Opinion
DOCKET NO. A-3012-11T2
03-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALLEN L. SINANAN, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-03-0100.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Allen L. Sinanan appeals from his conviction by a jury of possession of a stun gun, N.J.S.A. 2C:39-3(h), and possession of an expandable baton under circumstances not manifestly appropriate for such lawful purposes as it may have, N.J.S.A. 2C:39-5(d); and his sentence of one year imprisonment on each count to be served concurrently to each other and consecutively to the sentence he was serving in Pennsylvania. We affirm.
Defendant makes the following arguments on appeal:
POINT I
THE WARRANTLESS SEARCH AND SEIZURE OF DEFENDANT'S PERSON AND AUTOMOBILE VIOLATED
HIS RIGHTS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT II
THE DEFENDANT'S NOTICE OF MOTION TO DISMISS THE INDICTMENT FOR THE STATE'S VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS, N.J.S.A. 2A:159-1 ET. SEQ. SHOULD HAVE BEEN GRANTED.
POINT III
THE DEFENDANT'S MOTION FOR MISTRIAL BASED UPON THE PROSECUTOR'S IMPROPER COMMENTS ABOUT THE DEFENSE SHOULD HAVE BEEN GRANTED.
POINT IV
DEROGATORY AND IMPROPER REMARKS BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DEPRIVED MR. SINANAN OF A FAIR TRIAL.
POINT V
THE SENTENCE IMPOSED UPON MR. SINANAN CONSECUTIVE TO HIS PENNSYLVANIA SENTENCE WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED (NOT RAISED BELOW).
POINT VI
THE DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT VII
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).
I.
We begin our review with defendant's contention that the trial court erred by denying his motion to suppress.
At the two-day suppression hearing, defendant did not testify or offer any witnesses, and the prosecutor called four police officers and Phillip Snyder. We briefly summarize the testimony provided.
The charges against defendant arose from a November 20, 2009 report to the Mansfield Township Police Department (MTPD) from Snyder concerning an incident that occurred the previous evening. Snyder was driving when a white Dodge Charger approached him from behind and activated a flashing red light. After he pulled over, two African-American males wearing shirts labeled "police" exited the Charger and approached his vehicle. The two men asked Snyder for his license and registration. Snyder became suspicious, having noticed that the men were not carrying badges, guns or other police paraphernalia, and asked them which barracks they were from. One of the men replied to the effect that they were from the State Police barracks. The two "officers" returned Snyder's documents without issuing a ticket and then drove off. Snyder observed that the Charger did not have a license plate, only a "paper tag in the back window."
The same night as the incident, Snyder told an officer from Oxford Township about the encounter, and the officer advised Snyder to contact the MTPD. Snyder then reported all of the facts to Police Officer Anthony Sillett, including a physical description of the two individuals at 8:00 p.m. on November 21. Sillett documented the incident and informed Sergeant Robert Emery of the MTPD.
At approximately 10:00 p.m., Sillett faxed central dispatch, which released a broadcast message to other police departments. That broadcast, stating that a white Charger with a temporary tag in the rear window, one red-blue light in the front window, and two African-American males with blue jeans, and a light blue shirt with a badge and "police" written on the back, went out at 11:33 p.m. on November 21. The report indicated that the Charger was involved in the incident in Mansfield Township in which individuals impersonated police officers.
Sometime in the afternoon of November 21, Lieutenant Thomas Cicerelle of the Washington Township Police Department (WTPD), was informed by another WTPD officer of the Mansfield incident and that "they were looking for a vehicle that the victim believed was a white unmarked police vehicle they thought was a Dodge Charger that was occupied by two Black males." At around 10:00 p.m. on November 21, Cicerelle was on patrol when he observed a white Ford Crown Victoria that resembled an unmarked police vehicle. The vehicle had a push bumper, mounted spotlight, an antenna on the trunk, antenna bases on the trunk and on the roof, and tinted windows. Cicerelle drove past the vehicle with his high beams on and noticed that it had no front license plate. The lieutenant turned around and proceeded to follow the vehicle, and shortly thereafter contacted dispatch to run the vehicle's registration. Dispatch informed Cicerelle that the Crown Victoria was registered to defendant, with whom Cicerelle was acquainted.
While trailing the Crown Victoria, Cicerelle passed Sergeant James Teter, who was parked in a police vehicle, and he joined the pursuit. Cicerelle stopped the suspect vehicle. Cicerelle explained that he stopped the vehicle "[b]ecause it matched the description of what I was informed. There was a suspect vehicle, impersonating a police officer incident the night before." Teter stated that he could not remember exactly how he became aware of the Mansfield incident, but it was his understanding that "a vehicle was stopped, and the person was pulled over by a white patrol vehicle that looked like a patrol vehicle, and that was all the details I had at that point." According to Teter, just before pulling over defendant's vehicle, Cicerelle explained, "that he's going to pull this car over, that it fits the description of the vehicle involving the impersonation from the night before."
Cicerelle approached the car and asked the driver for his credentials. Teter walked to the passenger side of the vehicle. A Pennsylvania driver's license identified the driver as William Guzman, and the registration confirmed that the car belonged to defendant, who was sitting in the front passenger seat. While Cicerelle was conversing with the driver, Teter spoke with defendant. After Teter asked defendant for identification, defendant leaned forward to pull out his wallet and Teter observed "a very large lump under his hip, bulging out."
Teter "could not at that point see what it was," but he believed that the bulge was a gun. He told defendant to place his hands on the dashboard and grabbed his right arm. Defendant then uttered that "it was only his stun gun and baton." Teter then told Cicerelle that defendant possessed a weapon and removed a baton, stun gun and a gravity knife from defendant. Teter then removed defendant from the vehicle and searched him but found nothing else. At some point thereafter, defendant stated in conversation that he used the weapons "for security in Easton at a nightclub." From his vantage point outside of the vehicle, Teter observed additional items inside the car, including another stun gun, a scanner and a "ninja-type" baton.
As this was happening, Cicerelle trained his eyes on Guzman, and eventually ordered him out of the vehicle and patted him down for weapons. Guzman was placed in handcuffs for officer safety, but was advised that he was not currently under arrest. The officers placed both individuals on the curb and radioed dispatch for backup. Teter described defendant as "very cooperative" and mentioned that defendant seemed surprised that these weapons were illegal in New Jersey.
The officers then asked defendant for permission to search the vehicle and Teter had defendant complete a consent to search form. Teter reviewed the consent form with defendant, read it to him, asked him if he understood it and informed him that he had the right to decline or withdraw consent at any time. Both officers stated that defendant understood what was happening and did not appear intoxicated or incoherent. In the ensuing search, the officers discovered additional stun guns, a black tee-shirt with "security" inscribed on it and a tactical vest. The stun guns were later determined to be operable.
After backup arrived, both defendants were placed inside a police vehicle after complaining about the cold. Defendant was specifically asked whether he "wanted to be present outside" during the search, and after he was placed in a vehicle, the officers rolled down the window "so he could indicate to us if he wanted the search to stop at any time." Defendant was given Miranda warnings and signed an acknowledgement form. Cicerelle recounted that the only statement made was that the pair "were in possession of the weapons because they work security in Pennsylvania."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Snyder was later contacted by Cicerelle and showed photographs of defendant and Guzman. Snyder unequivocally disavowed that they were the perpetrators.
We consider defendant's contentions, regarding the constitutionally of the search and seizure in this case, that there was no legal justification for the motor vehicle stop and therefore the subsequent search and seizure, even by consent, cannot be sustained.
In our review of a motion to suppress, we "'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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court '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.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, we "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161).
Nevertheless, we need not defer or be bound by the trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010)(citation omitted). In short, "on appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).
An automobile stop by the police constitutes a seizure within the meaning of the Fourth Amendment and of Article I, Paragraph 7 of the New Jersey Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Sloane, 193 N.J. 423, 430 (2008); State v. Dickey, 152 N.J. 468, 475 (1998). When such a seizure occurs without a warrant and evidence is seized, the State must prove that the police did not violate the defendant's constitutional rights. State v. Maryland, 167 N.J. 471, 489 (2001).
However, to subject a person to investigatory detention, the police must have reasonable, articulable suspicion of conduct that violates the law. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); U.S. v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612; Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004). Reasonable, articulable suspicion requires less evidence of criminal conduct than probable cause to arrest and charge a person. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); State v. Rodriguez, 172 N.J. 117, 127 (2002); State v. Stovall, 170 N.J. 346, 356 (2002).
A showing of probable cause requires "a 'well-grounded' suspicion that a crime has been or is being committed," State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)), but to show reasonable suspicion, the police need only have "a particularized and objective basis for suspecting the person stopped of criminal activity," Stovall, supra, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996))(internal quotation marks omitted). In other words, the State need not show an actual violation of law to justify a motor vehicle stop. It is sufficient for the State to prove reasonable suspicion that a violation has occurred. State v. Williamson, 138 N.J. 302, 304 (1994).
Here, the police had reasonable suspicion that the occupants of the white Crown Victoria vehicle were the individuals who impersonated law enforcement officers in violation of the law. N.J.S.A. 2C:28-8. The vehicle, other than its make, had all of the indicia of a police vehicle. Moreover, the fact that it did not have a front plate and was white, further supported the stop. Cicerelle had a particularized and objective basis for suspecting the person stopped of criminal activity. Thus, the police were justified in making a brief stop to inquire in order to confirm or allay their suspicion.
Here, the motion judge denied defendant's motion to suppress finding that the tinted windows provided the valid basis for the stop. Cicerelle did not testify at the suppression hearing that the tinted windows were the basis for the stop, but stated that the appearance of the vehicle informed his reasonable suspicion. In any event, we are not bound by the motion judge's legal reasoning, and may sustain the search on grounds supported by the record. State v. Maples, 34 6 N.J. Super. 408, 416-17 (App. Div. 2002)(upholding denial of suppression motion on different grounds than those identified by the motion judge). Further, we affirm or reverse judgments and orders, not reasons. Isko v. Planning Bd. of Tp. of Livingston, 51 N.J. 162, 175 (1968); Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994). We are satisfied that the motion judge reached the correct conclusion respecting the stop of the vehicle.
In addition, the manner of conducting the search and detention of the occupants was justified by the potential risk of harm to the officers if a handgun was being illegally carried in the car. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983); State v. Lund, 119 N.J. 35, 48 (1990). To remove occupants from a car, the police "need not point to specific facts that the occupants are 'armed and dangerous.' Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger . . . ." State v. Mai, 202 N.J. 12, 22 (2010) (quoting State v. Smith, 134 N.J. 599, 618-19 (1994)). Such grounds for heightened caution need not rise to the level of a reasonable suspicion that the occupants are engaged in criminal activity. Smith, supra, 134 N.J. at 618.
Here, the scope of the police conduct was justified because the police reasonably suspected that defendant was in possession of an illegal firearm. Lund, supra, 119 N.J. at 48 (adopting for purposes of State constitutional law the holding of Long, supra, 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220, that the police may conduct a weapons search of the interior of a car when they have a reasonable belief that the motorist is potentially dangerous).
We also conclude that the items which were in plain view were constitutionally seized by the police. The plain view doctrine permits the police to seize evidence without a warrant where the officer is "lawfully . . . in the viewing area," the evidence is discovered "inadvertently," and it is "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971); State v. Bruzzese, 94 N.J. 210, 236, (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Finally, we determine that the items seized pursuant to defendant's consent to search were also constitutionally seized. It is well-established that a person may vitiate the warrant requirement by consenting to a search by the police. State v. Domicz, 188 N.J. 285, 305 (2006). "[C]onsent to a warrantless search . . . must be shown to be unequivocal, voluntary, knowing, and intelligent." State v. Sugar, 108 N.J. 151, 156 (1987). Consent is a factual question determined by an examination of the totality of the circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Here, the record is clear that defendant gave his consent to the search.
II.
We next turn to Point II concerning defendant's argument that the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to — 15, requires dismissal of the indictment. We first reject defendant's contention that the State failed to prosecute him within the 180-day limit imposed by the IAD, N.J.S.A. 2A:159A-1 to -15. "The federal government and forty-eight states, including New Jersey, are signers of the compact." State v. Perry, 430 N.J. Super. 419, 424-25 (App. Div.), certif. denied, 216 N.J. 366 (2013).
"The IAD's purpose is 'to encourage the expeditious and orderly disposition of such [outstanding] charges and determinations of the proper status of any and all detainers based on untried indictments, informations[,] or complaints' and to provide 'cooperative procedures' for making such determinations." Ibid. (quoting 18 U.S.C.A. app. 2, § 2, art. I; N.J.S.A. 2A:159A-1). Pursuant to N.J.S.A. 2A:159A-3(a):
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information[,] or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. . . .New Jersey courts have interpreted the statute to permit grant of a continuance, on good cause shown, "at any time prior to an actual entry of an order dismissing the indictment pursuant to . . . N.J.S.[A.] 2A:159A-5(c)." State v. Lippolis, 107 N.J. Super. 137, 147 (App. Div. 1969) (Kolovsky, J.A.D., dissenting), rev'd on dissent, 55 N.J. 354 (1970); accord State v. Miller, 299 N.J. Super. 387, 397 (App. Div.), certif. denied, 151 N.J. 464 (1997). "[W]hether good cause exists . . . must be resolved from a consideration of the totality of circumstances in [a] particular case." Lippolis, supra, 107 N.J. Super. at 148-49 (Kolovsky, J.A.D., dissenting).
[N.J.S.A. 2A:159A-3(a)]
"[T]he 'necessary or reasonable continuance' provision is, by clear implication, the sole means by which the prosecution can obtain an extension of the time limits over the defendant's objection." New York v. Hill, 528 U.S. 110, 116, 120 S. Ct. 659, 665, 145 L. Ed. 2d 560, 567 (2000). The requirement that defendant or his counsel be present "is directed primarily, if not indeed exclusively, to prosecution requests that have not explicitly been agreed to by the defense." Ibid. This ensures an adequate appellate record, protects the defendant's right to a speedy trial, and "guarantee[s] that the State does not extend the expiration dates arbitrarily or capriciously in derogation of [the] defendant's rights without his knowledge and the ability to be heard." Miller, supra, 299 N.J. Super. at 398.
Defendant was incarcerated in Pennsylvania, and on June 9, 2011, defendant arrived in New Jersey, after the State had previously received the required filings under the IAD. An appearance was scheduled for June 30, but was adjourned until July 15, at defendant's request. At that appearance, defendant informed the court and the prosecutor that he was reinstating a suppression motion that had been filed in 2010 before he was incarcerated in Pennsylvania. The State and the defendant agree that the 180-day IAD deadline was due to expire on October 29, 2011, a Saturday, and therefore the expiration date was Monday, October 31.
On October 14, defendant withdrew his suppression motion, and the prosecutor requested a trial date of October 17. Defense counsel had a conflict, and trial was set for October 31. On that date, the court considered defendant's request to dismiss the indictment and the prosecutor's request for a tolling of the IAD time period from the date defendant revived his suppression motion to the date he withdrew it, eighty-eight days. After setting forth that summer's vacation schedule of the court and the crowded calendar, the judge determined that defendant could not stand trial during the pendency of the suppression motion and the delay in addressing defendant's request was reasonable. The judge determined that the extension of the IAD time limit was necessary and reasonable. The judge denied defendant's request and granted the prosecutor's motion.
There is no evidence that the continuance was required due to the State's error or intentional delay. Rather, the primary concern here was whether defendant would be prejudiced by a trial date that did not provide him the opportunity to adequately address his motion to suppress. Of legitimate secondary concern was the court's vacation schedule and crowded calendar. See State v. Mason, 90 N.J. Super. 464, 474 (App. Div. 1966) (stating that "[t]he intervening court vacation and the crowded condition of the trial calendars may possibly have warranted a discretionary continuance of trial beyond the 180 days"). Thus, the totality of the circumstances evince good cause for the court's grant of the continuance. Lippolis, supra, 107 N.J. Super. at 148-49 (Kolovsky, J.A.D., dissenting).
Further, as discussed herein, defendant subsequently reinstituted his suppression motion which was heard on November 7 and November 14 and denied on December 5. Trial was then held between December 5 and December 12, 2011. We therefore conclude that good cause was shown for the grant of the continuance.
III.
Defendant next contends that a comment made by the prosecutor to defense counsel at trial requires a reversal of defendant's conviction. During cross-examination of Cicerelle by defense counsel, heated exchanges took place between counsel over evidentiary rulings. The prosecutor inappropriately stated to defense counsel, "This is ridiculous. Go back to Essex County. What are you doing here." Defense counsel addressed the court, "Judge, these comments are improper and I'd like to be heard at side-bar." Prior to the side-bar, the judge stated, "I will instruct the jury to disregard these comments between counsel."
The next day during direct examination of Teter, the prosecutor asked whether "when a police car is sold from Washington [Township] to a used car dealer, does it come with stun guns and batons in it?" Teter answered, "No sir." Defense counsel stated, "Objection to the wise guy question, Judge." After an extensive colloquy outside the presence of the jury, the judge instructed the jury that:
I just want to mention to the jurors that comments by counsel, unless counsel is interposing an appropriate legal objection, really have no place in this courtroom. Obviously, you should disregard comments such as that. For example, references to questions as being smart alecky or accusations about where somebody is from asDefendant moved for a mistrial, which was denied, and now argues that the "go back to Essex" comment, coupled with the question of whether the car came with stun guns and batons, required that the trial judge grant the motion. We disagree. Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial, are matters "peculiarly within the competence of the trial judge." State v. Winter, 96 N.J. 640, 646-47 (1984).
you heard yesterday, being from Essex County. . . . These comments are inappropriate. You must disregard them.
The grant of a mistrial is an extraordinary remedy to be exercised only when necessary "to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a "clear showing" that "the defendant suffered actual harm" or that the court otherwise "abused its discretion." State v. Labrutto, 114 N.J. 187, 207 (1989). Furthermore, when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was "clearly capable of producing an unjust result." See R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002) (holding that improper admission of hearsay warranted new trial because it was "clearly capable of producing an unjust result" (internal quotations omitted)).
We conclude that there is no showing that defendant suffered actual harm or that the judge abused his discretion. Further, with regard to the "go back to Essex" comment, we recognize that prosecutors cannot unjustifiably criticize defense counsel or the defense. State v. Frost, 158 N.J. 76, 86 (1999). In a criminal trial, prosecutorial misconduct that warrants reversal is "conduct . . . so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002) (citations omitted). We are satisfied the trial judge correctly addressed what the record shows was a lapse in judgment by the prosecutor. The judge's curative instructions appropriately provided the jury with the guidance it needed to reach a fair and sustainable verdict based on the evidence presented at trial.
IV.
We turn to defendant's contention that his sentence is excessive. Defendant's extensive prior record of indictable and municipal court convictions in the federal system and in Pennsylvania supported the finding at sentencing of aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9). Those aggravating factors clearly and convincingly outweighed the absence of mitigating factors, N.J.S.A. 2C:44-1(b), and they justified the aggregate sentence of one year imprisonment, which is near the low end of the sentencing range for a fourth-degree crime. The sentencing judge did not abuse his discretion in imposing sentence. State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Roth, 95 N.J. 334, 364-66 (1984).
Defendant also argues that the judge imposed the consecutive sentence without a statement of reasons. While the judge may have failed to detail the reasons for imposing a consecutive sentence to defendant's unrelated Pennsylvania sentence, the record amply supports this disposition as within the Yarbough guidelines. State v. Molina, 168 N.J. 436, 442-43 (2001); State v. Perry, 124 N.J. 128, 177 (1991).
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
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We find defendant's two remaining points, that his motion for a new trial should have been granted and that aggregate errors denied him a fair trial, to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION