NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2914-23
STATE OF NEW JERSEY, Plaintiff-Respondent,
v. MICHAEL M. GUIRGUIS,
Defendant-Appellant.
________________________
Submitted December 3, 2025 – Decided August 18, 2026 Before Judges Currier, Smith and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 22-08-0495.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief).
Robert J. Carroll, Morris County Prosecutor, attorney for respondent (Tiffany M. Russo, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After his conviction by a jury on robbery and weapons charges, defendant Michael M. Guirguis appeals. Defendant argues the trial court erred by: granting the State's N.J.R.E. 404(b) motion; denying his motion for acquittal; and granting the State's motion to admit evidence of defendant's prior convictions. Defendant further appeals his sentence, arguing the court improperly imposed an extended-term sentence and misapplied aggravating and mitigating factors.
We affirm.
I.
On May 28, 2022, Michael M. Guirguis entered a Best Buy store in East Hanover, New Jersey, dressed in a gray sweater, black pants, and a face covering. Devonne Montouth, a part-time asset protection specialist, observed Guirguis enter the store and alerted Charlie Young, the shift leader. Guirguis proceeded to the Apple products table and removed iPhones and iPads from their security wires, triggering alarms. Young called 9-1-1 and watched Guirguis, who, while carrying the electronic devices, pointed an object at him which Young identified as a knife. Young backed away and warned others.
As Guirguis exited, Montouth followed him to obtain a vehicle description. He stopped when Guirguis turned, brandished the knife, and stated,
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"I have a blade." Montouth raised his hands and ceased pursuit. Another employee, Khwhaa Sidiqi, recorded a video of Guirguis leaving the premises.
Police responded to a report of a robbery at knife point. Officer Robert Jordan saw Guirguis running with iPads and a knife. On verbal command from the officer, Guirguis dropped the knife. He was apprehended by Officer Mariusz Zamojski, who also recovered wire cutters from Guirguis. While under arrest, Guirguis claimed he was coerced into robbing the store by a gang member named "Larry." Defendant asserted "Larry" threatened to kill defendant's mother and father. DNA from the scene matched Guirguis.
A similar robbery occurred eight days earlier at a Best Buy store in Easton, Pennsylvania. The robbery involved theft of Apple products, use of a red- handled tool, and brandishing of a knife. DNA from the tool matched Guirguis's DNA, and the getaway vehicle was a silver Volvo registered to his father.
On August 10, 2022, a grand jury indicted Guirguis and co-defendant Ikeem Aultman on charges including first-degree robbery, second-degree conspiracy to commit robbery, third-degree shoplifting, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. Guirguis was also charged with disorderly persons offenses.
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Guirguis served notice of a potential duress defense. In response, the State moved to admit other crime evidence under N.J.R.E. 404(b) concerning the Easton, PA robbery, and to admit Guirguis’s prior convictions for impeachment under N.J.R.E. 609. The trial court granted both motions.
Prior to trial the State dismissed the conspiracy charges. The jury trial took place over two days, March 21 and 22, 2024. After the State rested, Guirguis moved for acquittal, and the trial court denied the motion. The trial court found that, viewing the evidence in the light most favorable to the State, all elements of robbery had been met. Furthermore, the trial court found "based on the testimony of both the law enforcement officers, as well as the individuals, there is ample evidence to possess, to support a conviction" as it related to the possession of a weapon for an unlawful purpose charge. The jury found Guirguis guilty on all counts.
At sentencing, the court found Guirguis eligible for an extended term as a persistent offender, dismissed count one, merged all other counts, and then sentenced him to twenty-eight years on the robbery conviction, subject to the No Early Release Act.1 On appeal, Guirguis argues:
1 N.J.S.A. 2C:44-3(a).
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Point 1 . . . The trial court erred in denying defendant’s motion for acquittal.
Point 2 . . . The trial court erred in granting the State’s motion to permit Rule 404(b) evidence to impeach any testimony by defendant at trial.
Point 3 . . . The trial court erred in granting the State’s motion to admit defendant’s prior convictions.
Point 4 . . . Defendant’s sentence is improper and excessive.
II.
We consider the various standards of review at issue in this appeal.
We review a trial court's grant or denial of an acquittal motion under Rule 3:18-1 de novo. State v. Cruz-Pena, 243 N.J. 342, 348 (2020).
We defer to a trial court's evidentiary rulings, absent an abuse of discretion. State v. Burney, 255 N.J. 1, 20 (2023). We ask if "a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" State v. Taylor, 261 N.J. 440, 449 (2025) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We "will not substitute [our] judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes 'clear error in judgment.'" State v. Garcia, 245 N.J. 412, 430 (2021) (quoting State v. Medina, 242 N.J. 397, 412 (2020)). "A trial court's 'discretion is abused when relevant evidence offered . . . and A-2914-23
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necessary for a fair trial is kept from the jury.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530, 544-55 (2016)).
We "give great deference to the decision of the trial court in [their] review of its determination on the admissibility of evidence of other crimes under N.J.R.E. 404(b)." State v. Owens, 483 N.J. Super. 205, 222 (App. Div. 2024). Thus, the trial court's findings under Rule 404(b) are not disturbed unless there is a clear error of judgment. Ibid.
To review a court's decision to admit or exclude evidence of defendant's conviction of other crimes for purposes of impeachment pursuant to Rule 609, we use an abuse of discretion standard. State v. Higgs, 253 N.J. 333, 367 (2023) (citing State v. Hedgespeth, 249 N.J. 234, 250 (2021)).
Finally, when we review a court's imposition of a sentence, we apply an abuse of discretion standard. State v. Torres, 246 N.J. 246, 272 (2021). A trial court's sentencing must be affirmed on appeal unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found were not 'based upon competent 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.'" State v. Rivera, 249 N.J. 285, 297-98 (2021) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
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III.
A.
Defendant initially contends the court erred when it denied his acquittal motion pursuant to Rule 3:18-1 and State v. Reyes, 50 N.J. 454 (1967) on the first-degree robbery charge. Defendant advances two main arguments. First, he contends the State did not prove beyond a reasonable doubt that the pocket knife was capable of producing death or serious bodily injury or that a victim would reasonably believe it was capable of doing so. Second, he posits that the State did not prove the threat element of the offense because Young did not claim to feel threatened until trial, and Montouth did not claim to feel threatened at any point. We are unconvinced.
We consider the relevant standards.
The trial court must grant the motion if, giving the State the benefit of all inferences, "the evidence is insufficient to warrant a conviction." R. 3:18-1. However, the trial court must deny the motion for acquittal if, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, 50 N.J. at 459. The trial court must deny the motion for acquittal if, after considering only the evidence on the State's case, it finds there were "plainly
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permitted reasonable inferences by a jury that defendant committed the crimes charged beyond a reasonable doubt." State v. Lemken, 136 N.J. Super. 310, 315 (App. Div. 1974).
Under N.J.S.A. 2C:15-1(a)(2), "a person is guilty of robbery if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury." In grading the offense, it is a crime of the first degree if, "in the course of committing the theft, the actor attempts to kill anyone or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).
The Criminal Code defines "serious bodily injury," as "injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). The Criminal Code next defines a "deadly weapon" as "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1(c).
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When the weapon at issue is not a firearm, "a defendant cannot be considered to have been 'armed with a deadly weapon' unless he [or she] had immediate access to the potential weapon and an intent to use it in a way that [wa]s 'capable of producing death or serious bodily injury.'" State v. Rolon, 199 N.J. 575, 585 (2009) (emphasis omitted) (quoting N.J.S.A. 2C:11-1(c)). Whether a defendant "intended" to use the knife in a way capable of producing death or seriously bodily injury, and whether the victim believed defendant did, is subjective and requires a review of the totality of the circumstances. State v. Dekowski, 218 N.J. 596, 606 (2014).
The mere possession of a weapon does not equal an intention to use it to inflict death or serious injury. See State v. Riley, 306 N.J. Super. 141, 149 (App. Div. 1997). There must be some "contextual basis" in the evidence "for concluding that [an implement] constitutes a weapon, not merely a potential weapon whose potentiality remains unrealized." Id. at 148. Because possession of a pocketknife is not typically considered unlawful, "where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to crim inal liability is entirely dependent on the circumstances attending the possession." Ibid. (quoting State v. Blaine, 221 N.J. Super. 66, 70 (App. Div. 1987)). The
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totality of the circumstances–including the defendant's words, conduct, and the victims' perceptions–must be considered. Dekowski, 218 N.J. at 606; State v. Williams, 218 N.J. 578, 593 (2014).
Defendant's intertwined arguments on this point require us to consider:
the knife's status as a deadly weapon; the victims' reasonable belief as to whether the knife could cause death or serious injury; and whether either of the two victims, Young and Montouth, felt threatened by defendant's brandishing of the knife. Because we need "context" to resolve these intertwined questions, Riley, 306 N.J. Super. at 148, we consider the totality of the circumstances. Dekowski, 218 N.J. at 606.
Young testified that while he was in the store, he witnessed defendant walking toward the exit, with the merchandise under defendant's left arm, and defendant's right arm pointed at him. Young also testified that he saw a knife in defendant's right hand, and that he felt threatened, backed away, and told other employees and customers in the store to get back. While Young did not report feeling threatened in the police report, his testimony at trial was sufficient for a factfinder to reasonably conclude he felt threatened at the time of the incident.
Defendant contends that his brandishing of the knife with Montouth occurred in the parking lot, away from the store, and therefore it did not occur
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during the course of the theft or in immediate flight from it. We find this contention without merit. Before the police arrived, the record shows the interactions between defendant and Montouth took place in the "immediate flight after the attempt or commission," putting the defendant's actions in waving the knife at Montouth squarely within "the course of committing a theft." N.J.S.A. 2C:15-1. Defendant left the store with the merchandise still in his possession. He was headed to the parking lot at the time he brandished the knife at Montouth. Despite Montouth not expressly stating that he felt threatened, a factfinder could reasonably infer that after viewing the surveillance footage depicting defendant wielding the knife and Montouth's reaction.
Defendant relies on Riley, 306 N.J. Super. at 148, to support three arguments: (1) that defendant's pocketknife was not a deadly weapon; (2) that there was no intent to use it during the course of the robbery; and (3) that the victims were not aware of the knife. We conclude these arguments are without merit. Two witnesses from Best Buy not only testified they saw the pocketknife , but described in detail defendant's use of the knife to threaten the witnesses to keep them at bay. Both Officers Jordan and Zamojski testified that, once they arrived on the scene, they saw defendant holding a knife as he was running away from Best Buy.
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We conclude that the trial court's denial of defendant's Reyes motion for acquittal is consistent with our well-settled jurisprudence and was not an abuse of discretion.
B.
Defendant next argues that the trial court's order admitting evidence of the prior Pennsylvania robbery under Rule 404(b) was unduly prejudicial and effectively prevented him from testifying in his own defense. We are not persuaded.
Rule 404(b)(1) provides that, except in circumstances inapplicable here, "evidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition." However, Rule 404(b)(2) states that other crime evidence may be used for other reasons, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute."
Using other-crime evidence against a defendant has the potential to persuade a jury that the defendant "is a bad person in general." State v. Rose, 206 N.J. 141, 159-60 (citing State v. Cofield, 127 N.J. 328, 336 (1992)). It
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follows that whether to allow other-crime evidence requires a determination that the evidence has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action" before it is admissible. Id. at 160 (citing N.J.R.E. 401). "[I]f the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied." State v. Williams, 190 N.J. 114, 123 (2007).
Evidence proffered for such purposes requires us to determine its admissibility using the four-prong test set forth in Cofield:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. at 338 (quotation omitted).]
Once the trial court has conducted a Cofield analysis and determined the other-crimes evidence is admissible, our well-settled jurisprudence requires another step: "the court must provide a limiting instruction that 'inform[s] the
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jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct.'" State v. Garrison, 228 N.J. 182, 200 (2017) (alteration in original) (quoting State v. Barden, 195 N.J. 375, 390 (2008)).
Evidence submitted under Rule 404(b) cannot be used to "suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." State v. Covell, 157 N.J. 554, 563 (1999) (quoting State v. Weeks, 107 N.J. 396, 406 (1987)). Such evidence may be utilized for other means where such evidence has been found "probative of intent and motive." Id. at 565. Evidence probative of intent or motive would support an inference addressing a material fact in dispute. Rule 404(b)(2).
In reviewing the first prong of Cofield, the trial court noted defendant's statements at the scene, where he reported someone was threatening to kill him and his family, created a question of motive. The court found that evidence of defendant committing "a nearly identical robbery" just eight days earlier was highly probative because that evidence could rebut defendant's duress defense.
Considering the second prong, the trial court found the Pennsylvania robbery was "nearly identical" to the charges defendant faced in New Jersey, both occurring at the same time of day, stealing the same products, using the
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same tools to disconnect the iPads from the store displays, brandishing a knife when employees confronted him, and fleeing in the same silver Volvo.
Analyzing prong three, the trial court was "clearly convinced and persuaded that the defendant committed the Easton robberies," supported by the "uncontroverted testimony of Captain Powell." The trial court highlighted the photograph of the silver Volvo, which was registered to defendant's father, as well as the fingerprint from the cutting tool, identified as belonging to defendant, as evidence supporting its decision. Finally, reviewing the fourth prong of Cofield, the trial court found "the probative value of the Easton robbery substantially outweighs any prejudice to the defendant." The court granted the State's motion, finding "the evidence of defendant's involvement in the Easton robbery admissible under [Rule] 404(b)."
We are satisfied the court did not abuse its discretion in conducting a Cofield analysis and admitting the testimony of the prior offense.
C.
Defendant contends the court erred by permitting the State to use his prior convictions to impeach his credibility in the event he testified. Specifically, defendant argues the court erred in permitting use of a prior conviction from 2013, involving second-degree endangering the welfare of a child and fourth-
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degree assault by auto. He argues the convictions were too old, were insignificant, and their probative value was outweighed by their prejudicial effect. We disagree.
We note that a defendant's decision to testify is a "strategic or tactical decision to be made by a defendant with the advi[c]e of . . . counsel." State v. Cordero, 438 N.J. Super. 472, 488 (App. Div. 2014) (alteration in original) (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1998)).
While a defendant inevitably experiences prejudice from prior convictions evidence, such convictions are ordinarily admissible for purposes of impeaching the defendant's testimony, subject to the court's discretion. State v. T.J.M., 220 N.J. 220, 233 (2015).
Rule 609(a)(1) states "[f]or the purpose of attacking the credibility of any witness, the witness's conviction of a crime, subject to Rule 403, shall be admitted unless excluded by the court pursuant to paragraph (b) of this rule." Paragraph (b) addresses the use of prior conviction evidence after ten years:
(1) If, on the date the trial begins, more than ten years have passed since the witness’s conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.
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(2) In determining whether the evidence of a conviction is admissible under subparagraph (b)(1) of this rule, the court may consider:
(i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud,
(iii) how remote the conviction is in time, (iv) the seriousness of the crime.
[Rule 609(b).]
Once a conviction passes muster under Rule 609(a)(1) and (b), a balancing test must be conducted to determine whether the probative value outweighs the prejudicial effect. Rule 403(a). A trial court's discretion is not unfettered, and it "shall admit evidence of criminal convictions to affect credibility of a criminal defendant" unless the court "finds that [the evidence's] probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." State v. Sands, 76 N.J. 127, 147 (1978).
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We note that when the witness is a criminal defendant, there are limitations to admission of such evidence of prior convictions, and those limitations are defined under Rule 609(a)(2)(b):
[I]n a criminal proceeding when the defendant is the witness, and
(i) the prior conviction is the same or similar to one of the offenses charged, or
(ii) the court determines that admitting the nature of the offense poses a risk of undue prejudice to a defendant,
the prosecution may only introduce evidence of the defendant's prior convictions limited to the degree of the crimes, the dates of the convictions, and the sentences imposed, excluding any evidence of the specific crimes of which defendant was convicted, unless the defendant waives any objection to the nonsanitized form of the evidence.
In considering whether a prior conviction occurred within the ten-year mark, the rule makes clear a conviction cannot be counted if "more than ten years have passed since the witness's conviction for a crime or release from confinement for it, whichever is later." Rule 609(b)(1). This rule allows for a conviction over ten years old to meet the requirements if the confinement ends at a later date. Ibid. Even if the prior conviction is over ten years old, "then evidence of the conviction is admissible only if the court determines that its
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probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof." Ibid.
To mitigate potential prejudice, the trial court must "explain carefully to the jury the limited purpose of prior-conviction evidence." State v. Hamilton, 193 N.J. 255, 266 (2008).
Despite having several convictions, defendant only argues error with respect to a 2013 prior conviction and a 2024 violation of probation. We consider the record.
The trial court evaluated defendant's April 19, 2013 conviction and noted that it involved a six-year sentence, with 110 days jail credit. The court found the conviction was not barred by Rule 609(b)(1). The court, considering the sentences imposed and the circumstances of the 2013 conviction, found th e conviction did not fall outside of the ten-year conviction window. Furthermore, noting defendant's conviction on January 19, 2018, the court found "evidence certainly dictating that there was not even a ten-year break in criminal activity" between the 2013 conviction and the subsequent conviction such that the conviction could be utilized after being sanitized.
The trial court sanitized the evidence for the 2013 conviction and also sanitized evidence for a January 19, 2018 conviction. The court expressly
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limited defendant's prior conviction evidence to the degree, date, and sentence of the crimes and required the State to redact any evidence related to defendant's convictions. As to the 2024 violation of probation, the trial court stated, "[s]o it's clear violations of probation do not fall under [Rule] 609 in that regard. . . . [A] repeat sentence on a violation of probation is . . . not a conviction. The State would be prohibited from making any reference to a 'violation of probation.'" The court did not include the 2024 violation of probation in the sanitized evidence presented to the jury.
We conclude that the trial court properly permitted sanitized use of defendant's convictions.
D.
Finally, defendant contends the court erred by: improperly finding that he was extended term eligible; misapplying the law in performing the aggravating and mitigating factor analysis; and by imposing an excessive sentence.
N.J.S.A. 2C:44-3 authorizes a court to increase defendant's term of imprisonment upon application by the prosecuting attorney if it finds that the defendant meets the definition of a persistent offender. It states in pertinent part,
[a] persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who
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has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in the time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
The trial court found "all parties concede that . . . defendant satisfies the elements of prior convictions as it relates to a persistent offender." The court reviewed defendant's lengthy criminal history, including twenty-four separate criminal adjudications since 2002. The court found "[a]ll elements of an extended term have been satisfied in considering the totality of the circumstances, and the lengthy criminal history that this [c]ourt detailed for this sentence . . . ." We discern no error.
Defendant next argues the sentencing court erred by using his criminal history both for purposes of establishing eligibility for an extended term and to support aggravating factor findings. Defendant also argues the court erred in not finding any mitigating factors.
At sentencing, the trial court weighed aggravating and mitigating factors.
In reviewing aggravating factors, the trial court reviewed aggravating factors
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three, six, eight, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (8), and (9). The court found aggravating factor eight, N.J.S.A. 2C:44-1(a)(8), not applicable.
Concerning aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the trial court found defendant was likely to commit another offense based on his criminal history, indicating defendant had "more than ten prior felony convictions commit[ing] offense[s] not only in the State of New Jersey[,] but in Pennsylvania and New York." In commenting on the overlap between the criminal history used to impose the extended term and the factual support for aggravating factor three, the trial court found "there are a plethora of prior felony convictions to warrant both finding [a]ggravating [f]actor [t]hree and persistent offender [status] under the circumstances."
The trial court gave aggravating factor six great weight, N.J.S.A. 2C:44-
1(a)(6), again referencing defendant's criminal history and finding "[defendant's] criminal history is consistent, repetitive, and only interrupted by periods of incarceration." The trial court gave aggravating factor nine great weight, finding "there is a particular need to deter the defendant from committing further offenses. He has a nonstop history of committing shoplifting and theft-related offenses." The court highlighted defendant's escalation from shoplifting to robbery, noting that "even . . . mandatory sentences under
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shoplifting[,] . . . did not deter this defendant." The trial court therefore applied aggravating factors three, six, and nine.
The trial court considered mitigating factors one, two, four, eight, nine, and eleven, but ultimately determined that none applied. N.J.S.A. 2C:44- 1(b)(1), (2), (4), (8), (9), and (11). It reasoned that mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1) to (2), clearly were not applicable, because defendant had threatened two individuals with a deadly weapon, and it questioned why defendant would have had the knife "[i]f the defendant did not contemplate caus[ing] or threaten[ing] serious harm." While defendant argued mitigating factor four, N.J.S.A. 2C:44-1(b)(4), should apply because of his anxiety and depression, the trial court found there was no connection established between defendant's mental health and the commission of the crimes. As to mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), the court explained "[t]here is absolutely no evidence before this [c]ourt that there were circumstances unlikely to reoccur" because of defendant's criminal history, though the court did consider character statements submitted in support of defendant. In reviewing mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), the trial court agreed that "defendant may have a positive character or may have people that support defendant's character" but ultimately found defendant failed to meet the second
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part of the factor, where "the character and attitude indicate that the defendant is unlikely to commit another offense." Finally, in considering mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), the trial court expressed understanding that defendant's parents were elderly and recognized defendant's medical conditions but concluded there was no undue hardship because defendant's medical records indicated "there is a plethora of occasions that defendant had refused medical treatment."
We discern no abuse of discretion in the court's aggravating and mitigating factor analysis, which is supported by substantial evidence in the record.
However, during the pendency of this appeal, the Supreme Court issued its decision in State v. Carlton, 262 N.J. 629 (2026). There the Court noted the United States Supreme Court recent decision in Erlinger v. United States, 602 U.S. 821 (2024), which required a jury to determine whether past offenses were committed on separate occasions to impose a persistent offender sentence. 262 N.J. at 639-40. The failure to do so was subject to a harmless error review analysis. Id. at 642.
The Court further held that before a constitutional error can be considered harmless, the reviewing court must be convinced beyond a reasonable doubt that the error did not affect the outcome. Ibid. Stated another way, the record must
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provide meaningful appellate review and demonstrate that only one outcome would have been possible at trial. Id. at 645.
The Court thus held that the harmless constitutional error doctrine applies to Erlinger violations provided that "the relevant facts are undisputed, the sentencing court's reasoning fully articulated, and the record demonstrates, beyond any reasonable doubt, the sole conclusion a jury could have reached had Erlinger been in place at the time of sentencing." Id. at 644. Applying that test, the Court found the constitutional error in that case was harmless beyond a reasonable doubt. Id. at 645.
Here, as in Carlton, we are satisfied that the constitutional error in this case is harmless beyond a reasonable doubt. The underlying facts necessary to establish eligibility for a persistent offender extended term under N.J.S.A. 2C:44-3(a) are uncontested, and the sentencing court made all required findings to establish eligibility for an extended term. Accordingly, we conclude the constitutional error committed in this case was harmless.
Affirmed.
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