Opinion
DOCKET NO. A-0306-09T2
01-30-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAMON R. WILLIAMS, a/k/a DAMON BAILEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Espinosa.PER CURIAM
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1408.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
Defendant Damon R. Williams appeals from his conviction for theft from the person, N.J.S.A. 2C:20-2b(2)(d), and his sentence. We affirm.
Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1, arising from events that occurred at the Pennsauken branch of Commerce Bank on June 27, 2007. At approximately 10:00 a.m. that day, Barbara Carter, a customer service representative, observed a man standing by the doorway looking in the direction of the tellers. He caught her attention because he remained standing there for so long with no apparent purpose. She described him as a dark-skinned African-American male wearing a one-piece "construction outfit," with a white asbestos mask covering his mouth and nose. Because the man was wearing a baseball hat pulled down over his head, she was unable to see whether he had hair on his head but saw black and white specks going through his hat and salt and pepper facial hair sticking out from the mask. In the robbery report Carter filled out that day, she indicated the man was forty to forty-two years old, approximately "five ten" and 170 pounds. Carter saw a water bottle on the counter but did not know if the bottle belonged to the man. She did not notice when he left the bank, but he stayed for about "five, seven, 10 minutes."
On North 49th Street, about one-half block away from the bank, Catherine Hunt was sitting on her front porch when, between noon and 1:00 p.m., she saw a "gentleman . . . dressed all in black, heavy clothes, . . . [and] a knit hat[,]" riding a black bicycle towards the bank. Hunt believed the gentleman was African-American.
Shortly before 1:00 p.m. that day, a man walked into the bank and handed a note to bank teller, Carmen Cordero. The note read, "This is not a joke. Give me the money. No dye packs, no hero[e]s, no problems." Cordero testified she did not panic, but she was scared and did not know if the man had anything in his hand or if he might lunge at her. Cordero gave him the money from her top drawer, he left, and Cordero ran to the back and told her supervisor she had been robbed. Her supervisor then called the police. When Cordero settled her drawer, she discovered that she was short $1,549.
Officer Victor Diaz of the Pennsauken Township Police Department was dispatched to the bank at approximately 12:56 p.m. in response to a holdup alarm. The officer was told that a "black male dressed in black, fled." He was also told the male was wearing a hat. The officer proceeded to the area of 49th street where the man allegedly fled, while other officers responded to the bank.
Police traveling up and down North 49th Street approached Catherine Hunt and asked if she saw anything unusual. Hunt told the police about her earlier observation and that, approximately one-half hour after she had seen the man all in heavy, black clothes riding the bicycle toward the bank, she observed the same man riding away from the bank. She told the police the direction the gentleman was traveling when she last saw him.
Officer Diaz stopped a pedestrian walking on the street towards the bank. The officer checked the pedestrian's identification and confirmed he did not match the description of the suspect. The pedestrian then told Officer Diaz he "observed the black male dressed in black on a black mountain bike pedalling [sic] quickly towards Chestnut Avenue on 49th Street." Officer Diaz relayed this information to other officers via his radio and continued on his way up to 49th Street.
Officer Diaz got out of his car and continued on foot down a path and through an opening in a fence. He found a black shirt and pair of black pants tossed on the ground. There was a water bottle sticking out of one of the pants pockets. He found the bike after the detectives arrived and he explored the trail.
Anthony Armstrong was working as a mail carrier delivering mail on 51st Street at around 1:00 p.m. He testified that "as [he] was walking to a house, an individual appeared out of nowhere right behind [him]." The individual's pace began to speed up and by the time Armstrong reached the next corner, the individual "was at a full stride[.]" The individual was "a black male with bald head, little bit scruffy like slight goatee. He was wearing a white tank top, long like basketball shorts." The man was about six feet tall with a "[m]edium to slim" build.
Investigator William Townsend of the Camden County Prosecutor's office canvassed the area outside the bank with his crime scene technician and members of the police department. He was eventually directed to an area near the bank where the clothing and bicycle were found. Townsend testified that upon reviewing the surveillance images retrieved from the bank for his testimony, he noticed a marking on the pants of the perpetrator consistent with a marking on the pants found tossed on the ground not far from the bank.
Townsend also conducted interviews and drafted a report. Cordero was very shaken up. She provided him with a generic description of the suspect "as a black male, approximately 20 to 40 years old, approximately 5'7" to 5'9" with a thin build, dark complected . . . wearing a baseball hat, black shirt, black pants and a dust mask around his bottom portion of his face." Cordero testified that her attention was drawn to him because "[i]t was a hot day to have long sleeves on and pants." Townsend then compared Cordero's description with the surveillance images and found images consistent with the description. Cordero had indicated the suspect was wearing a hat and the images confirmed this. After learning the perpetrator was possibly in the bank earlier on the day of the robbery, Townsend reviewed surveillance tapes of times prior to the robbery. The person in the bank earlier in the day appeared to him to be the same person who committed the robbery.
A Wade hearing was conducted to determine the admissibility of an out-of-court identification of defendant by Barbara Carter. Investigator Fawn Ackerman contacted Carter by telephone and asked her if she might still be able to identify the person who committed the robbery. Carter stated she thought she could still make the identification and said she was willing to look at a photo array.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The photo array was prepared by Ackerman, who testified that she used a program called Picture Link. She chose a 2007 photograph of defendant and put his identifier information, which she described as age, gender, height, weight, eye color, facial hair and hair color into the system. The computer program generated a list of subjects in the computer system that closely matched the defendant. The system printed six photos but allowed the investigator to edit the compilation to select others who might look more like the suspect. In making the final selections, Ackerman made sure each individual in the photos was wearing the same orange shirt and attempted to find photos with the same background color. Defendant was the only bald person in the array. Ackerman testified that the hairstyle was not a particular concern in selecting photographs because the robber wore a hat.
The photo array was shown to Carter by Investigator Michael Molle on April 8, 2009. Molle had no prior participation in the investigation and was unaware who the suspect was in the case. Although present in the building at the time of the identification procedure, Ackerman was not involved in the showing of the photo array or in putting the photographs in order.
Prior to showing Carter the photo array, Molle read her an instruction form, asked if she understood it, and had her sign and date the form. The instruction form stated as follows:
In a moment I will show you a number of photographs, one at a time. You may take as much time as you need to look at each of them. You should not conclude that the person who committed the crime is in the
group merely because a group of photographs is being shown to you.
The person who committed the crime may or may not be in the group and the mere display of the photographs is not meant to suggest that our office believes the person who committed the crime is in one of the photographs.
You are absolutely not required to choose any of the photographs and you should not feel obligated to choose anyone. The photographs will be shown to you in random order. I am not in any way trying to influence your decision by the order of the pictures presented.
Tell me immediately if you recognize the person that committed the crime in one of the photographs. All the photographs will be shown to you even if you select a photograph. Please keep in mind that hairstyles, beards, moustaches are easily changed. People gain and lose weight. Also photographs do not always show the true complexion of a person. It may be lighter or darker than shown in the photograph.
If you select a photograph, please do not ask me whether I agree with or support your selection. It is your choice that counts. Please do not discuss whether you selected a photograph with any other witness who may be asked to look at the photographs.
Molle proceeded with the array by taking the six photographs out of a manila envelope, jumbling them, and then numbering them one to six. Carter was given the photos one at a time. At picture number four, Carter stopped, ripped the bottom off a styrofoam cup, placed it over the mouth area of the picture and said to Molle, "that's him." The photograph she selected was of defendant. Molle reminded Carter she needed to look at the remaining photos and continued with the array. A photo display result form was then filled out in which Carter indicated she chose photograph four and affirmed,
no member of the prosecutor staff or anyone else suggested I select any particular photograph -- that I select any photograph at all. The identification was my own choice. I was not told by anyone whether others had selected any particular photograph or had failed to select anyone. I was not told by anyone the status or identity of any of the individuals in the photographs.
At the conclusion of the hearing, the court determined that the out-of-court identification by Carter would be permitted into evidence.
In addition to the evidence summarized above, the evidence at trial included the following:
Carter testified that during the photo array, she used the piece of the styrofoam cup because the picture "look[ed] like him and [she] needed the mask to complete it." After indicating she would be able to recognize the man if she saw him in person that day, Carter made an in-court identification of defendant as the man she saw in the bank that day. Carter testified she was 100% positive in her identification.
Detective Ken Nelson, a detective and evidence manager with the Pennsauken Township Police Department, testified that he is responsible for the chain of the custody of evidence that comes to the department. On the day of the robbery, Detective Sergeant Duffy turned over the following evidence from the robbery: a "[l]ong-sleeved T-shirt, a long pair of dungarees, a white dust mask, a water bottle, goggles and a bicycle." He completed evidence vouchers, took possession of the items, placed them in the evidence room, and processed them. After receiving instructions from the DNA laboratory of the New Jersey State Police, Nelson processed the water bottle for DNA by swabbing the inside cap and the threaded portion of the bottle where the cap attaches. He placed the swabs in vented cardboard sleeves and sent the evidence to the New Jersey State Police forensic laboratory on July 25, 2007. After the evidence was returned from the lab, Nelson turned it over to Ackerman for the trial.
Matthew Wood, a forensic scientist at the New Jersey State Police Office of Forensic Sciences in the serology unit, was qualified as an expert in biological stain analysis. He testified that in July 2007, he received the following items from the Pennsauken Township Police Department for analysis: a "black long-sleeved T-shirt . . . a white generic disposable dust mask[,] . . . a cardboard vented sleeve containing a swab at the threaded neck of the suspect's recovered water bottle[,] . . . [and] another cardboard vented sleeve containing a swab at the inside cap area of the suspect's water bottle." A portion of the mask was cut out because it tested positive for the presence of amylase, an enzyme present in saliva. Swabs taken off the shirt, the portion cut out from the mask as well as the swabs from the water bottles and defendant were all sent to the DNA laboratory for further analysis. A week after these initial pieces were brought to the laboratory in July 2007, buccal swabs obtained from defendant were also received for analysis.
Christina Somolinos, another forensic scientist for the New Jersey State Police forensic laboratory, testified as an expert in DNA forensics and analysis. This case was assigned to her in November 2007. She testified that the swabs from the water bottle and the cut-out of the mask provided DNA profiles but the swab from the shirt collar did not. Somolinos testified that a statistical analysis of the DNA profiles provided from the evidence with the swabs from defendant resulted in the finding that defendant was the source of the DNA on the swabs from the water bottle and the mask.
The jury found defendant not guilty of robbery but guilty of the lesser-included offense of theft from a person, N.J.S.A. 2C:20-2b(2)(d). Defendant was sentenced to five years imprisonment, with two years of parole ineligibility as well as appropriate fines and penalties.
Defendant presents the following issues for our consideration in this appeal:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF IDENTIFICATION EVIDENCE AND THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF IDENTIFICATION (PARTIALLY RAISED BELOW)
A. THE INDENTIFI[C]ATION EVIDENCE WAS UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED
B. THE TRIAL COURT'S INSTRUCTION ON THE LAW OF IDENTIFICATION WAS ERRONEOUS, MISLEADING, AND HIGHLY PREJUDICIAL (NOT RAISED BELOW)
POINT II
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 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 AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES (NOT RAISED BELOW)
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF DNA EVIDENCE WITHOUT A PROPER FOUNDATION
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE FAILURE OF THE STATE TO SHOW AN UNINTERRUPTED CHAIN OF CUSTODY
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF LAY OPINION EVIDENCE (NOT RAISED BELOW)
After considering these arguments in light of the applicable legal principles, we are satisfied that none have any merit.
I
Defendant argues that the out-of-court identification by Carter was the product of an impermissibly suggestive procedure because he was the only bald person in the photo array and because the identification was highly unreliable. We disagree.
The trial court engages in a two-step process to determine whether identification evidence is admissible. First, the court ascertains whether the procedure employed was impermissibly suggestive. If so, the court then determines whether, despite the use of an impermissibly suggestive procedure, the identification was nevertheless reliable. State v. Herrera, 187 N.J. 493, 503-04 (2006). In reviewing the determination that the identification was admissible, we note that the trial court's findings "are entitled to very considerable weight[, and] . . . should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (internal citations and quotations omitted). We look to whether "the trial judge could reasonably conclude that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Santoro, 229 N.J. Super. 501, 504 (App. Div. 1988) (citing State v. Madison, 109 N.J. 223, 232-33 (1988)), certif. denied, 121 N.J. 593 (1990).
Defendant argued that the photo array was impermissibly suggestive because he was the only bald person in the array. In addressing this argument, the trial court noted that defendant did not appear completely bald in the photograph because there was "a light fuzz" on the top of his head that could have been hair or "a result of the computer generated picture." Although defendant was the "baldest one of the bunch[,]" the judge found every one of the individuals in the photo array "clearly individual and distinguishable[,]" with nothing highlighting defendant as the perpetrator. As the court observed, Carter had not described the suspect as bald, but rather, said the suspect had his hat pulled down over his head. Furthermore, the court found that "if you're looking to match somebody with a lower part of the face obstructed and head obstructed, these photographs do the trick." Defendant's baldness was therefore inconsequential to the identification.
We are satisfied the record supports the trial court's finding that there was no evidence of any improper influence from either Ackerman or Molle and that the identification procedure was not impermissibly suggestive. Indeed, there were safeguards employed against such suggestiveness. For example, the array was shown to the witness by a "blind administrator" who had not participated in the investigation and did not know which photograph was of the suspect. In addition, the witness was provided with appropriate instructions prior to the selection process and received no affirmation from the investigating officers. See State v. Henderson, 208 N.J. 208, 249-50 (2011).
In light of the trial court's finding that the procedure employed here was not impermissibly suggestive, it was unnecessary to make any findings regarding the reliability of the identification. Nonetheless, the trial court noted "the accuracy of [Carter's] prior description of the criminal . . . . and the time between the crime and the confrontation." Adams, supra, 194 N.J. at 204 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
Defendant also contends, for the first time on appeal, that the trial court committed error in the jury instruction on identification. When issues are raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006); see also State v. Robinson, 200 N.J. 1, 19 (2009). Defendant challenges that portion of the charge in which the court stated, "According to the witness, Miss Carter, her identification of the defendant was based upon the observations and perceptions she made of the perpetrator at or near the time the offense was being committed." Latching onto one statement made by Carter and taking it out of context, defendant contends that Carter was not "observing" throughout the time the suspect was in the bank and therefore could not have based her identification upon her observations and perceptions. This argument is totally without merit. It was not error to give this charge, which was consistent with Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2007). Carter testified at length as to the observations she made that formed the basis for her identifications of defendant. Moreover, the evidence that corroborated the identification of defendant, which included DNA evidence, was compelling.
II
We are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.
A.
In Points II and V, defendant raises issues he concedes were not presented to the trial court. As a result, these arguments are subject to a review to determine whether there was plain error, Rule 2:10-2.
Defendant argues in Point II that it was error to allow Detective Townsend to testify that defendant was identified as a suspect based "on an investigation." The nature and extent of the investigation were not disclosed.
Townsend's testimony regarding the identification of defendant did not impermissibly suggest to the jury that he had superior, undisclosed evidence of defendant's guilt or that an unidentified person had implicated him. Because the issue is whether such a passing references constituted "plain error[,]" our task is to "consider whether there is reasonable doubt that the jury would have ruled other than as it did." State v. Branch, 182 N.J. 338, 353 (2005). The evidence of defendant's guilt was compelling, including in-court and out-of-court identifications and DNA matches on the mask found outside the bank and the water bottle found in the clothes worn by the perpetrator. Even if this reference in Townsend's testimony were omitted from evidence, a reasonable doubt does not exist as to the result the jury would have reached.
In Point V, defendant argues that Townsend's testimony that the surveillance photographs he reviewed were consistent with the descriptions received from the witnesses constituted impermissible lay opinion testimony. We disagree.
N.J.R.E. 701 provides that lay opinion testimony may be admitted "if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." See also State v. Locurto, 157 N.J. 463, 472 (1999). Here, Townsend testified regarding his observation of surveillance images and comparison of those images to information gained during the investigation. Clearly, his opinion on that comparison is rationally based on his perception. The identification of which image on the tape was that of the perpetrator was germane to a fact in issue, the identification of the thief.
The allegation of prejudice from this testimony is unpersuasive. Significantly, Townsend did not opine that defendant was the person on the surveillance tape, merely that the image was consistent with the descriptions given by the witnesses. Moreover, Cordero, one of the witnesses at the scene, gave the same opinion in her testimony. Townsend's testimony was, therefore, not clearly capable of producing an unjust result. R. 2:10-2.
B.
Defendant argues in Points III and IV that it was error to admit the DNA evidence here because the State failed to establish the necessary foundation by showing proper procedures were used to collect the samples and also failed to demonstrate an unbroken chain of custody. Countering the State's assertion that these issues are raised for the first time on appeal, defendant contends that they were presented to the trial court when he engaged, pro se, in a colloquy with the court regarding his expressed desire to represent himself. In those statements, he argued that the DNA samples were contaminated by the procedures used and unreliable because there had been a break in the chain of custody. However, no objection was made at the time the DNA samples were introduced into evidence.
"[A] defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." State v. Morton, 155 N.J. 383, 446-447 (1998) (quoting United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The Supreme Court described the State's obligation as follows:
A party introducing tangible evidence has the burden of laying a proper foundation for its admission. That foundation should include a showing of an uninterrupted chain of possession. When the custodian is a State agency, the State is not obligated to negate every possibility of substitution or change in condition of the evidence. Such evidence generally should be admitted if the trial court "finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed."
[State v. Brunson, 132 N.J. 377, 393-394 (1993) (internal citations omitted).]
The State presented evidence regarding the chain of custody of the evidence that revealed its disposition from the time of collection through testing by the State Police laboratory. There was also evidence presented regarding the procedures used to collect the evidence subjected to DNA analysis. Detective Nelson, the detective who took the swab from the bottle used for the DNA analysis, contacted the New Jersey State Police Forensics Unit to obtain instructions for collecting and submitting evidence and followed such instructions. Defendant also argues that the methods described by Matthew Wood, a forensic scientist at the State Police laboratory, fell short of the protocol for proper handling of DNA evidence described by Christina Somolinos, another forensic scientist at the State Police laboratory. Wood testified that his duties include the "analysis of evidence . . . specifically . . . search[ing] for biological fluids that could contain DNA[,]" which he then forwards to the DNA laboratory.
Whether the chain of custody has been sufficiently proven and a sufficient foundation has been laid for the admission of evidence are matters within the discretion of the trial court, whose determination will not be overturned unless there is "'a clearly mistaken exercise thereof.'" See Morton, supra, 155 N.J. at 446 (quoting State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)). Because no contemporaneous objection was made as to the introduction of the DNA evidence, the trial court was deprived of the opportunity to make these specific determinations. However, we are satisfied that the record establishes sufficient facts to support a finding that the evidence was admissible. The weight to be given to the evidence remained a question for the jury.
C.
Defendant next argues that he was prejudiced by the court's failure to dismiss the robbery charge at the close of evidence. N.J.S.A. 2C:15-1(a)(2) requires a showing that "in the course of committing a theft," a perpetrator "[t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" Cordero testified that when she received the note, she was frightened, particularly since she could not see whether defendant had a weapon and did not know what he was going to do. Giving the State the benefit of the reasonable inferences that could be drawn from the evidence, State v. Reyes, 50 N.J. 454, 459 (1967), the jury could have found from the totality of the circumstances that defendant threatened Cordero or purposely put her in fear of immediate bodily injury. See State ex. rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). Therefore, we perceive no merit to defendant's argument.
D.
Finally, defendant challenges his sentence as excessive, arguing that a three-year sentence should have been imposed instead of a five-year sentence with a two-year period of parole ineligibility. Specifically, defendant argues that the court erred in finding aggravating factor three, that aggravating factor nine "has lost its value as a meaningful aggravating factor," and that the court should have found mitigating factors one, two and six.
N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense).
N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others).
N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm); (b)(2) (defendant did not contemplate serious harm); and (b)(6) ("defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service"), respectively.
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The sentencing transcript reveals that defendant was serving a fourteen-year sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), on a second-degree robbery conviction at the time the sentence was imposed in this case. The trial court rejected the State's request to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a). Characterizing defendant's criminal record as "horrendous[,]" the court reviewed a history that began with adjudications as a juvenile in 1992, included multiple indictable convictions, terms of incarceration in State Prison, and violations of probation and parole. The court observed that the convictions were for "extraordinarily serious offenses[,]" including robberies and weapons offenses, defendant had every opportunity to change his conduct and "he certainly is a guy that simply just doesn't get it." The court thus found support for aggravating factors three, six and nine. We discern no abuse of discretion in that conclusion.
The trial court also rejected defendant's argument that mitigation factors one and two applied. Referring to the demand note passed to the teller, the court stated,
[W]hen someone engages in that type of conduct, certainly you can only contemplate that the person fears the unknown.
In fact, when we listened to the testimony of the victim, there was no question in the court's mind that she was fearful . . . . she didn't know what was going to transpire. . . .
If [the note's] not a threat, I don't know what is.
The fact of the matter is any reasonable person would contemplate those remarks and the methodology by which he
committed this offense to certainly contemplate that harm would be caused. I think it would be unreasonable to conclude otherwise.
Moreover, although defense counsel asked the court to consider mitigating factor six, the request was based upon the court's ability to order restitution rather than upon any effort by defendant to reimburse the bank.
We are satisfied that the trial court properly determined that the mitigating factors requested by defendant were not supported by competent evidence in the record and that the court appropriately balanced the aggravating factors in making its sentencing decision.
Affirmed.