NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1114-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT RICHARDS,
Defendant-Appellant. ____________________________
Argued November 13, 2024 – Decided December 4, 2024
Before Judges Gooden Brown and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 19-08-1327.
Margaret R. McLane, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Margaret R. McLane, of counsel and on the briefs).
Bethany L. Deal, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Bethany L. Deal, of counsel and on the brief).
PER CURIAM Following denial of his motion to suppress, defendant Vincent Richards
("Defendant") pled guilty to second-degree possession of a controlled dangerous
substance ("CDS") with intent to distribute, N.J.S.A. 2C:35-5a(1)/2C:35- 5b(2)
and was sentenced below his negotiated plea to a seven-year custodial sentence
with no parole ineligibility. He appeals from the denial of his suppression
application and sentence and raises the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THERE WAS NO REASONABLE SUSPICION FOR THE STOP, AND POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH DEFENDANT'S CAR. ALTERNATIVELY, THE CAR SEARCH WAS ILLEGAL BECAUSE ANY PROBABLE CAUSE DID NOT ARISE FROM UNFORESEEABLE AND SPONTANEOUS CIRCUMSTANCES.
A. There Was No Reasonable Suspicion to Stop Defendant.
B. The Police Did Not Have Probable Cause to Search Defendant's Car.
C. Alternatively, Any Probable Cause Did Not Arise From Unforeseeable and Spontaneous Circumstances.
POINT II: DEFENDANT'S SENTENCE IS EXCESSIVE AND SHOULD BE REMANDED FOR RESENTENCING.
A-1114-23 2 We reject defendant's arguments regarding the motion to suppress and
affirm his conviction and sentence.
I.
The events leading to defendant's indictment were described in detail at a
suppression hearing at which Toms River Police Department Patrolman Louis
Taranto ("Taranto") and Detective Duncan MacRae ("MacRae"), and defendant
testified.
On April 24, 2019, at approximately 6:30 p.m., Taranto, a member of the
Toms River Police Department's Special Enforcement Team ("SET"), was
conducting plain clothes surveillance in the parking lot of the ShopRite located
at 2 Route 37 West. Taranto was conducting surveillance at that location based
on his personal experience as a SET member, he knew that this was an area
where a high number of narcotics-related transactions occurred. Taranto
testified he had engaged in over one hundred surveillance details at the ShopRite
parking lot and has participated in dozens of CDS-related arrests there.
During this surveillance, Taranto observed a "newer model Jeep Grand
Cherokee parked with a sedan directly to the south of it." Taranto testified he
"noticed that there was a black male [later identified as defendant] outside of
the sedan speaking to what appeared to be a white female inside." Taranto also
A-1114-23 3 observed "another vehicle parked to the north of [defendant's] vehicle, a Dodge
Ram . . . [A]fter . . . a few moments of conversation, I observed the defendant
depart his location, walk over and begin talking to the driver of the Dodge Ram."
He further testified his suspicions were triggered due to his training and
experience that distributors of narcotics will sometimes meet with multiple users
in a parking lot to distribute. Taranto also observed that defendant "briefly
leaned inside the open passenger side window of the Dodge Ram."
Taranto testified that after this interaction, the Dodge Ram left its parking
space and relocated to a remote southern area of the same parking lot that was
devoid of any other vehicles. Taranto then observed defendant enter his Jeep,
park closer to the ShopRite entrance and enter the store with a female. Taranto
stated he maintained surveillance on the Dodge Ram, then decided to drive past
it to see if he could observe what the driver was doing. On the first pass -by,
Taranto observed the driver "looking down at his lap," to which he testified
"through my training and experience, I know that users of narcotics will often
examine the narcotics that they just purchased which is what I believed him to
be doing at the time." On the second pass-by, Taranto observed the driver
"leaned down and then up quickly in a motion that I believed to be indicative of
him snorting something."
A-1114-23 4 At that point, Taranto believed a narcotics-related transaction occurred
between defendant and the driver of the Dodge Ram.
Taranto then advised the other SET members of his observations and
followed the Dodge Ram as it exited the parking lot towards Garden State
Parkway northbound. Taranto stated that soon after, the driver of the Dodge
Ram, Stephen Lacicero ("Lacicero"), was stopped on the parkway by other SET
members along with a marked police car. Taranto testified that he cut through
a turnaround on the Parkway in order to circle back to where Lacicero was
stopped. Taranto testified the Patrolman told him that Lacicero admitted that he
purchased five wax folds of heroin from defendant in the ShopRite parking lot
and snorted them while parked in the remote area of the lot.
While Taranto pursued Lacicero, another member of the SET, Detective
MacRae, who was conducting general surveillance at a nearby Kohl's parking
lot, responded and went to the ShopRite parking lot and waited for defendant to
exit the store. MacRae testified that as defendant approached his Jeep, MacRae
stopped him and explained to him they were conducting a narcotics-related
investigation, then advised defendant of his Miranda1 rights. MacRae then
informed defendant that his "partner saw you meeting with someone in the
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1114-23 5 parking lot" and "[they] believe that it was a narcotics-related transaction."
MacRae testified he asked defendant if there was anything illegal in his car, to
which he responded that there was a small amount of cocaine in the back.
MacRae stated he then searched defendant's Jeep and located a black backpack
containing cocaine, heroin, oxycodone and digital scales. Defendant was then
placed under arrest. MacRae was not aware of Lacicero's confession.
As a result of that search, an Ocean County Grand Jury returned an
indictment charging defendant with third-degree Possession of a CDS, N.J.S.A.
2C:35-10a(1) (counts one, three, four, five, and six); second-degree Possession
with Intent to Distribute a CDS, N.J.S.A. 2C:35-5a(1)/2C:35-5b(2) (count two);
and third-degree Possession with Intent to Distribute a CDS, N.J.S.A. 2C:35-
5a(1)/2C:35-5b(3) (count seven).
As noted, defendant filed a motion to suppress the evidence seized from
the search of the Jeep. On October 29, 2021, the trial court held a hearing on
defendant's motion to suppress. In a written opinion, the trial court denied
defendant's motion to suppress and subsequently issued a conforming order.
First, the court found the testimony provided by Taranto to be credible
because of its observations of him during his testimony. Moreover, the court
found "[i]t was noteworthy that when the Court inquired of Taranto whether he
A-1114-23 6 relayed the admissions attributed to Lacicero to SET—information which,
undoubtedly, would have increased the officers' suspicions—Taranto admitted
that he did not relay this information." Additionally, the court found MacRae's
testimony credible.
As to defendant, the court did not reach the same conclusion regarding his
credibility. Instead, the court found defendant' testimony deviated sharply from
that of the officers' testimony. Specifically, MacRae had characterized the
interaction with defendant as unremarkable and polite, but defendant's
recollection of the interaction "can be fairly characterized as hostile." The court
noted defendant's claim that MacRae never Mirandized him and placed him in
handcuffs almost immediately after he was stopped, and also claimed he never
informed officers that his vehicle contained narcotics. On the other hand,
MacRae testified that defendant said there was a small amount of cocaine in the
back, and defendant did admit on direct examination—consistent with MacRae's
recollection—that whatever was found in the car belonged to him. The court
found it "anomalous that Defendant would claim ownership of CDS while
apparently denying that he informed MacRae of its location before the search of
his vehicle." Moreover, the court found it "[m]ost striking[], Defendant asserts
MacRae told him, '[W]e have your buddy Steve Lacicero on the highway . . . we
A-1114-23 7 caught him with five bags of heroin and he said he bought them from you.'"
Contrary to that statement, the court noted that Taranto and MacRae both stated
that Taranto did not relay Lacicero's admissions about the purchase of the CDS
to MacRae before defendant's arrest.
Additionally, the court found defendant's explanation of the "transactions"
in the parking lot compromised his credibility. With respect to the unidentified
woman in the sedan, defendant testified she was a friend, but that he did not
know her name. Further, the court noted that defendant stated the reason that
he approached her in the parking lot was to show off his new vehicle but that
"his friend" never left her own vehicle to check out the new Jeep defendant "was
eager to show off." The court also referenced that defendant made a similar
claim with respect to Lacicero, who defendant claimed was a "car guy" he
wanted to show the new Jeep off to, yet Lacicero also never exited his own
vehicle to check out the Jeep. The court in finding defendant's testimony to not
be credible stated these encounters were "not merely counterintuitive, but also
implausible under the circumstances."
