Opinion
DOCKET NO. A-5387-09T3
05-24-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ISAIAH HUNTER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Alexander J. Rasi, 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NOT FOR PUBLICATION WITHOUT THE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 Lihotz and St. John.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-01-0014 and 09-01-0015.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Alexander J. Rasi, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
After a jury trial, defendant Isaiah Hunter was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, fourth-degree resisting arrest, N.J.S.A. 2C:29-2a, and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. After the jury verdict, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b, charged in a separate indictment. At sentencing, the trial judge granted the State's motion for imposition of a mandatory extended term of imprisonment, N.J.S.A. 2C:43-6(c) (Graves Act), and sentenced defendant to fifteen years in state prison, with seven and one-half years of parole ineligibility for the unlawful possession of a weapon count, plus concurrent twelve month terms of parole ineligibility for each of the resisting arrest and obstruction counts. For the certain persons not to have weapons count, the judge sentenced defendant to five years imprisonment with five years of parole ineligibility to run concurrently with the fifteen year term imposed on the unlawful possession of a weapon count. Appropriate fines and penalties were also imposed.
Defendant raises the following points for our consideration on appeal.
POINT IFor the reasons that follow, we reject these arguments and affirm.
THE ORDER DENYING THE DEFENDANT'S MOTION TO SUPPRESS SHOULD BE REVERSED BECAUSE THE WARRANTLESS ENTRY BY THE POLICE WAS UNLAWFUL, AND BECAUSE THE STATE FAILED TO SHOW AN "ABANDONMENT" BY THE DEFENDANT.
POINT II
SINCE DETECTIVE BLACK'S TESTIMONY THAT 1009 WEST 3RD STREET WAS "A HIGH CRIME NARCOTIC AREA" WHERE "SHOOTINGS," "VIOLENT CONFRONTATIONS," AND "CRIMINAL ACTIVITY" OCCURRED WAS NOT RELEVANT TO ANY MATERIAL ISSUE IN THE CASE, IT WAS ELICITED BY THE PROSECUTOR FOR AN IMPROPER PURPOSE, AND THE TRIAL COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION RESULTED IN PLAIN ERROR (NOT RAISED BELOW).
POINT III
THE NOT GUILTY VERDICT ON COUNT TWO FOR POSSESSION OF PROHIBITED HOLLOW POINT BULLETS MADE THE DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF THE WEAPON ON COUNT ONE IRRATIONALLY INCONSISTENT (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ADMITTING PROOF OF THE DEFENDANT'S 13 YEAR OLD PRIOR CRIMINAL CONVICTIONS TO IMPEACH HIS CREDIBILITY BECAUSE THEY WERE REMOTE AND BECAUSE ITS RULING HAD AN ADVERSE IMPACT ON THE JURY'S FACT FINDING FUNCTION.
POINT V
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
POINT VI
THE 15 YEAR BASE EXTENDED TERM SENTENCE WITH 7-1/2 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE UNLAWFUL POSSESSION OF A WEAPON ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL DISCRETION.
POINT VII
THE TRIAL COURT SHOULD HAVE ENTERED SUA SPONTE A JUDGMENT OF ACQUITTAL ON COUNT ONE AT THE END OF THE CASE (NOT RAISED BELOW).
A.
We begin our discussion with defendant's argument that Judge Miriam N. Span erred in denying his motion to suppress evidence. Defendant contends that the warrantless entry into a backyard by the police was unlawful and that the State failed to prove abandonment.
Plainfield Police Detective Michael Black was the only witness at the suppression hearing. He testified that on October 10, 2008, he was part of a unit conducting a narcotics investigation in the area of West Third Street, as a result of citizens' complaints. The police made a warrantless entry into the backyard of 1009 West Third Street, a single-family residence, where "stashes" of drugs had been found during prior investigations. They discovered drug paraphernalia throughout the yard and a mattress with a hole cut in it that was leaning against a fence. Black could not see if anything was lodged in the hole so he put his hand in the mattress and discovered a loaded handgun. He removed the rounds and replaced the weapon where he found it. The police went to the adjacent yard at 1007 West Third, an abandoned home, where they could observe the mattress from a surveillance location.
Shortly thereafter, defendant "exited from the rear [of 1009] and went to the gun." Black was familiar with defendant, having arrested him on a prior occasion. When asked what defendant did, Black stated, "He put the gun back in -- we tried to stop him." Defendant ran to the back door of the house and, after a struggle, was arrested inside. The officers recovered the handgun.
Black explained there was a history of drug activity at 1009 West Third Street:
I found [drugs] in the rear yard. And then also there was an incident where somebody took off running. We didn't -- we weren't sure if they went into the yard or the house, so we went in the house, and I found some drugs in plain view and I made contact with the female that resided there, and she acknowledged that she was having a lot of problems and she was unaware of the drugs in her house, and she felt she was being taken advantage of, so she cooperated with us and encouraged us to come around and check her house on a routine basis. Her name was Mrs. Moam. That was all prior to this incident.
Black stated that on the prior occasion, Moam "had a bedroom. She was sleeping and her possessions were in that room, so [he] believed that she did reside there[.]" Moam told him she was watching the home for a Mrs. Williams, the owner, who was in the hospital receiving treatment for cancer. Moam was also caring for Williams's minor children who resided there. Police never confirmed these facts with Williams, who was deceased at the time of the hearing. The police report for the prior incident described Moam as a tenant who "simply pays the rent and does not own the house[.]"
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).However, our review of the trial judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); Elders, supra, 192 N.J. at 246). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246).
When police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Maryland, 167 N.J. 471, 482 (2001)). If the State fails to sustain that burden, the search is invalid. Alston, supra, 88 N.J. at 230.
When the police look for narcotics in an "abandoned" house, such activity does not constitute a "search" under the Fourth Amendment. See State v. Linton, 356 N.J. Super. 255, 258 (App. Div. 2002). That is because a search occurs only "'when an expectation of privacy that society is prepared to consider reasonable is infringed.'" Ibid. (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). Applying those principles, we held in Linton that "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy." Id. at 259. Similarly, a squatter or trespasser has no constitutionally-reasonable expectation of privacy in property that is abandoned. Id. at 256; see also State v. Sharpless, 314 N.J. Super. 440, 454 (App. Div.) (defendant had no protected privacy interest with respect to a mound of dirt on a public street where he had been standing, so that no privacy right was infringed when the police searched there and found drugs), certif. denied, 157 N.J. 542 (1998), overruled on other grounds by, State v. Richards, 351 N.J. Super. 289 (App. Div. 2002); State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.) (defendant has no privacy expectations in premises into which he criminally intrudes), certif. denied, 151 N.J. 74 (1997); State v. Boynton, 297 N.J. Super. 382, 391-94 (App. Div.) (defendant engaged in drug transaction in an unlocked, single stall, public restroom in a bar had no reasonable expectation of privacy, so that officer's entry was proper, and plain view exception applied to seizure of narcotics), certif. denied, 149 N.J. 410 (1997).
We agree with the motion judge that because defendant hid the gun in someone else's property, he has no constitutionally-reasonable expectation of privacy. Similarly, as a trespasser at 1009 West Third Street, he has no constitutionally-reasonable expectation of privacy in property that he abandoned there.
Although we need not address the issue of Moam's consent to allow the search, in the interest of completeness, we will.
"A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search." State v. Domicz, 188 N.J. 285, 305 (2006). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973)).
To determine whether a consenting party has the required nexus with the property to be searched, the court must determine whether the police officer had a reasonable belief at the time of the search "that the consenting party ha[d] sufficient control over the property to consent to its being searched." State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). It is "'appearances of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,'" that must be used to assess the validity of the search. State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.) (quoting State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)), certif. denied, 180 N.J. 456 (2004).
Here, where the person living in the house and caring for the children of the owner encouraged police to check her house and yard on a regular basis, there is ample support to hold that the search was undertaken in accordance with the consent exception to the warrant requirement.
B.
We now address the issue of whether the trial judge erred in granting the State's motion to admit defendant's two prior thirteen year old convictions to impeach his credibility. In 1996, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a), and under a separate indictment, possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5. He was sentenced to probation for each charge. In 1998, defendant violated his probation and was sentenced to five years imprisonment on each charge to be served concurrently. In 1997, defendant was convicted of third-degree eluding a law enforcement officer and sentenced to three years imprisonment. In 1998, defendant was convicted of third- degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7, and sentenced to five years imprisonment. Defendant escaped from custody on November 16, 1999, and was returned to custody on January 31, 2001. He was released on April 17, 2002. Defendant was also arrested for three additional offenses in 2000, convicted and sentenced in 2005 to seven years imprisonment, and he was paroled from custody on May 15, 2007.
Defendant argues that "trial counsel's motion to exclude three prior 1996 convictions for remoteness was denied." The record discloses that only two prior 1996 offenses were used to impeach his credibility, as the judge denied the use of a third 1997 conviction.
The State sought to admit these convictions as impeachment evidence should defendant testify. Defendant argues that the convictions were "remote and . . . had an adverse impact on the jury's fact finding function."
Following a Sands hearing, Judge Robert J. Mega granted the State's application, noting that Sands requires a "balancing test" and that defendant's intervening convictions demonstrated a series of crimes through the years. Our Supreme Court has held that "[i]f a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Id. at 145. Here, the judge properly held the 1996 convictions admissible for purposes of impeachment.
State v. Sands, 76 N.J. 127 (1978).
The decision of whether to exclude a prior conviction "rests within the sound discretion of the trial judge," id. at 144, and is therefore reviewed only for abuse of that discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd in part and remanded, 107 N.J. 222 (1987).
The determination of whether to admit prior convictions for purposes of impeachment requires a two-tiered approach pursuant to Sands and State v. Brunson, 132 N.J. 377 (1993).
The first inquiry, now codified in N.J.R.E. 609, permits the admission of prior convictions "[f]or the purpose of affecting the credibility of any witness . . . unless excluded by the judge as remote or for other causes." The rule barring use of remote convictions for impeaching a defendant's credibility is designed to reduce the prejudice associated with prior convictions. Sands, supra, 76 N.J. at 147. "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Id. at 144.
Second, if the judge determines that a prior conviction is admissible under N.J.R.E. 609, he or she must then determine whether the court is presented with a "case[] in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged[.]" Brunson, supra, 132 N.J. at 391. If so, the testifying defendant's prior conviction must be "sanitized," that is, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." Ibid.
Defendant argues that his 1996 convictions were too remote and therefore the prejudicial effect of introducing the convictions before the jury would outweigh any probative value. We disagree.
Our Supreme Court stated in Sands:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant.There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. See State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.) (contrasting New Jersey case law with Fed. R. Evid. 609(b), which establishes a ten-year rule for admissibility of prior convictions), certif. denied, 203 N.J. 440 (2010). In appropriate circumstances, convictions older than ten years have been found admissible. See, e.g., State v. Pennington, 119 N.J. 547, 585-87 (1990) (approving trial court's decision to permit the State to impeach defendant with a thirteen-year-old murder conviction).
[Supra, 76 N.J. at 144-45.]
We conclude the trial judge did not mistakenly exercise his discretion in ruling that defendant's 1996 convictions are admissible. Defendant was convicted of a series of crimes from 1996 up to the arrest for the convictions under review. Additionally, defendant spent a large percentage of those years in custody. Given defendant's criminal history, the 1996 convictions, although committed thirteen years earlier, as well as his intervening convictions, should be admissible. Certainly, the jury was entitled to know this information in assessing defendant's truthfulness. Moreover, these convictions clearly had a bearing on defendant's credibility and were not, under the circumstances, so distant in time to be remote.
C.
Defendant claims in Point III that the conviction for unlawful possession of a weapon was an irrationally inconsistent verdict because the jury acquitted defendant of possession of the hollow point bullets. We do not accept defendant's premise that the verdicts were necessarily inconsistent, but even if we did, we would reject his claim for relief.
Defendant's trial was held in mid-November 2009. Black testified again, and presented the same factual recitation he provided during the suppression hearing. He added police were in the area as part of their patrol looking for "stash locations[,]" which are "hidden . . . quick access location[s] that a person involved with criminal activity can get to real quick to make a deal or if they're involved in a violent confrontation they can retrieve a weapon." He explained the hole in the mattress caught his attention because it was about the size of a legal pad and from his "past experience it looked like that would be a good stash or hide location[.]"
Plainfield Police Sergeant Kevin O'Brien, who accompanied Black during the incident, testified largely corroborating Black's testimony. O'Brien, the senior officer present, ordered a third officer to unload the discovered weapon and stated that the bullets recovered were of the "hollow point or armor piercing" variety. O'Brien described defendant's actions: "[he] [w]alked directly to the mattress as he looked over his shoulders. Once he got to the mattress, reached in, pulled out the handgun . . . with his right hand[.] [H]e just reached into the bottom, pulled out the gun, [and] stood back up."
As soon as defendant stood up, O'Brien and Black moved behind the fence causing leaves on the ground to rustle. The noise startled defendant who "immediately dropped the gun and ran back to the house." O'Brien shouted "stop, police," but defendant "slammed the door shut" and held it closed with his feet. O'Brien forced the door open, "at which time [defendant] ran up the stairs" with O'Brien in pursuit. O'Brien caught defendant near the top of the stairs and "dragged him down . . . and eventually handcuffed him outside." O'Brien secured the weapon where defendant had dropped it.
In his report, O'Brien explained that officers stopped in the area because they saw three individuals they recognized including Matthew Williams, Bruce Anderson, and Jaquade Pierson. O'Brien explained their presence "gave [the officers] more reason to check behind certain locations[,]" because they were familiar with the men from prior drug and weapons arrests. On cross-examination, the defense elicited that Williams lived at the 1009 address at the time.
Defendant testified in his own defense and claimed he was in the area "to purchase some drugs" from Williams, who he knew as "Twin." He stated he arrived at Williams' home before Williams and was waiting for him to arrive so he could make his purchase. Growing impatient, defendant went out the back door because it was "the proper protocol" for "crack houses[.]" He said he found drugs in that mattress before and, because no one was around, thought he had the opportunity to steal the drugs rather than purchase them. Defendant was not surprised when he reached in and discovered the weapon:
I know what a gun feels like, first and foremost. Now when I reached inside this gun, like -- inside this mattress, like any other time when I'm searching for drugs, I've found weapons before but I never take - - took the weapon. I would take the drugs.
There is -- and other time is no different than this time of me grabbing this gun and putting my finger -- my hand further inside because a lot of times the drug -- the gun would be where like the officer said where people can easy access but the drugs would be in the back of it or it would be underneath it.
Accordingly, he grabbed the gun "momentarily" while he was in the process of reaching back into the mattress to search for drugs. In the process, he heard a noise and "stopped what [he] was doing because [he] didn't know who's coming back there," and believing it was Williams catching him stealing, ran to avoid getting beaten up. He knew the gun belonged to Williams.
The jury could have determined that defendant knew he possessed a handgun, but did not have the requisite knowledge with regard to the hollow point bullets.
The pertinent section of the Model Charge for possession of hollow point bullets states: "Thus, the person must know or be aware that he possesses the hollow point bullet, and he must know what it is that he possesses or controls that it is a prohibited weapon or device." Model Jury Charges "Possession of Prohibited Weapons and Devices" (2005).
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In our review, we do not determine the verdict inconsistent. Nevertheless, "'[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.'" State v. Banko, 182 N.J. 44, 53 (2004) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932)). Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room. State v. Grey, 147 N.J. 4, 11 (1996). In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty. See State v. Federico, 103 N.J. 169, 176-77 (1986). Instead, we determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty. Banko, supra, 182 N.J. at 54-55 (citations omitted); see also State v. Petties, 139 N.J. 310, 319 (1995); State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992). We do not speculate whether verdicts resulted from jury lenity, mistake, or compromise, Grey, supra, 147 N.J. at 11, and we will not do so here.
D.
In Points II, V, and VII, defendant presents issues that were not raised before the trial court. Defendant argues in Point II that the court erred in permitting testimony that 1009 West Third Street was a high crime area, in Point V that he was prejudiced by comments made by the prosecutor in summation, and, in Point VII, that the trial court should have sua sponte entered a judgment of acquittal at the end of the case.
Because we do not entertain arguments raised for the first time on appeal, State v. Robinson, 200 N.J. 1, 20 (2009), our review is limited to a search for error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. See also State v. Nesbitt, 185 N.J. 504, 516 (2006). We are satisfied that these issues do not meet that standard. Further, we find these arguments without merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
E.
Finally, defendant asserts that the sentence imposed was manifestly excessive and constituted an abuse of judicial discretion. We disagree.
Appellate review of a sentence must be "careful and vigorous," but we will not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether we would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is accorded "wide discretion" to impose a sentence, provided it is within the statutory framework, and as a reviewing court, we must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). We are obliged, however, to insure that the sentencing guidelines set forth in N.J.S.A. 2C:44-1(a) and (b) have been met and the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Unlawful possession of a weapon is a second-degree crime for which an ordinary custodial sentence between five to ten years is mandated. N.J.S.A. 2C:43-6(a)(2). The State made a motion for the imposition of a mandatory extended term pursuant to the Graves Act, and the trial judge conducted a hearing that established those grounds. A period of parole ineligibility between one-third and one-half of the sentence is mandated pursuant to the Graves Act. N.J.S.A. 2C:43-6(c).
The judge appropriately considered the aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b). His conclusion that there were no mitigating factors and three aggravating factors present is supported by the record. See N.J.S.A. 2C:44-1(a)(3), (6), and (9) (accounting for the risk that the defendant will commit another offense; the extent of the defendant's prior criminal record; and the need for deterring the defendant and others from future offenses). Consequently, the sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65. We ascertain no abuse of judicial discretion in the sentence imposed by Judge Mega.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION