement with the police." State v. Adim, 410 N.J. Super. 410,
433 (App. Div. 2009) (quoting N.J.R.E. 516). As the Court pointed
out in State v. Oliver, 50 N.J. 39, 42 (1967), whether paid or
not, an informer is subject to the risk of retaliation and "comes
within the protection of the privilege."
In determining whether to order the disclosure of an
informant's identity, courts use a balancing test to weigh "the
public interest in protecting the flow of information against the
individual's right to prepare his defense." Milligan, supra, 71
N.J. at 384 (quoting Roviaro v. United States, 353 U.S. 53, 62,
77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)). In determining
whether to order disclosure of an informant's identity, the court
must consider factors such as the crime involved, the accused's
possible defenses, and the potential significance of the
informer's testimony. Ibid.15 A-0718-15T4
Generally, a court will deny a motion to compel disclosure
of an informant's identity unless the defendant presents a strong
showing of need for disclosure. Id. at 387-89. Moreover, a court
will deny a motion to compel disclosure where the informer has
played only a marginal role in the events leading up to the arrest,
"such as providing information or 'tips' to the police or
participating in the preliminary stage of a criminal
investigation." Ibid. When reviewing the denial of a motion to
compel disclosure of an informant's identity, we consider whether
the trial court considered the relevant factors in the balancing
test, and whether the court's decision represents an abuse of
discretion. Id. at 384-85.
Here, the judge determined that the informer's privilege
applied in this matter and disclosure of the citizen contact's
identity was not essential to ensure defendant had a fair trial.
As we have noted, the citizen contact reported an apparent
violation of the law to the police. Moreover, defendant failed to
present a strong showing of need for disclosure of the informant's
identity. The record supports the judge's findings on these issues.
The judge noted that the citizen contact had only provided
the police with a tip of illegal activity at a specific location
and the contact was not a participant in the charged offenses.
The contact's role was marginal. In addition, the police did not
16 A-0718-15T4
stop defendant based solely on the citizen contact's tip. The
police stopped defendant after they corroborated the information
provided by the citizen contact and D'Ambrosio also observed the
bulge in defendant's waistband, which he reasonably believed was
a handgun. Neither the content of the informant's tip, nor the
basis for the tip, were relevant to the defense because the State's
case was based upon the events that took place after the police
arrived at the Oakland Street building and the officers' personal
observations.
We reject defendant's contention that the contact's identity
was essential to a fair trial. Defendant contends that the informer
could have supported a defense of third-party guilt. However, even
if the informer would have testified that defendant was not the
person he saw outside the building on Oakland Street with a gun,
or stated that he was mistaken when he said he saw someone with a
gun at that location, the testimony would not have supported a
third-party-guilt defense or exonerated defendant.
At trial, the State presented testimony that defendant
matched the description provided by the informant and the officers
found defendant on the second-floor landing with a gun in his
waistband. Thus, the record shows that defendant failed to make a
showing of need for disclosure of the informer's identity. As the
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judge found, under the circumstances, the informer was entitled
to the protection of the privilege.
We conclude there is sufficient credible evidence in the
record to support the judge's decision that upon consideration of
the relevant factors the contact's identity should be protected.
The denial of defendant's motion to compel disclosure of the
identity of the citizen contact was not an abuse of discretion.
IV.
Defendant argues that the assistant prosecutor's opening
statement was improper and prejudicial. He contends the prosecutor
provided a "very detailed and wholly unnecessary factual
recitation" of the facts of the State's case. He asserts that the
prosecutor's opening statement was overly repetitive. Defendant
also argues that he was prejudiced when the trial judge overruled
his objection to the prosecutor's opening statement in front of
the jury.
"Prosecutors 'are afforded considerable leeway in making
opening statements and summations.'" State v. Echols, 199 N.J.
344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447
(1988)). Within these bounds, prosecutors must always "act in
accordance with certain fundamental principles of fairness," and
"should limit comments in the opening to the 'facts [they] intend[]
in good faith to prove by competent evidence.'" Id. (alterations
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in original) (first quoting State v. Wakefield, 190 N.J. 397, 436
(2007), cert. denied, 552 U.S. 1146 (2008); then quoting State v.
Hipplewith, 33 N.J. 300, 309 (1960)). Therefore, for a prosecutor's
opening statement to warrant reversal, the comments must be
"clearly and unmistakably improper" and the misconduct "so
egregious that it deprived the defendant of a fair trial."
Wakefield, supra, 190 N.J. at 438 (first quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000); then quoting State v. Smith,
167 N.J. 158, 181 (2001)).
Here, the prosecutor's opening statement was not improper
because, as defense counsel acknowledged in the trial court, the
prosecutor presented an accurate presentation of the facts that
the State intended to prove. The prosecutor did not discuss facts
that the State did not later support with evidence. In addition,
the judge had instructed the jury that the attorneys' opening
statements are not evidence, and the prosecutor reminded the jury
that the State's case would be based on the evidence. The
prosecutor's presentation of the facts was not improperly
repetitive.
Furthermore, the record does not support defendant's
contention that he was prejudiced when the judge informed the jury
that he had overruled defendant's objection to the State's opening
statement. Defense counsel had objected to the State's opening in
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the presence of the jury, rather than raising his objection at
sidebar. The judge properly advised the jury of his ruling on the
objection so that the jury would not believe that some part of the
State's opening was improper. The judge advised the jury that he
is obligated to rule on objections raised by the parties and
instructed the jurors "not [to] conclude that because [he] rule[s]
one way or another, that [he has] any feelings about the outcome
of this case."
Moreover, the judge did not disparage defense counsel in any
way, or make "remarks that might prejudice a party or which [were]
calculated to influence the minds of the jury." State v. Belliard,
415 N.J. Super. 51, 84 (App. Div. 2010) (quoting D.G. ex. rel.
J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 25 (App.
Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085,
129 S. Ct. 776, 172 L. Ed. 2d 756 (2008)), certif. denied, 205
N.J. 81 (2011). The judge's remarks regarding his ruling were
proper.
We therefore reject defendant's contention that the judge
erred by informing the jury that he had overruled defendant's
objection to the prosecutor's opening statement.
V.
As noted previously, during his rebuttal testimony, the
assistant prosecutor asked Owens whom he would charge if he
20 A-0718-15T4
recovered a gun that was found on the ground in proximity to two
individuals. Defense counsel objected to the question, arguing
that it was an "open-ended question" and the response would address
the ultimate issue in the case, specifically, whether defendant
committed the charged offenses.
The judge overruled the objection, finding that the question
was proper. The judge found that Owens's response intended to
respond to defendant's version of the events, and it would not
address the ultimate issue in the case. The judge permitted the
prosecutor to pose the question, but required that he lay a proper
foundation for it.
Owens then testified that he had participated in about one
hundred gun arrests and that he had "been involved in cases where
multiple individuals [were] found to have been in an area where a
gun is found." The prosecutor again posed the hypothetical. Owens
testified that he "would charge both individuals . . . because I
don't know whose [gun] it is," meaning that the gun "could be
either individuals."
On appeal, defendant argues that Owens's response was
improper lay witness testimony. We disagree. Owens was testifying
as a fact witness. However, under N.J.R.E. 701, a lay witness can
give "testimony in the form of opinions or inferences" if the
testimony is "(a) rationally based on perception of the witness
21 A-0718-15T4
and (b) will assist in understanding the witness' testimony or in
determining a fact in issue."
Owens's testimony was based on his perceptions, which were
rationally drawn from his personal experiences as a police officer.
His testimony also was relevant to rebut the credibility of
defendant's testimony. D'Ambrosio found the gun lying on the ground
between defendant and Ortiz but arrested only defendant. Thus,
Owens's testimony would assist the jury in determining a fact in
issue, specifically whether D'Ambrosio recovered the gun from
defendant's waistband, as D'Ambrosio testified. We conclude the
judge did not err by allowing Owens to respond to the hypothetical
question. His testimony was properly lay opinion testimony
pursuant to N.J.R.E. 701.
We also reject defendant's contention, raised for the first
time on appeal, that the judge should have excluded the evidence
under N.J.R.E. 403. The rule provides that "relevant evidence may
be excluded if its probative value is substantially outweighed by
the risk of . . . undue prejudice, confusion of issue, or
misleading the jury." Ibid. As we have explained, Owens's response
to the hypothetical was relevant to the credibility of defendant's
testimony. Defendant has not shown that the admission of this
testimony resulted in undue prejudice.
22 A-0718-15T4
VI.
Defendant argues that the judge erred by imposing an extended-
term sentence of twelve years of incarceration, with six years of
parole ineligibility, on count two (unlawful possession of a
handgun). Defendant contends the judge improperly balanced the
aggravating and mitigating factors and the judge erred by imposing
a sentence that exceeded five years. He further argues that the
judge improperly made findings of fact to enhance the sentence.
An appellate court's review of the trial court's "sentencing
decisions is relatively narrow and is governed by an abuse of
discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).
