Opinion
DOCKET NO. A-3356-12T3
01-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NICHOLAS A. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-01-0044. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Defendant Nicholas Brown appeals from the judgment of conviction (JOC) and sentence imposed following a jury trial at which he was convicted of third-degree possession of a controlled dangerous substance, specifically heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5a(3) (count two); second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count three); third-degree possession of a controlled substance, specifically cocaine, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count five); second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5a and 2C:35-7.1 (count six); second-degree eluding, N.J.S.A. 2C:29-2b (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count eight).
At sentencing, count one was merged into count two and count two merged into count three, for which defendant was sentenced to a discretionary extended term pursuant to N.J.S.A. 2C:43-6f of ten years with a five-year period of parole disqualifier. The judge then merged count four into count five, and count five into count six, also sentencing defendant to a discretionary extended term pursuant to N.J.S.A. 2C:43-6f of ten years with a five-year parole disqualifier. On count seven, the court sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a to an extended-term of fifteen years with a five year period of parole ineligibility, and to eighteen months for count eight. All sentences were concurrent to each other.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE'S FAILURE TO DEFINE THE TERM "DISTRIBUTE" TO THE JURY FOR THE POSSESSION WITH INTENT CHARGE PREVENTED THE JURY FROM ACCURATELY ANALYZING AND FINDING THIS ELEMENT OF THE CRIME, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S REQUEST TO QUESTION THE TESTIFYING OFFICERS ABOUT THE COMPLAINT HE FILED AGAINST THEM RELATING TO HIS ARREST, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO CONFRONT THESE WITNESSES ON THEIR BIAS AND CREDIBILITY.
POINT III
DEFENDANT'S CASE SHOULD BE REMANDED FOR RESENTENCING TO CORRECT ERRORS IN THE JUDGMENT OF CONVICTION, LEGAL ERRORS IN THE SENTENCE, AND BECAUSE THE SENTENCE IS EXCESSIVE.
A. The Judgment Of Conviction Contains Errors Which Must Be Corrected On Remand.
1. Sentences For Merged Counts
2. Jail Credits Calculations
3. Extended Term Sentence
B. Defendant's Sentence Was Excessive.In addition, defendant submitted a two-page pro se supplemental brief, which does not set forth legal argument, but contends that the record relevant to an ethics complaint he filed against his substituted trial counsel, and pertaining to the police officer's motor vehicle recording, should be reviewed. We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
At approximately 11:30 p.m. on September 22, 2011, Woodbridge Police Officers Thomas Ganci and Joseph Dutcher were patrolling in a marked vehicle when they saw a man, later identified as defendant, sitting alone in a parked car in the parking lot of an apartment complex. Although the officers testified that defendant was not doing anything illegal at the time, Dutcher stated that they became suspicious when he appeared to look "nervous" and "quickly started making hand movements toward the center console" when he saw them.
The officers got out of their vehicle and walked to defendant's parked vehicle. As they approached defendant's vehicle, another vehicle drove by and someone inside yelled something indecipherable. Meanwhile, defendant drove away past the officers, nearly hitting Ganci. At the same moment, Dutcher banged on defendant's front passenger side window and told him to stop, but defendant did not do so. Dutcher and Ganci got in their police vehicle, activated their emergency lights and sirens, and chased defendant at a high-speed. The chase ended when defendant drove over the median and hit a retaining wall.
Dutcher exited his vehicle and observed defendant reaching down on the floorboard to gather something. Defendant then ran away, and according to Dutcher, disregarded orders to stop and threw bags to the ground. Dutcher chased defendant, and after a struggle, apprehended him. Incident to the arrest, defendant was searched, resulting in the seizure of two cell phones, approximately $787 in suspected drug proceeds, and another person's driver's license. When defendant refused to identify himself, Dutcher and Ganci testified that they searched his car for identification, and saw in plain view heroin, crack cocaine, and marijuana. Dutcher then recovered the bags defendant threw on the ground while he attempted to flee, which contained crack cocaine and marijuana.
The officers recovered from defendant the following denominations totaling $787.79: one $50 bill, thirty-four $20 bills equaling $680, one $10 bill, seven $5 bills equaling $35, twelve $1 bills, and seventy-nine cents in coins.
Thirty glassine folds of heroin were seized.
Defendant later filed internal affairs complaints against the officers alleging excessive force was applied during his arrest. In a pre-trial application, defense counsel sought permission to question Ganci and Dutcher about the internal affairs complaints to show bias. However, the trial judge sustained the State's objection, finding that the internal affairs complaints were filed after the incident and their probative value was outweighed by N.J.R.E. 403 considerations.
An investigation determined that there was no finding of police misconduct.
Investigator Steven Weitz of the Middlesex County Prosecutor's Office testified as the State's expert in the field of narcotics and controlled dangerous substances. Weitz opined, based on a hypothetical similar to the facts in this case, that the amount of cocaine possessed was consistent with possession with intent to distribute. Moreover, the amount of money and denominations recovered in the same hypothetical strengthened Weitz's opinion that the cocaine was possessed with intent to distribute. On cross-examination and in summation, defense counsel did not challenge the expert's testimony that the cocaine was possessed with intent to distribute.
Weitz opined that the amount of marijuana recovered was consistent with personal use. Weitz also noted that it would be atypical for someone to possess the quantity of heroin described in the hypothetical solely for personal use, given the amount of money and the denominations also found along with the heroin.
While instructing the jury with regard to the charges of possession with the intent to distribute heroin and possession with the intent to distribute cocaine, the judge stated:
Here are the elements. One, S-1[5]A and B in evidence are heroin and cocaine. Two, that [defendant] possessed or had under his control S-15A and B in evidence.Notably, the judge thereafter defined the elements of the offense, including possession and intent, but did not define the term "distribute." Defendant did not object to this charge.
Three, that he, when he possessed it or had it under his control, that is S-15A and B in evidence, that he had an intent to distribute S-15A and B in evidence. And four, that he acted knowingly or purposely in possessing or having under his control with the intent to distribute S-15A and B in evidence.
In instructing the jury on counts three and six charging defendant with possession of heroin and cocaine with intent to distribute within 500 feet of a public park, the judge stated:
The pertinent part of the statute upon which these counts of the indictments are based read as follows[:]
That any person who violates another section of our law by possessing with the intent to distribute a controlled dangerous substance while . . . in, on, or within 500
feet of the real property comprising a public housing facility, public park, or public building is guilty of a crime.Again, the judge did not define "distribute" to the jury and defendant did not object.
. . . .
[I]n order for you to find him guilty of these counts of the indictment, the State must prove all of the following elements beyond a reasonable doubt.
One, S-15A and B in evidence are heroin and cocaine. Two, that he possessed or had S-15A or B under his control. Three, that he had a purpose to distribute S-15A and B when he possessed it or had it under his control. Four, that when he possessed 15A and B with the purpose to distribute it, he . . . was in or within 500 feet of William Warren Park.
Defendant was convicted on all charges. At sentencing, the judge granted the State's motion for a discretionary extended term sentence under N.J.S.A. 2C:43-6f, and an extended term as persistent offender under N.J.S.A. 2C:44-3a. The judge did not find any mitigating factors, but applied aggravating factors three, six, eight, nine, and eleven. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); -1(a)(6) (prior criminal record and the seriousness of the current offense); -1(a)(8) (offense committed against a police or other law enforcement officer); -1(a)(9) (the need for deterrence); and -1(a)(11) (the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices). In finding that the aggravating factors "substantially" outweighed the mitigating factors, the court explained:
There is a risk, [], that if you don't get your drug addiction under control that there will be other offenses committed by you.This appeal followed.
The extent of your prior record for which you have been convicted. That on one occasion one of these offenses, the eluding, maybe the resisting also come to think about it, you committed these offenses against police or law enforcement, individuals performing their duties while in uniform or exhibiting evidence of their authority.
There is a need to deter you and others from violating the law. There is [eleven] which says that the imposition of a fine and penalty or order of imprisonment would be perceived by you as just a cost of doing business.
II.
We first consider defendant's contention in Point I that the trial court committed reversible error by failing to define the term "distribute," which is a material element of the possession with intent to distribute charges. Despite the State's expert testimony that defendant had the intent to distribute a controlled dangerous substance (CDS), defendant asserts that the jury was never given the legal definition of distribution to render its verdict.
We are mindful of some well-settled principles. "'[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citation omitted), aff'd, 158 N.J. 149, 150 (1999). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,
plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."
[Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (citation omitted).
To support reversal, defendant cites State v. Federico, 103 N.J. 169, 174-77 (1986); State v. Roberson, 246 N.J. Super. 597, 607 (App. Div. 1991), certif. dismissed as moot, 12 6 N.J. 330 (1991); State v. Vick, 117 N.J. 288, 290-92 (1989); State v. Butler, 27 N.J. 560, 595 (1958), for the proposition that the failure to apprise the jury of the definition of a material element such as distribution is reversible error, even where the evidence pertaining to distribution is uncontradicted or conceded. Although this is a close call, we conclude that those decisions do not dictate reversal of defendant's conviction for the reasons that follow.
Only one of defendant's relied upon decisions involves a situation where the defendant failed to object to the charge given by the trial court. In Roberson, we reversed a conviction, finding plain error where the trial court failed to instruct the jury that the presence of at least 3.5 grams of pure free base was a necessary element of "second-degree possession of more than one-half ounce but less than five ounces of cocaine, which included at least 3.5 grams of pure free base, with intent to distribute," in violation of former N.J.S.A. 2C:35-5a(1) and b(2). 246 N.J. Super. at 601, 607. Here, unlike the jury in Roberson, the jury was provided the elements of the charged offenses, specifically, the elements of possession with the intent to distribute heroin and cocaine. Not receiving the definition of distribution, a term readily known to the lay person, was not fatal to the jury's deliberation.
The three other decisions all involve circumstances where the trial court rejected the defendants' objections that the jury instructions were missing required elements. In Federico, the defendant contended that the trial court did not charge the jury with the instruction that the State had the burden to prove unharmed release of the victim, an element of first-degree kidnapping, N.J.S.A. 2C:13-1c. 103 N.J. at 176. The court reversed the conviction, reasoning that to "mold the verdict to constitute a conviction for second-degree kidnapping" would "force [it] to speculate about how the jury would have determined the matter if it had been properly charged." Id. at 176-77 (citation omitted). Here, unlike in Federico, we are not forced to speculate as to what the jury would have decided if it had been given the definition of distribution. Defendant's possession of thirty glassine folds of heroin, 8.17 grams of crack cocaine, and approximately $787 in the aforementioned denominations was more than sufficient evidence to support a verdict of possession with the intent to distribute.
The facts in this case are also distinguishable from Vick, wherein the defendant, who was convicted of illegal possession of a police officer's handgun, contested the trial judge's refusal, over his objection, to charge the jury that the State bore the burden of proving that the gun was unlicensed. 117 N.J. at 290 (1989). The trial court instructed the jury that the State had the burden of proving only that the instrument was a handgun and that defendant possessed the gun knowingly since defendant failed to provide evidence that he possessed a permit. Ibid.
On appeal, in an unpublished opinion, this court concluded that the trial court's failure to charge the jury with respect to the State's burden of proof on an essential element of a crime was harmless error because the defense's theory at trial was that without any criminal intent, the defendant had merely held the gun in safekeeping, intending to return it to the officer. Vick, supra, 117 N.J. at 290. We held that none of defendant's rights were compromised because "[t]he distinctive fact is that the absence of a permit was inherent in the defense. Based upon the defense offered at trial, defendant could not possibly have had a permit for the weapon." Id. 290-91.
The Court, however, held that the trial court's decision was error because the "defense posed in this case did not inescapably posit guilt of the offense" as implied by the lower courts. Id. at 291. Notably, in reversing the decision, the Court stated that "there is simply no substitute for a jury verdict." Ibid.
In our case, the absence of a jury instruction defining distribution did not substitute for the jury verdict itself, as in Vick. When reciting the elements of the possession offenses, the trial judge told the jury that it had to decide whether defendant possessed heroin and cocaine with the intent to distribute it. The jury still had to consider whether the amount and manner in which the CDS were packaged, and the amount and denomination of money defendant possessed, established beyond a reasonable doubt that defendant's possession of the CDS was with the intent to distribute.
The facts in Butler are also dissimilar to the facts in this case. In Butler, despite the defense's request, the trial court committed prejudicial error when it failed to define the offense of robbery, a term not readily known by the lay mind and one essential to prove the charge of felony murder. 27 N.J. at 595-98. Unlike the term "robbery," the term "distribution" is a term readily known to a lay person; therefore, we cannot conclude that the judge's failure to define distribution had a significant impact on the deliberative process nor that it caused an unjust result. Moreover, defendant's failure to object to the charge further suggests that not even defendant considered the definition of distribution essential to a just consideration of the charges.
In sum, considering the totality of the charges, the overall strength of the State's case, and defendant's failure to object to the charge, we conclude that there was no plain error.
III.
In defendant's Point II, he contends that he was denied a fair trial when the trial judge prevented him from cross-examining Ganci and Dutcher about the internal affairs complaints he filed against them. Relying upon N.J.R.E. 607 which allows for the introduction of extrinsic evidence relevant to the issue of credibility, defendant argues that he wanted to attack the officers' credibility by showing, through the existence of the complaints, that they fabricated the charges against him.
We begin with the applicable principles that guide our analysis. Appellate courts apply a deferential standard of review to a trial judge's order regarding the scope of cross-examination. The judge exercises "reasonable control over the mode and order of interrogating witnesses." N.J.R.E. 611(a). An appellate court applies an abuse-of-discretion standard of review. State v. Simon Family Enters., 367 N.J. Super. 242, 257 (App. Div. 2004) ("[T]he precise parameters of cross-examination are . . . left to the trial court's discretion . . . ."). Thus, "[w]e will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.) (citation omitted), certif. denied, 185 N.J. 297 (2005).
Our rules of evidence also set boundaries for the presentation of evidence in cross-examination. The scope of cross-examination "should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." N.J.R.E. 611(b). The court's exercise of its authority under N.J.R.E. 611 is closely related to its authority under N.J.R.E. 403 to exclude evidence in which its "probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
Exposing a witness's motivation, partiality or bias, is an important function of cross-examination. Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353-54 (1974). Consequently, the trial judge "'retain[s] wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" State v. Budis, 125 N.J. 519, 532 (1991) (alteration in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)). Nevertheless, "the right of confrontation is not absolute." State v. Castagna, 187 N.J. 293, 309 (2006).
Defendant argues that he was entitled to question Ganci and Dutcher to make the jury aware that the internal affairs complaints existed to evaluate their credibility. We do not see how the relevancy and probative value of defendant's complaints alleging police abuse can establish that the jury should not believe the testimony of Ganci and Dutcher that defendant was in possession of heroin and crack cocaine.
Defendant places significant reliance on an unpublished decision, which in accordance with Rule 1:36-3, has no precedential value and is not binding upon any court. --------
The alleged abuse occurred after defendant fled and was observed discarding items discovered to be crack cocaine and marijuana. The judge found that evidence of the internal affairs complaints had little probative value and would confuse or mislead the jury by diverting their attention from the question of whether the defendant was in possession of CDS with the intent to distribute. Defendant did not proffer any facts as to how the complaints were evidence that Ganci and Dutcher were motivated to make-up the allegations against defendant. There might have been some probative value for discerning credibility had the complaints against the officers been based on an incident that arose before defendant's arrest, or had the complaints referenced prior allegations that the officers fabricated charges or that their testimony was arguably affected by existence of the pending complaints' investigation. However, this was not the case.
Perhaps the judge should have allowed defense counsel to ask the officers if defendant accused them of using excessive force, without mentioning the specific allegations, for the limited purpose of showing the jury that defendant did not resist arrest. Nonetheless, based on the record before us, we conclude that the decision to bar defendant from cross-examining Ganci and Dutcher about the internal affairs complaints he filed against them was not prejudicial error.
IV.
Finally, we address defendant's challenge to his sentence. Initially we agree, as does the State, with defendant's contention that the JOC mistakenly provides that defendant was sentenced for counts that were merged and that he was awarded 480 jail credit days instead of 490 jail credit days. Accordingly, the JOC should be amended to reflect these changes. However, we do not agree with defendant's contentions that his sentence was excessive because the judge: incorrectly granted the State's motion for extended term sentence pursuant to N.J.S.A. 2C:43-6f; improperly applied aggravating factors to increase his sentence that were also considered to grant the State's request for a discretionary extended term; and erroneously failed to apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify the defendant's conduct though failing to establish a defense"), due to his history of drug addiction and mental illness.
First, we will address defendant's arguments concerning his extended term sentence. Upon the State's motion, a trial court has the discretion to impose an extended term sentence in accordance with N.J.S.A. 2C:43-6(f) which provides:
A person convicted of . . . possessing with intent to distribute any . . . controlled substance . . . under N.J.S.A. 2C:35-5, . . . who has been previously convicted of
manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.A. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.In sentencing a defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f), the court may impose a prison term between ten to twenty years. N.J.S.A. 2C:43-7a(3). In this case, the judge granted the State's extended term motion for the heroin and crack cocaine possession with the intent to distribute convictions based upon defendant's two prior convictions on October 28, 1998, and December 13, 2000, for possession of CDS with the intent to distribute.
The judge also imposed an extended term as a persistent offender in accordance with N.J.S.A. 2C:44-3a, which provides that the State may move for an extended term where:
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which
the defendant is being sentenced.In sentencing a defendant to an extended term as a persistent offender, the judge may impose a prison term between five to twenty years. State v. Pierce, 188 N.J. 155, 169-70 (2006). Here, the judge's extended term of fifteen years was based upon defendant's conviction for second-degree eluding, not the two CDS convictions.
Now, we will address defendant's contentions regarding the court's application of aggravating factors and no mitigating factors, specifically factor four, in deciding his sentence. Review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation omitted).
If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). An imposed sentence, entered in accordance with statutory sentencing guidelines, should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
In light of the weight afforded to the applied aggravating factors and the absence of any mitigating factors, the sentence imposed on defendant was consistent with our sentencing guidelines and does not shock our judicial conscience. Based upon defendant's criminal record, the judge did not abuse his discretion in granting the State's motions for extended terms. Moreover, defendant's history with drug addiction does not excuse or justify his selling of CDS. See State v. Ghertler, 114 N.J. 383, 389-90 (1989). Rather, as the court emphasized, the risk that he would re-offend would increase if he did not get his "drug addiction under control." Accordingly, the arguments raised by defendant lack any support in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION