STATE OF NEW JERSEY VS. GUILIO MESADIEU (16-06-0373 AND 16-06-0375, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5379-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GUILIO MESADIEU, a/k/a
GUILIO MESUDIEU, JASON
PIERRE, JOSEPH PIERRE,
GUILIO MESDIEU, GUILIO
MASADIEU, EMMANUEL
MERVALUS, EMMANUEL
MERVILUS, and EMMANUEL
MERVUILUS,
Defendant-Appellant.
___________________________
Submitted December 2, 2020 – Decided August 20, 2021
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 16-06-0373
and 16-06-0375.
Joseph E. Krakora, Public Defender, attorney for
appellant (John P. Flynn, Assistant Deputy Public
Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the briefs).
PER CURIAM
After the trial court denied Giulio Mesadieu's motions to suppress
evidence and to disclose a confidential informant's identity, a jury found him
guilty of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), and being
a certain person not to possess firearms, N.J.S.A. 2C:39-7(b)(1). Mesadieu
appeals from his convictions, and from his aggregate sentence: a term of ten
years with a five-year period of parole ineligibility. He raises the following
points for our consideration:
POINT I
THE SUPPRESSION MOTION SHOULD HAVE
BEEN GRANTED BECAUSE THE POLICE
PROLONGED THE TRAFFIC STOP FOR THE
DRUG SNIFFS WITHOUT REASONABLE
SUSPICION.
A. The Drug Investigation and Dog Sniffs Added Time
to the Duration Reasonably Necessary to Address the
Traffic Infractions.
B. Because the Police Corroborated Only Innocent and
Easy-To-Know Details of the [Confidential
Informant's] Tip, the State Failed to Establish That the
[Confidential Informant] had an Adequate Basis of
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2
Knowledge to Support Reasonable Suspicion that
Mesadieu Possessed Drugs.
POINT II
THE SUPPRESSION MOTION SHOULD HAVE
BEEN GRANTED BECAUSE OFFICERS
UNCONSTITUTIONALLY CONDUCTED A DE
FACTO ARREST WITHOUT PROBABLE CAUSE
WHEN THEY REMOVED MESADIEU FROM HIS
CAR WITH GUNS DRAWN, FRISK[E]D HIM,
THREATENED TO SEIZE HIS CAR, AND
CONFINED HIM IN A POLICE CAR. (Not raised
below).
POINT III
BY DENYING MESADIEU'S MOTION TO
DISCLOSE THE IDENTITY OF THE
[CONFIDENTIAL INFORMANT], WHILE ALSO
ALLOWING THE STATE TO ELICIT TESTIMONY
THAT THE POLICE HAD A SEARCH WARRANT
FOR MESADIEU'S CAR AND HAD A LEGITIMATE
REASON TO BELIEVE THAT MESADIEU
POSSESSED DANGEROUS CONTRABAND, THE
TRIAL COURT UNFAIRLY RESTRICTED
MESADIEU'S CONSITUTIONAL RIGHT TO
PRESENT A COMPLETE DEFENSE. (Partially
raised below).
POINT IV
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE COURT
IMPOSED THE MAXIMUM SENTENCE ON THE
CERTAIN PERSONS OFFENSE DESPITE THE
PRESENCE OF MITIGATING FACTORS IN THE
RECORD, AND BECAUSE THE COURT RAN THE
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3
SENTENCE CONSECUTIVELY TO A SENTENCE
ON ANOTHER INDICTMENT WITHOUT
CONSIDERING THE FAIRNESS OF THE
AGGREGATE TERM OF IMPRISONMENT.
SUPPLEMENTAL POINT 1
THE TRIAL COURT COMMIT[T]ED PLAIN ERROR
BY CONTRADICTING THE BEYOND-A-
REASONABLE-DOUBT STANDARD AND
INSTRUCTING THAT THE JURORS COULD
CONVICT IF THEY INFERRED THAT
POSSESSION WAS "MORE PROBABLE THAN
NOT." (Not raised below).
We affirm Mesadieu's conviction, but remand for reconsideration of his
sentence.
I.
We turn first to the suppression issue, and assume the reader's familiarity
with the suppression-hearing testimony of Elizabeth Police Detective Jose
Martinez and Union County Sheriff's Officer (and canine handler) Brian Frew,
which the trial court reviewed at length in its written opinion. In brief, police
seized Mesadieu's unlawfully possessed handgun after stopping him for motor-
vehicle violations. But the stop was no coincidence. Police had followed
Mesadieu because a reliable confidential informant told them that Mesadieu,
1
We permitted an extra round of briefing to allow defendant to add this point .
A-5379-17
4
who often carried a handgun (and was presently out on bail on a weapons-
possession charge), would that day transport heroin in his Dodge Ram truck (one
of several vehicles he drove). After police stopped Mesadieu, removed him from
his truck and patted him down, they called for a drug-sniffing dog. The canine
arrived thirteen minutes later and indicated the presence of drugs in the truck.
Armed with that fact, the police obtained a warrant to search the truck. The
parties do not dispute that the subsequent search uncovered a handgun.
The trial court held that police lawfully stopped Mesadieu because they
had reasonable suspicion of motor-vehicle violations. Specifically, they
observed Mesadieu turn suddenly at a corner without signaling and, shortly
thereafter, bolt across several lanes of traffic to reach an exit, almost causing an
accident. Applying State v. Dunbar, 229 N.J. 521 (2017), the court also held
that the police did not unlawfully prolong the stop beyond the time necessary to
complete the traffic mission. The court noted that when the canine arrived,
police had not finished "issuing a traffic citation, checking the defendant's
credentials, and ensuring that there were no outstanding warrants."
Additionally, the court found that Mesadieu diverted the officers from their
traffic-related tasks by pacing back and forth along a busy highway and shouting
A-5379-17
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at the officers, forcing Martinez to place Mesadieu in a patrol car (though
without handcuffs) for his safety.
And the court provided a second rationale for the prolonged stop, holding
that even if the traffic mission was an insufficient justification, "specific and
articulable suspicion that the defendant possessed narcotics" warranted
Mesadieu's continued detention until the canine arrived. Several factors
supported that suspicion: a reliable confidential informant alerted police that
Mesadieu would be transporting heroin in his Dodge Ram; Mesadieu drove
erratically before the stop; he was irate while interacting with police; police
observed a large amount of cash in the truck; Mesadieu was "a known drug
dealer" to Martinez; and Mesadieu was already facing a gun-possession charge.
Without challenging the initial traffic stop, Mesadieu presents a two-fold
argument regarding his prolonged detention. First, he argues that the police
unlawfully extended the stop longer than the traffic-related mission required.
Second, he contends that the tip and other relevant circumstances failed to create
the non-traffic-related suspicion needed to prolong the stop. We agree on the
first point, but not the second.
"A seizure justified only by a police-observed traffic violation . . .
'become[s] unlawful if it is prolonged beyond the time reasonably required to
A-5379-17
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complete th[e] mission' of issuing a ticket for the violation." Rodriguez v.
United States, 575 U.S. 348, 350-51 (2015) (alterations in original). Beyond
issuing a ticket, an officer's traffic mission may include checking the driver's
license, inspecting the vehicle's registration and proof of insurance, and
ascertaining if there are warrants for the driver's arrest. Rodriguez, 575 U.S. at
355; see Dunbar, 229 N.J. at 533. In other words, a dog sniff is lawful if it
occurs while the officer is issuing a ticket, checking the driver's license, or
otherwise performing the traffic-related mission.
But an officer may not delay completing the traffic mission to obtain a
dog sniff. "The critical question . . . is not whether the dog sniff occurs before
or after the officer issues a ticket . . . ." Rodriguez, 575 U.S. at 357. The issue
is whether the stop is prolonged — and there is no de minimis exception for
minor delays. Id. at 356-57.
Although we defer to a motion judge's fact-findings if substantial credible
evidence in the record supports them, see State v. Elders, 192 N.J. 224, 243-44
(2007) (describing standard of review of suppression orders), here, we discern
no proof that police were unable to complete the traffic mission before the
canine arrived. Martinez did not explain why it took him so long to write tickets,
especially given that within minutes, at least eight other officers were on the
A-5379-17
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scene. Rather than diligently pursue the traffic mission, Martinez evidently
focused on his drug investigation. He stated he was "waiting for the canines"
— not writing tickets — when he spotted the envelope of cash. Nor did he
establish why he would have needed time to verify Mesadieu's identity and
perform a warrant check. Mesadieu was in his sights for months. Martinez had
even pulled Mesadieu's motor-vehicle information to confirm his identity with
the confidential informant. Finally, although Mesadieu's behavior prompted
Martinez to seat him in the patrol car, Martinez did not clarify how much time
that interaction consumed.
In sum, although Martinez evidently did not complete the traffic-related
mission before the canine unit arrived, the State failed to prove that the police
used only "the time reasonably required to complete" that mission. See
Rodriguez, 575 U.S. at 350 (emphasis added); Dunbar, 229 N.J. at 534.2
But even so, Mesadieu's detention was lawful. "[I]f, as a result of the
initial stop or further inquiries, 'the circumstances give rise to suspicions
unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy
2
We will not give the State a second chance to establish the chronology of
events. Although the Supreme Court in Dunbar remanded to enable the court to
make findings on the "'critical question' of whether the canine sniff prolonged
the traffic stop," the Court had just adopted a new standard, id. at 540. Here,
there is no new standard.
A-5379-17
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those suspicions.'" Dunbar, 229 N.J. at 533 (second alteration in original)
(quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)). Put another way, "[I]f
an officer has articulable reasonable suspicion independent from the reason for
the traffic stop that a suspect possesses narcotics, the officer may continue a
detention to administer a canine sniff." Id. at 540.
Ultimately, the totality of circumstances supported a reasonable and
articulable suspicion that Mesadieu possessed drugs or a gun. See State v.
Davis, 104 N.J. 490, 504 (1986) (stating that a court must "evaluate the totality
of circumstances surrounding the police-citizen encounter" "to determine the
lawfulness of a given seizure"). The informant's tip was the strongest basis for
that suspicion — but by the time the motor-vehicle stop transformed into a
narcotics-or-gun-related stop, the police had more than just a tip. See State v.
Golotta, 178 N.J. 205, 213 (2003) ("An informant's tip is a factor to be
considered when evaluating whether an investigatory stop is justified."). For
that reason, we are not constrained by cases Mesadieu cites scrutinizing
narcotics-related stops that were based solely on a confidential informant's tip.
Although we need not find that the confidential informant's tip was
enough to suspect that Mesadieu committed non-traffic-related offenses, the tip
was strong evidence indeed. A court assesses a tip by considering "closely
A-5379-17
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intertwined" factors: the tip's veracity, its reliability, and the tipster's basis of
knowledge. Illinois v. Gates, 462 U.S. 213, 230 (1983); State v. Stovall, 170
N.J. 346, 362 (2002). Here, all three factors substantiate the tip's value.
Regarding the first two factors, Martinez's confidential informant had
proved his truthfulness and reliability.3 Over a nine- to twelve-month span, he
gave Martinez information leading to twelve arrests involving various drug and
weapons offenses. In each of those cases, he accurately predicted the contraband
that police found. He also provided details about Mesadieu that Martinez
confirmed, including Mesadieu's nickname, his address, the vehicles he drove,
and his past possession of firearms. Additionally, the informant correctly
described Mesadieu's physical appearance and affirmatively identified him from
a photograph.
Regarding the informant's basis of knowledge, we do acknowledge that at
the suppression hearing, Martinez did not say how the informant obtained his
information.4 Nonetheless, five minutes after the informant flagged down
3
Although Martinez sometimes used "he or she" to avoid identifying the
informant's gender, we will assume, solely for convenience, that the informant
was male.
4
During the hearing on the search-warrant application, Martinez stated that the
informant had at some point conversed with Mesadieu.
A-5379-17
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Martinez to tell him that Mesadieu would soon transport heroin in his Dodge
Ram, Martinez saw Mesadieu driving that vehicle. Details like these establish
an informant's basis of knowledge by "predict[ing] . . . hard-to-know future
events" and showing "that the informant's knowledge has been derived from a
trustworthy source." See State v. Williams, 364 N.J. Super. 23, 34-35 (App.
Div. 2003).
In a case much like the one before us, the Court held that the police
established reasonable suspicion based on a confidential informant's tip. State
v. Birkenmeier, 185 N.J. 552, 561 (2006). The informant in Birkenmeier "had
previously provided information that led to two 'major' drug and weapons
seizures and two arrests"; furthermore, the informant "provided particularized
information," including "defendant's name[,] . . . address[, and] . . . physical
description; the make, model, and license tag number of defendant's car; the fact
that defendant would be leaving his home at 4:30 p.m. to make a marijuana
delivery; and the fact that defendant would be carrying the drugs in a laundry
tote bag." Ibid. The police subsequently "observed defendant leaving his home
at 4:30 p.m., carrying a laundry tote bag, and driving away in the car" that the
confidential informant described. Ibid. Except for information about a
A-5379-17
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container Mesadieu would use, Martinez's informant's tip was as detailed as the
one in Birkenmeier.
And the tip was not all Martinez had to go on; three other sets of facts
reinforced the basis for suspicion. First, Mesadieu drove erratically and
evasively after Martinez made a U-turn and started following him. Specifically,
Mesadieu abruptly turned left at an intersection without signaling, and once on
the highway, he moved to the left-most lane — and then moved to the exit lane
so suddenly that other cars had to brake to avoid a collision. Mesadieu's erratic
and evasive driving contributed to a reasonable suspicion that he was violating
more than just the rules of the road. Cf. State v. Pineiro, 181 N.J. 13, 26 (2004)
(stating that flight, "in combination with other circumstances[,] . . . may support
reasonable and articulable suspicion").
Second, Martinez also knew that Mesadieu had a criminal history and was
free on bail on a weapons charge. 5 That knowledge thickened the stew of
suspicion. See State v. Privott, 203 N.J. 16, 28-29 (2010) (holding that officer's
knowledge "that defendant was associated with violent gangs" contributed to
5
Martinez did not detail that history at the suppression hearing. However, he
told the judge considering his search-warrant application that he knew that
Mesadieu had six prior convictions, including several for possession of drugs
with intent to distribute.
A-5379-17
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reasonable and articulable suspicion justifying investigatory stop); State v.
Valentine, 134 N.J. 536, 547 (1994) ("[A]n officer's knowledge of a suspect's
prior criminal activity in combination with other factors may lead to a
reasonable suspicion that the suspect is armed and dangerous.").
Third, Mesadieu hesitated after Martinez commanded him to exit his
truck. See State v. Gamble, 218 N.J. 412, 431-32 (2014) (stating that driver's
hesitancy to leave his vehicle contributed to reasonable suspicion). And finally,
after Mesadieu did step out of the vehicle, he acted erratically. He paced back
and forth behind his truck; he called Martinez a liar; he "rant[ed] and rav[ed],"
claiming Martinez was setting him up; and he demanded to speak to Internal
Affairs. Of course, a citizen who believes that police have violated his or her
rights may become understandably irate and threaten to register a complaint.
But "[f]acts that might seem innocent when viewed in isolation can sustain a
finding of reasonable suspicion when considered in the aggregate." State v.
Nishina, 175 N.J. 502, 511 (2003). A police officer, under the circumstances
here, would have been justified in suspecting that Mesadieu's protests were a
calculated effort to deter the officers. 6
6
Martinez also discovered a large amount of cash while waiting for the canine.
That discovery could well have aroused suspicions of drug-dealing. However,
A-5379-17
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The totality of these factors and the confidential informant's tip were
sufficient to create a reasonable and articulable suspicion of a drug- or weapons-
related crime, which justified prolonging the stop until the canine arrived.
II.
Mesadieu's remaining arguments challenging his conviction do not
warrant extensive discussion. We need not address his newly minted argument
that the police, without probable cause, de facto arrested him. "Parties must
make known their positions at the suppression hearing so that the trial court can
rule on the issues before it." State v. Witt, 223 N.J. 409, 418-19 (2015)
(reversing Appellate Division decision that reached newly minted argument that
stop was unlawful). When a defendant holds an issue for appeal, he or she
deprives the State of the opportunity to marshal evidence to meet it. Id. at 419.
In any event, the exclusionary rule bars only admission of evidence "come
at by exploitation" of police illegality. Wong Sun v. United States, 371 U.S.
471, 487-88 (1963) (quoting Maguire, Evidence of Guilt 221 (1959)). And the
gun was not the fruit of the alleged "arrest." It was, instead, the fruit of the
because of the uncertain chronology, we cannot consider the cash in the totality
of circumstances. If there had been no other suspicious indications, the stop
might already have been unreasonably prolonged by the time Martinez found
the cash.
A-5379-17
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subsequent search warrant, which was the fruit of the dog sniff during the
investigative stop. The police would have seized the gun whether Mesadieu was
sitting in the police car or pacing along the highway.
We also reject Mesadieu's argument that the court erred when it refused
to disclose the confidential informant's identity, but permitted the state to elicit
testimony that police had a warrant to search Mesadieu's truck.
Mesadieu alleges that disclosure of the informant's identity would have
enabled him to challenge the informant's credibility and "the officers' credibility
with respect to how they acted based on the [informant's] tip," thus bolstering
his defense that the police planted the gun (which, a DNA expert testified, had
DNA traces that matched Mesadieu's DNA). Alternatively, Mesadieu contends
a disclosure order could have demonstrated that the informant did not exist at
all.
Such arguments are rank speculation and fail to satisfy the prerequisites
for overcoming the informant's privilege. See State v. Milligan, 71 N.J. 373,
392 (1976) (rejecting as speculative defendant's claim that informant would
impeach State police witness); State v. Adim, 410 N.J. Super. 410, 435-36 (App.
Div. 2009) (affirming denial of disclosure where "an informer does not testify
and was not involved in the crime").
A-5379-17
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And the court did not abuse its discretion by allowing testimony that the
police had a warrant to search Mesadieu's truck. Such testimony helped "to
dispel any preconceived notion that the police acted arbitrarily." See State v.
Cain, 224 N.J. 410, 435 (2016). Furthermore, the testimony did not prejudice
Mesadieu; the court provided an appropriate and immediate limiting instruction
that we presume the jury understood and followed. See State v. Marshall, 148
N.J. 89, 240 (1997) ("[A] properly instructed jury will not presume guilt based
on the issuance of a search warrant").
We reject, too, Mesadieu's contentions that Martinez's references to "local
criminals" (which the court struck from the testimony) and "a narcotics
investigation" (as to which the court gave a curative instruction) poisoned the
jurors' minds, particularly given that the phrase "local criminals" did not refer
to Mesadieu in the first place.
Finally, we reject Mesadieu's argument, raised as a matter of plain error,
that the trial judge lowered the beyond-a-reasonable-doubt standard of proof by
instructing the jury it could infer, if it found such an inference more probable
than not, that because Mesadieu was the sole occupant of the vehicle in which
the police found the handgun, he possessed the gun.
A-5379-17
16
Consistent with the model jury charge, see Model Jury Charges
(Criminal), "Possession of Firearms, Weapons, Destructive Devices, Silencers
or Explosives In A Vehicle (N.J.S.A. 2C:39-2)" (approved Mar. 1993), the judge
instructed:
I have previously instructed you concerning your
consideration of circumstantial evidence presented in
this case. That is, you may infer a fact from other facts
in the case if you find it more probable than not that the
inferred fact is true.
Evidence has been presented that a handgun was
found in a vehicle. If you find Mr. Mesadieu was the
sole occupant of the vehicle, you may infer that this
occupant possessed the handgun. You are never
required or compelled to draw any inference. It is your
exclusive province to determine whether the facts and
circumstances shown by the evidence support any
inference and you are always free to accept or reject
them, if you wish.
If you find that the state has failed to prove any
of the elements of the crime beyond a reasonable doubt,
your verdict must be not guilty. On the other hand, if
you are satisfied that the state has proven all the
elements of the crime beyond a reasonable doubt, your
verdict must be guilty.
We find no basis in this instruction for Mesadieu's argument that the judge
"allow[ed] the jurors to find that Mesadieu was the sole occupant of [the] car
based on a preponderance of the evidence." Nor did the judge instruct the jury ,
A-5379-17
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as Mesadieu claims, that it could find the possession element of the crime by "a
mere preponderance of the evidence."
The instruction conformed to our decision in State v. Bolton, 230 N.J.
Super. 476, 480 (App. Div. 1989), in which we stated that, to implement
N.J.S.A. 2C:39-2 without shifting the burden away from the State, "the jury may
be advised that it can draw an inference if it finds it more probable than not that
the inference is true." See also Cnty. Ct. v. Allen, 442 U.S. 140, 167 (1979)
(stating, in firearms-possession prosecution, that there was "no more reason to
require a permissive statutory presumption to meet a reasonable-doubt standard
before it may be permitted to play any part in a trial than there is to require that
degree of probative force for other relevant evidence before it may be
admitted"); State v. Thomas, 132 N.J. 247, 256 (1993) (stating that a jury may
draw inferences when such inferences are more probably true than not); State v.
Brown, 80 N.J. 587, 592 (1979) ("[A] jury may draw an inference from a fact
whenever it is more probable than not that the inference is true; the veracity of
each inference need not be established beyond a reasonable doubt . . . .").
It is true that "the State must still be held to its burden of proving each
element of [an] offense beyond a reasonable doubt." Thomas, 132 N.J. at 256.
But an inference charge "reduce[s] the burden of persuasion below a 'reasonable
A-5379-17
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doubt' standard" "only if the jury were compelled to draw the inference and
convict on th[at] basis . . . alone." State v. Humphreys, 54 N.J. 406, 415
(1969) (quoting State v. DiRienzo, 53 N.J. 360, 376 (1969)); see also Allen, 442
U.S. at 167 (stating that it must be made "clear that the presumption is not the
sole and sufficient basis for a finding of guilt").
Here, the judge told the jury it was "never required or compelled to draw
any inference." Furthermore, the DNA evidence provided additional proof that
Mesadieu possessed the gun. Cf. Brown, 80 N.J. at 593 (stating that, when more
than one person was present, a jury may not infer possession unless there is
evidence other than mere presence). Finally, the court repeatedly instructed the
jury that the State had to prove each element of the crime beyond a reasonable
doubt. We may assume that the jury followed those instructions. State v. Ross,
229 N.J. 389, 415 (2017). Therefore, we find no error, let alone plain error, in
the court's instruction.
III.
Although we affirm Mesadieu's convictions, we remand for the court to
reconsider his sentence. The court found aggravating factors three, six and nine,
N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), (6) (prior criminal record and prior
offenses' seriousness), and (9) (need to deter defendant and others); and
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mitigating factor two (which the court gave "minimum . . . weight"), N.J.S.A.
2C:44-1(b)(2) ("defendant did not contemplate that" his "conduct would cause
or threaten serious harm"), and it imposed an eight-year term with a forty-two-
month parole-ineligibility period for the unlawful-possession-of-a-handgun
conviction, concurrent with a ten-year term with a five-year parole-ineligibility
period for the certain-persons offense. 7 Regarding the latter, the judge stated
she felt a "little more constrained" due to "the mandatory five[-]year parole
ineligibility."
First of all, the court's eight-year sentence with a forty-two-month parole-
ineligibility period violated N.J.S.A. 2C:43-6(c), which required the court to
impose a parole-ineligibility period of "one-half of the sentence imposed . . . or
42 months, whichever is greater." To comply with the statute and preserve the
eight-year term, the court should have imposed a forty-eight-month parole-
ineligibility term. But if the court's goal was to impose a forty-two-month
parole-ineligibility term, then the sentence should have been no more than seven
7
In its oral sentencing decision, the court apparently also found factor one,
N.J.S.A. 2C:44-1(b)(1) ("[t]he defendant's conduct neither caused nor
threatened serious harm"). The judge stated, "I am giving a slight weight to the
mitigating factor that in this case that he did not cause nor threaten serious harm
in this matter." However, the judgments of conviction stated that the court only
found mitigating factor two. The court should clarify its finding on remand.
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years. We remand for the court to reconsider its sentence for the unlawful-
possession-of-a-handgun conviction.
And, because of the judge's comment about being "constrained," we also
remand for the court to reconsider the sentence for the certain-persons
conviction. On remand, the court should be aware that it need not impose a ten-
year sentence, although it must impose five years of parole ineligibility.
N.J.S.A. 2C:43-6(c).
To the extent not addressed, defendant's arguments lack sufficient merit
to warrant written discussion. R. 2:11-3(e)(2).
Affirmed as to the conviction; remanded for resentencing. We do not
retain jurisdiction.
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