We consider "whether the trial court has made findings of fact
that are grounded in competent, reasonably credible evidence and
whether the 'factfinder [has] appl[ied] correct legal principles
in exercising its discretion.'" Ibid. (alterations in original)
(quoting State v. Roth, 95 N.J. 334, 363 (1984)).
We will not set aside a trial court's sentence "unless: (1)
the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not 'based upon competent
credible evidence in the record;' or (3) 'the application of the
guidelines to the facts' of the case 'shock[s] the judicial
conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(alteration in original) (quoting Roth, supra, 95 N.J. at 364-65).
23 A-0718-15T4
Here, the judge noted that defendant had an extended criminal
history, which included four juvenile delinquency adjudications
and sixteen adult arrests. Defendant also has three convictions
for petty disorderly persons offenses or municipal ordinance
violations; four convictions of CDS-related disorderly persons
offenses; and three prior convictions for indictable offenses, two
for possession of CDS, and one for unlawful possession of a
handgun.
Based on this record, the judge found aggravating factor six,
N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record
and the seriousness of the offenses for which defendant has been
convicted); aggravating factor three, N.J.S.A. 2C:44-1a(3) (risk
that defendant will commit another offense); and aggravating
factor nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and
others from violating the law). The judge found mitigating factor
eleven, N.J.S.A. 2C:44-1b(11) (defendant's imprisonment will
entail excessive hardship to defendant or his dependents), and
gave it some weight. The judge determined that the three
aggravating factors substantially outweighed the one mitigating
factor.
The judge found that defendant qualified for an extended term
as a persistent offender pursuant to N.J.S.A. 2C:43-3a, since
defendant had two prior convictions for indictable offenses in
24 A-0718-15T4
February 2004 and September 2013, and defendant had committed both
offenses when he was at least eighteen years old. Moreover,
defendant was convicted of both offenses within ten years of the
current offense.
The judge then considered the expanded range of possible
sentences pursuant to State v. Pierce, 188 N.J. 155, 169 (2006).
The range "starts at the minimum of the ordinary-term range and
ends at the maximum of the extended-term range." Ibid. The judge
determined the sentence within that expanded range, in accordance
with his findings of aggravating and mitigating factors.
On appeal, defendant does not argue that he does not qualify
for an extended term under N.J.S.A. 2C:43-3a. He argues, however,
that the judge improperly enhanced the sentence based on his
findings of aggravating factors three and nine. He argues that the
judge lengthened the sentence based on a finding that an enhanced
sentence would have a deterrent effect and that defendant posed a
risk of reoffending. The record does not support these arguments.
The judge did not find that an enhanced sentence would have
a deterrent effect. The judge found that there was a risk that
defendant would reoffend, and that there was a need to deter
defendant and others from violating the law. These findings were
amply supported by defendant's extensive criminal record.
25 A-0718-15T4
Defendant further argues that the judge erred by considering
his criminal record as support for his findings of aggravating
factors three, six, and nine, because the judge allegedly had
considered his record as a basis for imposing an extended term.
Again, we disagree.
Here, the judge considered defendant's entire criminal record
at sentencing. The two convictions that formed the basis for the
imposition of the extended term were only a part of that record.
"[O]ther aspects of the defendant's record, which are not among
the minimal conditions for determining persistent offender status,
. . . will be relevant" in setting the sentence within the extended
range. State v. Dunbar, 108 N.J. 80, 92 (1987). Thus, the judge
properly considered the length and nature of defendant's criminal
record, which extended throughout his adult life. The judge also
properly considered that defendant had multiple convictions for
the same offenses.
Defendant also contends that the judge erred by failing to
find mitigating factor one, N.J.S.A. 2C:44-1b(1) (defendant's
conduct did not cause or threaten serious harm). However, the
record fully supports the judge's refusal to find this factor.
Defendant had been convicted of possessing a semi-automatic
handgun, which was loaded with hollow-nose bullets, as well as
26 A-0718-15T4
possession of CDS. The judge reasonably found that such conduct
threatened serious harm. The record supports that finding.
In addition, defendant maintains the judge should have found
mitigating factor two, N.J.S.A. 2C:44-1b(2) (defendant did not
contemplate that his conduct would cause or threaten serious harm).
Defendant did not raise this issue in the trial court. In any
event, there is nothing in the record that would have supported a
finding of this aggravating factor.
We therefore conclude that the judge followed the applicable
sentencing guidelines, the judge's findings of the aggravating and
mitigating factors are supported by sufficient evidence, and the
sentences imposed do not represent an abuse of discretion.
Affirmed.
27 A-0718-15T4