Opinion
DOCKET NO. A-1289-14T1
07-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN L. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 12-03-0677 and 13-06-1587. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A grand jury indicted defendant John L. Williams for second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a) (count three). A jury found defendant guilty on count one and not guilty on count two and the State dismissed count three. The trial judge imposed a ten-year term of imprisonment with a three-year period of parole ineligibility. The judge also found defendant guilty of driving while license suspended, N.J.S.A. 39:3-40, and suspended defendant's driving privileges for one year.
Defendant pled guilty under a separate indictment to five counts of third-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and one count of third-degree possession with intent to distribute a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7(a). The judge imposed concurrent terms of imprisonment on these counts.
On appeal, defendant raises the following contentions in assigned counsel's brief:
POINT I
EXTENSIVE PROSECUTORIAL MISCONDUCT DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW).
A. The State Improperly Bolstered Officer Guker's Credibility Based Upon His Role as a Law Enforcement Officer.
B. The State Encouraged the Jury to Convict [Defendant] as a Means of Punishing Him for Purportedly Failing to Respect the Rules of the Road.In a pro se supplemental brief, defendant raises the following contentions:
C. The Cumulative Effect of the Prosecutorial Misconduct Warrants Reversal of the Eluding Conviction.
POINT II
THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING.
A. [Withdrawn]
B. The Discretionary Parole Disqualifier on the Eluding Offense Should be Vacated Because it is Not Supported by the Record.
C. The Present Sentences are Not Offense-Oriented, as Required by State v. Roth and State v. Hodge.
POINT ONE
PROSECUTION FAILED TO PROVE BEYOND A REASONABLE DOUBT (THE [SIX] ELEMENTS) TO CONVICT FOR ELUDING; ALSO TRIGGERING ISSUES RAISED IN [STATE V. MENDEZ] [AND] [STATE V. DORKO]. (Raised Below).
POINT TWO
DEFENDANT CONTENDS PROSECUTORIAL MISCONDUCT DUE TO A) PROSECUTOR'S "BAD CHARACTER" COMMENTS TO JURORS; B) INFLAMMATORY THREAT OF CONSEQUENCES BY DEFENDANT EXERCISING HIS [FIFTH]
AMENDMENT RIGHT TO TESTIFY AT TRIAL. PURSUANT TO[] FED. R. EVID. 404(A). (Raised Below).
POINT THREE
PROSECUTION RELIED UPON EVIDENCE NOT ENTERED DURING TRIAL AND THUS DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
POINT FOUR
PROSECUTION SUPPRESSED REQUESTED MATERIAL EVIDENCE[,] [COMPUTER-ASSISTED DISPATCH REPORT] [AND] ALSO WRITTEN REPORT IN ORDER TO ADMIT UNCORROBORATED TESTIMONY[,] [A] [BRADY] RULE VIOLATION. (Raised Below).
POINT FIVE
IF THIS COURT FIND[S] THAT THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS TO DETERMINE ANY OF THE BELOW[-] REFERENCED ISSUES [ON] DIRECT APPEAL, THE [DEFENDANT] RESPECTFULLY RESERVES THE RIGHT TO RAISE THIS ISSUE IN A SUBSEQUENT PETITION FOR POST CONVICTION RELIEF [AND] THE PROSECUTOR PRESENTED KNOWN PERJURED TESTIMONY[,] A DUE PROCESS VIOLATION UNDER[] HOLOHAN AND BRADY RULE. (Raised Below).
POINT SIX
We reject all of these contentions, and affirm.PROSECUTION WITHHELD REQUESTED HIGHLY MATERIAL EVIDENCE [COMPUTER-ASSISTED DISPATCH REPORT] IN VIOLATION OF BRADY/KYLES. (Raised Below).
I.
We derive the following facts from the record. At approximately 3:30 a.m. on January 6, 2012, Police Officer Adam Guker of the Manchester Township Police Department was on patrol in a marked patrol car traveling westbound on Route 571, a four-lane county road with two lanes in each direction. Guker saw a silver Toyota Camry with its headlights activated and traveling eastbound on Route 571 at about twenty miles-per-hour in a fifty mile-per-hour zone. As Guker passed the Camry, he saw the driver, later identified as defendant, make an improper left turn from the right-hand lane and enter Maplewood Street.
Believing the driver was "a possible drunk driver," Guker made a U-turn on Route 571 and attempted to locate the Camry. Guker turned onto Maplewood Street and saw defendant turn right onto Oak Knoll Street and travel towards Beacon Street. Guker turned onto Oak Knoll Street and saw defendant make a right turn onto Beacon Street and head toward Route 571. Guker then saw defendant cross over Route 571, continue down Beacon Street, turn right onto Monmouth Street, and then turn right onto Lake Drive with his headlights off.
Guker activated his dash cam video recorder, which recorded events up to and including a pat down search of defendant. Guker shined his spotlight inside defendant's vehicle. Defendant did not stop. Before reaching a bend in the road on Lake Street, Guker activated his overhead lights, but defendant did not stop. Defendant continued around the bend onto Fairfield Street. Guker activated his siren, but defendant did not stop and continued toward Route 571. Defendant failed to stop at a stop sign at Route 571 before making a right turn onto the roadway. Defendant drove past one street and then made a right turn onto Seminole Street. He then traveled halfway down Seminole Street on the wrong side of roadway before stopping on the left side.
Officer Nazario arrived at the scene to assist Guker. Defendant was ordered to exit the Camry and then placed in handcuffs. A pat down search revealed a razor blade wrapped in duct tape in defendant's back pocket. A dispatcher advised Guker that defendant's driver's license was suspended and the Camry was not registered in his name.
The record does not reveal Officer Nazario's first name.
Officer Denny Barker arrived at the scene and saw a dent on the front end of the Camry. Guker told Officer Barker the route he and defendant had taken, and Officer Barker retraced that route in his patrol car. Along the route, he discovered a chain-link fence that had been damaged near the bend in the road on Lake Drive. Officer Barker spoke to the homeowner, who advised that the fence was not damaged prior to his going to sleep that evening.
Defendant was charged with eluding, weapons offenses, and with numerous motor vehicle violations, including improper turn, failure to maintain a lane, failure to stop at a stop sign, failure to signal, reckless driving, and leaving the scene of an accident. A jury found defendant guilty of eluding and also found that the State proved beyond a reasonable doubt that defendant's flight or attempt to elude created a risk of death or injury to any person. On appeal, defendant challenges his conviction and sentence.
II.
In Point I of assigned counsel's brief, and Point Two of defendant's pro se supplemental brief, defendant raises several claims of prosecutorial misconduct.
A.
Defendant first contends in Point I.A. of assigned counsel's brief that the prosecutor improperly bolstered Guker's credibility during summation by making the following comment:
[Guker] testified that [defendant's vehicle was] doing 20 miles an hour on a 50 mile-an-hour road. Now, remember, when you draw upon what's more credible and more believable, remember [Guker is] a patrolman for over seven, eight years and now he's a detective since January. And of course, you'll be able to, if you want to hear
anything back, I challenge you to see if what I'm saying is incorrect. But that's the testimony he said.After completion of the prosecutor's summation, defense counsel objected to this comment, arguing that the prosecutor was attempting to have the jury conclude that Guker was more believable because he was a police officer and had been promoted to detective. The judge overruled the objection, stating as follows:
And in this case, [Guker] sees [defendant] doing 20 miles in a 50 mile-an-hour zone, nothing wrong with that. But then all the sudden, across the right lane to the left lane, across the double yellow, past his side to the other, as soon as [Guker] passes him in a marked unit that says Manchester Police around the car with the push bumper in the front, the lights on the top, and the vehicle, as [Guker] describe[d] it, all the sudden, this vehicle does a four-way across the street and pulls in to Maplewood.
With respect to the reference to [Guker] being a detective at this point in time and [defense counsel] inferring that a jury could infer from that [the prosecutor] was alluding to a theory that [Guker] should be more believable because he was promoted, I don't think that that was clearly inferred to the jury and I think the testimony clearly was from [Guker] that now he is a detective. . . . I don't think [the prosecutor] violated anything by referring to that and I don't think he, to the extent that it prejudiced the jury to know that.
As a general principle, it is improper for a prosecutor to convey his or her personal opinion to a jury. State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). When a prosecutor injects his own personal opinion as to the credibility of a witness, this may constitute prosecutorial error. See State v. Farrell, 61 N.J. 99, 105 (1972). Such bolstering can be considered particularly inappropriate when the witness is a law enforcement officer. State v. Hawk, 327 N.J. Super. 276, 285 (App. Div. 2000). The State may not assert that a law enforcement officer witness is inherently credible based solely upon his status. State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969); see also State v. Frost, 158 N.J. 76, 86 (1999).
While defendant correctly cites this long-established principle, it does not apply here. The prosecutor did not express any personal belief in Guker's testimony, nor did he suggest that the jury should believe Guker because he was a police officer or had been promoted to detective. The prosecutor's reference to Guker as a police officer and detective was to demonstrate that Guker's conduct in following defendant was based on his training and experience in pursuing a vehicle. This was in response to defense counsel's attempt during her summation to discredit Guker by saying he had no purpose in following defendant. Moreover, the prosecutor did not tell the jury to accept Guker's testimony because he was a police officer or detective, nor did he suggest that Guker had no motive to lie. Lastly, even if the comment was error, it was harmless. The jury viewed the videotape of the pursuit, which provided independent and overwhelming evidence of eluding.
B.
Defendant contends for the first time on appeal in Point I.B of assigned counsel's brief that the prosecutor improperly "sent a message" to the jury to convict defendant for failing to respect the rules of the road. Defendant points to the prosecutor's following summation comment:
Now, in the beginning of the case, I told you the theme of this case was [the] rules of the road and what happens when you don't follow them. Now, we all as people have certain types of rules, certain sort of curriculum, certain sort of tenets and beliefs that we follow and we abide by. Rules is such a word that is taken for granted that we throw it around in everyday life.
And in this case, for illustrative purposes that can help assist you in the jury room, I want to talk about what the word rules means as I told you at the beginning of this case. And it stand[s] for something. . . . Rules, again it's a word we throw around quite frequently, and in this case to help you determine the facts of the case and apply it to the law, it stands
for Respect and Understanding of the Law Equals Safety. Okay? That's what rules mean and in this context, I want you to use that when you collectively come together to talk about how the State has proven this defendant . . . guilty beyond a reasonable doubt.
Because defendant did not raise this issue before the trial judge, we review it for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result[.]" Macon, supra, 57 N.J. at 337. To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Id. at 336.
Prosecutors are prohibited from making "send a message to the community" or "call to arms" comments to the jury. State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003). There were no such comments made here. Rather, the prosecutor's comments were squarely aimed at the elements of eluding in N.J.S.A. 2C:29-2(b) and the statutory permissive inference that a violation of Title 39 creates a risk of death or injury to any person as an element of second-degree eluding. N.J.S.A. 2C:29-2(b) provides as follows, in pertinent part:
Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes.The prosecutor referred to the permissive inference in his summation when he said,
[the statute] allows an inference if you choose to accept it or decline it. So the inference is that if you believe the defendant committed certain motor vehicle infractions such as running a stop sign, reckless driving, failure to report an accident, things of [that] nature, you can use it to infer under our law, . . . that there is a potential for risk of harm, injury or death to anyone, including the police officer, the defendant himself or anybody else on the roadway.The prosecutor's reference to the "rules of the road" can be fairly characterized as a reference to the elements of the offense and the statutory permissive inference. Accordingly, the prosecutor's comments do not constitute any error, let alone plain error.
C.
Defendant contends in Point Two of his pro se supplemental brief that the prosecutor improperly commented during summation on defendant's "bad character" in violation of N.J.R.E. 404(b). Defendant points to the following comment:
Defendant cites to Fed. R. Evid. 404(b), but N.J.R.E. 404(b) is the applicable rule.
Now [defense counsel] indicates that [defendant] voluntarily pulled over. I submit to you ladies and gentlemen, you're not outrunning a police cruiser in his own backyard at this point. The game was over and [defendant] knew he was caught. That's why he pulled over, I submit to you respectfully, okay.
Defendant cites several other examples of "bad character" comments; however, none of the comments were "bad character" evidence under our evidence rules. The prosecutor's comments were in response to defense counsel's suggestion during summation that defendant voluntarily stopped, and he was simply implying that defendant ultimately stopped after being pursued because he knew he could not escape. Thus, there was no improper comment on "bad character" evidence.
D.
We reject defendant's contention in Point Two of his pro se supplemental brief that the prosecutor improperly commented on his election not to testify. After the State rested, the jury was excused to the jury room. The judge then discussed scheduling with counsel. During that discussion, the prosecutor commented as follows:
I would submit, Judge, if you, as you indicated, true to my word, it was a very short trial. I would note that both of our opening statements were approximately eight to eight and a half minutes long. At this point it's 2:10 [p.m.], we have the jury here and actually went a lot quicker, if indeed [defendant] exercises [] his right not to testify, that would [] probably leave us two to two and a half hours to get that done[.]Clearly, these comments are neither improper nor prejudicial. The jury was not in the courtroom at the time the comment was made, and the prosecutor was not remarking one way or another on defendant's right not to testify. Counsel and the judge were merely discussing scheduling issues and, in fact, the judge recessed to allow defense counsel to further discuss with defendant whether or not he would testify. Defendant's characterization of this innocuous statement by the prosecutor is, thus, incorrect. We conclude there was no prosecutorial misconduct whatsoever in this case warranting reversal of defendant's conviction.
III.
Defendant contends in Point One of his pro se supplemental brief that the State failed to prove eluding beyond a reasonable doubt. We disagree.
To convict a person of eluding, the State must prove the following six elements beyond a reasonable doubt:
1. That [defendant] was operating a motor vehicle on a street or highway in . . . this state.If the State proves these six elements, to convict a person of second-degree eluding, the State must then prove "[t]hat the flight or attempt to elude created a risk of death or injury to any person." Ibid. Defendant argues there was no evidence proving elements three through six, and no evidence that he created a risk of death or injury.
2. That [the officer] was a police or law enforcement officer.
3. That [the officer] signaled [defendant] to bring the vehicle . . . to a full stop.
4. That [defendant] knew that the officer had signaled him/her to bring the vehicle . . . to a full stop.
5. That [defendant] knew that [the officer] was a police or law enforcement officer.
6. That defendant knowingly fled or attempted to elude the officer.
[Model Jury Charge (Criminal), Eluding An Officer [Second and Third Degree] (N.J.S.A. 2C:29-2(b)) (2004).]
Defendant essentially argues that the jury verdict was against the weight of the evidence. However, he did not file a motion for a new trial on this basis. "[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. While we need not entertain a weight of the evidence argument in the absence of a new trial motion, we may nevertheless choose to do so in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). We chose to address defendant's contention and conclude it is without merit.
The mere failure to stop does not constitute flight. State v. Mendez, 345 N.J. Super. 498, 509 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). Rather, the State must prove that the defendant knew he was being pursued by police officers, but still did not stop. Id. at 507-08. As the Model Jury Charge (Criminal), supra, states,
A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing"
or "with knowledge" or equivalent terms have the same meaning.The State is not required to prove that the defendant's "conscious object" in fleeing from the police was to avoid apprehension. Instead, the State is only required to prove the defendant was "aware" that he was fleeing from the police. Mendez, supra, 345 N.J. Super. at 509.
Knowledge is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all that he/she said and did at the particular time and place, and from all of the surrounding circumstances.
[(Emphasis added).]
The judge gave this charge to the jury.
In addition, the "risk of death of injury" may be permissively inferred if the defendant violated a motor vehicle or traffic regulation. See N.J.S.A. 2C:29-2(b). Whether guilty of a motor vehicle violation or not, a jury "may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this State[.]" Model Jury Charge (Criminal), supra. The jury is permitted to consider evidence that the defendant committed a motor vehicle offense in deciding whether he or she created a risk of death or injury. Ibid. However, the court must explain the elements of the motor vehicle offenses that form the basis for the inference so that the jury can make an accurate determination whether the defendant's conduct created the danger of death or injury. State v. Dorko, 298 N.J. Super. 54, 59-60 (App. Div.), certif. denied, 150 N.J. 28 (1997).
Based on the marked patrol car, the spotlight that Guker shined into defendant's vehicle, and the overhead lights and siren, the jury could have reasonably inferred that defendant was aware a police officer had signaled him to stop and aware he was fleeing from the police.
The jury could also have reasonably inferred that defendant's flight created a risk of death or injury to any person. Defendant violated numerous motors vehicle laws during the pursuit. He left the scene of an accident, drove recklessly, failed to signal, failed to maintain a lane, and failed to stop at a stop sign, all of which was captured on the video recording and corroborated by Guker's testimony. The judge instructed the jury on the elements of these motor vehicle offenses. At that point, Dorko was satisfied and the permissive inference was appropriate. We conclude that the evidence was more than sufficient to support defendant's eluding conviction.
IV.
Defendant contends for the first time on appeal in Point Three of his pro se supplemental brief that during summation, the prosecutor improperly relied on evidence not in the record. Defendant points to the following exchange between the prosecutor and Guker:
[PROSECUTOR]: Now, for our benefit, could you please describe what mechanism you used or your office uses to help notify other law enforcement officers for assistance purposes, is it a dispatch, a cell phone?
[GUKER]: Dispatch, radio, we dispatch our, we have dispatchers, our own dispatchers and all the information gets transferred into a CAD system.
Defendant's contention is without merit. The prosecutor was not referring to evidence not in the record, and was not asking Guker about the substance of the dispatch documentation. The prosecutor simply asked the above question and that was it. The questioning did not constitute plain error.
V.
Defendant contends in Points Four and Six of his pro se supplemental brief that the prosecutor committed a Brady violation by withholding a dispatch report of communications between police headquarters and patrolling officers. We disagree.
Brady v. Maryland, 373 U.S. 78, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
"A prosecutor's obligation to 'turn over material, exculpatory evidence to the defendant' is well established and does not require extended discussion." State v. Nash, 212 N.J. 518, 544 (2013) (quoting State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). "The obligation extends as well to impeachment evidence within the prosecution's possession." Ibid. (citing Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 301 (1999)). "A breach of this duty of disclosure -- in appropriate circumstances -- violates a defendant's due process rights." Ibid. (citing Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218). "However, the due-process guarantee does not impose on a prosecutor a constitutional duty to investigate." Ibid.
There are three elements to a Brady violation: "[t]he evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). As to the first element, the United States Supreme Court has noted the Brady rule encompasses both impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). As to the second element, the disclosure rule "applies only to information of which the prosecution is actually or constructively aware." Nelson, supra, 155 N.J. at 498. As to the third element, the evidence is deemed material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494; see also State v. Landano, 271 N.J. Super. 1, 36 (App. Div.), certif. denied, 137 N.J. 164 (1994).
Defendant has not established any of the elements required to prove a Brady violation. He does not show that this evidence was favorable to him, suppressed by the prosecution, or material to his case. He merely asserts that the prosecutor failed to provide the dispatch report. This is insufficient to prove a Brady violation.
Defendant included the dispatch report in his appendix on appeal, but does not explain how he came into possession of this document. --------
VI.
Defendant contends in Point Five of his supplemental brief that the prosecutor permitted Guker to give perjured testimony that Officer Barker was the first person to notice the damage on the Camry rather than defendant's girlfriend, who had arrived at the scene. Even if this contention was true, it is wholly irrelevant to defendant's eluding conviction. The damage on the Camry only served as evidence of defendant's failure to report an accident, a motor vehicle violation for which he was not convicted.
VII.
Defendant challenges his sentence in Point II of assigned counsel's brief. He argues that the judge erred in imposing a discretionary three-year period of parole ineligibility, and the sentence is excessive.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014) As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons the judge expressed at sentencing. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors and his imposition of a three-year period of parole ineligibility. The sentence is clearly reasonable and does not shock our judicial conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION