State of New Jersey v. Matthew H. Cabrita ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2980-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MATTHEW H. CABRITA,
a/k/a MATT CABRITA,
Defendant-Appellant.
__________________________
Argued October 24, 2023 – Decided January 25, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 18-02-0161.
Robert C. Pierce argued the cause for appellant.
Edward F. Ray, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, of counsel and
on the brief; Catherine A. Foddai, Legal Assistant, on
the brief).
PER CURIAM
After the trial judge denied his motion to suppress evidence seized from
his car and home without a warrant, defendant Matthew Cabrita entered a
negotiated guilty plea to first-degree possession of a controlled dangerous
substance (CDS) with intent to distribute and was sentenced to ten years in
prison. Defendant now appeals from the denial of his suppression motion 1 and
challenges his bargained-for sentence, raising the following points for our
consideration:
POINT I
THE TRIAL COURT ERRED BY DENYING
[DEFENDANT]'S MOTION TO SUPPRESS THE
FRUITS OF THE WARRANTLESS SEARCH
BECAUSE THE POLICE DID NOT HAVE
REASONABLE SUSPICION OF CRIMINAL
ACTIVITY TO CONDUCT THE MOTOR VEHICLE
STOP OR TO REQUEST CONSENT FROM
[DEFENDANT] TO SEARCH HIS MOTOR
VEHICLE.
POINT II
THE TRIAL COURT ERRED BY DENYING
[DEFENDANT]'S MOTION TO SUPPRESS THE
FRUITS OF THE WARRANTLESS SEARCH
BECAUSE [DEFENDANT]'S CONSENT TO
SEARCH HIS MOTOR VEHICLE AND HOME
WERE NOT VOLUNTARY.
1
See R. 3:5-7(d) (authorizing appellate review of the denial of a suppression
motion notwithstanding the entry of a judgment of conviction by way of a guilty
plea).
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POINT III
THE TRIAL COURT ABUSED ITS DISCRETION BY
NOT SENTENCING [DEFENDANT] ONE-DEGREE
LOWER BECAUSE THE MITIGATING FACTORS
SUBSTANTIALLY OUTWEIGHED THE
AGGRAVATING FACTORS AND THE INTERESTS
OF JUSTICE SO REQUIRED.
Based on our review of the record and the applicable legal principles, we affirm
the conviction and sentence.
I.
At the suppression hearing, the State produced Detectives Michael
Klumpp and Elliot Cookson, veterans of the Bergen County Prosecutor's Office
(BCPO). Klumpp, a BCPO narcotics detective, testified that in August 2017, he
received information from a confidential informant (CI) that defendant "was
involved in the distribution of [CDS]." The CI provided defendant's telephone
number and identified defendant's photograph from a Department of Motor
Vehicle (DMV) database search conducted by Klumpp. The CI informed
Klumpp that he had purchased CDS from defendant in the past either by going
to defendant's residence at an apartment building on Bloomfield Avenue in
Bloomfield or by defendant "deliver[ing] the drugs to the CI."
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At Klumpp's request, during the week of September 4, 2017, the CI
arranged to make a controlled purchase of CDS from defendant at defendant's
residence in Bloomfield. Prior to the controlled buy, police established
surveillance in the area of defendant's residence. In addition, the CI was
searched and provided with a specified amount of currency to complete the
transaction. Klumpp followed the CI to defendant's residence and observed
defendant exit the building, interact with the CI for a short period of time, and
then return to his residence. After departing, the CI went to a predetermined
location where he turned over the CDS he had purchased from defendant to
Klumpp. The CI was also searched with negative results. On the same date, the
surveillance team observed a Honda Civic with a New Jersey license plate that
was registered to defendant and identified by the CI as belonging to defendant.
The same month, Klumpp received information from a different CI that
"[defendant] was involved in the distribution of [CDS]." The second CI
provided Klumpp with defendant's phone number, which was the same number
used by the first CI to contact defendant, and identified the photo of defendant
from the DMV database search. At Klumpp's request, the second CI made
arrangements to conduct a controlled purchase of CDS from defendant on
September 6, 2017, at a predetermined location in Wallington. Surveillance
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teams were set up to conduct surveillance around defendant's residence in Essex
County as well as the prearranged drug buy location in Bergen County.
Klumpp positioned himself in the area of defendant's residence and
observed defendant enter his Honda Civic and depart the location at
approximately 4:20 p.m. Officers maintained visual surveillance of defendant's
vehicle while en route. At approximately 4:40 p.m., Cookson, a member of the
investigative team, conducted an investigative motor vehicle stop of defendant's
vehicle based on the prearranged drug transaction. The stop was made as
defendant entered Wallington, but prior to him arriving at the prearranged
location. Cookson acknowledged that no motor vehicle violations were
observed prior to the stop.
Upon approaching defendant's vehicle, Cookson identified himself and
informed defendant that "[he] was doing an investigation regarding him being
involved in narcotics." Cookson asked defendant "to step out of the vehicle,"
and, after he complied, asked defendant "if he[ would] be willing to allow
[Cookson] to search his vehicle." Cookson specifically informed defendant that
he had the right to refuse to consent, that he had the right to withdraw his consent
at any time, and that he had the right to be present during the search.
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After reading out loud to defendant the BCPO Consent to Search Vehicle
form containing these rights, Cookson provided the form to defendant. The form
indicated that the trunk, among other areas, could be searched. After reviewing
the form, defendant consented to the search, both verbally and in writing, and
signed the form at 4:50 p.m. During the search of defendant's vehicle, Cookson
found "a clear plastic wrapper containing a white powdery substance suspected
of being cocaine" "in the trunk, in a jacket pocket." As a result, defendant was
placed under arrest.
When Klumpp arrived at the scene, the CDS had already been located in
defendant's trunk. While defendant was handcuffed and seated in the back of
Cookson's vehicle, Klumpp informed him of his Miranda2 rights using a Miranda
card. After reading defendant his rights, Klumpp asked defendant for consent
to search his residence by reading a consent form out loud to defendant. Among
other things, Klumpp advised defendant of his right to refuse to consent, of his
right to withdraw his consent at any time, and of his right to be present during
the search. After reviewing the form, defendant gave verbal consent to the
search and signed the form at 5:40 p.m., authorizing a search of his home. The
search was conducted at approximately 6:15 p.m. in defendant's presence.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Among the items recovered from defendant's residence were suspected CDS,
including cocaine and marijuana, drug paraphernalia, and over $86,000 in
United States currency.
Defendant was subsequently charged in a four-count Bergen County
indictment with first-degree maintaining or operating a CDS production facility,
N.J.S.A. 2C:35-4 (count one); first-degree possession of CDS, namely, cocaine,
in a quantity of five ounces or more with intent to distribute, N.J.S.A. 2C :35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two); third-degree possession of CDS,
namely, cocaine, N.J.S.A. 2C:35-10(a)(1) (count three); and second-degree
money laundering, N.J.S.A. 2C:21-25(a) (count four).
Following the suppression hearing, the judge entered an order on August
7, 2018, denying defendant's motion. In an accompanying written opinion, the
judge credited the testimony of both detectives "based upon their lengthy
experience in the narcotics squad[,] their demeanor and body language w hile
testifying, and the manner in which they responded to questions both on direct
examination and cross-examination." As such, the judge made detailed factual
findings in accordance with their testimony.
Next, the judge found the motor vehicle stop was justified by the
"investigatory stop" exception to the warrant requirement. Specifically, the
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judge determined that the prior undercover drug buy between defendant and the
first CI at defendant's residence and the second planned undercover drug buy
between defendant and the second CI,
together with the fact that defendant did traverse from
Bloomfield in Essex County to Wallington in Bergen
County en route to the predetermined transaction site,
clearly and succinctly provide specific and articulable
facts which rise to establish reasonable suspicion of
criminal activity to justify a stop of defendant's vehicle
and to request to search that vehicle.
The judge added that "[t]he recovery of CDS from defendant's vehicle" further
justified the "request to search defendant's residence."
Turning to the voluntariness of defendant's consent to search his vehicle
and residence, the judge stated:
Defendant argues that he was removed from his
vehicle; surrounded by numerous law enforcement
officers; and handed a document to sign, knowing that
incriminating evidence would be discovered. Under
these circumstances, defendant asserts the "consent"
was not voluntary, but was compulsory.
Defendant was ordered to exit his vehicle and
was advised he was the target of the CDS investigation.
Although not under arrest, defendant was not free to
leave, and was therefore in custody when Cookson
requested consent to search his vehicle. . . .
Cookson advised defendant that [he] had the right
to withhold consent to search the vehicle, could be
present at the search, and could terminate the search at
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any time. The court further credits Cookson's
testimony that defendant was cooperative and verbally
consented to the search of his vehicle; understood his
rights pertaining to the search; and subsequently signed
the consent form without concern or threats imposed
upon him.
Although defendant was already under arrest for
CDS related offenses when Klumpp arrived on the
scene to request consent to search his residence, he did
not deny his guilt nor initially refuse to consent to the
search of his residence.
Based upon the testimony adduced, the total time
defendant was detained, one hour, was relatively
minimal. The stop occurred at 4:40 [p.m.] Defendant
signed the Consent to Search Vehicle form ten minutes
later at 4:50 [p.m.] and signed the Consent to Search
Residence f[or]m at 5:40 [p.m.], twenty minutes after
Klumpp arrived on the scene at 5:20 [p.m.]
Considering all of the circumstances presented at
the hearing, including the fact that defendant was
detained as the target of the investigation, the State has
met its burden that defendant knowingly and
voluntarily consented to a search of the vehicle.
Likewise, although defendant was under arrest after the
search of his vehicle . . . and advised of his Miranda
rights . . . , the consent to search his residence was
given knowingly and voluntarily, without coercion or
threat from law enforcement.
Therefore, all evidence subsequently obtained
from the search of the motor vehicle and from
defendant's residence is admissible at trial.
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Thereafter, the parties engaged in plea negotiations, and, on April 24,
2019, defendant entered a negotiated guilty plea to count two of the indictment.
In exchange, the State agreed to dismiss the remaining counts of the indictment
and to recommend a maximum sentence of fifteen years in prison with four years
of parole ineligibility. After ensuring compliance with Rule 3:9-2, governing
the entry of guilty pleas, the judge accepted defendant's plea. At the sentencing
hearing conducted on April 22, 2022, the State recommended a flat ten-year
sentence based on defendant's cooperation with law enforcement. The judge
sentenced defendant in accordance with the State's recommendation to a flat ten-
year prison sentence, which sentence was memorialized in an April 27, 2022,
judgment of conviction. This appeal followed.
II.
We first address defendant's challenge to the denial of his suppression
motion. "When reviewing a trial court's decision to grant or deny a suppression
motion, appellate courts '[ordinarily] defer to the factual findings of the trial
court so long as those findings are supported by sufficient evidence in the
record.'" State v. Smart, 253 N.J. 156, 164 (2023) (alteration in original)
(quoting State v. Dunbar, 229 N.J. 521, 538 (2017)). That said, "[w]e will set
aside a trial court's findings of fact only when such findings 'are clearly
A-2980-21
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mistaken.'" Dunbar, 229 N.J. at 538 (quoting State v. Hubbard, 222 N.J. 249,
262 (2015)). "We accord no deference, however, to a trial court's interpretation
of law, which we review de novo." Dunbar, 229 N.J. at 538.
Turning to the substantive legal principles, "'[a] warrantless search is
presumed invalid unless it falls within one of the recognized exceptions to the
warrant requirement.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State
v. Cooke, 163 N.J. 657, 664 (2000)). "[T]he State bears the burden of proving
by a preponderance of the evidence that a warrantless search or seizure 'falls
within one of the . . . exceptions . . . ." State v. Elders, 192 N.J. 224, 246 (2007)
(quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).
The exceptions at issue in this case are an investigative stop and a consent
to search. An investigative stop "is a procedure that involves a relatively brief
detention by police during which a person's movement is restricted." State v.
Goldsmith, 251 N.J. 384, 399 (2022). An investigative stop or detention "is
permissible 'if it is based on specific and articulable facts which, taken together
with rational inferences from those facts, give rise to a reasonable suspicion of
criminal activity.'" State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Pineiro,
181 N.J. at 20). "The standard for this form of brief stop or detention is less
than the probable cause showing necessary to justify an arrest." Ibid. "However,
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an officer's hunch or subjective good faith—even if correct in the end—cannot
justify an investigatory stop or detention." Id. at 411.
"Determining whether reasonable and articulable suspicion exists for an
investigatory stop is a highly fact-intensive inquiry that demands evaluation of
'"the totality of circumstances surrounding the police-citizen encounter,
balancing the State's interest in effective law enforcement against the
individual's right to be protected from unwarranted and/or overbearing police
intrusions."'" Goldsmith, 251 N.J. at 399 (quoting State v. Privott, 203 N.J. 16,
25-26 (2010)). The inquiry "takes into consideration numerous factors,
including officer experience and knowledge." Id. at 400.
When an informant's tip factors into the analysis,
[a]n informant's "veracity" and "basis of knowledge"
are two highly relevant factors under the totality of the
circumstances. A deficiency in one of those factors
"may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other,
or by some other indicia of reliability." An informant's
veracity may be established in a variety of ways. For
example, the informant's past reliability will contribute
to the informant's veracity. With regard to the
informant's basis of knowledge, if the informant does
not identify the basis of knowledge, a reliable basis of
knowledge may nonetheless be inferred from the level
of detail and amount of hard-to-know information
disclosed in the tip. Finally, independent corroboration
of hard-to-know details in the informant's tip may also
greatly bolster the tip's reliability.
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[State v. Zutic, 155 N.J. 103, 110-11 (1998) (citations
omitted) (first quoting State v. Smith, 155 N.J. 83, 93
(1998); then quoting Illinois v. Gates, 462 U.S. 213,
233 (1983); then citing State v. Novembrino, 105 N.J.
95, 123 (1987); and then citing Smith, 155 N.J. at 95).]
Turning to the consent to search exception, "[w]hen a prosecutor seeks to
rely upon consent to justify the lawfulness of a search, he has the burden of
proving that the consent was, in fact, freely and voluntarily given." Bumper v.
North Carolina, 391 U.S. 543, 548 (1968). "The burden of proof is on the State
to establish by clear and positive testimony that the consent was so given." State
v. Shaw, 237 N.J. 588, 618-19 (2019) (quoting State v. King, 44 N.J. 346, 352
(1965)).
"To be voluntary[,] the consent must be 'unequivocal and specific' and
'freely and intelligently given.'" King, 44 N.J. at 352 (quoting Judd v. United
States, 190 F. 2d 649, 651 (D.C. Cir. 1951)). To satisfy that requirement, the
State must prove "that the individual giving consent knew that he or she 'had a
choice in the matter.'" State v. Hagans, 233 N.J. 30, 39 (2018) (quoting State v.
Carty, 170 N.J. 632, 639, modified, 174 N.J. 351 (2002)). Thus, "the consenting
party must know that he[ or she] has the right to decline consent." State v.
Birkenmeier, 185 N.J. 552, 563-64 (2006) (citing State v. Johnson, 68 N.J. 349,
353-54 (1975)).
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"Consent is . . . a factual question to be determined from the relevant
circumstances." State v. Koedatich, 112 N.J. 225, 264 (1988). In King, the
Court "delineated factors for use by our courts in considering the voluntariness
of consent." Hagans, 233 N.J. at 39 (citing King, 44 N.J. at 352-53). Generally,
[f]actors potentially indicating coerced consent
include:
(1) that consent was made by an individual
already arrested; (2) that consent was
obtained despite a denial of guilt; (3) that
consent was obtained only after the
accused had refused initial requests for
consent to search; (4) that consent was
given where the subsequent search resulted
in a seizure of contraband which the
accused must have known would be
discovered; [and] (5) that consent was
given while the defendant was handcuffed.
Factors potentially indicating voluntariness of consent
include:
(1) that consent was given where the
accused had reason to believe that the
police would find no contraband; (2) that
the defendant admitted his guilt before
consent; [and] (3) that the defendant
affirmatively assisted the police officers.
[Id. at 39-40 (second and third alteration in original)
(citation omitted) (quoting King, 44 N.J. at 352-53).]
