STATE OF NEW JERSEY VS. KALIL J. GRIFFIN (12-05-0857, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5665-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KALIL J. GRIFFIN, a/k/a
DARNELL WILLIAMS,
KAHLIL GRIFFIN, and
KAHALIL GRIFFIN,
Defendant-Appellant.
___________________________
Submitted November 6, 2019 – Decided December 17, 2019
Before Judges Accurso, Gilson, and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 12-05-
0857.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Designated Counsel, on
the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Maura Kathryn
Tully, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
R.C. was shot twice in the head and left dead in his apartment. 1 Defendant
Kalil Griffin was indicted for four crimes related to the murder of R.C. A jury
convicted defendant of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-
degree armed robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an
aggregate prison term of fifty years, with a period of parole ineligibility as
prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
Defendant appeals from his convictions and sentence. We affirm.
I.
On February 21, 2011, the victim, R.C., was found dead in his apartment
in Asbury Park. A doctor with the County Medical Examiner's Office later
performed an autopsy and recovered two .38 caliber bullets lodged inside R.C.'s
head and neck. The medical examiner opined that R.C. died as a result of
wounds from two gunshots fired at R.C.'s head at close range. The medical
1
We use initials for the victim and certain witnesses to protect their privacy
interests.
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examiner also opined that R.C. had died sometime between the evening of
Friday, February 18, 2011, and the early morning of Saturday , February 19,
2011.
On February 18, 2011, defendant and co-defendant Joshua Simmons were
seen by defendant's former girlfriend and her husband leaving R.C.'s apartment
building at approximately 11:15 p.m. Defendant and Simmons had a garbage
can with them. Law enforcement personnel later found the garbage can by a
dumpster in a lot adjacent to R.C.'s apartment building. The can contained a
computer and an examination of the computer showed that it had been subject
to a "hard shut down," consistent with being unplugged, at approximately 10:36
p.m. on February 18, 2011.
Approximately a week after the murder, defendant and Simmons were
arrested. Simmons and defendant both agreed to waive their Miranda2 rights
and be interviewed by law enforcement personnel.
Simmons provided two statements to law enforcement personnel, which
were video recorded. In his first statement, given on February 24, 2011,
Simmons initially denied being in Asbury Park on the night of the murder.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5665-16T4
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Simmons, thereafter, admitted to being at R.C.'s apartment building and sitting
on the stairs while defendant went into R.C.'s apartment to buy marijuana.
In his second statement, given the following day, Simmons made
additional admissions. Simmons explained that he initially stayed outside the
apartment as the "look out guy" while defendant went into the apartment.
Thereafter, Simmons heard two "pops" and he entered R.C.'s apartment, saw that
R.C. had been shot and was lying on the floor, and he and defendant searched
for money and drugs.
Simmons also told detectives that he had seen defendant with a gun
approximately one day before they went to R.C.'s apartment. He explained that
defendant had shown both him and a neighbor, D.C., a gun in the hallway of the
apartment where Simmons and D.C. lived. Simmons went on to state that
defendant had pulled that gun out of a book bag or backpack and that when they
went to R.C.'s apartment, defendant had that bag with him.
Defendant gave a statement to the police on February 25, 2011. He
admitted going to R.C.'s apartment with Simmons on February 18, 2011, to buy
marijuana from R.C. Defendant denied shooting R.C. He also stated that he
and R.C. had "wrestled around a little bit." Further, he contended that R.C. had
asked him to take his computer out to the trash because it was broken.
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In May 2012, a grand jury indicted defendant and Simmons for four
crimes related to the murder of R.C. As noted earlier, they were charged with
felony murder, armed robbery, and two weapons offenses.
Before the return of the indictment, defendant filed a motion seeking to
dismiss all charges against him, contending that his right to a speedy trial had
been violated. On June 8, 2012, the trial court denied that motion.
Thereafter, the case went through extensive pretrial proceedings. During
that time, defendant filed a number of pretrial motions, including a motion to
suppress evidence seized from the crime scene and his home. Defendant also
moved to suppress the statements he had made to law enforcement personnel.
In November 2013, the trial court entered orders denying defendant's motion to
suppress evidence and granting the State the right to use defendant's recorded
statement at trial.
The State also engaged in extensive plea negotiations with Simmons. In
September 2013, Simmons agreed to plead guilty to certain crimes and to
provide testimony against defendant. Later, however, Simmons successfully
moved to withdraw his guilty pleas.
In 2014, defendant again moved to dismiss the charges against him on
speedy trial grounds. On August 14, 2014, the trial court denied that motion.
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In January and February of 2015, Simmons was tried on charges related
to the murder of R.C. A jury acquitted Simmons of felony murder and the
weapons offenses, but convicted him of the lesser-included offense of theft.
Subsequently, Simmons pled guilty to several unrelated crimes, and agreed to
testify against defendant.
In October 2015, defendant was tried on charges related to the murder of
R.C. At trial, the State presented testimony from a number of witnesses,
including Simmons and D.C. The State also played portions of the recorded
statements of defendant and Simmons.
Simmons testified that on February 18, 2011, he and defendant went to
R.C.'s apartment so that defendant could purchase marijuana. After entering the
apartment building, Simmons stayed outside the apartment, sitting on the stairs
as a look out, while defendant went into R.C.'s apartment. While waiting on the
stairs, Simmons heard "two pops." Defendant then came out of R.C.'s apartment
and signaled Simmons to come inside. When Simmons got into the apartment,
he saw R.C. lying on the floor with a bullet hole in his head. Defendant told
Simmons that R.C. had "made him mad" so defendant had shot R.C twice.
Thereafter, defendant and Simmons searched R.C.'s apartment looking for
money and marijuana. Defendant also suggested that they take R.C.'s computer
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out of the apartment in a trash can to make it look as though they were taking
out the trash.
Consistent with the testimony by Simmons, D.C. testified that defendant
had shown him and Simmons a revolver. D.C. explained that defendant had
pulled the gun out of a bag. The State also presented evidence that they had
found a backpack at defendant's apartment.
The State never found the murder weapon. At trial, a ballistics expert
testified that the two bullets recovered from R.C.'s body were both fired from
the same gun. The State argued that because police did not recover shell casings
at the murder scene, the murder weapon was more likely to be a revolver rather
than a semi-automatic handgun.
After hearing all the evidence, the jury convicted defendant on all four
charges. Shortly after trial, an alternate juror contacted defense counsel
claiming that during trial, several jurors had met to discuss the case. Defense
counsel moved for a hearing on the alleged juror misconduct. The trial court
determined that it would interview two of the alternate jurors. We, however,
granted the State's emergent application for leave to appeal and held that there
was no good cause for the court to interview those alternate jurors. State v.
Griffin, 449 N.J. Super. 13, 19 (App. Div. 2017).
A-5665-16T4
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At the August 2017 sentencing, the court granted the State's motion for an
extended term and, on the conviction of felony murder, sentenced defendant to
fifty years in prison, during which defendant would be ineligible for parole for
eighty-five percent of that time as prescribed by NERA. The court merged the
weapons convictions into the robbery conviction, and sentenced defendant to a
concurrent prison term of twenty years, subject to NERA.
II.
On this appeal, defendant challenges his convictions and sentence on six
grounds. Specifically, defendant articulates his arguments as follows:
POINT I – "OTHER CRIMES" EVIDENCE THAT,
BEFORE AND AFTER THE SHOOTING IN
QUESTION, DEFENDANT POSSESSED WHAT
MIGHT HAVE BEEN A REVOLVER SHOULD
HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(B);
THE STATE DID NOT RECOVER A GUN, THERE
WERE NO EYEWITNESSES TO THE SHOOTING
TO IDENTIFY THE GUN, AND ITS EXPERT
COULD NOT ESTABLISH THE TYPE OF
HANDGUN USED IN THE SHOOTING, WHICH
NECESSARILY SHOULD HAVE EXCLUDED IT
FROM THE JURY'S CONSIDERATION ON THE
ISSUE OF IDENTITY OF THE SHOOTER.
POINT II – THE TRIAL COURT'S ERROR IN
FAILING TO APPLY N.J.R.E. 404(B) TO THE
VARIOUS WITNESS ACCOUNTS OF
DEFENDANT'S POSSESSION OF A GUN
RESULTED IN GROSSLY INADEQUATE JURY
A-5665-16T4
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INSTRUCTIONS WHICH DEPRIVED DEFENDANT
OF A FAIR TRIAL.
POINT III – SIMMONS' STATEMENTS VARIED
WILDLY FROM HIS INITIAL ASSERTIONS OF NO
INVOLVEMENT WHATSOEVER TO THAT HE
WAS ACTING AS A LOOKOUT WHILE
DEFENDANT COMMITTED THE OFFENSES; THE
TRIAL COURT'S FAILURE TO INSTRUCT THE
JURY ON THE PERMISSIBLE USE OF SIMMONS'
PRIOR CONTRADICTORY STATEMENTS
DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV – DEFENDANT'S CONSITUTIONAL
RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY
A THREE-AND-A-HALF YEAR DELAY THAT
WAS NOT ATTRIBUTABLE TO HIM, AFTER HE
ASSERTED HIS RIGHTS ON MULTIPLE
OCCASIONS, AND SUFFERED RESULTING
PREJUDICE.
POINT V – JUROR MISCONDUCT LIKELY
PREJUDICED DEFENDANT'S RIGHT TO A FAIR
TRIAL, AND GOOD CAUSE EXISTED TO
INTERVIEW JURORS POST-VERDICT.
POINT VI – THE FIFTY-YEAR DISCRETIONARY
EXTENDED TERM SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE AND AN ABUSE OF
THE LOWER COURT'S DISCRETION.
Having considered each of these arguments in light of the law and record,
we reject defendant's contentions. We will address defendant's first two
arguments together and then analyze the remaining arguments in the order th ey
were raised by defendant.
A-5665-16T4
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A. Testimony Concerning the Gun
Defendant argues that the trial court erred in allowing Simmons and D.C.
to testify that defendant showed them a revolver the day before the murder and
robbery. In that regard, defendant contends that the trial court failed to conduct
an analysis under Rule 404(b), that a proper analysis under that rule would have
excluded the testimony, and that the trial court compounded those errors by not
giving a limiting instruction. We disagree.
"A trial court's ruling on the admissibility of evidence is reviewed on
appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). Unless
a trial court commits a "clear error of judgment" we will not reverse based on
such an evidentiary ruling. Id. at 158 (quoting State v. Barden, 195 N.J. 375,
391 (2008)).
Our Supreme Court has established a distinction between intrinsic
evidence and evidence of other crimes, wrongs, or bad acts. Id. at 180. Evidence
is intrinsic if it (1) "directly proves the charged offense"; or (2) "facilitates the
commission of the charged crime" because it was performed contemporaneously
with the charged crime. Ibid. (quoting and citing United States v. Green, 617
F.3d 233, 248-49 (3d Cir. 2010)).
A-5665-16T4
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If evidence is intrinsic to the charged crime, there is no need to engage in
an analysis under Rule 404(b) because the evidence is not being admitted as
evidence of other crimes or bad acts; rather, it is being admitted to prove the
charged crime. Id. at 177-78. "Thus, evidence that is intrinsic to a charged
crime need only satisfy the evidence rules relating to relevancy, most
importantly the [Evidence] Rule 403 balancing test." Ibid.
The trial court addressed this issue at a pretrial conference and ruled that
the testimony of Simmons and D.C. that defendant had shown them a gun was
intrinsic evidence. We discern no error or abuse of discretion in that evidentiary
ruling.3
Simmons and D.C. testified that the day before the robbery and murder
defendant had shown them a gun, which they described as a revolver. Both
witnesses also testified that defendant had that gun in a book bag or backpack.
Significantly, Simmons also testified that defendant had that bag with him when
he went to R.C.'s apartment on February 18, 2011.
3
The State contends that defendant waived the argument as to Simmons. In
support of that position, the State relies on statements made by defense counsel.
We do not read those statements as limiting defendant's objection to the
admissibility of the evidence concerning the gun. Therefore, we reject th is
argument by the State.
A-5665-16T4
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Consequently, the testimony concerning the gun was intrinsic to both the
murder and robbery charges. That defendant possessed a gun the day before the
murder was directly relevant to whether he had a gun when he was in R.C.'s
apartment the next day. Moreover, applying the balancing test called for under
Rule 403, such testimony was relevant to both the crime of murder and robbery
and was not substantially more prejudicial than probative. "The mere possibility
that evidence could be prejudicial does not justify its exclusion" under Rule 403.
State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State
v. Long, 173 N.J. 138, 164 (2002)). Instead, the probative value of the
challenged evidence must be "so significantly outweighed by its inherently
inflammatory potential as to have a probable capacity to divert the minds of the
jurors from a reasonable and fair evaluation of the issues in the case." State v.
Wakefield, 190 N.J. 397, 429 (2007) (quoting State v. Koskovich, 168 N.J. 448,
486 (2001)).
As defendant notes, the murder weapon was not recovered by law
enforcement personnel. Consequently, the State argued that it was significant
that both Simmons and D.C. described the gun in defendant's possession as a
revolver. No shell casings were recovered from the scene of the murder at R.C.'s
apartment. The State's ballistics expert explained that shots fired from a
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revolver do not discharge shell casings. In contrast, shots fired from a semi-
automatic handgun would discharge shell casings. That testimony further
illustrates that the testimony that defendant possessed a revolver was intrinsic
to the crimes of murder and robbery.
Given our agreement with the trial court that the testimony was
admissible, the trial court did not err in not conducting a balancing analysis
under Rule 404(b). See State v. Cofield, 127 N.J. 328, 338 (1992) (setting forth
a four-part test to determine if evidence of other crimes, wrongs, or bad acts is
admissible). Nor did the trial court err in not giving a limiting instruction
concerning the use of the evidence.
B. Simmons' Statements
Defendant argues that the trial court erred when it did not instruct the jury
that prior statements made by Simmons could be used as substantive evidence.
Specifically, defendant contends that Simmons' statements to law enforcement
officers at the time of his arrest were contrary to the testimony he gave at trial
and, therefore, were relevant to both his credibility and disputed issues of
material fact. In that regard, Simmons initially told the police he was not
involved and, thereafter, his statements evolved in the details he recalled.
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At trial, defendant did not request the model instruction on a prior
contradictory statement by a witness. Accordingly, we review this issue for
plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). Plain error in a jury
charge occurs when the substantive rights of a defendant are prejudiced and the
violation is sufficiently grievous to convince us that the error itself possessed a
clear capacity to bring about an unjust result. State v. Camacho, 218 N.J. 533,
554 (2014).
In reviewing a claim of error relating to a jury charge, "[t]he 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)). In
addition, the error "must be evaluated 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)).
The model jury charge concerning a prior contradictory statement made
by a witness instructs the jury that it may consider a witness' prior inconsistent
statement both "in judging a witness' credibility" and "as proof of the truth of
what [was] stated in the prior contradictory statement." Model Jury Charges
(Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)"
(rev. May 5, 1994). While the trial court here did not give that charge, the court
A-5665-16T4
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did instruct the jury on how to evaluate all witnesses' credibility, including the
evaluation of inconsistencies. In that regard, the trial judge specifically
instructed the jurors that they were the judges of credibility and in evaluating
credibility, they should consider "whether the witness made any inconsistent or
contradictory statements . . . ." Consequently, a review of the entire jury charge
establishes that the trial court did not commit plain error in not giving the
specific charge concerning a prior contradictory statement by Simmons. See
State v. Hammond, 338 N.J. Super. 330, 342 (App. Div. 2001) (explaining that
a general credibility instruction was adequate where a witness against defendant
had given a prior out-of-court inconsistent statement).
We also reject defendant's arguments that there were several errors in the
jury charges, and in aggregate, those errors warrant a reversal. Defendant's
argument relies on his contentions concerning the failure to give a limiting
instruction under Rule 404(b) and the failure to give a specific charge
concerning the use of inconsistent statements by Simmons. As we have rejected
both of those arguments on their merits, cumulatively they do not establish a
reversible error in the overall charge.
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C. Defendant's Right to a Speedy Trial
Before his trial, defendant twice moved to dismiss the charges against
him, contending that his right to a speedy trial had been violated. The trial court
denied those motions. Before us, defendant argues that the trial court erred and
we should reverse the jury verdict based on a violation of his right to a speedy
trial. Having considered these arguments, we discern no error or abuse of
discretion in the trial court's reasoning for denying both motions.
"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)). The State has the duty to promptly bring a case to trial and it must avoid
excessive delays. Ibid.
The defendant bears the burden of establishing a violation of his or her
speedy trial right. Id. at 9. In determining whether a defendant's speedy trial
right has been violated, a court must consider and balance (1) the length of delay;
(2) the reason for the delay; (3) defendant's assertion of his or her right to a
A-5665-16T4
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speedy trial; and (4) prejudice to defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972); accord 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). Accordingly, courts are required to
analyze each interrelated factor "in light of the relevant circumstances of each
particular case." Ibid. The remedy for violation of the right to a speedy trial is
dismissal of the indictment. Barker, 407 U.S. at 522.
We review a trial court's factual findings concerning a speedy trial issue
under an abuse of discretion standard. See Fulford, 349 N.J. Super. at 195-96
(noting that this court "cannot conclude that [the trial judge] abused his
discretion in rejecting defendant's speedy trial contention" (alteration in
original)). In contrast, we review the trial court's legal analysis de novo. See
State v. Handy, 206 N.J. 39, 45 (2011).
Here, it is undisputed that there was a substantial delay in bringing this
case to trial and that defendant twice asserted his right to a speedy trial. The
murder and robbery occurred on February 18, 2011. Defendant was arrest ed
approximately one week later on February 25, 2011. He was indicted
A-5665-16T4
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approximately a year later, on May 8, 2012, and tried approximately four years
later, in September and October 2015.
Defendant first moved for dismissal of the charges in 2012, before he was
indicted. The court heard that motion and denied it on June 8, 2012. In making
that ruling, the court noted the complex nature of the murder charge. In
particular, the court relied on the State's representation that some of the key
evidence required forensic analysis, which took time to conduct. The court also
observed that the defense was not impaired by the delay because the defendant
had the benefit of a pre-indictment probable cause hearing.
We discern no abuse of discretion in the trial court's denial of the first
speedy trial motion. The evidence in the record supports the trial court's findings
concerning the reasons for the delay. We also see no error in the trial court's
legal analysis. See Handy, 206 N.J. at 45; Fulford, 349 N.J. Super. at 195-96.
Defendant made his second speedy trial motion in 2014. The trial court
denied that motion after hearing oral argument on August 14, 2014. The trial
court acknowledged that there had been a substantial delay in bringing the case
to trial, but reasoned that a significant part of that delay was due to a change in
position by Simmons. In 2013, Simmons had pled guilty and agreed to testify
against defendant. Thereafter, however, Simmons withdrew his guilty plea and
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the State was delayed in bringing about the trial because of that withdrawal. The
trial court also found that some of the delay between 2012 and 2014 was
attributable to defendant.
We also discern no abuse of discretion in the trial court's reasoning for
denying defendant's second speedy trial motion. Significantly, the trial court
found that the State's delay did not impair defendant's ability to defend himself.
Consequently, the trial court held that defendant failed to meet his burden
concerning the prejudice prong of the Barker test. See Barker, 407 U.S. at 530.
Again, the record supports the trial court's factual findings concerning the
reasons for the delay, and its legal reasoning was sound. See State v. Townsend,
186 N.J. 473, 486-87 (2006) (holding that an unexplained twenty-two month
pre-indictment delay did not prejudice defendant); State v. Long, 119 N.J. 439,
471 (1990) (holding that a 971 day delay did not violate defendant's speedy trial
rights); State v. Douglas, 322 N.J. Super. 156, 171 (App. Div. 1999) (holding
that a three-year delay in a capital murder case did not prejudice defendant).
Needless to say, a murder investigation often involves complex issues that
have to be carefully investigated, cross-checked, and analyzed. The record in
this case does not demonstrate that the State deliberately delayed bringing
defendant to trial. This case involved two co-defendants and the State spent
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considerable time trying to negotiate a plea agreement with Simmons so that he
could testify against defendant. There is no showing that the State was dilatory
in engaging in negotiations with Simmons. To the contrary, Simmons initially
pled guilty and then moved to withdraw that guilty plea. Those proceedings
took a good deal of time to resolve and explain a substantial portion of the delay
in bringing about defendant's trial. Critically, however, the delay was not
prejudicial to defendant. While defendant obviously did not want Simmons to
testify against him, a jury had the right to hear Simmons' testimony and evaluate
it in light of the serious charges against defendant.
D. The Alleged Juror Misconduct.
We have already addressed defendant's juror misconduct arguments at
length in a published opinion. Griffin, 449 N.J. Super. at 13. On this appeal,
defendant does not make any new arguments concerning this issue. Instead, he
raises this argument "for the sole purpose of preserving the issue in the event of
further review." We, therefore, reject defendant's arguments concerning alleged
juror misconduct for the reasons we have detailed in our earlier published
opinion. Whether defendant can still appeal on that ground, we leave to our
Supreme Court.
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E. The Sentence.
Finally, defendant contends that his fifty-year sentence, subject to NERA,
was manifestly excessive. He also argues that the sentencing court abused its
discretion in imposing an extended term. We disagree.
We review sentencing decisions under an abuse of discretion standard.
State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J.
503, 512 (1979)). We will affirm 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 and credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" Bolvito, 217 N.J. at 228 (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The sentencing judge here properly determined that defendant was
eligible for an extended term. In that regard, there is no dispute that defendant's
prior convictions made him eligible for an extended term. The court reviewed
defendant's prior convictions and noted that, although his prior sentences were
probationary, there were a number of offenses. We discern no abuse of
discretion in that analysis or the decision to impose a fifty-year prison term.
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A review of the record establishes that the sentencing judge also assessed
the aggravating and mitigating factors and made findings, which are supported
by the record. In that regard, the sentencing judge determined there were no
applicable mitigating factors. N.J.S.A. 2C:44-1(b). The sentencing judge found
aggravating factors two, the gravity and seriousness of the harm inflicted on the
victim including whether defendant knew or should have known the victim was
particularly vulnerable, N.J.S.A. 2C:44-1(a)(2); three, the risk defendant will
commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of the
defendant's prior criminal record and the seriousness of those offenses, N.J.S.A.
2C:44-1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The
sentencing court provided an adequate explanation in support of its findings and
these findings were supported by evidence in the record. Consequently, we
discern no abuse of discretion in the sentence imposed.
Affirmed.
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