STATE OF NEW JERSEY VS. ERIC KIM (16-06-0755, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0552-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC KIM,
Defendant-Appellant.
__________________________
Submitted February 5, 2019 – Decided April 9, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 16-06-0755.
Wronko Loewen Benucci, attorneys for appellant
(Gilbert G. Miller, on the briefs).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (William P. Miller, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel; Catherine A. Foddai, Legal Assistant, on the
brief).
PER CURIAM
Defendant Eric Kim was indicted for crimes related to a robbery and
sexual assault. The jury convicted defendant of second-degree robbery, N.J.S.A.
2C:15-1(a)(1); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), as a
lesser-included offense of second-degree sexual assault; and disorderly persons
simple assault, N.J.S.A. 2C:12-1(a)(1), as a lesser-included offense of third-
degree aggravated assault. Defendant was found not guilty of first-degree sexual
assault during a robbery, N.J.S.A. 2C:14-2(a)(3).
On the robbery conviction, defendant was sentenced to an extended term
of thirteen years in prison with parole ineligibility and supervision as prescribed
by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was also
sentenced to a concurrent term of eighteen months in prison for the fourth-
degree conviction and a consecutive term of four months of incarceration for the
disorderly persons conviction. Defendant appeals his convictions and sentence.
We affirm.
I.
The evidence at trial established that on April 17, 2016, E.R. (Erica) was
robbed and V.A.E. (Val), who came to help Erica, was assaulted. Erica, Val,
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and Erica's boyfriend, S.E. (Sam), all testified at trial. 1 Val is Sam's brother.
Erica testified that on April 17, 2016, she went to Sam's apartment. Sam
was a disc jockey and earlier that day he had worked at a party. The apartment
building where Sam lived had a foyer between the outside door and a locked
interior glass door. Behind the glass door, there was a straight corridor that
turned at the end of the hall and led to the stairs for the upper floors. Sam's
apartment was on the sixth floor. The apartment building had several video
surveillance cameras, which recorded the area outside the front door, inside the
foyer, and in the corridor leading from the interior door to the turn towards the
stairs. No camera was positioned to record the area beyond where the corridor
turned and led to the stairs.
When Erica arrived at Sam's apartment building, she called Sam on her
cell phone. Sam told her that he and Val were in the process of carrying some
of his equipment upstairs and he would come down to let her into the building
when they finished.
Initially, Erica waited for Sam outside the apartment building. Several
minutes later, however, another resident entered the building, unlocked the
1
We use initials and fictitious names to protect the privacy interests of the
victims and witnesses.
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interior glass door and allowed Erica to enter the corridor. While Erica was
standing in the corridor, defendant, who had entered the foyer after Erica,
knocked on the interior glass door. Thinking that defendant was another resident
of the building, Erica opened the door and let defendant inside the corridor.
Erica then began walking down the corridor with defendant behind her.
Erica testified that after she turned into the corridor that led to the stairs,
defendant came up behind her, pulled up her skirt, and touched her legs. Erica
tried to push defendant away, they struggled, and during that struggle, defendant
put his hand inside Erica's underwear and touched her vagina. Erica then began
to yell for help.
Sam and Val testified that they were on the second floor carrying a speaker
up to their apartment when they heard Erica screaming. Sam ran downstairs and
saw Erica on the floor with defendant on top of her. He also saw defendant's
hand between Erica's legs. Sam pulled defendant off Erica and a struggle ensued
during which defendant tried to leave, but Sam tried to restrain him. While Sam
and defendant were struggling, Val came and helped Sam. Val and Sam tried to
restrain defendant and during that struggle defendant bit Val on his shoulder.
Eventually, Sam and Val were able to subdue defendant and restrain him from
leaving.
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A resident of the building called 911, and two police officers responded
to the scene. One of officers testified at trial that when he arrived, he saw Sam
and Val sitting on top of defendant. Defendant was then arrested, and both
officers testified that defendant repeatedly told them, "I did it, I did it."
Later that evening, Erica and Val, who both spoke Spanish, gave
statements to the police. Erica was then taken to a hospital where she was
examined by a forensic nurse.
Meanwhile, defendant was taken to the police station, interviewed by two
detectives, and that interview was video recorded. At the beginning of the
interview, defendant was given and waived his Miranda2 rights. He was then
questioned, and, during that questioning, defendant admitted that he had
intended to rob Erica. Defendant repeatedly denied sexually assaulting Erica.
One of the detectives then told defendant some misstatements concerning the
law. Specifically, the detective informed defendant that he would not be subject
to Megan's Law, N.J.S.A. 2C:7-1 to -23, if he confessed to touching Erica's
vagina with one finger for a short duration. Thereafter, defendant stated that he
could not recall penetrating Erica's vagina, but to give her piece of mind, the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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detective could tell her that "it was the index finger and nothing happen ed to
it."3
In June 2016, a grand jury indicted defendant for four crimes: (1) first -
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); (2) second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1); (3) second-degree robbery, N.J.S.A.
2C:15-1(a); and (4) third-degree aggravated assault of Val, N.J.S.A. 2C:12-
1(b)(7).
Before trial, defendant moved to suppress his statement to the detectives.
The trial court conducted an evidentiary hearing, during which the court heard
testimony from the lead detective who had questioned defendant. The court also
reviewed the recording of defendant's interview. After hearing that evidence,
the court initially granted the motion to suppress finding that the lead detective
had misled defendant by giving him false statements concerning the law. On
reconsideration, however, the court ruled that the initial portion of defendant's
3
We note that this quote comes from the trial court's February 3, 2017 decision
on the motion to suppress. The record on appeal did not include the video
recording or the full transcript of defendant's statement. Instead, the record
includes only the first twelve pages of defendant's statement and a transcript of
the video recording played at the motion to suppress, wherein portion s of
defendant's statements were deemed "indiscernible." Nevertheless, neither
party disputes the quote in the trial court decision and both parties acknowledge
in their briefs that defendant eventually admitted to digitally penetrating Erica
after the detective incorrectly advised him on the applicability of Megan's Law.
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statement could be introduced at trial because the inaccurate statements
concerning the law were only made after defendant had already admitted that he
intended to rob Erica. The court also ruled that it was suppressing the second
portion of defendant's statement because of the detective's misleading
statements of the law, combined with what the court perceived to be overbearing
attempts by the detective to get defendant to confess to the alleged sexual assault
despite his continued denials.
A jury trial was conducted in March and April 2017. At trial, the State
introduced and played the initial portion of defendant's statement, during which
he admitted that he intended to rob Erica.
The State also introduced and showed the jury video footage captured by
the surveillance cameras at Sam's apartment building. Testimony describing the
surveillance footage explained that one of the video clips showed Erica in the
corridor just beyond the glass interior door arranging her hair. Shortly
thereafter, the clip showed defendant approach the glass door, knock on it, and
then Erica opened it for him. Erica can be seen walking down the corridor with
defendant following her, and then Erica turned into the hallway leading to the
stairs. The jury also watched a clip showing Sam and defendant near the glass
interior door. Sam grabbed defendant and pulled him to the floor. Defendant
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struggled to his feet, and tried to open the door. Val then arrived and he and
Sam struggled with defendant. In addition, the jury viewed a photograph of
Val's shoulder taken by a police officer on the night of the incident, which
showed an area of noticeably discolored skin "a little bit larger than a quarter."
After all the evidence was presented, counsel made their closing
arguments. During her closing arguments, the assistant prosecutor discussed
criminal attempt and discussed how "shaken up," "embarrassed," and
"exhausted" Erica was as a result of what defendant did to her. Defense counsel
made no objections to those comments.
The trial court then instructed the jury. As part of those instructions, the
court explained criminal attempt to the jury in connection with the charges of
aggravated sexual assault and aggravated assault. The court did not instruct the
jury on attempt as part of its charge concerning robbery. Defense counsel did
not object and did not request the court to charge the jury on attempt in
connection with the robbery charge.
As explained earlier, based on the evidence at trial, the jury convicted
defendant of second-degree robbery, fourth-degree criminal sexual contact, and
disorderly persons simple assault of Val.
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Defendant applied for a sentence to special probation in drug court. The
prosecutor, however, rejected his application. Thereafter, defendant appealed
that rejection to the Law Division. After hearing argument, the Law Division
denied defendant's motion, finding that he was not eligible for drug court
because he had a prior conviction for aggravated assault.
Thereafter, in August 2017, defendant was sentenced. His aggregate
sentence was for thirteen years and four months in prison. In accordance with
NERA, he is ineligible for parole for eighty-five percent of the thirteen years,
and when released, he is subject to three years of parole supervision.
II.
Defendant now appeals his convictions and sentence. He makes six
arguments, which he articulates as follows:
POINT I – THE TRIAL COURT'S DENIAL OF
DEFENDANT'S APPEAL FROM HIS DRUG COURT
EXCLUSION WAS ERRONEOUS.
POINT II – THE SURVEILLANCE VIDEO
FOOTAGE WAS NOT PROPERLY
AUTHENTICATED AND LACKED FOUNDATION
AND THUS SHOULD NOT HAVE BEEN
ADMITTED.
POINT III – THE TRIAL COURT'S
RECONSIDERATION OF ITS INITIAL
SUPPRESSION RULING THAT DEFENDANT'S
STATEMENT TO THE POLICE WAS
A-0552-17T4
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INVOLUNTARY AND INADMISSIBLE AND
CONSEQUENT DECISION TO ADMIT A PORTION
OF DEFENDANT'S STATEMENT WAS
ERRONEOUS.
POINT IV – THE COURT'S FINAL JURY
INSTRUCTIONS WERE ERRONEOUS IN FAILING
TO INSTRUCT THE JURY ON THE ELEMENTS OF
AN ATTEMPT TO COMMIT THEFT WHICH
COULD SUPPORT THE ROBBERY CHARGE.
POINT V – THE PROSECUTOR ENGAGED IN
MISCONDUCT ON SUMMATION WHICH
CUMULATIVELY DEPRIVED DEFENDANT OF A
FAIR TRIAL AND REQUIRES THE REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT VI – DEFENDANT'S SENTENCE IS
MANIFESTLY EXCESSIVE.
We are not persuaded by any of defendant's arguments and we discern no
grounds for reversing the jury convictions or his sentence. We will address
defendant's arguments in the procedural order in which they arose.
A. Defendant's Statements to Law Enforcement Officers
Defendant challenges the trial court's decision to admit into evidence the
first portion of his statement to the detectives. He argues that because one of
the detectives made misstatements concerning the law and repeatedly tried to
get him to confess to the alleged sexual assault, the entire statement was
effectively involuntary. Thus, he contends that because the State played a
A-0552-17T4
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portion of that statement before the jury, his conviction should be reversed under
concepts of due process and fundamental fairness.
"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
State v. S.S., 229 N.J. 360, 381-82 (2017) (quoting State v. Nyhammer, 197 N.J.
383, 399 (2009)). In determining whether a defendant's incriminating statement
is inadmissible, "the State must 'prove beyond a reasonable doubt that the
suspect's waiver [of rights] was knowing, intelligent, and voluntary[.]'" State v.
A.M., 452 N.J. Super. 587, 596 (App. Div. 2018) (alterations in original)
(quoting State v. Yohnnson, 204 N.J. 43, 59 (2010)).
A court evaluates whether the State has satisfied its burden by considering
the "totality of the circumstances[.]" Ibid. (alteration in original) (quoting
Nyhammer, 197 N.J. at 402). Under the totality-of-the-circumstances analysis,
a court considers factors such as the defendant's "age, education and
intelligence, advice as to constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature and whether physical
punishment or mental exhaustion was involved." Ibid. (quoting Nyhammer, 197
N.J. at 402).
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When we review a trial court's decision on a motion to suppress a
statement, we generally defer to the factual findings of the motion court when
they are supported by credible evidence in the record. State v. Vincenty, ___
N.J. ___, ___ (2019) (slip op. at 11) (quoting State v. Hubbard, 222 N.J. 249,
262 (2015)). Deference to a trial court's factual findings is appropriate "because
the trial court has the 'opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy." S.S., 229 N.J. at 374
(quoting State v. Elders, 192 N.J. 224, 244 (2007)). Deference is required even
if the trial court's factual findings "are based solely on its review of a video
recording." Id. at 386. We review de novo the trial court's legal conclusions
that flow from established facts. State v. Hamlett, 449 N.J. Super. 159, 169
(App. Div. 2017) (citing Hubbard, 222 N.J. at 263).
Here, the trial court found that defendant had received appropriate
Miranda warnings, and had knowingly, voluntarily, and intelligently waived his
rights and agreed to speak with the detectives. The court's findings in that regard
were supported by substantial credible evidence in the record. The court then
concluded that, for the initial portion of the interview, defendant freely and
voluntarily spoke with the detectives. After making an admission concerning
his intent to rob Erica, however, the court found that the detective made
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misstatements of law related to the alleged sexual assault. The court further
found that the detective acted in an overbearing manner by repeatedly attempting
to garner a confession from defendant despite his continued denials.
Accordingly, the court found that after defendant was told misstatements of the
law, his further statements were not voluntary and knowing and, therefore, were
not admissible.
The trial court's findings in that regard are supported by substantial
credible evidence in the record. The transcript of defendant's statements to the
detectives demonstrates that he was given his Miranda warnings, waived his
rights, and freely and voluntarily answered certain questions. Accordingly, that
initial portion of defendant's statement was admissible. 4
Defendant cites no case law to support his position that an entire interview
needs to be suppressed if, part way through the interview, law enforcement
officers make a misstatement of the law. Instead, defendant cites to case law
addressing suppression of statements given when there is an initial violation of
an individual's right against self-incrimination. Those cases are distinguishable
4
As mentioned previously, the record on appeal includes only the first twelve
pages of the transcript of defendant's statement, as well as a transcript of the
video recording played at the motion to suppress. We were not provided with
the video of defendant's statement.
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from this situation. Here, the complained-of conduct, that is, the misstatement
of law and continued questioning, occurred after defendant had confessed to
attempted robbery. Consequently, defendant's statements as to the intent to rob
Erica were voluntarily and intelligently given and are admissible.
B. The Surveillance Video Footage
Defendant also challenges the court's admission of video footage from the
surveillance cameras at Sam's apartment building. Defendant contends that the
State did not properly authenticate the videos because there was no testimony
describing where the cameras were located and how the video footage was
recorded.
To be admissible, video footage must be authenticated by evidence
sufficient to show that the video is what it purports to be. See N.J.R.E. 901.
"Authentication 'does not require absolute certainty or conclusive proof[.]'"
State v. Hannah, 448 N.J. Super. 78, 89 (App. Div. 2016) (quoting State v.
Tormasi, 443 N.J. Super. 146, 155 (App. Div. 2015)). Instead, "only 'a prima
facie showing of authenticity' is required." Ibid. (quoting Tormasi, 443 N.J.
Super. at 155). "To that end, any person with the requisite knowledge of the
facts represented in the photograph or videotape may authenticate it." State v.
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Wilson, 135 N.J. 4, 14 (1994); accord State v. Hockett, 443 N.J. Super. 605, 613
(App. Div. 2016).
Generally, authentication of video footage requires testimony from an
individual who was present at the time of the events and who states that the
video "accurately depict[s] the events as that person saw them when they
occurred." Wilson, 135 N.J. at 17 (citing Balian v. Gen. Motors, 121 N.J. Super.
118, 125 (App. Div. 1972)). Consequently, any witness with sufficient personal
knowledge "can verify that the [video] accurately represents its subject." Id. at
14.
The decision on whether to admit video footage is an evidentiary question.
Trial courts' "evidentiary rulings are 'entitled to deference absent a showing of
an abuse of discretion, [that is], there has been a clear error of judgment.'" State
v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). We will, therefore, not substitute our own judgment for that of the trial
court, "unless 'the trial court's ruling "was so wide of the mark that a manifest
denial of justice resulted."'" Ibid. (quoting Marrero, 148 N.J. at 484); accord
State v. Prall, 231 N.J. 567, 580 (2018).
Here, we discern no abuse of discretion in the trial court's admission of
the video footage. The court conducted a Rule 104 hearing, and at that hearing,
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Erica identified the locations represented in the videos based on her personal
knowledge of the apartment building. She also identified herself and other
people whom she knew as they appeared in the video footage. Erica also
testified that the information portrayed in the videos accurately reflected the
events that occurred on April 17, 2016. Consequently, she appropriately
authenticated the video footage.
C. The Prosecutor's Comments
Defendant argues that the prosecutor engaged in misconduct by making
certain comments during closing arguments. In that regard, defendant
challenges the prosecutor's definition of criminal attempt and argues that the
prosecutor impermissibly appealed to the jury's sentiment by engaging in a
lengthy discussion of the hardships suffered by Erica.
It is well settled that prosecutors are afforded wide latitude during
summation. State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry,
52 N.J. 413, 437 (1968)). Prosecutors generally "must confine their comments
to evidence revealed during the trial and reasonable inferences to be drawn from
that evidence." State v. Smith, 167 N.J. 158, 178 (2001) (first citing State v.
Frost, 158 N.J. 76, 85 (1999); then citing State v. Marks, 201 N.J. Super. 514,
534 (App. Div. 1985)). In evaluating a claim of prosecutorial misconduct, there
A-0552-17T4
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are two issues to be addressed: (1) whether the prosecutor's comments amounted
to misconduct and, if so, (2) whether the prosecutor's conduct justifies reversal.
State v. Wakefield, 190 N.J. 397, 446 (2007) (quoting Smith, 167 N.J. at 181).
Reversal of a defendant's conviction is not justified unless the prosecutor's
comments were "so egregious that [they] deprived the defendant of a fair trial."
Id. at 438 (quoting Smith, 167 N.J. at 181).
Generally, if no objection was made to the prosecutor's remarks, the
remarks will not be deemed prejudicial. State v. Kane, 449 N.J. Super. 119, 141
(App. Div. 2017) (quoting Frost, 158 N.J. at 83). "The failure to object suggests
that defense counsel did not believe the remarks were prejudicial at the time
they were made." Frost, 158 N.J. at 84. "The failure to object also deprives the
court of an opportunity to take curative action." Ibid. (citing State v. Bauman,
298 N.J. Super. 176, 207 (App. Div. 1997)).
Here, defense counsel made no objection to either of the prosecutor's
comments. On appeal, however, defendant challenges the prosecutor's
statement that "[t]here is nothing in the law of robbery that says something has
to be taken at all. What matters is that you intended to take something, and that
you exercised steps of force in that process." The prosecutor went on to state
that "under the law of robbery it has to be an intent to take something, not an
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actual taking, and there needs to be force overpowering." Defendant argues that
those statements constitute misconduct because they had a clear capacity to
mislead the jury as to the law on criminal attempt.
The trial court, however, gave the jury clear instructions on the
requirements of criminal attempt during its charge. Moreover, the court
explicitly instructed the jury that "any statements by the attorneys to what the
law may be must be disregarded . . . if they are in conflict with my charge."
Given the court's instructions and the presumption that a jury will adhere to the
court's instruction, we discern no misconduct by the prosecutor sufficient to
prejudice defendant or require the reversal of a jury conviction. See State v.
Burns, 192 N.J. 312, 335 (2007); State v. Loftin, 146 N.J. 295, 390 (1996); State
v. Herbert, ___ N.J. Super. ___, ___ (App. Div. 2019) (slip op. at 16).
Defendant also claims that the prosecutor improperly discussed hardships
Erica suffered due to the incident. The prosecutor's statements, however, were
based on the admitted testimony provided by Erica, Sam, and the forensic nurse
who conducted the sexual assault examination of Erica. Accordingly, we
discern no misconduct in the prosecutor's discussion of the hardships suffered
by Erica.
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D. The Jury Instructions
Next, we analyze the jury instructions. Defendant argues that his robbery
conviction should be reversed because the jury charge on robbery did not include
a definition of criminal attempt. Defendant did not object to the jury instruction
at trial, nor did he offer an alternative instruction on the robbery charge.
Accordingly, we review this issue for plain error. R. 2:10-2.
"To warrant reversal [under the plain error standard], the error must be
'clearly capable of producing an unjust result.'" State v. McKinney, 223 N.J.
475, 494 (2015) (quoting R. 2:10-2). Our Supreme Court has explained that
[i]n the context of jury instructions, plain error is
"[l]egal impropriety in the charge prejudicially
affecting the substantial rights of the defendant and
sufficiently grievous to justify notice by the reviewing
court and to convince the court that of itself the error
possessed a clear capacity to bring about an unjust
result."
[Ibid. (alterations in original) (quoting State v.
Camacho, 218 N.J. 533, 554 (2014)).]
Furthermore, in reviewing jury instructions, we must consider the
challenged portions of the instructions in context of the entire charge to
determine whether the overall effect was misleading or ambiguous. Ibid. (first
quoting State v. Jordan, 147 N.J. 409, 422 (1997); then quoting State v. Nelson,
173 N.J. 417, 447 (2002)). In situations where a trial court correctly instructs
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the jury concerning certain components of the charge, "[t]he test to be
applied . . . is whether the charge as a whole is misleading, or sets forth
accurately and fairly the controlling principles of law." Id. at 496 (alterations
in original) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div.
1997)). Thus, "[t]he key to finding harmless error in such cases is the isolated
nature of the transgression and the fact that a correct definition of the law on the
same charge is found elsewhere in the court's instructions." Ibid. (quoting
Jackmon, 305 N.J. Super. at 299-300). See State v. Smith, 322 N.J. Super. 385,
398-400 (App. Div. 1999) (holding that the failure to define attempt in charging
the jury on robbery did not prejudice defendant's rights because criminal attempt
was defined for the jury in the instruction on the law on another charge).
Here, considering the charge in its entirety, we find no reversible error.
In charging the jury, the trial court defined criminal attempt on two occasions.
First, criminal attempt was defined when the jury was instructed on aggravated
sexual assault. The court also defined criminal attempt in giving the instructions
concerning aggravated assault. Those instructions accurately defined criminal
attempt. Accordingly, we discern no plain error in the court not defining
criminal attempt in connection with the robbery charge. Moreover, we note that
A-0552-17T4
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there was strong evidence of defendant's attempt to rob Erica, which included
Erica's testimony, defendant's admissions, and the video footage.
E. Drug Court
Defendant also challenges the denial of his entry into drug court. He
contends that the trial court erred when it held that he was ineligible for drug
court based on his 2011 conviction for a third-degree aggravated assault.
"Drug Courts are specialized courts within the Superior Court that target
drug-involved 'offenders who are most likely to benefit from treatment and do
not pose a risk to public safety.'" State v. Meyer, 192 N.J. 421, 428-29 (2007)
(citing Administrative Office of the Courts, Manual for Operations of Adult
Drug Courts in New Jersey (Drug Court Manual) (July 2002),
https://www.njcourts.gov/courts/assets/criminal/dctman.pdf). There are two
tracks for admission to drug court. Meyer, 192 N.J. at 431 (citing Drug Court
Manual 10). Offenders must either satisfy the requirements for "special
probation" pursuant to N.J.S.A. 2C:35-14 (Track One), or "otherwise be eligible
under other sections of the Code of Criminal Justice" (Track Two). Drug Court
Manual 10; accord State v. Maurer, 438 N.J. Super. 402, 413 (App. Div. 2014)
(quoting State v. Clarke, 203 N.J. 166, 174-76 (2010)).
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Determining whether an offender is eligible for drug court involves
questions of law. Maurer, 438 N.J. Super. at 411. Accordingly, we use a de
novo standard of review. Ibid.
Here, we agree with the trial court that defendant was not eligible for drug
court. Defendant's 2011 conviction for third-degree aggravated assault made
him ineligible for drug court under Track One. N.J.S.A. 2C:35-14(a)(7) sets
forth one of the nine statutory requirements a Track One applicant must satisfy
for special probation eligibility. That statutory provision precludes persons
previously convicted of certain crimes, including "aggravated assault ," from
Track One admission. See N.J.S.A. 2C:35-14(a)(7).
Defendant, nonetheless, argues that the exclusion under N.J.S.A. 2C:35-
14(a)(7) should be interpreted to apply only to first- or second-degree
aggravated assaults. We reject that position as inconsistent with the plain
language of the statute. See State v. Fede, ___ N.J. ___, ___ (2019) (slip op. at
11) ("If the plain language of a statute is clear, that ends the matter; we then are
duty-bound to apply that plain meaning." (citing Kean Fed'n of Teachers v.
Morell, 233 N.J. 566, 584 (2018)). The statute does not limit the disqualifying
convictions to those who have first- or second-degree convictions. Instead, the
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statute uses the term "aggravated assault" without any indication of a limitation
to a conviction for a first- or second-degree charge. N.J.S.A. 2C:35-14(a)(7).
Defendant is also ineligible for admission to drug court under Track Two.
The applicable statutes and the Drug Court Manual preclude offenders who are
subject to a presumption of incarceration from admission to drug court under
Track Two. See N.J.S.A. 2C:35-14(a); N.J.S.A. 2C:44-1(d); Drug Court Manual
10, 16. Track Two is designed for "[s]ubstance abusing nonviolent offenders[,]"
Drug Court Manual 16, who are not facing "a presumption of incarceration or a
mandatory minimum period of parole ineligibility[.]" N.J.S.A. 2C:35-14(a).
Here, defendant was convicted of second-degree robbery, which carries
both a presumption of incarceration and a mandatory period of parole
ineligibility under NERA. See N.J.S.A. 2C:43-7.2; N.J.S.A. 2C:44-1(d). In that
regard, we reject defendant's argument that we should interpret the Drug Court
Manual to permit a second-degree offender to be considered under Track Two.
F. The Sentence
Finally, defendant contends that his thirteen-year extended-term sentence
to prison, with a period of parole ineligibility as prescribed by NERA, was
manifestly excessive and should be reversed. We disagree.
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We review sentencing decisions for a "clear showing of abuse of
discretion." 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 credible
evidence in the record;' or (3) 'the application of the guidelines to the facts' of
the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).
Under the persistent offender statute, N.J.S.A. 2C:44-3(a), a sentencing
court has discretion "to impose an extended sentence when the statutory
prerequisites for an extended-term sentence are present." State v. Pierce, 188
N.J. 155, 161 (2006). A defendant is statutorily eligible for an extended term
under N.J.S.A. 2C:44-3 if he or she "has been convicted of a crime of the first,
second or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). A
person is a "persistent offender" if he or she is age twenty-one or older at the
time of the offense and has been previously convicted on at least two separate
occasions of two crimes when he or she was at least eighteen years old. Ibid.The latest crime, or the defendant's latest release from confinement, must also
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be within ten years of the date of the crime for which the defendant is being
sentenced. Ibid.Here, defendant does not dispute that he qualified for an extended term.
Defendant had been convicted of a second-degree robbery and he had two prior
convictions of burglary and aggravated assault, which happened on separate
occasions when he was over the age of eighteen. Moreover, his most recent
conviction for aggravated assault was in 2011, which occurred within ten years
of his robbery conviction. Accordingly, the sentencing judge had the discretion
to impose an extended term.
A review of the record also establishes that the sentencing judge assessed
the aggravating and mitigating factors and made findings, which are supported
by the record. In that regard, the sentencing judge found aggravating factors
three, six, and nine. See N.J.S.A. 2C:44-1(a)(3), (6), and (9). The sentencing
judge found only the non-statutory mitigating factor that defendant was a
youthful offender. The judge went on to state the reasons for finding these
factors and the weight that he attached to each factor. Those findings are all
supported by the evidence in the record. The sentencing judge then followed
the sentencing guidelines, and the sentence imposed does not shock the judicial
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conscience. Accordingly, there is no basis to find that defendant's sentence was
excessive.
Affirmed.
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