STATE OF NEW JERSEY VS. STEVEN P. RINCK (13-02-0373, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3708-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN P. RINCK,
Defendant-Appellant.
_____________________________
Argued April 12, 2018 – Decided July 23, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-02-0373.
Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Elizabeth C. Jarit, of counsel and on the
briefs).
Lisa Sarnoff Gochman, Assistant Prosecutor,
argued the cause for respondent (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Lisa Sarnoff Gochman, of counsel and
on the brief).
PER CURIAM
A jury convicted defendant Steven Rinck, a former police
confidential informant (CI), of kidnapping, robbery and other
crimes he committed while posing as a law enforcement officer and
threatening two of his victims at gunpoint. The trial court
imposed an aggregate extended-term sentence of twenty years,
subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
eighty-five percent period of parole ineligibility.
On appeal from his conviction and sentence, defendant argues
that he was denied a fair trial due to the trial court's (1) denial
of his discovery motions; (2) violation of his right to a speedy
trial; (3) failure to give a limiting instruction about defendant's
prior involvement with guns; (4) failure to sever the trial of the
charges against him; and (5) errors in the court's jury
instructions relating to the kidnapping charges made against him.
He also argues that his sentence was excessive. For the reasons
that follow, we affirm.
I.
The salient facts established at defendant's trial are
summarized as follows. Prior to the day defendant committed the
subject crimes, he had been a CI for the New Jersey State Police
(NJSP), working with its weapons trafficking unit under the
direction of Sergeant Michael Gregory. When he became a CI in
2011, defendant signed an agreement stating, among other
2 A-3708-15T2
restrictions, that as a CI he could only work under the direct
supervision of an officer, could not represent himself as a police
officer to others, and could be charged with a crime if he posed
as a police officer or committed any other illegal offense.
Neither Gregory nor any other police officer were involved with
defendant's actions that led to the charges brought against him
in this case, nor were there any active investigations involving
defendant at the time.
On or before October 21, 2012, defendant spoke with Bhadresh
Patel, the owner of a car wash that defendant frequented.
Defendant had represented to Patel that he was a retired police
officer, which Patel believed as he had seen defendant wearing a
badge. Defendant asked Patel if he could use his car, as
defendant's car was not working, and he needed a car to drive to
a wedding. Because Patel trusted defendant as a police officer,
he gave him his car.
On October 21, 2012, defendant was driving Patel's vehicle
when he claimed he saw twenty-two-year-old Aaron Waldron selling
marijuana from his home. Defendant parked the car and knocked on
Waldron's apartment door. Waldron believed his friend Thomas
Pastor was at the door. However, when he opened the door, he
found defendant, wearing a black leather jacket, a green shirt
with "Sheriff" written across the front, a five-point star badge
3 A-3708-15T2
hanging around his neck and a gun in his belt. While holding a
white piece of paper with a purple stripe on it, defendant told
Waldron that he worked for the Monmouth County Sheriff's
Department, and that he had a warrant to search the apartment.
As defendant entered, he told Waldron that he had observed
someone purchasing drugs from the apartment and that Waldron could
be arrested for drug distribution, but could avoid arrest if he
"snitch[ed] on drug dealers and people who were selling guns[.]"
Defendant asked Waldron to turn over any drugs in his possession,
and Waldron gave him a few small bags of marijuana.
While defendant was confronting Waldron, Pastor knocked on
the door, which defendant answered by opening the door and pointing
his handgun at Pastor, telling him to "[c]ome in and shut [his]
mouth[.]" Defendant identified himself as "Officer Rinck[,]" and
told Pastor that he was "guilty by association." When Pastor
questioned why he was in trouble, defendant threatened to shoot
Pastor and Waldron as well for not "keep[ing Pastor] in line[.]"
Defendant told Pastor "[y]ou move one inch, I'll pop a cap in your
ass."
Defendant told Waldron and Pastor to empty their pockets, and
took their cell phones, $40 and a hunting knife from Waldron, as
well as $480 from Pastor. Defendant told the two men "to set up
one of [their] friends so [that] he can get a larger score on the
4 A-3708-15T2
night[,]" because he did not want to waste the taxpayers' money.
He gave back to Waldron his cell phone so that he could call a
drug dealer.
Waldron began to suspect that defendant was not a real police
officer. When defendant gave him his cell phone, Waldron did not
call a drug dealer, but instead called his friend Renee Paglia in
an effort to tip her off that something was wrong. Paglia found
the call "unusual" because Waldron was talking about selling drugs
and she was not a dealer. She told Waldron to call a mutual friend
that he knew sold marijuana.
Defendant brought Waldron and Pastor outside and directed
them into Patel's car. Although the vehicle was obviously not a
police car, and despite not wanting to get into the car, Waldron
and Pastor cooperated because defendant had a gun that he used to
threaten Pastor if he did not get into the car.
Defendant drove toward Paglia's house. Pastor started
"freaking out because [he] knew something wasn't right" and asked
defendant to take him to the local police station because he would
"rather just get charged." Defendant instead dropped Pastor off
at the corner of the street, leaving him without his cell phone
because Pastor "was going to interrupt [the] investigation[.]"
Defendant and Waldron continued driving to Paglia's house.
5 A-3708-15T2
When the two men arrived, Paglia's adult daughter let them
into the apartment. Defendant walked directly to Paglia's bedroom,
still wearing, according to Paglia, "a badge around his neck [that
looked like a s]ilver star like an officer would wear" and "a
gun . . . on his waist [that h]e had . . . sticking out [of] his
pants [to make] sure that [she] knew that he had one." Defendant
told Paglia that he was a police officer, and asked her where the
drugs were located. Paglia stated that defendant was antsy and
"just couldn't stand still," which made her suspect that he was
not a real police officer. She told defendant that she did not
have any drugs, but knew someone she could call to get some.
Paglia called her boyfriend to "waste some time[,]" and then told
defendant she could not get the drugs. Defendant asked Paglia,
"Why [she had] waste[d his] time . . . ?" He threatened to call
more police officers to search her house and child welfare
authorities because there were children in the home. Defendant
and Waldron then left together.
Defendant drove Waldron back to his apartment, and told him
that if he helped him set up "a gun or heavier drug bust that"
Waldron would not be in trouble. He gave Waldron his cell phone
number, stated his name was "Steve[,]" and told Waldron to call
him in the morning. Before leaving, defendant returned Waldron's
6 A-3708-15T2
and Pastor's cell phones, but kept the cash, hunting knife, and
small bags of marijuana.
Waldron went to Pastor's home and returned Pastor’s cell
phone to Pastor's mother, Dawn Pastor. According to Dawn,1 after
hearing Waldron and her son's account of what happened, she
realized that defendant was not a police officer. She called the
number that defendant had provided to Waldron and asked defendant
for her son's money back. Defendant refused and said Pastor was
"guilty by association and he's not getting his money back."
After dropping Waldron off, defendant texted Gregory.
According to Gregory, at 9:50 p.m., defendant texted him that
"[w]e got something big time [and c]all me tomorrow." In response
to Gregory's text inquiring what defendant was talking about,
defendant told Gregory to call him. Gregory called defendant, who
excitedly told him, "Yo, I ran up in this f'rs house. We got
something. He brought me to a gun connect." When Gregory again
asked defendant what he was talking about, defendant told him that
he was "just messing around [and to g]ive [him] a call tomorrow."
The next morning, Waldron and Pastor went to the local police
department and gave formal statements to Detective Bryan King and
Officer Justin Cocuzza. Cocuzza called the number defendant had
1
We refer to her by her first name to avoid any confusion.
7 A-3708-15T2
given to Waldron and, while the call was being recorded, questioned
defendant about the events that took place the night before.
During the call with Cocuzza, defendant told a different version
of the night's events than the statements given by Waldron and
Pastor.
Defendant stated:
I had my daughter and I saw the whole thing
go down. I saw the guy come out of the car
and go into this guy -- this big guy’s house.
Two big guys. And they were outside and they
were selling drugs. They were selling weed.
So I said "What the fuck’s going on?" . . . .
They said "Oh no, no, nothing, nothing,
nothing." So I kind of scared them a little
bit, because I -- I’m -- you know, I’m a scary
-- you know, I’m not -- not a tough guy, but
I said "What’s going on? What do you got?"
So, of course, they threw it all out.
They -- they showed me what they had. They
had bags of weed and everything. I told them
"Fucking get rid of it." I said "What the
fuck’s going on?" I said "Who are you?" They
gave me their -- you know, they told me who
they were. They were real scared, because
they got busted. And then I -- I said "You
know, you’re in a school zone." I said "You
know, you" -- I said, you know, "What the
fuck’s going on?"
After the phone call, defendant texted Gregory at 10:42 a.m.,
that "this kid from last night will work for you. . . . He's
gonna set up the gun buys[.]" Two minutes later, defendant texted
again stating, "Do you want to give . . . Det. King -- the drugs?"
8 A-3708-15T2
Eleven minutes later, Gregory received another text from
defendant, which stated:
These two kids were selling dope. I called
over and they rang. They rang like birds. I
made them get rid of their shit. They thought
I was DT. They thought I was a detective. I
didn't -- anything. The one guy told me all
about the guns and he wants to work. You need
to come up with me later.
Gregory did not respond to any of these messages.2 Prior to
receiving defendant's text messages he spoke with King who asked
if Gregory knew defendant. Gregory told King that defendant was
a CI. However, Gregory maintained that he had not given defendant
any authority to do what he had done the night prior.
Later that afternoon, King went to defendant's home to speak
to defendant. Defendant's girlfriend answered the door and told
him that defendant was at work. At King's request, defendant's
girlfriend called defendant and handed the phone to King. King
requested that defendant meet with him at the police headquarters
after work, and defendant obliged.
2
According to Gregory, the text messages were not preserved and
could not be obtained from his phone because "they automatically
delete." However, on January 9, 2014, Kaitlin Mantle, an expert
in cell phone forensic analysis, examined defendant's phone, and
was able to retrieve the incoming and outgoing calls, incoming
text messages, outgoing text messages, SMS messages, and draft
messages from defendant's phone.
9 A-3708-15T2
At headquarters, the detective administered Miranda3 warnings
to defendant. In response, defendant indicated that he understood
his rights, and signed a waiver that stated he was willing to
waive his rights and speak to police.
In his statement to police,4 defendant reiterated the same
story he told to Cocuzza on the phone, and stated that he believed
he was allowed to work undercover as a CI when he saw someone
dealing drugs. He denied taking the marijuana, cash, or the knife,
and claimed that he "made them flush" the drugs down the toilet.
He also denied identifying himself as a police officer, wearing a
Sheriff's shirt with a badge, carrying a gun, threatening to shoot
anyone, or forcing anyone to get into his car. Defendant stated
that he was texting Gregory as the events unfolded that night and
that he was "recruiting[,]" and believed "that's what [he's]
supposed to do is recruit." However, he conceded that he
"overstepped [his] bounds[, that he] should have called the
police[, and he] should have [done] the right thing[.] "During
his interrogation, defendant gave his written consent for the
police to search the car he used, and claimed that the car belonged
to his boss. He also consented to the officers searching his
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
A redacted recording of King's interrogation of defendant was
played to the jury at trial.
10 A-3708-15T2
residence. Neither search resulted in discovery of a gun, the
shirt that said "Sheriff" on it, badge, knife, or cash.
After speaking with defendant, King went to Paglia's house
and asked her and her daughter, to speak to him at police
headquarters. At headquarters, both women told him that defendant
had a silver badge, and was carrying a gun.
Defendant was arrested that night, and signed a consent form
for the police to search his cell phone.
On February 25, 2013, a Monmouth County Grand Jury returned
indictment number 13-02-0373, charging defendant with four counts
of fourth-degree impersonating a law enforcement officer, N.J.S.A.
2C:28-8(b) (counts one, two, thirteen and fourteen); two counts
of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts three and
four); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); two counts
of fourth-degree aggravated assault by pointing a firearm,
N.J.S.A. 2C:12-1(b)(4) (counts seven and eight); two counts of
third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (counts nine
and ten); two counts of first-degree kidnapping, N.J.S.A. 2C:13-
1(b) (counts eleven and twelve); and second-degree certain persons
not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count fifteen).
11 A-3708-15T2
Defendant filed a motion seeking to compel the State to
produce, among other items, all police reports involving
investigations in which defendant was utilized as a CI by the NJSP
or any other law enforcement agency. The court denied defendant's
motion on July 21, 2014. On July 28, 2015, defendant filed a
motion to dismiss the indictment based on speedy trial grounds,
which the trial court denied on November 9, 2015.
Defendant's trial began on December 9, 2015,5 and on December
24, 2015, defendant was convicted of all counts.6 At sentencing,
the court granted the State's motion to sentence defendant to a
discretionary extended term as a persistent offender under
N.J.S.A. 2C:44-3(a). The court merged counts five, seven, eight,
nine and ten into counts three and four. On count three, the
court sentenced defendant to twenty years in state prison subject
to a NERA parole ineligibility period. The remaining custodial
5
On the first day of trial, defendant renewed his motion to
compel discovery of the police reports, which the trial court
again denied.
6
A bifurcated trial was held that day for the certain persons
not to have weapons charge (count fifteen), and defendant was also
convicted of that count.
12 A-3708-15T2
sentences were imposed concurrent to count three.7 This appeal
followed.
On appeal, defendant specifically argues the following:
POINT I
THE PROSECUTOR'S WITHHOLDING OF
RELEVANT DISCOVERY AND THE JUDGES'
DENIALS OF RINCK'S DISCOVERY
MOTIONS VIOLATED THE RULES OF
EVIDENCE AND DEPRIVED RINCK OF DUE
PROCESS, A FAIR TRIAL, THE
OPPORTUNITY TO PRESENT A COMPLETE
DEFENSE, AND THE RIGHT TO CONFRONT
THE WITNESSES AGAINST HIM.
A. THE PROSECUTOR WAS REQUIRED TO
DISCLOSE THE POLICE REPORTS
PURSUANT TO RULE 3:13-3, BRADY8, AND
IN ORDER TO GUARANTEE RINCK HIS
CONSTITUTIONAL RIGHTS.
B. THE COURT ERRED IN CONCLUDING
THAT THE POLICE REPORTS WERE
PRIVILEGED UNDER [N.J.R.E.] 515 AND
516.
i. THE STATE FAILED TO
DEMONSTRATE THE DOCUMENTS WERE
PRIVILEGED UNDER [N.J.R.E.] 515.
7
On counts one, two, thirteen and fourteen, defendant was
sentenced to one year; on count four, defendant was sentenced to
fifteen years subject to a NERA parole ineligibility period; on
counts six, eleven and twelve, defendant was sentenced to seven
years subject to a NERA parole ineligibility period; on count
fifteen, defendant was sentenced to seven years with a five-year
parole ineligibility period.
8
Brady v. Maryland, 373 U.S. 83, 87 (1963).
13 A-3708-15T2
ii. [N.J.R.E.] 516 DOES NOT
APPLY WHERE THE CI'S IDENTITY HAS
ALREADY BEEN DISCLOSED.
C. ASSUMING ARGUENDO THAT THE
POLICE REPORTS WERE PRIVILEGED, THE
COURT WAS REQUIRED TO REVIEW THE
DOCUMENTS [IN CAMERA] TO BALANCE THE
NEED FOR CONFIDENTIALITY AGAINST
RINCK'S CONSTITUTIONAL RIGHTS.
POINT II
THE [1144]-DAY DELAY IN BRINGING
RINCK'S CASE TO TRIAL DENIED HIM OF
THE CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A SPEEDY TRIAL.
A. THE MORE THAN THREE-YEAR DELAY
WAS EXTRAORDINARY.
B. NEARLY ALL OF THE DELAY WAS
ATTRIBUTABLE TO THE STATE.
C. RINCK ASSERTED HIS RIGHT
MONTHS BEFORE TRIAL.
D. RINCK SUFFERED SEVERE
PREJUDICE FROM HIS PRETRIAL
INCARCERATION, INCLUDING
HOSPITALIZATION FROM HAVING BEEN
BEATEN BECAUSE OF HIS STATUS AS A
CI.
POINT III
FAILURE TO PROVIDE A LIMITING
INSTRUCTION CONCERNING TESTIMONY
THAT RINCK KNEW GUN TRAFFICKERS
MEANT THAT THE JURY WAS PERMITTED TO
RELY ON THIS TESTIMONY AS PROPENSITY
EVIDENCE WHEN DETERMINING WHETHER
RINCK POSSESSED A WEAPON. (Not
raised below).
14 A-3708-15T2
POINT IV
BECAUSE THE INDICTMENT CHARGED TWO
SEPARATE AND UNRELATED CRIMINAL
EPISODES, THE TRIAL COURT ERRED IN
FAILING TO SEVER THE CHARGES. (Not
Raised Below).
POINT V
BECAUSE THE JURY INSTRUCTIONS ON
KIDNAPPING ALLOWED FOR A NON-
UNANIMOUS VERDICT, THESE
CONVICTIONS MUST BE REVERSED. (Not
Raised Below).
POINT VI
THE CUMULATIVE IMPACT OF THE ERRORS
DENIED RINCK DUE PROCESS AND A FAIR
TRIAL. (Not Raised Below).
POINT VII
THE 20-YEAR SENTENCE WAS MANIFESTLY
EXCESSIVE, REQUIRING A REMAND FOR
RESENTENCING.
II.
We begin with defendant's contention that the trial court
erred by denying his motions to compel the State to turn over
copies of police reports from investigations in earlier, unrelated
matters in which he allegedly participated as a CI. 9 In his
pretrial motion, defendant argued that he needed the police reports
9
During the motion hearing, the State expressed its concern
that providing defendant with the discovery he sought could
compromise the ongoing investigations in the cases that defendant
was involved with as a CI.
15 A-3708-15T2
because he "think[s]" he could use them to impeach Gregory's
testimony at trial that the officer did not authorize defendant's
actions on the night of October 21, 2012. Defendant did not file
any certification or affidavit from himself or anyone else that
indicated that Gregory or any other law enforcement officer
authorized his actions either directly or indirectly. He conceded
that his request "ha[d] no p[ara]meters, both as to time, location
and the participants[,]" with its only limitation being cases that
involved defendant as a CI, with "any . . . law enforcement
agency[.]" Defense counsel argued that he wanted the reports to
only look "for clues as to what [defendant] was doing, whether
what he was doing reflected in those reports is consistent with
the guidelines, the rules of engagement, or whether it's
inconsistent[.]"
In a comprehensive eight-page written decision, the trial
court denied defendant's motion. As a threshold matter, the court
16 A-3708-15T2
found that pursuant to N.J.R.E. 51510 and N.J.R.E. 516,11
"[i]nformation in the possession of law enforcement officials
concerning the existence or occurrence of alleged criminal
activities is privileged." However, recognizing that "these
privileges are not absolute[,]" it applied the proper analysis and
determined that defendant failed "to justify [even] an [in camera]
review of the reports [because h]e has proffered no evidence
10
N.J.R.E. 515 provides:
No person shall disclose official information
of this State or of the United States (a) if
disclosure is forbidden by or pursuant to any
Act of Congress or of this State, or (b) if
the judge finds that disclosure of the
information in the action will be harmful to
the interests of the public.
11
N.J.R.E. 516 provides:
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
information has already been otherwise
disclosed or (b) disclosure of his identity
is essential to assure a fair determination
of the issues.
17 A-3708-15T2
'tending to show the existence of the essential elements' of the
defense of entrapment by estoppel." Citing Rule 1:6-6,12 the court
explained "[t]here is no . . . evidence . . . in the form of
affidavit or certifications from defendant or anyone else, that
any government official – whether Sergeant Gregory or someone else
– actually authorized or condoned defendant engaging in the type
of criminal conduct he is accused of committing." It further
stated "[t]here is also no competent evidence before [the c]ourt
'that the documents in the government's possession would indeed
be probative' of an entrapment by estoppel defense." The trial
court also expressed its belief that the more appropriate course
of action was for defendant to elicit on cross-examination
testimony from Gregory concerning the possibility that he
authorized defendant's actions.
12
Rule 1:6-6 provides:
If a motion is based on facts not appearing
of record or not judicially noticeable, the
court may hear it on affidavits made on
personal knowledge, setting forth only facts
which are admissible in evidence to which the
affiant is competent to testify and which may
have annexed thereto certified copies of all
papers or parts thereof referred to therein.
The court may direct the affiant to submit to
cross-examination, or hear the matter wholly
or partly on oral testimony or depositions.
18 A-3708-15T2
When defendant renewed his motion after Gregory's testimony
was taken, the court again denied the motion, noting that "nothing
was said in testimony that would show that . . . Gregory
. . . encouraged the defendant . . . to obtain information outside
the rules, or that . . . Gregory had authorized the defendant to
act beyond the rules of engagement." Reiterating its prior
decision, the court observed that nothing in "the record made
requires in fairness a different decision now."
On appeal, defendant maintains that the information was
necessary so he could "present his defense [of entrapment] that
he was acting based on directions from Gregory [and in order] to
cross-examine Gregory on his assertion that he never encouraged
this type of behavior." He argues that the State "was required
to disclose the police reports pursuant to Rule 3:13-3, Brady, and
in order to guarantee [his] constitutional rights." He further
contends "[t]he court erred in concluding that the police reports
were privileged under [N.J.R.E.] 515 and 516.[13]" Even if the
reports were privileged, defendant asserts "the court was required
to review the documents [in camera] to balance the need for
13
We agree with defendant that the police reports were not
privileged under N.J.R.E. 516 as defendant was the CI and his
identity was already disclosed.
19 A-3708-15T2
confidentiality against [defendant's] constitutional rights." We
disagree.
In our review of a trial court's resolution of a discovery
issue, we afford the court substantial deference and will not
overturn its decision "absent an abuse of discretion[,]" State v.
Stein, 225 N.J. 582, 593 (2016) (citing State v. Hernandez, 225
N.J. 451, 461 (2016)), meaning that the decision is "well 'wide
of the mark,' or 'based on a mistaken understanding of the
applicable law[.]'" Hernandez, 225 N.J. at 461 (citations
omitted). However, "[o]ur review of the meaning or scope of a
court rule is de novo; we [will] not defer to the interpretations
of the trial court . . . unless we are persuaded by [the trial
court's] reasoning." State v. Tier, 228 N.J. 555, 561 (2017)
(citing Hernandez, 225 N.J. at 461).
Applying that standard, we conclude the trial court properly
denied defendant's motion as he made no showing that the
information he sought was relevant or that an in camera review of
the police reports was warranted. Defendant never certified that
Gregory authorized or lured him into committing any of the subject
offenses. He also did not establish that information contained
in the police reports relative to his earlier participation in
prior unrelated criminal investigations could somehow prove that
20 A-3708-15T2
he was entrapped14 or that it exculpated him from a charged offense
in this case. Thus, his reliance on Rule 3:13-3(b)15 is inapposite.
In order to be entitled to discovery, a defendant must
"articulate[] how the disclosure of documents in the unrelated
investigations will lead to relevant or admissible evidence."
Hernandez, 225 N.J. at 466 (citing State v. Ballard, 331 N.J.
Super. 529, 538 (App. Div. 2000)). Defendants cannot "undertake
a speculative venture, hoping to snare some morsel of information
that may be helpful to the defense." Ibid.We also agree with the trial court's conclusion that, absent
any showing by defendant that the documents would support his
contention that he was entrapped, the requested documents remained
privileged under N.J.R.E. 515 to the extent they related to any
ongoing investigations. In order to have a court consider piercing
a privilege, a defendant "must advance 'some factual predicate
14
Entrapment exists when the criminal design originates
with the police officials, and they implant in the mind
of an innocent person the disposition to commit the
offense and they induce its commission in order that
they may prosecute. It occurs only when the criminal
conduct was the product of the creative activity of law
enforcement officials.
[State v. Dolce, 41 N.J. 422, 430 (1964) (citations
omitted).]
15
Rule 3:13-3(b) provides that "[d]iscovery shall include
exculpatory information or material [as well as] relevant
material[.]"
21 A-3708-15T2
which would make it reasonably likely that the file will bear such
fruit and that the quest for its contents is not merely a desperate
grasping at a straw.'" State v. Harris, 316 N.J. Super. 384, 398
(App. Div. 1998) (citation omitted) (referring to police reports).
Here, defendant failed to come forward with any proof, supporting
his contention that his criminal behavior was authorized or
encouraged by anyone or legally justified in reliance upon a law
enforcement officer's conduct in the past. Under these
circumstances, defendant was not entitled to any discovery of the
unrelated police reports.
III.
Turning to defendant's speedy trial argument, he contends his
right to a speedy trial was violated when he was incarcerated for
1144 days before his trial began.16 Defendant asserted his right
to a speedy trial for the first time on July 25, 2015, when he
filed his pre-trial motion.
The trial court found that there were "extensive delays early
on in this matter" obtaining discovery, including "police reports
and court records from another county[,]" and securing "data
off . . . defendant's cell phone[.]" The court also explained
that much of the delay was caused by "[t]he harsh reality of" the
16
Defendant was arrested on October 22, 2012 and his trial began
on December 9, 2015.
22 A-3708-15T2
court's "very congested trial calendar" caused by the lengthy
trials over which it presided.
On appeal, defendant asserts that "the court failed to conduct
the required four-part balancing test articulated by Barker v.
Wingo, 407 [U.S.] 514 (1972) [and i]nstead, . . . simply
attributed the delay to the single motion for discovery and to the
congestion of the court's calendar." Relying on Doggett v. United
States, 505 U.S. 647, 652 n.1 (1992), although defendant does not
claim the State intentionally delayed his trial, he argues that
his "remain[ing] in jail for over three years awaiting his trial
is extraordinary" and that "[n]early all of the delay was
attributable to the State[,]" including the "justification of
court congestion[.]" Last, he argues that he "suffered severe
prejudice from his pretrial incarceration, including
hospitalization from having been beaten because of his status as
a CI." We are not persuaded by these arguments.
Our review of a trial court's speedy trial determination is
limited. We will not overturn a trial judge's decision as to
whether a defendant was deprived of due process on speedy-trial
grounds unless the judge's ruling was clearly erroneous. State
v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
23 A-3708-15T2
Contrary to defendant's contentions, we conclude that the
trial court properly assessed defendant's arguments and there was
no error in its denial of his motion.
"The right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution and imposed on the
states by the Due Process Clause of the Fourteenth Amendment."
State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing
Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)). "The
constitutional right . . . attaches upon defendant's arrest."
Ibid. (alteration in original) (quoting State v. Fulford, 349 N.J.
Super. 183, 190 (App. Div. 2002)). Since it is the State's duty
to promptly bring a case to trial, "[a]s a matter of fundamental
fairness," the State must avoid "excessive delay in completing a
prosecution[,]" or risk violating "defendant's constitutional
right to a speedy trial." Ibid. (citing State v. Farrell, 320
N.J. Super. 425, 445-46 (App. Div. 1999)).
A defendant bears the burden of establishing a violation of
his speedy trial right. State v. Berezansky, 386 N.J. Super. 84,
99 (App. Div. 2006). When determining whether a violation of a
defendant's speedy-trial rights contravenes due process, "[c]ourts
must consider and balance the '[l]ength of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice
to the defendant.'" Tsetsekas, 411 N.J. Super. at 8 (second
24 A-3708-15T2
alteration in original) (quoting Barker, 407 U.S. at 530); see
also State v. Szima, 70 N.J. 196, 200-01 (1976) (adopting the
Barker analysis). "No single factor is a necessary or sufficient
condition to the finding of a deprivation of the right to a speedy
trial." Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S.
at 533). Courts are required to analyze each interrelated factor
"in light of the relevant circumstances of each particular case."
Ibid. The remedy for violating the right to a speedy trial is
dismissal of the indictment. Barker, 407 U.S. at 522.
Addressing the length of the delay under the four-part test,
although "[t]here is no set length of time that fixes the point
at which delay is excessive[,]" Tsetsekas, 411 N.J. Super. at 11,
typically, once the delay exceeds one year, it is appropriate to
engage in the analysis of the remaining Barker factors. State v.
Cahill, 213 N.J. 253, 266 (2013). However, there is no bright-
line test requiring dismissal after a specified period of delay.
Id. at 270.
The "second prong examines the length of a delay in light of
the culpability of the parties." Tsetsekas, 411 N.J. Super. at12 (citing Barker, 407 U.S. at 531). "[D]ifferent weights should
be assigned to different reasons" proffered to justify a delay.
Barker, 407 U.S. at 531. Purposeful delay tactics weigh heavily
against the State. Tsetsekas, 411 N.J. Super. at 12; Barker, 407
25 A-3708-15T2
U.S. at 531. "A more neutral reason[,] such as negligence or
overcrowded courts[,] should be weighted less heavily but
nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant." Barker, 407 U.S. at
531. "[A] valid reason, such as a missing witness, should serve
to justify appropriate delay." Ibid. And, "[d]elay caused or
requested by the defendant is not considered to weigh in favor of
finding a speedy trial violation." Farrell, 320 N.J. Super. at
446 (citations omitted).
The third prong addresses the defendant's action in seeking
a speedy trial. Although "[a] defendant does not have an
obligation to . . . bring himself to trial[,]" Cahill, 213 N.J.
at 266 (citing Barker, 407 U.S. at 527), a failure to timely assert
the right is a factor to be considered in the assessment of an
alleged speedy trial violation. Ibid.; see also Fulford, 349 N.J.
Super. at 193 (finding defendant waited twenty-eight months to
assert his right to a speedy trial).
Last, in addressing the fourth factor, prejudice to
defendant, Barker, 407 U.S. at 530, the following three interests
are considered: prevention of oppressive pretrial incarceration,
minimization of defendant's anxiety concerns and whether the
defense has been impaired by the delay. Id. at 532; Cahill, 213
26 A-3708-15T2
N.J. at 266. "Of these, impairment of the defense [is] considered
the most serious since it [goes] to the question of fundamental
fairness." Szima, 70 N.J. at 201.
Here, there is no dispute that there was a delay in commencing
defendant's trial. Defendant does not contend, however, that the
State intentionally delayed his trial or that his defense was
impaired as a result of the delay. Moreover, defendant waited
over two years and nine months before he asserted his right. When
he did, the trial court properly recognized that some of the delay
was necessary for the parties to obtain needed discovery and the
trial was only otherwise delayed by the court's calendar. Finally,
defendant's claim that "he suffered particularly oppressive
incarceration due to [the] physical violence inflicted on him
[because he was a CI] in the jail, [which led] to his
hospitalization[,]" does not tilt the scales sufficiently to find
a speedy trial violation on the entire record. While unfortunate,
there is no proof that his treatment would have been different had
his time in jail pretrial been shorter. In any event, "where . . .
defendant has not pointed to any evidence of additional, specific
prejudice flowing from the delay, [a court should not] infer
prejudice based on incarceration that the defendant would
ultimately have had to serve[,]" especially where defendant
receives all of the jail credit to which he is entitled for the
27 A-3708-15T2
time spent awaiting trial.17 Hakeem v. Beyer, 990 F.2d 750, 762
(3d Cir. 1993).
The trial court correctly determined that despite the delay
in bringing defendant to trial, he failed to establish any
violation of his due process rights. We have no cause to disturb
his conviction.
IV.
In Point III of his brief, defendant argues for the first
time on appeal that the trial court erred by never instructing the
jury on the proper use of Gregory's and another police witness'
testimony that, prior to becoming a CI, defendant "was involved
with gun traffickers[.]" At trial, both Gregory and Detective
Craig Pokrywa of the NJSP testified about defendant's involvement
as a CI with gun traffickers initially in response to defense
counsel's cross-examination. For example, counsel specifically
asked Pokrywa whether "it [was] fair to say that drug dealers
oftentimes have information about weapons, securing handguns and
things like that[,]" and since CIs "were encouraged to infiltrate
criminal organizations[,]" whether their actions "might lead
[them] to information about people who are selling guns." On
redirect, when the prosecutor asked about the types of criminal
17
Defendant received jail credit totaling 1264 days.
28 A-3708-15T2
organizations a CI would be asked to infiltrate, the officer stated
that they were "not going to just send [CIs] out and [have them]
infiltrate something that they have no knowledge of[,]" and he
confirmed that "the organization that they would actually be
infiltrating is something that they already would know[.]"
Defense counsel asked Gregory similar questions on cross-
examination about defendant's activities as a CI. In response,
Gregory, too, initially confirmed that part of defendant's "duties
under [his] supervision was to infiltrate criminal
organizations[,]" and that defendant was involved in "gun
cases[,]" but he clarified that defendant "didn't infiltrate a
criminal organization. He had targets that were [their]
suspects[.]" When asked if defendant "gained the confidence of"
gun traffickers as part of his duties, Gregory assumed he did
because defendant "did deal with them," but Gregory could not
"testify if [defendant] gained their confidence." On redirect,
the prosecutor asked Gregory whether defendant "actually
infiltrated a criminal organization?" Gregory responded by
denying that defendant was involved with "a criminal
organization." He explained defendant dealt with "bad guys selling
guns[,]" whom defendant knew before "he actually began working
with" Gregory.
29 A-3708-15T2
Defendant argues that because one of his defenses was that
he never possessed a weapon and that the police never found the
weapon he allegedly used to threaten Waldron and Pastor, the
officers' testimony "had the capacity to serve as propensity
evidence that [he] was likely to possess a weapon." For that
reason, "[a]dmission of this testimony without a limiting
instruction was reversible error because the question of whether
[he] possessed a weapon during the offense was one of the key
issues for the jury." We disagree.
Notably, defendant did not object or seek to strike any of
the challenged testimony, nor was his argument raised before the
trial court in any other fashion. We therefore consider his
argument under the "plain error" standard that is, whether
defendant proved that an error occurred that was "clearly capable
of producing an unjust result[.]" R. 2:10-2; State v. Prall, 231
N.J. 567, 581 (2018).
Applying that standard, we conclude there was no error
committed by the court when it allowed the challenged testimony
and did not sua sponte deliver a limiting instruction, especially
in the absence of any objection from defendant. Even if defendant
had objected or requested a limiting instruction, it is clear that
the challenged testimony was given only in response to defense
counsel's "opening the door" to a discussion about defendant's
30 A-3708-15T2
experience with guns during cross-examination. Defense counsel's
questions justified the prosecutor "elicit[ing] otherwise
inadmissible evidence [because] the opposing party has made unfair
prejudicial use of related evidence." Prall, 231 N.J. at 582-83
(quoting State v. James, 144 N.J. 538, 554 (1996)) (addressing the
doctrine of "opening the door" and defining it as "a rule of
expanded relevancy [that] authorizes admitting evidence which
otherwise would have been irrelevant or inadmissible in order to
respond to (1) admissible evidence that generates an issue, or (2)
inadmissible evidence admitted by the court over objection").
Moreover, even if it was an error to allow the testimony without
an instruction, we conclude it was harmless in light of the other
"overwhelming admissible evidence" of defendant's guilt. Id. at
589.
V.
We turn next to defendant's argument in Point IV of his brief,
also raised for the first time on appeal, regarding the court not
severing for trial, on its own motion, the counts in the indictment
relating to his impersonating a police officer while securing
Patel's car from the counts relating to the same crime being
committed during his interaction with Waldron and Pastor. He
argues that the "[f]ailure to sever the incidents -- which took
place on different days, at different locations, and with different
31 A-3708-15T2
victims -- allowed the State to bolster its cases by presenting
[the] narrative that [defendant] had the propensity of
impersonating a law enforcement officer." Defendant therefore
contends that "[b]ecause of this improper joinder, [defendant] was
denied due process and a fair trial[.]"
We conclude that defendant's argument is "without sufficient
merit to warrant discussion in a written opinion[.]" R. 2:11-
3(e)(2). We observe only that defendant never filed a pre-trial
motion to sever as required by court rule, see R. 3:15-2(c)
(requiring motions to sever to be made before trial), and failed
to meet his burden to make "a strong showing of probable
prejudice . . . to warrant a finding of 'plain error.'" State v.
Keely, 153 N.J. Super. 18, 23 (App. Div. 1977) (quoting State v.
Baker, 49 N.J. 103, 105 (1967)). Such prejudice exists when
evidence admitted as proof of one charged crime would not be
admissible in the trial of another charge. State v. Blakney, 389
N.J. Super. 302, 327 (App. Div.), rev'd on other grounds, 189 N.J.
88 (2006).
Suffice it to say that evidence of defendant securing Patel's
vehicle by impersonating an officer was admissible as proof of
preparation and planning his kidnapping and robbery of Waldron and
Pastor while again impersonating an officer. See N.J.R.E. 404(b)
(providing that "evidence of other crimes, wrongs, or acts
32 A-3708-15T2
. . . may be admitted [to prove] motive, opportunity, intent
preparation, plan, knowledge, identity or absence of mistake or
accident when such matters are relevant to a material issue in
dispute." (emphasis added)). Because "the evidence establishe[d]
that [the] multiple offenses [were] linked as part of the same
transaction or series of transactions," there was no showing of
prejudice. State v. Moore, 113 N.J. 239, 273 (1988). The trial
court properly denied defendant's motion.
VI.
In Point V of his brief, defendant also raises for the first
time on appeal, a challenge to the trial court's jury instruction
on kidnapping. The court charged the jury as to kidnapping
essentially following the Model Jury Charges (Criminal),
"Kidnapping (N.J.S.A. 2C:13-1b(1) to (3))" (rev. Oct. 6, 2014).
As set forth in the model charge, the court instructed the jury
throughout the charge to determine whether a victim was
"'unlawfully removed' and/or 'unlawfully confined[.]'" It did not
give any instruction within that charge as to the need for
unanimity in the jury's verdict as to which type of kidnapping
they found, although the court did generally charge the jury that
"Your verdict, whatever it may be as to each crime charged, must
be unanimous. Each of the [twelve] members of the deliberating
jury must agree as to the verdict." The jury verdict sheet also
33 A-3708-15T2
did not segregate the theories of kidnapping that the jury could
find defendant guilty of committing.
Defendant argues that the trial court erred when it instructed
the jury that it must convict if the State proved beyond a
reasonable doubt either theory of kidnapping (asportation or
confinement), without "requir[ing] unanimity on which theory [the
jury] found . . . defendant guilty." We disagree.
We begin by acknowledging "[a]ppropriate and proper charges
are essential for a fair trial." State v. Baum, 224 N.J. 147,
158-59 (2016) (alteration in original) (quoting State v. Reddish,
181 N.J. 553, 613 (2004)). "The trial court must give 'a
comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find.'" Id. at 159 (quoting State v. Green, 86
N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent
duty . . . to ensure that the jurors receive accurate instructions
on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either
party.'" Ibid. (alteration in original) (quoting Reddish, 181
N.J. at 613). "Because proper jury instructions are essential to
a fair trial, "erroneous instructions on material points are
presumed to" possess the capacity to unfairly prejudice the
34 A-3708-15T2
defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42
(2004)).
When a defendant fails to object to an error regarding jury
charges, we again review for plain error. State v. Funderburg,
225 N.J. 66, 79 (2016). We must be satisfied that there is more
than "[t]he mere possibility of an unjust result . . . . [t]o
warrant reversal . . ., an error . . . must be sufficient to raise
'a reasonable doubt . . . as to whether the error led the jury to
a result it otherwise might not have reached.'" Ibid. (sixth
alteration in original) (citations omitted). A jury "charge must
be read as a whole in determining whether there was any error."
State v. Torres, 183 N.J. 554, 564 (2005) (citing State v. Jordan,
147 N.J. 409, 422 (1997)). Moreover, the effect of any error must
be considered "in light 'of the overall strength of the State's
case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State
v. Chapland, 187 N.J. 275, 289 (2006)).
A jury must reach a unanimous verdict in a criminal case.
N.J. Const. art. I, ¶ 9; R. 1:8-9. "The notion of unanimity
requires 'jurors to be in substantial agreement as to just what a
defendant did' before determining his or her guilt or innocence."
State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States
v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).
35 A-3708-15T2
Ordinarily, a general instruction on the
requirement of unanimity suffices to instruct
the jury that it must be unanimous on whatever
specifications it finds to be the predicate
of a guilty verdict. There may be
circumstances in which it appears that a
genuine possibility of jury confusion exists
or that a conviction may occur as a result of
different jurors concluding that a defendant
committed conceptually distinct acts.
[State v. Parker, 124 N.J. 628, 641 (1991).]
A general instruction may not be sufficient
where: (1) a single crime could be proven by
different theories supported by different
evidence, and there is a reasonable likelihood
that all jurors will not unanimously agree
that the defendant's guilt was proven by the
same theory; (2) the underlying facts are very
complex; (3) the allegations of one count are
either contradictory or marginally related to
each other; (4) the indictment and proof at
trial varies; or (5) there is strong evidence
of jury confusion.
[State v. Cagno, 211 N.J. 488, 517 (2012)
(citing Frisby, 174 N.J. at 597).]
"Although the need for juror unanimity is obvious, exactly
how it plays out in individual cases is more complicated." Frisby,
174 N.J. at 596. Thus, although an instruction regarding unanimity
as to a specific charge "should be granted on request, in the
absence of a specific request, the failure so to charge does not
necessarily constitute reversible error." Parker, 124 N.J. at
637.
36 A-3708-15T2
We apply a two-prong test to determine whether a specific
unanimity instruction is required. Cagno, 211 N.J. at 517 (citing
Parker, 124 N.J. at 639). The first inquiry is "whether the
allegations in the . . . count were contradictory or only
marginally related to each other . . . ." Parker, 124 N.J. at
639. The second inquiry is "whether there was any tangible
indication of jury confusion." Ibid.Applying the first inquiry, we find no basis for concluding
that a specific unanimity charge was warranted. In this case,
defendant never disputed the asportation or confinement of Waldron
or Pastor. Rather, he asserted at trial that their accompanying
him in Patel's vehicle was voluntary on their part in order to
avoid prosecution as drug dealers. The allegations are more than
"marginally related" and not in dispute.
Under the second inquiry, although the use of "and/or" is not
condoned in particular factual scenarios because the practice
invites the possibility of non-unanimous verdicts, see State v.
Gonzalez, 444 N.J. Super. 62, 75-76 (App. Div. 2016)18 (overturning
a conviction because the improper use of the phrase "and/or" in a
jury instruction injected ambiguity into the charge in the discrete
18
Notably, the Supreme Court in denying certification in Gonzalez
commented that "[t]he criticism of the use of 'and/or' is limited
to the" specific facts of that case. State v. Gonzalez, 226 N.J.
209 (2016).
37 A-3708-15T2
factual context of that case), there was no risk in this case that
the jury was confused or misled by the court's instructions as
"the underlying facts [were not] very complex[.]" Cagno, 211 N.J.
at 517. The State's evidence demonstrated a continuous, unbroken
course of criminal conduct against the victims defendant was
accused of kidnapping. The circumstances did not present "a
reasonable possibility that a juror will find one theory proven
and the other not proven but that all of the jurors will not agree
on the same theory." Parker, 124 N.J. at 635 (citation omitted).
The jury also gave no indication that it was confused as to
unanimity. It did not ask questions suggesting an inability to
reach unanimity on any of the essential elements of the kidnapping
offense. See, e.g., State v. Gentry, 183 N.J. 30, 31-32 (2005).
Given the absence of any objection, and the fact that the
court followed the appropriate Model Jury Charge, its failure to
give a specific unanimity charge, instead of a general one, without
any request, did not "possess[] a clear capacity to bring about
an unjust result." State v. Adams, 194 N.J. 186, 207 (2008)
(quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
VII.
We conclude by addressing defendant's argument that his
sentence was excessive. At the time of his sentencing, defendant
had nine prior convictions, which include second-degree unlawful
38 A-3708-15T2
possession of a rifle, second-degree attempted escape, three
separate second-degree robberies, and second-degree eluding. As
noted earlier, the sentencing court granted the State's motion for
the court to exercise its discretion under N.J.S.A. 2C:44-3(a),
and sentence defendant in the extended term for a first-degree
crime. In doing so, the court recited in detail each of
defendant's prior convictions and sentences, and applied
appropriate aggravating factors as well as mitigating factors
based upon defendant's prior service as a CI and the hardship of
defendant being sent to prison.19 It carefully explained on the
record why it was not applying the additional mitigating factors
argued by defendant. The court concluded that the aggravating
factors outweighed the mitigating factors, but did so without
expressly providing the weight it assigned to each factor. It
ultimately imposed its aggregate twenty-year sentence, which was
also within the ordinary term for a first-degree offense, even
19
The court found three aggravating factors and two mitigating
factors: (1) aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the
risk existed that defendant will reoffend); (2) aggravating factor
six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior
criminal record and the seriousness of the offenses); (3)
aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter
defendant and others from violating the law); (4) mitigating factor
eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will
entail excessive hardship); and (5) mitigating factor twelve,
N.J.S.A. 2C:44-1(b)(12) (the willingness of defendant to cooperate
with law enforcement authorities).
39 A-3708-15T2
though defendant was facing up to life in prison within the
extended term. Moreover, even within the extended term, the
twenty-year sentence was the lowest possible sentence.
On appeal, defendant contends the sentencing court's
imposition of a "discretionary extended term of twenty-years[']
imprisonment with an [eighty-five percent] period of parole
ineligibility" was "manifestly excessive," although he does not
challenge the court's decision to grant the State's motion for
sentencing within the extended term. Rather, he argues, "[t]he
court . . . failed to provide a statement of reasons for
aggravating factor nine, improperly declined to find mitigating
factor eight, and conducted a quantitative, rather than
qualitative, analysis of the factors." He also contends that the
judge erred in rejecting mitigating factor eight and that the
sentencing court failed to state the weight it afforded to each
of the factors as required by State v. Case, 220 N.J. 49, 69
(2014). According to defendant, had the court engaged in this
qualitative analysis, it should have imposed a lesser sentence
because it should have assigned greater weight to mitigating
factors eleven and twelve. Defendant explains that his status as
a CI would subject him to even greater hardship in prison evidenced
by the fact that he was already physically assaulted. With respect
to mitigating factor twelve, defendant states that the judge should
40 A-3708-15T2
have assigned significant weight to that factor because he helped
the State secure multiple convictions of dangerous criminals.
Our review of sentencing determinations is limited and is
governed by the "clear abuse of discretion" standard. State v.
Roth, 95 N.J. 334, 363 (1984). That standard applies equally to
a court's decision to sentence an eligible defendant in the
extended term. See State v. Young, 379 N.J. Super. 498, 502 (App.
Div. 2005). We are bound to uphold the trial court's sentence,
even if we would have reached a different result, "unless (1) the
sentencing guidelines were violated; (2) the aggravating and
mitigating factors found . . . were not based upon competent and
credible evidence in the record; or (3) 'the application of the
guidelines to the facts . . . makes the sentence clearly
unreasonable so as to shock the judicial conscience.'" State v.
Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J. at 364-65).
Applying these controlling principles, we conclude that the
sentencing court properly applied the sentencing guidelines,
including a comprehensive analysis of defendant's eligibility for
sentencing as a persistent offender under N.J.S.A. 2C:44-3(a), see
State v. Hudson, 209 N.J. 513, 526-27 (2012); State v. Carey, 168
N.J. 413, 425-27 (2001), and considered each of the applicable
aggravating and mitigating sentencing factors. While we
acknowledge that the court did not expressly state the weight it
41 A-3708-15T2
placed on each of the factors, its decision to sentence defendant
to the lowest possible sentence within the extended term, see
N.J.S.A. 2C:43-7(a)(2), indicates that defendant received the full
benefit of the weighing process. Cf. State v. Kruse, 105 N.J. 354,
363 (1987) (stating that a qualitative analysis "is critical when
. . . the court deviates from the norm" in sentencing a defendant).
Moreover, the court's findings were supported by the record and
the sentence imposed did not "shock [our] judicial conscious."
Roth, 95 N.J. at 365.
To the extent that we have not specifically addressed any of
defendant's remaining contentions, we conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
42 A-3708-15T2