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"[M]any decisions have sustained a finding that consent was voluntarily
given even though the consent was obtained under the authority of the badge or
after the accused had been arrested." King, 44 N.J. at 353. "Voluntariness
depends on 'the totality of the particular circumstances of the case' with each
case 'necessarily depend[ing] upon its own facts.'" Hagans, 233 N.J. at 40(alteration in original) (quoting King, 44 N.J. at 353). "Because determining
'whether consent was voluntarily given is a factual issue,' it is 'to be decided by
the trial judge; and the appellate court should reverse only when it finds that
determination to be clearly erroneous.'" State v. Williams, 461 N.J. Super. 80,
104 (App. Div. 2019) (quoting King, 44 N.J. at 354 (emphasis omitted)).
Applying these principles, we are satisfied that the judge's factual findings
are amply supported by sufficient credible evidence in the record and the judge's
legal conclusions are sound. We agree that Cookson had a reasonable articulable
suspicion that defendant was engaged in criminal activity to justify the motor
vehicle stop based on defendant having engaged in an undercover drug purchase
days earlier and Cookson's reasonable belief that defendant was en route to
Wallington to participate in a second undercover drug purchase. For the first
time on appeal, defendant argues that the CIs' reliability was never established.
However, the police investigation, including the successful completion of the
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first undercover drug buy, provided ample independent corroboration of the
informants' information and "[o]nce corroborated, the confidential informant[s']
information gave rise to reasonable and articulable suspicion justifying an
investigatory stop of defendant." Birkenmeier, 185 N.J. at 561 .
Defendant also asserts that "the State did not prove by a preponderance of
evidence that . . . requesting [defendant's] consent to search" was "based upon a
reasonable and articulable suspicion of criminal activity." We acknowledge that
"[a] suspicionless consent search shall be deemed unconstitutional whether it
preceded or followed completion of the lawful traffic stop." Carty, 170 N.J. at
647. However, this stop was not based on the observation of a motor vehicle
violation but rather a police investigation during which defendant had already
consummated one undercover drug buy and was believed to be en route to
complete a second one. Thus, far from suspicionless, the stop was amply
supported by a reasonable and articulable suspicion of criminal activity.
Therefore, the consent search comported with Carty in that the detectives had "a
reasonable and articulable suspicion that a criminal offense [was] being . . .
committed prior to requesting consent to search." Id. at 648.
We also agree with the judge that defendant's consent to search his vehicle
and his residence were freely and voluntarily given with full knowledge of his
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rights, including his right to decline consent. Defendant argues that "[n]one of
the factors identified in King that tend to show the consent was voluntary apply."
However, voluntariness depends on the totality of the circumstances, with each
case "necessarily depend[ent] upon its own facts," and "the existence or absence
of one or more of the . . . factors is not determinative of the issue." King, 44
N.J. at 353.
Next, we address defendant's challenge to his sentence. We review
sentences "in accordance with a deferential standard," State v. Fuentes, 217 N.J.
57, 70 (2014), and are mindful that we "should not 'substitute [our] judgment
for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321, 347 (2019)
(quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
"A sentence imposed pursuant to a plea agreement is presumed to be
reasonable because a defendant voluntarily '[waived] . . . his right to a trial in
return for the reduction or dismissal of certain charges, recommendations as to
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sentence and the like.'" Id. at 70-71 (alterations in original) (quoting State v.
Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)); see also State v. Spinks, 66
N.J. 568, 573 (1975) (stating that "an appellate court should ordinarily defer to
the presumed reasonableness of a bargained sentence"). Still, "[e]ven a sentence
recommended as part of a plea agreement . . . may be vacated if it does not
comport with the sentencing provisions of our Code of Criminal Justice."
Fuentes, 217 N.J. at 71; see State v. Sainz, 107 N.J. 283, 292 (1987) (noting that
sentencing standards "apply as well to sentences that result from guilty pleas,
including those guilty pleas that are entered as part of a plea agreement" ).
Here, based on the risk of re-offense and the need for deterrence, the judge
found aggravating factors three and nine. See N.J.S.A. 2C:44-1(a)(3), (9). On
the other hand, given the absence of any "prior history of criminal activity," the
"excessive hardship" of imprisonment on defendant, and the significant
cooperation with law enforcement, the judge found mitigating factors seven,
eleven, and twelve. N.J.S.A. 2C:44-1(b)(7), (11), (12). The judge concluded
that although "the mitigating factors . . . outweigh[ed] the aggravating factors,"
the "facts and circumstances of th[e] case and the qualitative weight of the
mitigating factors versus the aggravating factors [did] not warrant . . . sentencing
[defendant] in the second[-]degree range."
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Defendant argues the judge erred in not sentencing him in the second-
degree range because he established his eligibility for a downgrade and "the
interests of justice require that he be resentenced." Sentencing a first- or second-
degree offender to a sentence one degree lower is governed by N.J.S.A. 2C:44-
1(f)(2), which provides, in pertinent part:
In cases of convictions for crimes of the first or second
degree where the court is clearly convinced that the
mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
In State v. Megargel, 143 N.J. 484 (1996), our Supreme Court observed
that "the standard governing downgrading is high," id. at 500, and established
the following two-part test to justify a downgrade: 1) "[that t]he court must be
'clearly convinced that the mitigating factors substantially outweigh the
aggravating ones'"; and 2) "that the interest of justice demand[s] a downgraded
sentence," id. at 496 (quoting N.J.S.A. 2C:44-1(f)(2)). The Court further
explained that in applying this test, "the severity of the crime" is "the most . . .
important factor . . . ." Id. at 500 (citing State v. Hodge, 95 N.J. 369, 379
(1984)).
The Megargel Court identified several factors for
the sentencing court to consider, including: "the degree
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of the crime [which] is the focus of the sentence";
whether "[t]he surrounding circumstances of an offense
may make it very similar to a lower degree offense";
and "facts personal to the defendant," including his
"role in the incident." "The reasons justifying a
downgrade must be 'compelling,' and something in
addition to and separate from, the mitigating factors
that substantially outweigh the aggravating factors."
[State v. Rice, 425 N.J. Super. 375, 384-385 (App. Div.
2012) (alterations in original) (citation omitted)
(quoting Megargel, 143 N.J. at 500-01, 505).]
Here, in addressing the aggravating factors, the judge stated:
I certainly find aggravating factor three, the risk that
you'll commit another offense. The facts and
circumstances here clearly indicate that this wasn't
some one-off isolated incident and there certainly was
a profit motive at play here and I do believe that there's
a risk that you'll commit another offense.
Aggravating factor nine, the need to deter you
and others from violating the law. [The prosecutor]
rightly points out especially during the past two years
during the pandemic the scourge of drugs and the
effects of that on the community . . . have been
amplified. So, there's a strong need to deter you and
others from violating the law in this regard.
Turning to the mitigating factors, the judge found:
As far as mitigating factors, mitigating factor
seven, no prior history of criminal activity up to and
including the commission of this crime. I am going to
give some weight to mitigating factor [eleven], that
your incarceration will entail an excessive hardship to
yourself. You've been doing well for the past three
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years. I can't ignore that. You've been working, you
haven't been sitting just idly by waiting to go to state
prison. So, I am going to give some weight to
mitigating factor [eleven] and I am going to give
significant weight to mitigating factor [twelve] as well.
Although the judge found that "[t]he mitigating factors outweigh[ed] the
aggravating factors," the judge expressly found that "[t]hey do not substantially
outweigh" the aggravating factors. Thus, we reject defendant's arguments that
the judge misapplied the sentencing guidelines by considering aggravating
factor three and not considering a host of other mitigating factors presented for
the first time on appeal.
On the contrary, in determining that a downgraded sentence was not
warranted, the judge adhered to the sentencing guidelines, properly identified
and balanced the aggravating and mitigating factors, and imposed a flat ten-year
sentence, the minimum sentence permissible in the first-degree range. See Case,
220 N.J. at 64-65 ("[W]hen the mitigating factors preponderate, sentences will
tend toward the lower end of the range, and when the aggravating factors
preponderate, sentences will tend toward the higher end of the range." (quoting
State v. Natale, 184 N.J. 458, 488 (2005))).
Affirmed.
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