Opinion
DOCKET NO. A-6203-09T3
02-10-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHILOH LANCE SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris, and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-00284.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Shiloh Smith was the subject of two indictments filed by a Middlesex County grand jury. In one, Smith was indicted for six crimes stemming from the seizure of a weapon found in plain view in the trunk of an automobile. The other charged Smith with two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
Based on these indictments, a jury convicted Smith of second-degree unlawful possession of a handgun (a .44 caliber pistol) without first obtaining a permit to carry the same, N.J.S.A. 2C:39-5(b); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); and one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Smith was acquitted of the other charges, except for second-degree unlawful use of a body vest, N.J.S.A. 2C:39-13, which the Law Division — on Smith's Rule 3:18-1 motion — dismissed.
Smith was sentenced to an aggregate term of fourteen years in prison, with a minimum term of seven years. In imposing its sentence, the court found that aggravating factors (3), (5), (6), and (9) substantially outweighed the absence of mitigating factors.
The sentence consisted of a persistent offender extended term of fourteen years with seven years of parole ineligibility, N.J.S.A. 2C:44-3(a), for the certain persons not to have weapons conviction. Along with that, the court sentenced Smith to serve (1) an eighteen-month concurrent sentence for resisting arrest and (2) a ten-year concurrent sentence with five years of parole ineligibility for unlawful possession of a handgun.
See N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense); -1(a)(5) (organized criminal activity); -1(a)(6) (prior criminal history); and -1(a)(9) (deterrence).
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On appeal, Smith presents the following arguments:
POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE ALLEGED IN ITS INDICTMENT THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, TOLD THE JURORS THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, AND THEN FAILED TO PRODUCE EVIDENCE AT TRIAL THAT THE DEFENDANT HAD COMMITTED AN ATTEMPTED MURDER, THEREBY UNFAIRLY INFLUENCING THE JURY'S VERDICT ON WEAPON CHARGES AND RESISTING ARREST CHARGES.Our analysis of the record in light of these arguments convinces us that Smith was properly convicted. We affirm.
POINT II: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL POLICE SEARCH AND SEIZURE OF THE DEFENDANTS AND THE CO-DEFENDANT'S VEHICLE.
A. THE SEIZURE OF THE DEFENDANTS AND THE VEHICLE CANNOT BE JUSTIFIED BY REASONABLE SUSPICION BECAUSE NEITHER THE SOURCES' RELIABILITY NOR THEIR BASIS OF KNOWLEDGE HAD BEEN ESTABLISHED.
B. THE SEIZURE OF THE EVIDENCE CANNOT BE JUSTIFIED BY THE PLAIN VIEW DOCTRINE.
C. THE POLICE NEEDED PROBABLE CAUSE AND A WARRANT TO SEARCH THE TRUNK AND TO SEIZE THE WEAPONS.
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT (NOT RAISED BELOW).
A. THE PROSECUTOR BREACHED HIS DUTY OF DISCHARGING JUSTICE WHEN HE RELIED ON A
WITNESS WHOM THE PROSECUTOR KNEW HAD LIED UNDER OATH ABOUT THE SEIZURE OF GUNS IN A TRUNK TO PROVE THE DEFENDANT POSSESSED THOSE SAME GUNS.
B. THE PROSECUTOR'S RELIANCE ON A WITNESS WHOM THE PROSECUTOR KNEW HAD LIED UNDER OATH ABOUT THE SEIZURE OF GUNS IN A TRUNK TO PROVE THE DEFENDANT POSSESSED THOSE SAME GUNS IVES RISE TO THE APPEARANCE OF IMPROPRIETY.
POINT IV: THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. l, PAR. l0 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. l, PAR. l OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM AN ABSENTEE WITNESSES (NOT RAISED BELOW).
A. THE POLICE INFORMED JURORS THAT THEY WENT TO THE SCENE BECAUSE THEY WERE INVESTIGATING THE DEFENDANTS FOR DRUG CRIMES AND GANG ACTIVITY.
B. THE FACT THAT THE POLICE WERE INVESTIGATING THE DEFENDANT FOR GANG AND DRUG RELATED ACTIVITY HAD NO PROBATIVE VALUE AND WAS UNDULY PREJUDICIAL.
POINT V: THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AMD THE PROSECUTOR REINFORCED AND COMPOUNDED THE ERROR IN HIS COMMENTS TO THE JURORS. (NOT RAISED BELOW).
POINT VI: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT VII: THE SENTENCE IS EXCESSIVE.
A. THE IMPOSITION OF A DISCRETIONARY PERSISTENT OFFENDER EXTENDED TERM SHOULD BE VACATED.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS AND ERRONEOUSLY IMPOSED A PERIOD OF PAROLE INELIGIBILITY.
I.
The following facts are derived from the record of (1) the evidentiary hearing on Smith's unsuccessful motion to suppress evidence and (2) the trial. On Saturday, November 8, 2 008, at approximately 2:30 a.m., two New Brunswick police officers assigned to the Street Crimes Unit — Sergeant Steven Middleton and Police Officer Dean Dakin — observed a Honda automobile parked in a public parking lot on Easton Avenue in New Brunswick. The Honda had previously been seen on the street with Smith in the passenger seat and co-defendant Jabril Reynolds driving. The police officers were familiar with the Honda and its two occupants, having stopped and interviewed both the previous day. The police officers were on heightened alert due to reports of imminent gang-related violence in New Brunswick.
Sergeant Middleton began walking towards the parking lot while Officer Dakin turned his unmarked Ford Explorer around. Smith and Reynolds were huddled around the Honda's trunk, which had been opened by Reynolds. Upon Sergeant Middleton's stealthful approach, Reynolds looked up and then ran off. The sergeant rushed to pursue him.
Meanwhile, Officer Dakin was able to maneuver his vehicle into the parking lot and positioned it behind the Honda, blocking its movement. He exited and told Smith to "stand right there." When Officer Dakin returned to the Explorer to retrieve a radio in the console, Smith "[took] off running down the parking lot towards Easton Avenue." The police officer ran after Smith for approximately twenty-five feet, but then suspended the chase and returned to the abandoned Honda.
Officer Dakin testified to what happened next:
As soon as I got to the car, Sergeant Middleton is still — not around. And I look, the trunk is open I can see a large handgun pursuant [sic] to a white leather coat.Officer Dakin immediately seized what he described as a "44 Desert Eagle[,] [i]t's a very, very large handgun. . . . It's a cannon, like they use — like Dirty Harry would use in the movie. It's that large of a gun."
. . . .
I see a lot of clothes, and I can see — a large handgun, a large silver handgun in the trunk.
After Sergeant Middleton returned with Reynolds in handcuffs and under arrest, Officer Dakin proceeded to "further check out the Honda and [he] discover[ed] another handgun in the trunk." Reynolds was wearing a bullet-proof vest, "exactly like a law enforcement officer. He had [it] under his clothes, and it was tightly to his body, how a police officer would wear it."
Smith was not in custody at the time, however other police officers successfully apprehended him less than five minutes later on Easton Avenue. At that time Smith was also wearing a bullet-proof vest.
Sergeant Middleton described the locale where these events occurred as a high crime neighborhood. He stated,
That area, in the morning, yes. It's part of our direct patrol — our direct patrol is — the assignment that we have, that our officers are directed to go to is the problem areas, uptown. Right there at Easton and Condict, that's where, like I said before, at 2:00, 2:30 in the morning, all the clubs and everyone else appear.In explaining why the Honda's trunk was more fully examined without obtaining a telephonic search warrant, Sergeant Middleton stated,
If you're looking for a problem, I've responded there numerous times for fights. I've responded there for shots fired calls. I've responded there for a man who was actually killed at that intersection, on of at least. They're the only — killing there, I thought there was more. There's so many problems there, you know. It's — it's
100 [percent] high crime area at 2 o'clock in the morning.
At 2:00, 2:30 in the morning at Easton and Condict, and the people, the fights, I don't know what kind of manpower our patrol division had. I only had four guys under my command, and I guess I already had one group of people [present]. I don't know if they're friends or family of these two men, I'm already being video tapped [sic] and called all kinds of names from one group, and the other group of drunken college onlookers. At that time, my guess, it [was] not feasible.
II.
A.
Smith's first contention on appeal is that the State engaged in misconduct worthy of reversal by its impermissible and pretextual over-charging in the indictment. He claims that the jury was improperly presented with a futile, and ill-fated, charge of unlawful use of a body vest in a gratuitous effort to unduly influence the panel on the other charges. We disagree.
N.J.S.A. 2C:39-13 provides, in part, as follows:
A person is guilty of a crime if he uses or wears a body vest while engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, manslaughter, robbery, sexual assault, burglary, kidnapping, criminalSmith asserts that by charging him with this highly inflammatory crime, and linking it to spurious claims of murder and aggravated assault that could not be proven, the State injected irremediable prejudice into the trial process. He argues that even though the trial court granted his motion to dismiss this charge — finding that "[e]ven giving the State the benefit of all favorable testimony, as well as all favorable inferences," there was "absolutely no evidence" that Smith was engaged in the commission of, or an attempt to commit, or flight after committing . . . murder and/or [aggravated] assault — the damage was done.
escape or assault under N.J.S.A. 2C:12-1b. Use or wearing a body vest while engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit a crime of the first degree is a crime of the second degree. Otherwise it is a crime of the third degree.
The State's theory of culpability for the unlawful use of a body vest was based upon circumstantial evidence. According to the prosecutor's argument during the Rule 3:18-1 motion, Smith (and his co-defendant)
were going to commit a shooting in a high crime area.The trial court did not agree with these contentions, finding that it "cannot, in any way fathom that a reasonable jury can find [Smith] guilty of that charge beyond a reasonable doubt."
. . . .
You have a high crime area. At 2:30 in the morning. Wearing body vests. And immediately upon their observation of seeing
the law enforcement officers, they both flee in different directions. They have hollow point bullets. . . . They have these ballistic vests.
And, more importantly . . . they were not armed earlier in the evening . . . . And I would submit . . . that flight, combined with all of the other testimony, and all the favorable inferences, that a jury could infer that there was going to be a shooting. And from a shooting that that's an aggravated assault.
We do not view the State's proffered theory as either frivolous or a makeweight. The fact that the State did not have sufficient evidence to overcome Smith's Rule 3:18-1 motion does not translate into undue prejudice through prosecutorial misconduct. Smith maintains that the State's tactic was an "unorthodox procedure," but cites no support for this claim. He further speculates that the jury "infer[red] that a person who tries something but is unsuccessful (in this case murder) will try and try again. The safety of the community compelled a guilty verdict [by the jury] on the charges of unlawful possession [of a weapon] and resisting arrest."
Smith's beliefs are belied by the jury instructions provided by the trial court. The court advised the jurors — immediately before closing arguments — of the following:
When this trial began, I told you about the charges that were contained in the Indictment. I also explained that the Indictment is not evidence; but merely a written document, that brings the charges before a jury, so a jury can decide whether a defendant has been proven guilty, beyond a reasonable doubt.These instructions were fully capable of dispelling any conjectural misapprehensions on the part of the jury.
. . . .
I have ruled that the original charge of unlawful use of a body vest, which is the third count of the Indictment, will not be submitted to you for your consideration. You should not consider my ruling as an opinion by the Court, on the merits of any of the charges, that you must consider. My ruling on this charge, was based on matters of law, and should not influence your deliberations.
You are not to consider, for any purpose, in arriving at your verdict, the fact that the Court may have deleted a charge for your deliberation. You must decide whether the State has proven the defendant — proven the guilt of the defendant, on each charge submitted to you, by the evidence, which is relevant and material to the particular charge, based on the final instructions on the law, that I will give you, after the attorneys have completed their summations.
Our law firmly follows the principle that members of a jury are duty-bound to follow the court's instructions faithfully. State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). In the absence of evidence to the contrary, an appellate court "'must assume that the jury followed the instructions delivered by the trial court.'" State v. Martini, 187 N.J. 469, 477 (2006) (quoting State v. Marshall, 173 N.J. 343, 355 (2002)), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). No such contrary evidence is apparent from the record in this case and Smith's concern that he was unjustly convicted is unfounded.
B.
Next, Smith challenges the validity of the search of the Honda, the recovery of the weapons, and the seizure of Smith and Reynolds individually. We conclude that there was nothing objectionable about the police conduct on November 8 to warrant suppressing the evidence or excluding the arrest of Smith and Reynolds. When the Law Division denied Smith's pre-trial motion to suppress utilizing the plain view doctrine and finding the presence of exigent circumstances, it did so properly.
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the motion court's decision as long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010); see also State v. Locurto, 157 N.J. 463, 471 (1999).
The plain view doctrine is a recognized exception to the Fourth Amendment's warrant requirement. First, application of the doctrine requires a police officer to be legally positioned in the viewing area. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Ibid. (citations omitted). "[T]hird, the officer must have probable cause to associate the property with criminal activity." Ibid. In other words, the criminality of the object must be "immediately apparent." Id. at 149.
All of these conditions were satisfied when Officer Dakin first observed the .44 caliber Desert Eagle handgun amidst the clothing strewn in the Honda's open trunk. Although, arguably, the police officers were familiar with the automobile and its occupants because of their encounter twenty-four hours earlier, the discovery of the exposed firearm was undoubtedly inadvertent and unexpected. There is no basis to suppress such evidence as the product of a Fourth Amendment violation.
Smith also argues that the discovery of contraband, particularly the second firearm, was improper because the search of the Honda was not validated by exigent circumstances. In New Jersey, exigent circumstances are required for the police to conduct a warrantless search of an automobile. State v. Pena-Flores, 198 N.J. 6, 13-14 (2009). "Exigency above and beyond the mere mobility of the vehicle is required." Id. at 24. However, in this regard, "'exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement.'" State v. Cooke, 163 N.J. 657, 672 (2000) (citing State v. Alston, 88 N.J. 211, 234 (1981)). "[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Ibid. Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). "The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." Pena-Flores, supra, 198 N.J. at 11.
Based upon the motion court's fact finding, we are satisfied that exigent circumstances existed at the time and place the Honda was searched. Although there were at least four officers present and Reynolds, but not Smith, was in police custody, the pertinent events occurred in the presence of numerous onlookers — many allegedly intoxicated — in a high-crime area, four hours before dawn. The fluid situation on Easton Avenue was far too uncertain and potentially dangerous to the police officers and members of the public to conclude that exigency did not exist.
Furthermore, firearms and the special threat they pose to public safety has been recognized by this court in other Fourth Amendment cases. See, e.g., State v. Wilson, 362 N.J. Super. 319, 331-36 (App. Div. 2003) (permitting search of car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003). The presence of a firearm "like Dirty Harry would use in the movie" in an open and abandoned vehicle triggered enhanced safety concerns and constituted a significant factor in determining whether exigent circumstances existed. State v. Diloreto, 180 N.J. 264, 281-82 (2004). We are satisfied that the Law Division correctly concluded that a warrantless search of the Honda and seizure of both firearms were appropriate under the totality of the circumstances.
Smith's last point, regarding his seizure along with Reynolds, is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Reynolds's flight was spontaneous and not the result of purposive conduct by the police except for the happenstance that Middleton approached the parked Honda. Smith fled after being asked to remain at the scene by Officer Dakin. The police officer's request to remain close by the Honda after Smith's acquaintance sprinted away, in light of the totality of the circumstances, was eminently reasonable and did not violate Smith's constitutional rights.
C.
Smith argues, for the first time on appeal, that the prosecution engaged in misconduct during the trial when it called Reynolds as a State's witness to testify, "[knowing] full well that Reynolds had perjured himself in an effort to suppress evidence in this case." When Reynolds took the witness stand, Smith did not object. Now, Smith claims that because Reynolds gave testimony during the suppression motion that contradicted Sergeant Middleton's testimony, and because the motion judge believed Sergeant Middleton over Reynolds, the prosecutor was barred from calling Reynolds as a State witness. Other than citing general principles governing the conduct of prosecutors and the appearance of impropriety, Smith offers no authority for this novel theory. More importantly, there is no evidence of purposive impropriety by the State to warrant reversal.
Smith does not challenge Reynolds's competency to be a witness, nor could he. See N.J.R.E. 601. Smith was fully able to cross-examine Reynolds when he testified, and did so. In fact, Smith brought up before the jury that Reynolds had negative feelings towards him and uttered an expletive in referring to Smith. For example, Reynolds testified:
Because . . . like I said, we [were] friends. So, I feel that he put me in the position, where he don't want to take responsibility for being a man, for what he did, and I take responsibility for what I did. So, he put me in the position, where I got to be here before you today, and only a snake would do something like that. If he was my friend, he'd take responsibility for his actions. He wouldn't try to put everything on me.
We not only conclude that the record contains no evidence that the prosecutor knowingly placed perjured testimony before the jury but the record is barren of evidence that Reynolds's testimony at trial was tainted. Smith's hypothetical argument about the trial tactics of the State is meritless.
D.
Smith further asserts that he was unduly prejudiced when the State was permitted, without objection, to elicit testimony from Sergeant Middleton that his assignment was with the Street Crimes Unit, which concentrated on "gang activity, drug activity, drug sales, local street level, as well as other local drug activity." The sergeant testified that his unit focused on "[a]ll hot spots, where there would be gang activity, drug activity, be it disorderly person[s], late at night, during the day, our unit would be sent to monitor, and find out what's going on, to try to correct the problem." Smith extrapolates that from this evidence, the jury was necessarily unduly influenced in concluding that "seizing [Smith] the evening before this incident, following him the next night, and ordering him to stay where he was" acted as one of Sergeant Middleton's corrective measures. We disagree.
Smith couches his argument in terms of Confrontation Clause violations, asserting that Sergeant Middleton tried to implicate Smith in drug and gang-related activity through the introduction of "hearsay statements from informants and other sources." The record, however, does not support such a proposition. Indeed, there is little in the record at all from which the jury could have viewed Smith as being a target of Sergeant Middleton's particularized scrutiny. Instead, fairly read, the record merely reveals that the Honda and its inhabitants unexpectedly came to the police officers' attention when they drove onto Easton Avenue around 2:30 a.m. Other than that happenstance, there was virtually nothing the jury could infer to link Smith with drug and gang-related activity.
"The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely manner." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Plain error consists of an error that is "clearly capable of producing an unjust result. . . ." R. 2:10-2. In order to reverse, we must find that this possibility is "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. Macon, 57 N.J. 325, 336 (1971). We are convinced that no error, plain or otherwise, occurred when the jury merely heard Sergeant Middleton recite his job description and describe his duties on the night in question.
E.
We next turn to Smith's sentencing arguments. First, he contends that he was convicted of "merely possessing the firearm," and "the imposition of an extended term for the protection of society is wholly misplaced." Second, he asserts that the sentencing court improperly balanced the aggravating and mitigating factors. Lastly, he argues that the aggregate sentence of fourteen years with seven years of parole ineligibility is excessive. We find none of these arguments persuasive.
The New Jersey Code of Criminal Justice prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Our review of a sentence is guided by State v. Roth, 95 N.J. 334, 364-65 (1984), which looks to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. In reviewing a sentence, we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). As stated by the Supreme Court in Cassady:
An appellate court is bound to affirm a sentence, even if it would have arrived at a
different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.
[Id. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)) (citations omitted).]
Smith's age and extensive criminal history, which prompted the sentencing court to observe, "[t]he only time [Smith] really wasn't involved in committing crimes is when he was incarcerated," sustain the imposition of an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). The court's conclusion that the aggravating factors substantially outweighed the absence of mitigating factors is likewise supported by the evidence.
F.
Except to the extent already addressed, the remaining substantive points raised in Smith's brief lack sufficient merit to warrant any 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