Opinion
DOCKET NO. A-1792-13T4
05-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID J. PECK, Defendant-Appellant.
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief). John Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-03-830. Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief). John Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief). PER CURIAM
Defendant appeals his conviction after a jury trial for distribution of a controlled dangerous substance (CDS), arguing prejudicial police testimony, inaccurate jury charges, prosecutorial misconduct and an improper sentence. We affirm.
On November 14, 2012, Lieutenant Rodney R. Ruark was conducting an undercover operation near Renaissance Plaza in Atlantic City, New Jersey. Prior to that date, police received numerous complaints about open-air drug dealing in that area. Ruark was approached by defendant. Defendant engaged Ruark and stated, "I can get you some heroin." Ruark responded he wanted pills, but was interested in heroin. Defendant directed Ruark to sit at a table outside of a nearby Kentucky Fried Chicken and Taco Bell.
Moments thereafter, defendant and another male, later identified as Preston Harmon, approached Ruark. Defendant directed Ruark to follow him and Harmon to the bathroom of the Taco Bell. Defendant waited outside the bathroom door while Ruark and Harmon went inside to complete the deal. Inside the bathroom, Ruark said he "wanted a bundle" of heroin. Harmon responded saying he only had "seven bags" for $70. Nonetheless, they completed the transaction.
Ruark and Harmon then exited the bathroom. Thereupon, defendant asked Ruark to "take care of him (defendant) for arranging the drug deal." Ruark gave defendant $20. Defendant and Harmon left in the direction of the back of the plaza. Ruark told backup officers to stop defendant. Defendant was identified and searched but not arrested.
At trial, a testifying officer could not recall if drugs or money were recovered. Harmon and defendant were not arrested at that time since the area was targeted for undercover investigation with planned arrests in the future.
On a later date, defendant and Harmon were arrested and charged with third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), second-degree possession of CDS with intent to distribute within 500 feet of a school zone, N.J.S.A. 2C:35-7.1, and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and 2C:35-5(b)(3).
During the testimony of Ruark, the State did not present him as an expert qualified to render an opinion on subjects relative to the distribution of illegal narcotics. Nonetheless, Ruark testified, without objection, as to his background and experience working in narcotics enforcement.
Upon considering these proofs, the jury found defendant guilty of third-degree distribution of CDS and third-degree conspiracy to distribute CDS. The remaining charges were dismissed. Defendant was sentenced to a mandatory extended term of eight years' imprisonment with a four-year period of parole ineligibility on the distribution conviction. The conspiracy and third-degree possession of CDS convictions were merged with the distribution offense.
On appeal, defendant raises the following points:
POINT I
LIEUTENANT RUARK'S TESTIMONY OVERSTEPPED THE BOUNDS OF STATE V. MCLEAN, 205 N.J. 438 (2011), WHEN HE TESTIFIED THAT, BASED ON HIS TRAINING AND EXPERIENCE, HE BELIEVED PECK AND HARMON WERE WORKING AS A TEAM TO CONDUCT THE DRUG DEAL, THAT PECK ACTED AS A LOOKOUT, AND THAT PECK FACILITATED THE DRUG TRANSACTION. (NOT RAISED BELOW)
POINT II
THE JURY INSTRUCTIONS WERE WOEFULLY DEFICIENT BECAUSE THEY 1) FAILED TO PROVIDE THE SUBSTANTIVE CHARGE FOR THE CONSPIRACY COUNT, AND 2) CONFLATED THE LEGAL THEORIES OF ACCOMPLICE AND CO-CONSPIRATOR LIABILITY PERTAINING TO THE DISTRIBUTION COUNT. (NOT RAISED BELOW)
POINT III
THE PROSECUTOR'S STATEMENTS IN SUMMATION 1) SUGGESTING THAT PECK WAS RECEIVING A CUT OF THE MONEY PAID TO HARMON, AND 2) URGING THE JURY TO CONVICT TO OBTAIN JUSTICE, AMOUNTED TO MISCONDUCT AND DENIED PECK DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW)
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED PECK A FAIR TRIAL. (NOT RAISED BELOW)
POINT V
BECAUSE PECK WAS NOT FOUND GUILTY OF POSSESSION OF CDS, THE CASE SHOULD BE REMANDED TO CORRECT THE JUDGMENT OF
CONVICTION WHICH INDICATES THAT HE WAS CONVICTED OF THIS CRIME. (NOT RAISED BELOW)
POINT VI
THE COURT ERRED IN FAILING TO PROVIDE A FACTUAL BASIS FOR FINDING AGGRAVATING FACTOR NINE AND IN REJECTING MITIGATING FACTOR ELEVEN.
As a preliminary matter, defendant's arguments, with the exception of the sentence argument, are subject to the plain error standard of review because they were not raised during defendant's trial. See R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," that is, if it was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (internal quotation marks omitted) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). Because defendant did not contemporaneously object to those issues he now raises on appeal, he must demonstrate plain error to justify reversal of his conviction. A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. Macon, supra, 57 N.J. at 333. As the Court stated in Macon, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage." Id.
We first address defendant's argument that Ruark's "opinion" testimony was inadmissible. Because the admissibility of opinion evidence lies within the discretion of the trial court, State v. LaBrutto, 114 N.J. 187, 197 (1989), we review the admission of this evidence for an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). We grant substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
In McLean, supra, 205 N.J. at 438, the Supreme Court addressed the admissibility of opinion testimony offered by law enforcement officers who are not qualified as expert witnesses. In McLean, the Court noted restrictions upon the ability of prosecutors to present lay opinion testimony from police officers who have not been proffered by the State as expert witnesses. Id. at 460-63. The Court specifically considered testimony given by a police officer who had participated in an investigation that led to the defendant's prosecution for possession of CDS and possession of CDS with intent to distribute. Id. at 443-47. The officer testified that he had observed the defendant engage in two transactions, in both instances some unidentified item had been exchanged for money. Id. at 443-44. Over defense counsel's objection, the prosecutor asked the officer, "[s]o based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The trial court permitted the officer, who had not been qualified as an expert witness, to testify that, based on his experience, he believed he had observed a drug transaction. Ibid.
The McLean Court held the police officer's statement was inadmissible as a lay opinion, because it was an expression of a belief in the defendant's guilt and because it offered an opinion on matters that were not beyond the understanding of the jury. McLean, supra, 205 N.J. at 463. The Court ruled that an officer testifying as such a lay or fact witness may not testify about his belief that a transaction he observed was a narcotics sale. Id. at 461. "To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case." Ibid. As the Court explained:
Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag.
[Id. at 460.]
The Court further noted that admissible fact testimony by a police officer cannot express what the officer "believed," "thought," or "suspected." Ibid. Only if a police officer is properly qualified as an expert witness may he or she give testimony explaining the implications of observed behaviors that may be beyond the understanding of an average juror. Id. at 460-61; see N.J.R.E. 702 (authorizing the admission of expert testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education").
As another key aspect of its analysis, the Court concluded in McLean that the references to the lay witness police officer's "training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one." McLean, supra, 205 N.J. at 462. Because of that harmful error, the Court reversed McLean's convictions of the intent-to-distribute offenses, but left intact his conviction of two possessory offenses. Id. at 463.
Lay opinion testimony is governed by N.J.R.E. 701, which permits a lay witness's "testimony in the form of opinions or inferences . . . if it is (a) rationally based on the perception of the witness and (b) will assist in understanding the witness testimony or in determining a fact in issue." Addressing the first requirement, "perception . . . rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." McLean, supra, 205 N.J. at 457. The principle that lay opinion testimony must be "limited to what was directly perceived by the witness[,]" id. at 460, does not lend itself to a bright-line rule. It is clear from the examples of permissible lay opinion testimony noted in McLean that the witness may offer an opinion that entails some processing of the facts perceived. Id. at 457-59. E.g., LaBrutto, supra, 114 N.J. at 199 (police officer who did not observe collision permitted to offer a lay opinion about the point of impact of vehicles); Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978) (officer permitted to testify as to whether a neighborhood is a "high crime area"), aff'd, 82 N.J. 214 (1980).
Fed. R. Evid. 701 is similar to N.J.R.E. 701 in requiring that a lay opinion be rationally based upon the perception of the witness and helpful to the trier of fact. Addressing the first requirement that the opinion be rationally based upon perception, the Second Circuit stated, "a lay opinion must be the product of reasoning processes familiar to the average person in everyday life." United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). The Fifth Circuit described that reasoning process as follows:
[T]here must be sufficient evidence to support a finding that the witness has personal knowledge of the facts from which the inference or opinion is said to derive. Next, there must be a rational connection between the opinion or inference and the observed factual basis from which it derives -- that is, the opinion or inference must be one that a normal person would form from those perceptions.
[Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 263 (5th Cir. 1980) (internal citations omitted).]
This description is consistent with the explanation provided in McLean as to why the lay opinions regarding point of impact and "high crime area" were permissible. As the Court observed, the officer's opinion regarding point of impact "was based on his personal observations of [the] accident scene, areas of damage to vehicles, skid marks and damage to grassy shoulder[.]" McLean, supra, 205 N.J. at 459. As for the "high crime area" opinion, the Court noted the officer's opinion "rested on frequency with which he answered calls, quelled disturbances and made arrests in area[.]" Ibid. Thus, in each case, the opinion given was a conclusion the average person could reach by applying no more than the reasoning process associated with everyday living to the events perceived.
As for the second requirement, opinion testimony admitted under N.J.R.E. 701 is "limited to testimony that will assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue." Id. at 458. The Court provided the following example of such assistance:
[A] lay witness was permitted to offer an opinion about the meaning of street slang that defendant used during a conversation relating to a crime because it was "unfamiliar to the average juror . . . [it] was of assistance in determining the meaning and context of his conversation with defendant and was obviously relevant to the issue of defendant's motive and intention."
[Ibid. (quoting State v. Johnson, 309 N.J. Super. 237, 263 (App. Div.), certif. denied, 156 N.J. 387 (1998)).]
Defendant argues the following testimony of Ruark during direct examination was improper:
Prosecutor: Now, were you concerned when Mr. Peck came back with somebody else?
Lt. Ruark: Not really, no.
Prosecutor: Why, why not?
Lt. Ruark: Because I know in my years of narcotics works that, narcotic work, that, you know, the guys work in teams and there's sometimes there's multiple people that will be involved in a drug deal.
Then, later during continued direct examination:
Prosecutor: Okay. Why did you want [the officers] to stop Peck? He didn't sell you the drugs. He didn't — exchange didn't occur with him. Why him?
Lt. Ruark: Well, in essence, he did sell me the drugs. I mean, I don't walk out of the Plaza that day without heroin if it's not from Mr. Peck. He's the one who facilitates the drug deal by going and retrieving Mr. Hampton.
Defendant additionally argues Lieutenant Ruark's "lookout" testimony was impermissible. Ruark testified when he entered the bathroom with Harmon, "Mr. Peck stayed outside of the bathroom, I presume, as a lookout for the police." Defendant further contends it was improper for Ruark to use the word "facilitated" since similar language is used in the Model Jury Charges.
We are satisfied that Ruark provided "expert" opinions that were without notice to defendant and without foundation since Ruark was neither designated by the State as an expert nor qualified as one. The State also buttressed Ruark's opinions by eliciting his background and training in narcotics investigations. As in McLean, Ruark's opinion testimony overstepped the permissible bounds of lay witnesses.
Having determined that portions of Ruark's testimony constituted error, we must determine whether the admission of the testimony requires reversal of the jury verdict. Unless there is a reasonable doubt that the error contributed to the verdict, the error will be deemed harmless and disregarded on appeal. See Macon, supra, 57 N.J. at 333.
Placed in context, the narcotics transaction took place after defendant approached Ruark and offered to sell him drugs. When Ruark noted his desire to purchase, defendant did "facilitate" the transaction by bringing Harmon to Ruark and by choosing the location where the transaction would take place i.e., the bathroom of the Taco Bell. Defendant then stood outside the bathroom door and, after the transaction, sought compensation for his participation.
In the absence of an objection, as here, we "disregard any error unless it is clearly capable of producing an unjust result" and will reverse only if the error was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (citations and internal quotation marks omitted). We are satisfied, given the unrefuted "permissible" testimony of Ruark, that the error was harmless in that it did not lead to an unjust result.
Notwithstanding our decision, we caution against the presentation of testimony of the type and nature presented here which crossed the boundary between permissible and impermissible testimony. In a different factual context, our decision may well have been different.
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We next address the argument raised as to the jury instructions for accomplice and co-conspirator liability.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981); see also State v. Savage, 172 N.J. 374, 387 (2002). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004); see also State v. Rhett, 127 N.J. 3, 5-7 (1992) (noting the due process and fair trial rights that are safeguarded by proper jury charges); State v. Fair, 45 N.J. 77, 93 (1965).
We are mindful that defendant did not object to the jury charges now raised as error on appeal. Although the plain error standard of Rule 2:10-2 consequently applies to our review of the charge issues, we must assure that any defects in the charge, even in the absence of timely objection, were inconsequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "'inadequate to guide the jury in the course its deliberation should take,'" the defendant's conviction must be reversed. Id. at 290 (quoting State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996)). Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Additionally, the "[u]se by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2015); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). At times "it may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2015).
The court stated the following when giving the conspiracy charge:
A person is guilty of conspiracy with another if, with a purpose of promoting or facilitating the commission of the crime, he agrees to aid such other person in the planning or commission of such crime, or of an attempt or solicitation to commit such crime.
Thus, for purposes of this case, to find that this defendant Peck engaged in a conspiracy with Harmon, you must be satisfied beyond a reasonable doubt of the following: 1) that Peck agreed to aid Harmon in distribution of CDS, and 2) that when the defendant Peck agreed with Harmon, the defendant's purpose, his conscious object was in fact to promote or to make it easier for Harmon to commit the crime of distribution of CDS.
The court distinguished accomplice and co-conspirator liability as separate concepts, stating accomplice liability "is all very tied in with the conspiracy, but there's some things in the accomplice charge that are not in the conspiracy charge."
The court stated the following when giving the accomplice charge:
In order to find the defendant guilty, the State must prove beyond a reasonable doubt the following: 1) that Harmon committed the crime of distribution of heroin, I've already defined for you the elements of distribution of heroin; 2) that this defendant Peck solicited him to commit that crime and/or did aid or agree or attempt to aid Harmon in planning or committing the crime; 3) that the defendant's purpose was to promote or facilitate the commission of the offense; 4) that this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed it.
"In reviewing instructions to the jury, a court must not isolate the language challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).
Here, the court instructed the jury on accomplice liability, as well as co-conspirator liability, and properly distinguished between the two. The charges were neither ambiguous nor misleading, and were not "clearly capable of producing an unjust result." R. 2:10-2.
Our review of a claim of prosecutorial misconduct based upon summation remarks is one of law, thus is plenary and de novo. State v. Smith, 212 N.J. 365, 387 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Defendant argues the prosecutor committed misconduct when he suggested defendant "double dipped" by getting a cut of the money from Harmon, in addition to money from Ruark for setting up the deal. Also, defendant argues the prosecutor's statement, "now it's time for you all to be associates, and that's associates for justice and find the defendant guilty" amounted to misconduct.
In summation, a prosecutor is generally limited to commenting on the evidence and to "drawing any reasonable inferences supported by the proofs." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). This does not prevent a prosecutor from making "'a vigorous and forceful presentation of the State's case.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 57, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). A prosecutor is given "considerable leeway in closing arguments as long as the comments are reasonably related to the scope of the evidence presented." State v. R.B., 183 N.J. 308, 332 (2005). In order to warrant a reversal of a conviction, it must be evident that the prosecutor's conduct was "clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
In determining whether a prosecutor exceeded these bounds, we must consider "whether the trial court struck the remarks and provided appropriate [curative] instructions to the jury." Smith, supra, 212 N.J. at 403 (citation omitted). When we evaluate the appropriateness of curative instructions, deference is given to the trial judge to ensure that the curative instruction focuses on the capacity of the offending comment to lead to an unjust verdict. See State v. Winter, 96 N.J. 640, 647 (1984) (finding medical expert's unresponsive comment that the deceased stated someone was out to murder her was promptly struck from the record by the trial court before an objection could be raised and a complete curative instruction was given). In addition, we must consider "whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 403-04 (citations omitted); see also State v. C.H., 264 N.J. Super. 112, 135 (App. Div.) certif. denied, 134 N.J. 479 (1993) (holding prosecutor's response to defense counsel's summation attacking the credibility of State's witnesses is not improper). If, after consideration of these issues we conclude the prosecutor's comments "were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty." Smith, supra, 212 N.J. at 404 (citations omitted).
Based upon these principles that inform our decision, we view the comments referring to "double dipping" as fair comment upon the testimony. However, we view the prosecutor's comment inviting the jurors to be "associates for justice" to be ill-chosen and straddling the boundary between fair and improper comment. Nevertheless, when considered with the leeway afforded to prosecutors in closing arguments as well as the instruction to the jury that the comments of the attorneys were not evidence, we are satisfied that the prosecutor's comment was not "so egregious that it deprived . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Defendant additionally argues that the court erred in failing to provide a factual basis for finding aggravating factor nine and in rejecting mitigating factor eleven.
Our review of a sentence is limited. State v. Miller, 2 05 N.J. 109, 127 (2011). We review the sentence to determine whether the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
When determining the appropriate prison term, the sentencing court must consider whether and to what extent any of the thirteen enumerated aggravating factors apply. N.J.S.A. 2C:44-1(a). If it further finds that any of the thirteen listed mitigating factors are present, it must then balance the two sets of factors against each other. N.J.S.A. 2C:44-1(b); State v. Natale, 184 N.J. 458, 488 (2005); State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002) (holding that the sentencing court is expected to thoughtfully weigh the factors against one another); see also Roth, supra, 95 N.J. at 368 ("the factors are not interchangeable on a one-to-one basis. The proper weight to be given to each is a function of the gravity in relation to the severity of the offense.").
The judge addressed the aggravating factors:
Aggravating factor (3) is a strong aggravating factor obviously that's readily seen from defendant's record and the fact that he goes from state to state to continue to commit crimes. Aggravating factor (6) is also a strong aggravating factor based on his prior record and the seriousness of his offenses. While, one may argue, in fact, that his criminal record is mainly based on his addiction, he also besides drug matters, has battery offenses, assault-type offenses, and including shoplifting, where he has been constantly under the influence of drugs. Aggravating factor (9) goes without saying that it's a strong aggravating factor as there's a need to deter not only this defendant, but from — others from violating the law.
Here, we find no abuse of the reasoned discretion afforded to trial judges tasked with sentencing convicted criminals. When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . they need fear no second-guessing." State v. Cassady, 198 N.J. 165, 181 (2009) (quoting Roth, supra, 95 N.J. at 365).
Finally, since defendant was not found guilty of possession of CDS, the matter will be remanded to correct the judgment of conviction.
Affirmed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION