Opinion
DOCKET NO. A-4937-12T4
10-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID ALBRIGHT, a/k/a DAVID JEROME ALBRIGHT, a/k/a LATIF R. ABDULLAH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). John P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2852. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). John P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. This opinion of the court was delivered by NUGENT, J.A.D.
Defendant David Albright is serving a thirty-year prison term, an extended-term sentence imposed after a jury convicted him of multiple weapons offenses for selling an assault rifle and brandishing a handgun. He contends the trial court denied him a fair trial by granting the State's motion to amend the indictment shortly before trial, denying his motion to dismiss one weapons offense before trial, and mishandling the bifurcated trial on two certain persons not to have weapons offenses. He also contends the prosecutor withheld exculpatory evidence from the grand jury, deprived him of a fair trial by making unduly prejudicial remarks during summation, and ultimately failed to prove the charges beyond a reasonable doubt. Lastly, defendant argues that his sentence is excessive.
Having considered defendant's arguments and concluded the errors he has asserted do not require reversal, we affirm his conviction on all counts. We remand the matter for a further explanation of the extended term sentence because the trial court did not explain its reasons for imposing the extended term on a different count from that requested by the prosecutor.
We derive these facts from the appellate record. The police arrested defendant in August 2011, and an Atlantic County grand jury later indicted him on numerous weapons offenses. Five months after the indictment, a grand jury charged defendant in a superseding indictment with second-degree unlawful possession of an Arsenal AK-47 assault firearm, N.J.S.A. 2C:39- 5f (count one); third-degree unlawful sale of an Arsenal AK-47 assault firearm, N.J.S.A. 2C:39-9g (count two); second-degree possession of an Arsenal AK-47 with intent to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (counts five and six).
Two weeks before trial, defendant filed a motion to dismiss count three, arguing that the State failed to present sufficient evidence to the grand jury to support the charge of possessing a weapon for an unlawful purpose. Four days later, the State filed a motion to amend the indictment to change all references to an "Arsenal AK-47" to an "Arsenal SLR-95." On the day before jury selection began, the trial court denied defendant's motion to dismiss count three — possession of a weapon for an unlawful purpose — and granted the State's motion to amend the indictment.
The State developed the following proofs at trial. In July 2011, William Ford, who was "facing up to [ten] years in prison" on a weapons offense and seeking to reduce his prison term, informed Atlantic City Police Detective Kevin Fair that defendant had an assault firearm for sale. After confirming defendant's identity, Fair arranged for Ford to purchase the firearm.
Trial was bifurcated into the underlying weapons offenses, counts one through four, and the certain persons offenses, counts five and six.
Ford eventually entered a plea "where [he] would receive three years where [he] had to do one year in prison." --------
On August 4, 2011, the day of the sale, the police recorded two conversations between Ford and defendant concerning where they would meet. The police then wired Ford with an audio and video recording device, provided Ford with $800 to purchase the weapon, and drove him to the planned meeting spot in Atlantic City. Ford met defendant in a Kentucky Fried Chicken restaurant; from there, they entered a vehicle, drove to an Atlantic City apartment complex, and entered an apartment. Ford testified that during the ride to the apartment, he told defendant he wanted a gun because he was going to New York to purchase drugs and intended to use the gun if anyone tried to "trick [him] into buying some bad drugs."
Inside the apartment, defendant retrieved from a back room what Ford thought was an AK-47. Defendant demonstrated how to use the weapon and then gave Ford the gun in exchange for $700. Ford later returned the remaining $100 to the police. Before Ford left, defendant asked him to look outside the apartment "to see if anybody was coming." Ford saw a man walking by. Defendant "went to the back" and returned with a .357 revolver from another room, but did not use the handgun. Defendant gave Ford a bicycle and Ford left the apartment; he rode along Baltic Avenue to a designated meeting spot to turn over the weapon to waiting police officers. On cross-examination, Ford conceded that while riding the bicycle to meet the police he stopped at a street corner for approximately forty-five seconds.
The State's firearms identification expert, Lieutenant Charles DeFebbo, testified the firearm Ford purchased was an operable Arsenal SLR-95, which is classified as an assault weapon because it employs a flash suppressor and a pistol grip. The State's firearms operability expert, Lieutenant Robert DeGaetano, tested the Arsenal SLR-95 and found it to be operable.
At the close of the State's case, defense counsel moved to dismiss count three of the indictment, possession of a weapon for an unlawful purpose. The court granted the motion.
Defendant testified and presented the testimony of several witnesses in attempt to persuade the jury that he sold Ford a replica of an assault rifle, which Ford subsequently switched for a real AK-47. Defendant denied selling Ford a real assault weapon. Rather, defendant claimed he sold Ford an airsoft replica of an AK-47. Defendant admitted he violated the law by possessing the airsoft replica without the orange tip, which enables police to distinguish the replica from a real assault weapon. Defendant also testified that he never possessed a handgun, but did have a Taurus airsoft replica of a handgun.
Defendant presented the testimony of Dwaine Williams, who had once been Ford's roommate and shared a close relationship with him. According to Williams, Ford stored "airsoft," or "toy" guns in the apartment they shared. Williams explained that airsoft guns were toys, "a pellet gun where you can shoot at birds or squirrels." Williams also testified that in 2011 he had an "issue" with defendant's son, but they had "mended fences." Afterward, Ford telephoned Williams and said not to worry about defendant because he had been "taken care of." When Williams asked how, Ford said he had made a "switch" with him, but would say nothing more.
Defendant also presented the testimony of Jamall Dennis, a pedestrian who came forward as a result of a Facebook advertisement and reward posted by defendant for information concerning his case. Dennis had been walking on Baltic Avenue on August 4, 2011, the day defendant sold the gun to Ford. He witnessed a man riding a red bike turn onto Baltic Avenue and ride by a man who was standing on the corner. The pedestrian started jogging toward the bicyclist, which led Dennis to believe the jogging man was going to do something to the man on the bike. Instead, they both stopped at the next intersection where Dennis saw the jogger "pull something off" the bicyclist's back, go to a car, return, and then "put[] something back on his back." The jogger then touched the bicyclist on the head and the bicyclist rode away. Dennis estimated the exchange took "about [twenty] seconds" to complete.
Defendant's last witness was a woman who had lived with Ford from July 2010 to February 2011. During their relationship, while Ford's charges were pending, he told her that on several occasions when he went to court the police tried to persuade him that "if he could set people up, . . . his charges would go away." She also testified that Ford was very jealous of defendant.
The jury rejected the defense and found defendant guilty on counts one, two, and four. The court then charged the jury on the certain persons not to have weapons offenses and the jury returned a guilty verdict on counts five and six.
Following the trial, the court denied defendant's motion for judgment notwithstanding the verdict and granted the State's motion to sentence defendant to an extended term as a persistent offender on one of the second-degree certain persons offenses. At sentencing, the court found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors. The court imposed an extended twenty-year custodial term with a ten-year period of parole ineligibility on count one, possession of an assault weapon, without explaining why it imposed the extended term on that count rather than a count requested by the State. The court imposed a consecutive ten-year custodial term with a five-year period of parole ineligibility on count five, certain persons not to have weapons; concurrent five-year custodial terms with three years of parole ineligibility on counts two and four, unlawful sale of an assault weapon and unlawful possession of a handgun; and a concurrent ten-year custodial term with five years of parole ineligibility on count six, certain persons not to have weapons. Defendant appealed from the judgment of conviction.
Defendant raises the following points on appeal:
POINT IDefendant also raises the following points in his supplemental pro se brief:
THE TRIAL COURT ERRED BY ALLOWING THE LATE AMENDMENT OF THE INDICTMENT, AS IT PREJUDICED ALBRIGHT IN HIS DEFENSE THEREBY DEPRIVING HIM OF DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., ART. I, PARS. 1 AND 10).
POINT II
THE COURT ERRONEOUSLY REFUSED TO DISMISS THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE COUNT BEFORE TRIAL AS OPPOSED TO AT
THE END OF THE STATE'S CASE, AND FAILED TO CONDUCT A RULE 403 ANALYSIS BEFORE ALLOWING THE JURY TO HEAR IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONY, WIHTOUT A LIMITING INSTRUCTION, THEREBY DEPRIVING ALBRIGHT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST., AMENDS. V, VI AND XIV; N.J. CONST., ART. I, PARS. 1, 9 AND 10).
POINT III
THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION WHEN HE DENIGRATED THE DEFENSE, ARGUED THAT ALBRIGHT FAILED TO PRODUCE EVIDENCE IN SUPPORT OF HIS DEFENSE, COMMENTED ON A DISMISSED COUNT AND ASKED THE JURY TO HOLD DEFENDANT RESPONSIBLE.
A. Comment on Failure to Produce Evidence.
B. Denigration of the Defense.
C. Comment on Dismissed Count and Call to Arms.
POINT IV
BECAUSE THE COURT MISHANDLED THE BIFURCATED TRIAL ON THE "CERTAIN PERSONS" CHARGES THOSE CONVICTIONS MUST BE REVERSED.
POINT V
DEFENDANT'S EXTENDED TERM SENTENCE OF THIRTY YEARS WITH FIFTEEN YEARS OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE AND MUST BE REDUCED OR THE MATTER REMANDED FOR RESENTENCING.
POINT I
THE TRIAL COURT ERRED BY ALLOWING THE WORDS "ARSENAL AK-47" TO BE STRICKEN OUT OF THE INDICTMENT IN PLACE OF A "ARSENAL SLR-95" AND REQUIRED THE DEFENDANT TO ANSWER TO THE INDICTMENT AS IT THEN READ, "NO PERSON SHALL BE HELD TO ANSWER A CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY THEREBY DEPRIVING ALBRIGHT OF DUE PROCESS AND A FAIR TRIAL (U.S. CONST., AMENDS. V AND XIV; [N.J. CONST.,] ART. I, PARS. 1 AND 10).
POINT II
THE PROSECUTOR INTERFERED WITH THE GRAND JURY DECISION MAKING PROCESS BY WITHHOLDING EVIDENCE THAT BOTH NEGATES GUILT AND IS CLEARLY EXCULPATORY.
POINT III
THE PROSECUTOR NEVER PROVED AT TRIAL ALBRIGHT POSSESS[ED] AN SLR-95 SUBSTANTIALLY IDENTICAL TO AN AVTOMAT KALASHNIKOV AK-47.
We first address defendant's arguments concerning the amendment to the indictment. Defendant contends the amendment was not a minor technical correction, but rather eased the State's burden of proof. Defendant reasons it would have been more difficult for the State to prove the weapon was an Avtomat Kalashnikov, a weapon specifically identified as an "[a]ssault firearm" in N.J.S.A. 2C:39-1w(1), than to prove the weapon was a "firearm manufactured under any designation which is substantially identical to any of the firearms listed above," N.J.S.A. 2C:39-1w(2). Defendant concludes: "Since the amendment made the case against [him] easier to prove, he was prejudiced." We disagree with defendant's reasoning.
Article I, Paragraph 8 of the New Jersey Constitution provides that, with certain exceptions not relevant here, "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury." Our courts have long recognized "the purposes of an indictment are to provide adequate notice so that the accused can prepare a defense and to be sufficiently specific for the accused to avoid a subsequent prosecution for the same offenses." State v. Lopez, 276 N.J. Super. 296, 302 (App. Div.), certif. denied, 139 N.J. 289 (1994).
Rule 3:7-4 authorizes a court to amend an indictment
to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.Thus, where a "nonessential" allegation is involved, the specification of a fact related to the commission of the crime may be amended. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:7-5 (2015); see, e.g., Lopez, supra, 276 N.J. Super. at 299, 307 (explaining that indictment charging armed robbery with a machine gun could have been amended to "add the pistol and knife to the description of the deadly weapon"); State v. J.S., 222 N.J. Super. 247, 257-58 (App. Div.) (affirming amendment of indictment to specify particular intimate body part involved in sexual assault prosecution), certif. denied, 111 N.J. 588 (1988). Correction by amendment is not permitted, however, where the error goes to the substance of the offense, see State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988), or is sought to charge a more serious offense, State v. Koch, 161 N.J. Super. 63, 66-67 (App. Div. 1978).
Here, in permitting the late amendment of the indictment, the trial court explained:
[T]he substance of this case is the nature of the weapon, not the name or the description . . . for which these two weapons are essentially identical in terms of their nature being assault weapons which are proscribed by law. It does not change the degree. It does not change the proofs. It does not change the notice of which is given through the indictment to the defendant of the offense for which he is being asked to respond.
The trial judge correctly noted the amendment did not change an essential element of the offense or the degree of the crime. It changed only the State's burden to prove beyond a reasonable doubt that the weapon recovered was "substantially identical" to an AK-47 assault rifle, rather than an AK-47.
Further, defendant's superseding indictment was sufficiently specific to allow him to adequately prepare a defense. His case was not prejudiced by the indictment's amendment. Defendant's theory was the replica weapon he sold to Ford was switched after the sale for a real rifle. As defendant alleged he possessed neither an actual AK-47 nor an SLR-95, his defense was not diminished or negated by the indictment's amendment to modify the assault rifle recovered.
Thus, the trial court properly exercised its discretion when it permitted the State to amend the indictment. See State v. Reid, 148 N.J. Super. 263, 266 (App. Div.), certif. denied, 75 N.J. 520 (1977). The amendment corrected an error in description and did not go to the substance of the underlying offense.
Defendant next argues the trial court erroneously denied his pretrial motion to dismiss the third count, possession of a weapon for an unlawful purpose. He filed the motion based on the State's purported failure "to present to the Grand Jury sufficient evidence to support the charge." The State contends the following grand jury testimony, given by Detective Fair, supported the charge:
So, he unwraps the blanket and he shows it to the CI. [Defendant] picks up the weapon and now begins to instruct the CI on how to use the weapon. [Defendant] raises it up to his eye level and tells him how to — how you want to put the sights on the target for the accuracy. [Defendant] refers to the accuracy of the handgun as being stupid. He tells the CI . . . if he's going to have to shoot somebody, he's going to want to shoot somebody in the upper body. That's where it's going to do the most damage. There's a talk about what the CI is going to use the weapon for and the CI mentions something to the effect of him and acquaintances are going to New York to get a package of narcotics and this weapon is going to be used as protection because they're not quite sure who they're dealing with in New York. [Defendant] then says well, if it's not used, I guess in the commission of any type of crime or any shooting or anything like that, that he will buy the weapon back from the CI. At one point towards the tail end of the meeting, after he shows him how to sight in the target and show — tells him where to shoot and whatnot, [defendant] is seen on the video with rubber gloves on and he's wiping down the weapon with some type of cloth or whatnot. Presumably to remove his fingerprints from the weapon in the event that it were to be recovered somewhere.
The court denied defendant's motion, ruling "there's sufficient evidence in the indictment to . . . allow it to go to the jury, at least in terms of the trial. If the status of this evidence is the same at the end of the trial, I'll pull it." During trial, at the close of the State's case, the court granted defendant's motion to dismiss count three. Thereafter, in its instructions to the jury, the trial court stated: "There was a fourth count in the indictment. Whether you remember it or not is of no moment. It has been removed from your consideration [and] should not be the subject of any discussion or speculation."
We review the trial court's decision under an abuse-of-discretion standard. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Where "an indictment alleges all the essential facts of the crime, the charge is sufficiently stated and the indictment should not be dismissed unless its insufficiency is 'palpable.'" State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 19 (1984).
Under N.J.S.A. 2C:39-4a(1), "[a]ny person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." The State apparently tried defendant on this charge as an accomplice, N.J.S.A. 2C:2-6b(3), that is, one who "[w]ith the purpose of promoting or facilitating the commission of the offense, . . . [a]ids or agrees or to aid such other person in planning or committing it." N.J.S.A. 2C:2-6c(1)(b).
To be sure, significant questions existed as to the validity of the indictment. The State argued before the trial court, as it does on appeal, that "the grand jury could have easily inferred that defendant sold the assault weapon to the CI believing it was going to be used in the furtherance of a crime, specifically the trafficking of narcotics." That argument does not address whether the CI possessed the assault weapon with a purpose to use it unlawfully against the person or property of another, an element of N.J.S.A. 2C:39-4a.
The State has not identified any evidence demonstrating the CI proposed to use the weapon against the person or property of another, as distinguished from simply taking a precautionary measure. See State v. Harmon, 104 N.J. 189, 196-98 (1986). Additionally, the CI made up the story about purchasing drugs. That raises a question of whether one can be an accomplice to a non-existent crime.
We need not address these issues, however, because defendant has not properly raised them. Although defendant notes in his brief that he contended the proofs presented to the grand jury were insufficient to return an indictment for possession of a weapon for an unlawful purpose, he makes no attempt on appeal to explain why the proofs were insufficient, or as to which element of the offense the proofs were inadequate. He notes the difficulty the trial court had with the State's opposition to his motion, then asserts that the court's failure to dismiss the count "exposed the jury to Ford's fabricated story that he was going to use the gun in a drug transaction in New York." Defendant cites no case law with respect to the standard a trial court must apply when considering the sufficiency of an indictment, nor does defendant explain how the trial court either misconstrued the grand jury testimony or misapplied the standard for dismissing an indictment to that testimony. Parties to an appeal are required to make a proper legal argument, "[s]upporting legal argument with appropriate record references . . . [and] provid[ing] the law." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).
Even assuming the possession for an unlawful purpose count should have been dismissed, the discussion about the New York drug deal and defendant's demonstration of how to load and aim the assault weapon were relevant; they had a tendency in reason to prove that the assault weapon was real, not a replica as defendant claimed. N.J.R.E. 401. Defendant demonstrated how to take the clip in and out, chambered a bullet, and told the CI that one shot "and it's over . . . . Anywhere in the upper body and it's done." For those reasons, we reject defendant's argument that the discussion about the drug deal was irrelevant and unduly prejudicial.
We have considered defendant's remaining arguments in support of his attempt to obtain a new trial and found them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
Defendant contends the prosecutor made comments in summation that constitute unduly prejudicial misconduct. We have considered the comments in the context of the entire summations of both parties and the evidence the parties presented at trial. With one exception, the prosecutor's comments did not exceed the boundaries of proper commentary on the evidence. The exception is the prosecutor's reference to defendant not producing evidence.
The prosecutor noted in summation that the SLR-95 in evidence had a particular kind of stock and argued that defendant had failed to produce evidence of the existence of an airsoft rifle with the same type of stock. He then elaborated on the implications of defendant failing to produce such evidence. The comment was improper. See State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). Nevertheless, defense counsel did not object to the comment. Generally, when counsel does not object to a prosecutor's closing remarks, the remarks will not be deemed to be prejudicial. See State v. Timmendequas, 161 N.J. 515, 576 (1999); State v. Ramseur, 106 N.J. 123, 323 (1987).
Moreover, as the trial court explained when ruling on defendant's motion for a "judgment NOV":
The proofs in this case, in terms of the factual underpinnings of the verdict is as compelling as I think I [have] ever seen. The entire transaction was captured by a video. The video portion was clear in terms of this — identity of the [d]efendant was clear I believe in terms of the nature of the weapon. As far as sound is concerned, you can clearly hear what was being said, clearly hear the marketing, if you will, that the [d]efendant was or had undertaken in describing the value of the gun, the ability of the gun to do what it purportedly could do, which essentially [is] kill someone. Instructing them, instructing the undercover operative as to how to aim, how to shoot and so forth and again, I can't envision a case more compelling in terms of the proofs.
The absence of an objection by defense counsel, the trial court's characterization of the State's proofs, and our own assessment of the record, lead us to conclude that the prosecutor's improper comments in summation were not "so egregious that [they] deprive[d] . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Lastly, we conclude the trial court did not commit reversible error by failing to advise defendant during the second part of the bifurcated trial — the certain persons not to have weapons charges — that he had a right not to testify. Advising him would have been the better practice. See State v. Lopez, 417 N.J. Super. 34, 39 (App. Div. 2010), certif. denied, 201 N.J. 520 (2011); State v. Ball, 381 N.J. Super. 545, 556 (App. Div. 2005). Here, however, no one denied defendant his right to testify. Moreover, there is no evidence in the record to suggest defendant wished to testify or that something the court did or said deterred him from doing so. For those reasons, we conclude the court's omission does not require reversal.
We now turn to defendant's sentence, which defendant argues is excessive. Defendant contends the "sentencing court relied upon [his] prior convictions to simultaneously justify its decision to grant the State's extended term motion, and to find aggravating factors three, six, and nine." Defendant argues the court "should have instead focused on the offenses for which [he] was being sentenced when finding and weighing the aggravating and mitigating factors, to avoid duplicative and excessive consideration of his criminal record."
Defendant does not dispute he was subject to an extended-term sentence as a persistent offender. N.J.S.A. 2C:44-3a. He also concedes his status as a persistent offender exposed him to a five to twenty year custodial term. He argues, however, the trial court overemphasized his criminal record and failed to focus primarily on his current offenses.
When evaluating whether to impose an extended custodial term and, if appropriate, the length of that term, sentencing courts follow a four-step process: (1) determine whether the minimum statutory predicates are met; (2) decide whether to impose an extended term; (3) weigh aggravating and mitigating factors to determine the base term of the extended sentence; and (4) determine whether to impose a parole ineligibility period. State v. Pierce, 188 N.J. 155, 164 (2006); State v. Dunbar, 108 N.J. 80, 91-92 (1987).
"Choosing whether to impose the extended term requires consideration of the need for public protection." Dunbar, supra, 108 N.J. at 95. Further, though the conduct underlying the current offense is of primary importance in determining the length of the extended term, "other aspects of defendant's record, which are not among the minimal conditions for determining persistent offender status, such as juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term." Dunbar, supra, 109 N.J. at 92. Here, in deciding to impose an extended term and in determining the length of defendant's sentence, the trial court considered the need to protect the public as well as other relevant factors. The court noted defendants' extensive criminal record, which supported its determinations:
[thirty-five] known arrests since 1987, [eleven] prior indictable convictions, including robbery, burglary, threats to kill, possession of a handgun, possession of explosives, also two assaults that I believe are disorderly person[s] in nature. Also possession of CDS with intent to distribute in a public zone, possession of CDS and four times theft of moveable property. He also has several municipal convictions, which I won't specify. . . .
He . . . has violated probation twice. Violated a suspended sentence previously, theft charge pending Grand Jury. As a juvenile, arrested [twenty-eight] times, with six adjudications, mostly involving assaultive or threaten[ing] conduct. He presently has three final restraining orders held by three different women.
In sum, he's a life criminal, []poses a serious risk to the general public and more so for those with direct contact.
Contrary to defendant's suggestion, the trial court did not overlook or fail to give due consideration to defendant's current crimes. The court considered the "need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9), stating: "In today's atmosphere of proliferated use of assault firearms, national and shootings in Atlantic City with alarming frequency, many of which result[] in homicides, the nature of the offense requires imposition of an extended term."
Further, the trial judge properly considered defendant's risk of re-offense, N.J.S.A. 2C:44-1a(3), noting that "[t]he myriad of dispositions previously imposed, including State Prison, probation, parole, suspended sentence, all have not served well the function of keeping from offending and protecting society from his offenses."
The court followed the sentencing guidelines and its findings of aggravating and mitigating factors are supported by the record. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). The sentence does not "shock the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). The trial court "exercise[d] . . . discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," so we may not second-guess its decision. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations and citations omitted).
As defendant argues and the State concedes, however, a remand is required with respect to the sufficiency of the sentencing court's reasoning in imposing the extended term on a different count than that requested by the prosecutor. In State v. Thomas, 195 N.J. 431, 436 (2008), our Supreme Court held:
Because it is the prosecutor's choice whether to seek an extended term in the first instance, it follows that the trial judge should give weight to the prosecutor's determination regarding which offense is to be subject to an extended term, but that selection is not dispositive. If the judge has reason to disagree, he should state, on the record, along with his reasons for the sentence, why he chose to apply the extended term to a different charge than that sought by the prosecutor.Here, the trial court provided no statement of reasons for imposing the extended term on count one, second-degree possession of a weapon, rather than on either count five or six, second-degree certain persons offenses, as requested by the State. Thus, we remand this matter for the trial court to provide its reasons for imposing the extended term on count one, or if appropriate, to reconsider its decision to impose the extended term on that count rather than on either of those requested by the prosecutor.
Affirmed and remanded for further explication as to the extended term sentence consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION