STATE OF NEW JERSEY VS. CLARENCE N. SCONIERS (19-01-0105, BURLINGTON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2328-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLARENCE N. SCONIERS,
a/k/a SMOKIE SCONIER, and
CLARNECE SCONIERS,
Defendant-Appellant.
__________________________
Argued October 4, 2021 – Decided November 1, 2021
Before Judges Messano and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 19-01-
0105.
Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Margaret McLane, of
counsel and on the briefs).
Nicole Handy, Assistant Prosecutor, argued the cause
for respondent (Scott A. Coffina, Burlington County
Prosecutor, attorney; Nicole Handy, of counsel and on
the brief).
PER CURIAM
Defendant Clarence N. Sconiers appeals from his November 13, 2019
conviction and January 17, 2020 sentence. We affirm.
In January 2019, a Burlington County Grand Jury indicted defendant,
charging him with third-degree theft by deception, N.J.S.A. 2C:20-4 (count
one); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count two);
and third-degree forgery of motor vehicle title, N.J.S.A. 2C:21-4.8(b)(3) (count
three). A jury convicted him on all counts. The trial judge sentenced defendant
to a five-year prison term, subject to a two-and-a-half-year period of parole
ineligibility on count one, and a concurrent seven-year term, subject to a three-
year period of parole ineligibility on count two, based on defendant's eligibility
for an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). The
judge merged count three with count one and ordered defendant to pay the
applicable fines and penalties, as well as $15,000 in restitution to his victim,
Danny Sanchez.
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In March 2018, Danny was interested in purchasing an SUV with low
mileage, so he enlisted the help of his brother, Christian.1 Christian, a car
mechanic, searched on Craigslist and found a post showing a 2013 Acura MDX
was for sale at a price of $16,500. The car was located near Mount Holly.
Danny contacted the seller, who waited approximately two weeks to
respond. When the seller answered, he gave Danny his phone number and told
him his name was "Travis Allen Hunter." Hunter texted Danny the Acura
MDX's identification number (VIN) so Danny could conduct additional research
on the vehicle. After Danny searched the VIN on Carfax.com and found the
mileage listed on the website matched what was set forth on Craigslist, he
decided to buy the car.
Two precipitating events eventually led the police to conclude defendant
posed as "Hunter" to sell the Acura posted on Craigslist. First, at approximately
2:30 a.m. on April 19, 2018, the Burlington City Police Department stopped a
black minivan and issued two motor vehicle summonses to the driver.
Defendant was the driver of the minivan, and he told the police he lived in
1
Because the victim and his brother share the same surname, we refer to them
by their first names for the convenience of the reader. We mean no disrespect.
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Newark. The stop occurred roughly fifteen minutes from Willingboro and about
twenty-five minutes from Mount Laurel.
Second, on the evening of April 20, 2018, a woman drove her 2013 Acura
MDX to her condominium in Mount Laurel. After parking her car in its
designated space, she locked it and took her car keys with her. The next
morning, she noticed her car was missing. She promptly contacted the Mount
Laurel Police Department, and the responding officers confirmed her car was
not repossessed or towed by the condominium association. They also noted
what appeared to be markings from a tow truck where the Acura had been
parked.
On April 21, 2018, the Sanchez brothers, their father, and a friend traveled
from New York to Willingboro to meet with Hunter to buy the Acura. The group
spotted the car after arriving at an apartment complex chosen by Hunter. Once
they confirmed the car's VIN number matched the VIN number listed on the
Carfax report, Danny called Hunter.
Shortly thereafter, a gray sedan pulled up to the group and a man
approached Danny. Christian asked the man if he was Hunter and the man said
"yes." Christian described Hunter as a "very light-skinned African-American
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male," stocky, about 5'8" to 5'11," with a "round head" and facial hair, who wore
gold-rimmed aviator sunglasses.
Christian test drove the Acura while Hunter sat in the front passenger seat.
Danny and Christian later recalled Hunter was sweating during the ride, and
when asked if he was okay, Hunter stated he wasn't feeling well.
Following the test drive, Christian offered to buy the Acura for a
discounted price of $15,000, payable in cash. Hunter immediately accepted the
offer and took the money. He also gave Danny two sets of keys, but left the
license plates on the Acura, telling the Sanchez brothers to mail the plates back
to him once they returned home. Hunter also turned over title to the vehicle.
The title listed the seller's name as "Travis A. Hunter," and reflected that Hunter
lived in Willingboro.2 The entire transaction lasted approximately thirty
minutes.
After returning home, Christian was unable to contact Hunter by phone or
text to discuss mailing the old license plates for the Acura back to Hunter.
Christian became suspicious and the next day, he looked up the vehicle's VIN
number on the website of the National Insurance Crime Bureau. The website
2
At trial, a representative from the State's Motor Vehicle Commission testified
there were numerous errors reflected in the car title (e.g., the title issue date)
which led her to conclude the document was counterfeit.
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suggested the Acura might be stolen. Christian called the Crime Bureau to
obtain additional information, and on April 23, 2018, he was informed the car
was reported stolen two days earlier. Christian again tried unsuccessfully to
reach Hunter and then called the Willingboro and Mount Laurel Police
Departments to advise them about the stolen vehicle. Christian later turned over
the Acura to the police so it could be returned to its rightful owner.
Detective Sean Bristow of the Mount Laurel Police Department became
the lead investigator on the case. He obtained surveillance footage from the
apartment complex where the Sanchez brothers said they met Hunter to buy the
Acura. The footage showed that at approximately 7:00 a.m. on April 21, 2018,
someone drove an Acura MDX into the complex, and it was followed by the
same minivan that defendant was driving when he was stopped by the police two
days earlier. The video showed the minivan driver exiting his car and directing
the person in the Acura to back into a certain parking spot. At approximately
7:27 a.m., the minivan left the complex, but the Acura remained in its spot. The
footage also showed the illegal sale of the Acura to the Sanchez brothers on
April 21.
When Detective Bristow obtained defendant's cellphone records, they
reflected defendant lived in Newark. The records also revealed that from March
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26 to April 18, 2018, defendant's phone was in or around Newark, but between
April 18 and 19, his phone was in the area of Westampton Township in
Burlington County. Further, the records reflected that although defendant's
phone was in the Newark area on April 20, it was back near Westampton
Township on April 21, the day the Acura was stolen. The records also showed
several calls were made between 3:09 and 3:15 p.m. on April 21, and that
defendant's cell phone connected to a cell tower located approximately 1.25
miles away from where the Sanchez brothers purchased the stolen Acura. The
phone call at 3:15 p.m. lasted for approximately twenty-five minutes.
At trial, Detective Bristow testified that when the 3:15 p.m. call occurred,
the surveillance footage showed defendant was "milling around the corner by
the building" and that when he interacted with the Sanchez brothers, the call
continued. Detective Bristow also testified he was unable to locate any
individual by the name of "Travis Allen Hunter" in the State of New Jersey or
surrounding areas.
Prior to trial, Christian participated in three photo arrays to assist in the
investigation. The first two arrays were administered by the Willingboro Police
Department on April 26, 2018. During the first array, the police showed
Christian six photographs. He stated none of the photos looked like the man
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who sold Danny the Acura. During the second array, Christian identified a photo
of a man he believed to be the culprit. Christian stated he was eighty-percent
confident in his identification. The photo identified by Christian was not of
defendant. In fact, neither of the first two arrays included a photo of defendant.
In May 2018, the Mount Laurel Police Department administered a third
array, which included six photos. Christian selected defendant's photo and told
the police he was eighty-five percent certain the person in the chosen photo was
the person who sold the Acura to his brother. Danny did not participate in any
pre-trial photo arrays.
At trial, Christian made an in-court identification of defendant, stating he
was "a thousand percent" certain defendant was the same man who sold Danny
the Acura. Danny also identified defendant at trial as the person who sold him
the Acura, testifying he was "[l]ike a hundred percent sure" defendant was
"Hunter."
Defendant called his girlfriend's father to testify at trial. This witness
testified that his daughter, as well as defendant and the couple's child, were at
his Willingboro home on April 21, 2018 for a family gathering. He also testified
defendant remained at the gathering from about 11:30 a.m. to 3:00 or 3:30 p.m.
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and that defendant subsequently asked him to write a letter confirming
defendant's presence in his home that day.
When the trial concluded, the jury found defendant guilty on all charges,
triggering the instant appeal. Defendant now raises the following arguments for
our consideration:
POINT I
THE IMPROPER ADMISSION OF THE LEAD
DETECTIVE'S LAY OPINION IDENTIFYING THE
DEFENDANT FROM THE SURVEILLANCE
VIDEOS WAS PLAIN ERROR, REQUIRING
REVERSAL OF DEFENDANT'S CONVICTIONS.
(Not Raised Below).
POINT II
THE COURT ERRED IN PERMITTING THE
VICTIMS TO MAKE IN-COURT
IDENTIFICATIONS OF DEFENDANT BECAUSE
THEY WERE HIGHLY SUGGESTIVE AND
UNRELIABLE. (Not Raised Below).
POINT III
EVEN IF EITHER OF THE COMPLAINED-OF
ERRORS WOULD BE INSUFFICIENT TO
WARRANT REVERSAL, THE CUMULATIVE
EFFECT OF THOSE ERRORS WAS TO DENY
DEFENDANT DUE PROCESS AND A FAIR TRIAL.
(Not Raised Below).
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POINT IV
THE SENTENCE, WITH ITS DISCRETIONARY
EXTENDED TERM AND DISCRETIONARY
PAROLE DISQUALIFIER, IS EXCESSIVE.
We are not persuaded.
Because defendant did not argue his initial three points before the trial
court, we review these contentions for plain error. R. 2:10-2. Thus, we may
disregard these purported errors unless they are "of such a nature as to have been
clearly capable of producing an unjust result[.]" Ibid. "The possibility of an
unjust result 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.'" State v. Ross,
229 N.J. 389, 407 (2017) (quoting State v. Williams, 168 N.J. 323, 336 (2001)).
Regarding Point I, we note that opinion testimony of a lay witness is
governed by N.J.R.E. 701, which states, "[i]f a witness is not testifying as an
expert, the witness'[s] testimony in the form of opinions or inferences may be
admitted if it: (a) is rationally based on the witness'[s] perception; and (b) will
assist in understanding the witness'[s] testimony or determining a fact in issue."
"The first prong of N.J.R.E. 701 requires the witness's opinion testimony to be
based on the witness's 'perception,' which rests on the acquisition of knowledge
through use of one's sense of touch, taste, sight, smell or hearing." State v.
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Singh, 245 N.J. 1, 14 (2021) (quoting State v. McLean, 205 N.J. 438, 457
(2011)). Therefore, the witness's knowledge may not be acquired through
"hearsay statements of others." State v. Sanchez, 247 N.J. 450, 469 (2021)
(citing N.J.R.E. 701). Under the Rule's second prong, the lay witness's
testimony must "assist the trier of fact either by helping to explain the witness's
testimony or by shedding light on the determination of a disputed factual issue."
Singh, 245 N.J. at 15 (quoting McLean, 205 N.J. at 458).
It is well established that a police officer may provide testimony
describing "what the officer did and saw," because "[t]estimony of that type
includes no opinion, lay or expert, and does not convey information about what
the officer 'believed,' 'thought' or 'suspected,' but instead is an ordinary fact-
based recitation by a witness with first-hand knowledge." Ibid. (quoting
McLean, 205 N.J. at 460). Here, defendant argues Detective Bristow's
testimony violated N.J.R.E. 701 because the detective was not an eyewitness to
the transaction depicted in the surveillance footage. Defendant also contends
that because the detective lacked personal knowledge, his opinion about the
footage did not assist the jury, and jurors were capable of evaluating the video
on their own. Defendant further argues Detective Bristow's testimony was
harmful because the identification of the person on the footage was a critical
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issue for the jury, yet the detective repeatedly referred to the person depicted in
the video as "the defendant" rather than "the suspect."
In Singh, the Court held that although N.J.R.E. 701 was violated when the
detective in that case identified the individual in a surveillance video as "the
defendant" versus "the suspect," the violation was not plain error. Id. at 18. The
Court noted the detective referred to "the defendant" only twice while narrating
the footage and, otherwise, referred to defendant as "the suspect," "a male," "a
person," or "the individual." Ibid. The Court found this error to be "harmless
given the fleeting nature of the comment and . . . that the detective referenced
defendant as 'the suspect' for the majority of his testimony." Id. at 17.
Moreover, the Court concluded the evidence against defendant "was significant
enough" so that the detective's "passing references to defendant as 'the
defendant' [did] not amount to plain error." 3 Id. at 18.
This case is distinguishable from Singh. Here, Detective Bristow referred
to defendant as "the defendant" eleven times during his narration of the
surveillance video. Detective Bristow even went so far as to state defendant
3
The Court instructed however, that in future criminal cases, "a reference to
'defendant,' which can be interpreted to imply a defendant's guilt − even when
. . . used fleetingly and appear[ed] to have resulted from a slip of the tongue −
should be avoided in favor of neutral, purely descriptive terminology such as
'the suspect' or 'a person.'" Singh, 245 N.J. at 18.
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committed the crime reflected in the footage, testifying "[a]nd here[,] you'll see
the defendant providing the Sanchezes the bag containing the license plate and
the Acura records." Although the State concedes this portion of the detective's
testimony was improper, it argues that based on its overwhelming proofs against
defendant, the detective's error was not so prejudicial that it caused the jury to
reach an unjust result. We agree.
The record reflects the jury did not hear Detective Bristow's testimony
until after Danny and Christian testified. While on the witness stand, each
brother identified defendant as the person seen on the video. Moreover, unlike
the victim in Singh, here, the Sanchez brothers spent approximately twenty to
thirty minutes with defendant in broad daylight during the incident, thereby
enhancing the reliability of their identifications. See id. at 5-6. We also note
Detective Bristow provided testimony the Sanchez brothers could not. For
example, he testified about how he acquired the surveillance footage, and he
provided detailed information regarding defendant's cellphone. Additionally,
defense counsel had the opportunity to vigorously cross-examine Detective
Bristow regarding his description of the man pictured in the footage, as
evidenced by the following colloquy:
Q: You wouldn't have known who he is, right?
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A: [T]hose [motor vehicle summonses] are the way I
identified Mr. Sconiers as a possible suspect. And then
the other evidence I gathered also led me to Mr.
Sconiers being the subject that conducted the sale of the
Acura.
Q: Who you believe is the subject, right?
A: At this point my evidence has determined it is Mr.
Sconiers.
Q: You weren't there when it happened, were you?
A: I was not.
Q: You were not a witness to that sale, were you?
A: I was not.
Q: You [were] not a participant to that sale, were you?
A: No, I was not.
Q: You did not talk to the person who presented that
vehicle for sale, did you?
A: No.
The record also reflects that during the detective's cross-examination, the
judge interjected and stated, "[w]ell, . . . I imagine that would have been a
question for Mr. Sanchez as opposed to the detective who's not trying to identify
anybody." (Emphasis added). Given this comment by the judge, his charge to
the jury about identification testimony, and mindful that: the detective's
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testimony followed the strong positive identifications made by the Sanchez
brothers; defendant's minivan matched the one seen in the surveillance footage;
and cellphone records reflected defendant made several calls that connected him
to a cell tower near where the illegal transaction occurred, we cannot conclude
it was plain error to admit the detective's challenged testimony.
Regarding Point II, defendant argues the judge erred in permitting the
Sanchez brothers to make in-court identifications because the identifications
were highly suggestive and unreliable. He also argues the standards articulated
in State v. Henderson, 208 N.J. 208 (2011), which are used for evaluating out-
of-court identifications, should apply to in-court identifications. 4 Further, he
asserts "in-court identifications that take place without a prior out-of-court
identification, or with an equivocal out-of-court identification, should be
4
In Henderson, the Supreme Court revised the framework to be used when
evaluating the admissibly of out-of-court identifications and implemented a
four-pronged test. 208 N.J. at 288-90. The Court instructed that "a defendant
has the initial burden of showing some evidence of suggestiveness that could
lead to a mistaken identification." Id. at 288. Second, if a defendant meets his
or her burden, "[t]he State must then offer proof to show that the proffered
eyewitness identification is reliable[,] accounting for system and estimator
variables." Id. at 289. Third, a defendant must "prove a very substantial
likelihood of irreparable misidentification." Ibid. Lastly, "if . . . a court finds
from the totality of the circumstances that [a] defendant has demonstrated a very
substantial likelihood of irreparable misidentification, the court should suppress
the identification evidence." Ibid.
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excluded as unduly prejudicial." We find these arguments unavailing.
Moreover, we perceive no basis to extend the principles outlined in Henderson
to in-court identifications, and concluded as much in State v. Guerino, 464 N.J.
Super. 589, 606-07 (App. Div. 2020).
"Reliability is the linchpin in determining the admissibility of
identification testimony." State v. Micelli, 215 N.J. 284, 292 (2013) (quoting
Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). The Supreme Court adopted
the following factors for a judge to consider when assessing the reliability of an
identification:
the opportunity of the witness to view the criminal at
the time of the crime, the witness'[s] degree of
attention, the accuracy of [the witness's] prior
description of the criminal, the level of certainty
demonstrated at the confrontation, and the time
between the crime and the confrontation.
[Ibid. (quoting State v. Herrera, 187 N.J. 493, 503
(2006)).]
As we noted in Guerino, "the threshold for suppression of [an] in-court
identification is high." 464 N.J. Super. at 622 (citing Henderson, 208 N.J. at
303). In most instances, "identification evidence will likely be presented to the
jury" and "[i]t will remain the jury's task to determine how reliable that evidence
is, with the benefit of cross-examination and appropriate jury instructions."
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State v. Chen, 208 N.J. 307, 328 (2011) (citation omitted); see also State v. Lazo,
209 N.J. 9, 24 (2012) ("In an identification case, it is for the jury to decide
whether an eyewitness credibly identified the defendant. Guided by appropriate
instructions from the trial judge, juries determine how much weight to give an
eyewitness'[s] account." (citing State v. Farrow, 61 N.J. 434, 451 (1972), cert.
denied, 410 U.S. 937 (1973))). "In rare cases . . . highly suggestive procedures
that so taint the reliability of a witness'[s] identification testimony will bar that
evidence altogether." Ibid.In Guerino, we declined to extend the Henderson principles to in-court
identifications, cognizant that a judge's "decision to prohibit an in-
court identification is made on a case-by-case basis." 464 N.J. Super. at 606.
See also State v. Madison, 109 N.J. 223, 242 (1988) (holding an in-court
identification is not admissible if a "photographic identification procedure was
so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification" (quoting Simmons v. United States, 390 U.S. 377,
384 (1968) (emphasis omitted))).
Here, defendant did not object at trial to a single photo array from
Christian's out-of-court identifications. Also, he did not request a pretrial
evidentiary hearing, as permitted in Henderson, nor did he present any evidence
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that the photo arrays presented to Christian were impermissibly suggestive.
Moreover, following Christian's direct testimony, defense counsel thoroughly
cross-examined him about the three photo arrays, noting Christian's mistaken
identification in the second photo array; counsel also questioned Christian about
his in-court identification. Given these facts, and because defendant does not
demonstrate how Christian's in-court identification was tainted by any
suggestiveness outside the courtroom, defendant has not established the judge
erred in allowing Christian to identify defendant at trial.
Turning to Danny's in-court identification, we are persuaded the analyses
set forth in Henderson and Madison are inapplicable because Danny did not
make any out-of-court identifications. Therefore, N.J.R.E. 403 governs our
analysis. That Rule states "relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of: (a) [u]ndue prejudice,
confusion of issues, or misleading the jury; or (b) [u]ndue delay, waste of time,
or needless presentation of cumulative evidence." N.J.R.E. 403.
Here, Danny made an in-court identification of defendant with "one-
hundred percent" certainty, after which defendant's attorney cross-examined him
about the identification. Danny testified that he did not discuss defendant's
identity with Christian or his father, and that he did not view the surveillance
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video prior to trial. As we have noted, Danny spent a significant amount of time
with defendant during daylight hours when he and defendant first met in person
to discuss the sale of the Acura. Thus, we cannot conclude the probative value
of Danny's in-court identification was outweighed by any prejudice to
defendant.
The judge's jury charge about identification testimony also militates
against concluding the in-court identifications should have been barred. Here,
the judge instructed jurors to assess the reliability of identification testimony by
considering factors like the prior description of the perpetrator, the time elapsed
between the incident and the statement, and cross-racial effects. The judge
further directed jurors to
consider the observations and perceptions on which the
identification was based, the witness's ability to make
those observations and perceive events, and the
circumstances under which the identification was
made. Although nothing may appear more convincing
than a witness's categorical identification of a
perpetrator, you must critically analyze such testimony.
Such identifications, even if made in good faith, may
be mistaken. Therefore, . . . be advised that a witness's
level of confidence standing alone may not be an
indication of the reliability of the identification.
Under these circumstances, we cannot conclude the judge erred in admitting the
in-court identifications of the Sanchez brothers.
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We need not address Point III at length. In short, defendant contends that
even if the detective's improper testimony or the Sanchez brothers' in-court
identifications do not independently warrant reversal of defendant's convictions,
the prejudice flowing from these alleged cumulative errors denied defendant due
process and a fair trial. Again, we disagree.
Appellate courts may reverse a defendant's conviction "where any one of
several errors assigned would not in itself be sufficient to warrant a reversal, yet
. . . all of them taken together justify the conclusion that defendant was not
accorded a fair trial." State v. Terrell, 452 N.J. Super. 226, 308 (App. Div. 2016)
(quoting State v. Orecchio, 16 N.J. 125, 134 (1954)). As we were not persuaded
by either of defendant's plain error arguments in Points I and II, we cannot
conclude his conviction resulted from cumulative error.
Lastly, we address defendant's sentencing arguments under Point IV. He
contends his sentence is excessive so that even if his conviction is upheld, we
should remand this matter for resentencing because the judge: (1) failed to make
the requisite findings before sentencing him to a discretionary period of parole
ineligibility; (2) engaged in impermissible double counting before imposing an
extended term sentence; (3) erred in sentencing him to both an extended term
and a period of parole ineligibility; and (4) failed to consider mitigating factor
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eleven, N.J.S.A. 2C:44-1(b)(11), (excessive hardship resulting from
imprisonment). We are not convinced.
Our "review of a sentencing court's imposition of a sentence is guided by
an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318 (2018). We
apply a deferential standard when reviewing sentencing determinations. State
v. Fuentes, 217 N.J. 57, 70 (2014). Such review requires us to affirm the
sentence unless: (1) the sentencing guidelines enacted by the Legislature were
violated; (2) there was no competent and credible evidence in the record to
support the imposed sentence; or (3) the application of the facts to the law
constitutes such a clear error of judgment that it "shock[s] the judicial
conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). We may
remand a matter for resentencing if the trial court failed to provide the required
"qualitative analysis of the relevant sentencing factors on the record." Ibid.(citing State v. Kruse, 105 N.J. 354, 363 (1987)). But sentencing "[j]udges who
exercise discretion and comply with the principles of sentencing remain free
from the fear of 'second guessing.'" State v. Dalziel, 182 N.J. 494, 501 (2005)
(citing State v. Megargel, 143 N.J. 484, 494 (1996)).
A sentencing court may impose a parole disqualifier when "clearly
convinced that the aggravating factors substantially outweigh the mitigating
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factors." N.J.S.A. 2C:43-6(b). The sentencing judge should, but is not required
to, use the "clearly convinced" statutory language when balancing the
aggravating and mitigating factors. See State v. Logan, 262 N.J. Super. 128,
132, 620 (App. Div. 1993). "A clear explanation 'of the balancing of aggravating
and mitigating factors with regard to imposition of sentences and periods of
parole ineligibility is particularly important.'" Fuentes, 217 N.J. at 73 (quoting
State v. Pillot, 115 N.J. 558, 565-66 (1989)).
Here, the judge found aggravating factors three (risk of reoffense), six,
(criminal history), and nine (deterrence), N.J.S.A. 2C:44-1(a)(3)(6) and (9). He
also found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (restitution). The judge
explained his findings, noting:
This is [defendant's] third indictable conviction.
And the [c]ourt would, therefore, cite the following
aggravating factors: Three, I do find that based on the
re-involvement that [defendant] has had while being on
some sort of supervision . . . , that this offense occurred
while he was on parole. So[,] it does give this [c]ourt
some concern that [he] would commit another offense
....
And [aggravating factor] six, . . . one of
[defendant's prior] offenses in particular, both are
serious, but . . . the later offense [involving conspiracy
to commit a robbery,] . . . was particularly serious for
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the reasons . . . already indicated[,] citing the
aggravating factors that the [c]ourt found in that case. 5
And, of course, aggravating factor nine, that there
is a strong need to deter [defendant] and others from
violating the law and that there are very serious
repercussions and consequences for doing so.
The judge added:
I wish that [defendant's] daughter's birth . . . would have
provided sufficient deterrence for [defendant] to say,
you know what, I have a child now, and if I . . . look the
wrong way, given my past history that I'd get caught
. . . or convicted of it, there's going to be some serious
repercussions. And here we are. So[,] I'm certainly
very sensitive to parents being involved with their
children and . . . how that affects them and a lot of the
difficulties and challenges that go along with that. I
certainly understand that very, very well.
Regarding mitigating factor six, the judge stated that although he was
unsure how restitution would occur if defendant remained in custody, he was
still giving "some passing attention" to the factor.
5
Earlier in the sentencing proceeding, the judge noted that when defendant was
sentenced in 2012 for conspiracy to commit a robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1, the judge who sentenced defendant in 2012 found aggravating
factors one and two, N.J.S.A. 2C:44-1(a)(1) and (2). The judge on the instant
matter remarked, "[y]ou usually don't find those aggravating factors in most
cases . . . . But I point that out because I think it's important to realize that this
particular [conspiracy] offense seemed to involve some serious injury or harm
to the victim."
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Six days after the judge sentenced defendant, he went back on the record
and briefly amplified his earlier sentencing decision. Reiterating that he found
"aggravating factors three, six and nine as well as mitigating factor six," he
"accord[ed] significant and substantial weight to" the aggravating factors and
"nominal[]" weight to the lone mitigating factor. He further concluded the
"aggravating factors so substantially and qualitatively outweigh the mitigating
factor as to warrant . . . the period of parole ineligibility associated with the
sentences imposed."6 Because the judge's aggravating and mitigating factor
analysis is supported by competent evidence, and because he found the
aggravating factors substantially outweighed the lone mitigating factor, we
perceive no reason to conclude the court mistakenly imposed a period of parole
ineligibility when fixing defendant's prison terms.
Similarly, we are not convinced the judge erred in imposing an extended
sentence or that he "double-counted" defendant's prior convictions. Here,
defendant does not dispute he met the criteria of a persistent offender and thus
6
Defendant's attorney did not oppose the State's motion to expand the record to
include the January 23, 2020 sentencing proceeding.
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was eligible for an extended term under N.J.S.A. 2C:44-3(a).7 But he argues
that even if he was found to be a persistent offender, the judge was not required
to impose an extended term sentence of seven years for the third-degree offense
of receiving stolen property.
It is well established that once the statutory eligibility criteria under
N.J.S.A. 2C:44-3(a) are met, the permissible range of sentences "starts at the
minimum of the ordinary-term range and ends at the maximum of the extended-
term range." State v. Pierce, 188 N.J. 155, 169 (2006). The judge may sentence
the defendant within that range, "subject to reasonableness and the existence of
credible evidence in the record to support the court's finding of aggravating and
7
A sentencing court is permitted to impose an extended term of imprisonment
if it concludes the defendant is a persistent offender, meaning
the defendant was convicted of at least two separate
prior crimes[,] but only if 'the latest' of those crimes
was committed or the defendant's last release from
confinement occurred – 'whichever is later' – within ten
years of the charged crime.
[State v. Clarity, 454 N.J. Super. 603, 606 (App. Div.
2018) (quoting N.J.S.A. 2C:44-3(a)).]
Additionally, a defendant must have been at least twenty-one years old when he
committed the crime being sentenced and at least eighteen-years old at the time
of commission of the two prior offenses for which he was convicted. N.J.S.A.
2C:44-3(a).
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mitigating factors and the court's weighing and balancing of those factors
found." Ibid. However, the judge should not engage in "double counting" a
defendant's prior convictions before imposing an extended term sentence,
meaning the judge should not use a defendant's criminal history as both a basis
to find defendant is eligible for an extended term, and to enhance his sentence.
State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). Still, a sentencing
judge is not "required to ignore the extent of [a defendant's] criminal history
when considering applicable aggravating factors." State v. McDuffie, 450 N.J.
Super. 554, 576-77 (App. Div. 2017). Also, "other aspects of the defendant's
record, . . . such as a juvenile record, parole or probation records, and overall
response to prior attempts at rehabilitation, will be relevant factors in adjusting
the base extended term." State v. Dunbar, 108 N.J. 80, 92 (1987).
Here, the judge imposed an extended term sentence in the permissible
range. In doing so, he properly recognized defendant was a persistent offender,
yet the judge did not exclusively rely on defendant's criminal history to impose
the extended term. Instead, the judge also considered defendant's risk of
reoffense and the need to deter his behavior. Additionally, the judge noted the
seriousness of defendant's prior offenses and that defendant committed the
instant offenses while on parole supervision. Further, the judge observed this
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26
was "the type of case that required some sophistication" and that "[t]here were
other people involved" in "what could be considered an enterprise."
As discussed, we do not second-guess the decision of a sentencing court
so long as it adheres to the sentencing guidelines, is supported by competent and
credible evidence in the record, and defendant's sentence does not "shock the
judicial conscience." Fuentes, 217 N.J. at 70 (quoting Roth, 95 N.J. at 364-65).
Governed by these principles, we conclude defendant's extended term sentence
fell in the proper range and was reasonable in light of the judge's analysis of the
aggravating and mitigating factors. Further, the sentence does not "shock the
judicial conscience." Ibid. (quoting Roth, 95 N.J. at 364-65). Moreover, the
record does not support defendant's contention that the judge engaged in
impermissible double counting.
Finally, although defendant contends the judge failed to consider
mitigating factor eleven, this argument is belied by the record. Indeed, the judge
specifically acknowledged defendant "does have a young child for whom he has
responsibility," but the judge was not convinced that sentencing defendant to a
prison term would present "an unnecessary hardship." We add that the record
is devoid of evidence to support defendant's claim that his imprisonment would
result in an excessive hardship to him or his dependents.
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To the extent we have not addressed defendant's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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