After determining credibility, the court found MacRae had articulable
reasonable suspicion of criminal activity to conduct an investigatory stop of
defendant based on Taranto's observations of defendant's conduct in the parking
A-1114-23 8 lot, and the fact that the surveillance was conducted in an area known to law
enforcement for its high volume of narcotics transactions. Second, the court
found probable cause developed during the investigatory stop by MacRae, when
defendant voluntarily admitted to having drugs in the car. Last, the court found
that probable cause was unforeseeable and spontaneous because at the onset
Taranto had not been surveilling the ShopRite parking lot looking for defendant,
and that once MacRae approached defendant it was only for investigatory
reasons. Further, it was not until defendant voluntarily admitted to possession
of drugs in the car, which was not a foreseeable or anticipated response to the
investigatory stop, that probable cause arose.
After the motion to suppress was denied, a plea hearing was held wherein
defendant pleaded guilty to count two of the indictment, second-degree
Possession of a CDS with Intent to Distribute. In exchange for his guilty plea,
the State agreed to recommend ten years of imprisonment with no period of
parole ineligibility, and dismissal of the remaining counts of the indictment at
sentencing.
On November 3, 2023, a sentencing hearing was held. As to the
aggravating and mitigating factors, the court found aggravating factors six, and
nine; and mitigating factors eight and nine. The court found the mitigating
A-1114-23 9 factors to outweigh the aggravating factors. The court then sentenced defendant
below the plea agreement to seven years in prison, dismissed the remaining
counts of the indictment, and imposed the appropriate fines, fees, and penalties.
II.
Defendant argues the court erred in denying his motion to suppress
because: (1) police did not have reasonable suspicion that he had been involved
in a narcotics transaction; (2) there was no probable cause that his car contained
contraband because the detective's testimony that he spontaneously admitted to
possessing cocaine was wholly incredible; and (3) in the alternative, any
probable cause that did develop that the car contained contraband was from the
SET surveillance and observations of defendant, therefore it was foreseeable and
not spontaneous.
A.
Our review of a trial judge's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing such an application, we
must uphold the judge's factual findings, "so long as those findings are supported
by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424,
440 (2013) (quoting Robinson, 200 N.J. at 15). "Those findings warrant
particular deference when they are 'substantially influenced by [the trial judge's]
A-1114-23 10 opportunity to hear and see the witnesses and to have the "feel" of the case,
which a reviewing court cannot enjoy.'" Ibid. (citations omitted) (alteration in
original); see also Balducci v. Cige, 240 N.J. 574, 595 (2020); State v. McNeil-
Thomas, 238 N.J. 256, 271 (2019). We review de novo the judge's pure
determinations of law, State v. Mann, 203 N.J. 328, 337 (2010), as well as the
application of legal principles to factual findings, State v. Harris, 181 N.J. 391,
416 (2004).
"'The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution, in almost identical language,
protect against unreasonable searches and seizures.'" State v. Smart, 253 N.J.
156, 164 (quoting State v. Nyema, 249 N.J. 509, 527 (2022)). Warrantless
searches are presumptively invalid because they are contrary to the United States
and the New Jersey Constitutions, State v. Pineiro, 181 N.J. 13, 19 (2009), and
"[t]he warrant requirement . . . may be dispensed with in only a few narrowly
circumscribed exceptions." State v. Patino, 83 N.J. 1, 7 (1980).
"To justify a warrantless search or seizure, 'the State bears the burden of
proving by a preponderance of the evidence that [the] warrantless search or
seizure falls within one of the few well-delineated exceptions to the warrant
requirement.'" State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div. 2023)
A-1114-23 11 (quoting State v. Chisum, 236 N.J. 530, 546 (2019)). Each exception to the
warrant requirement has its own essential elements that must be satisfied to
justify a warrantless search. State v. Johnson, 476 N.J. Super. 1, 20 (App. Div.
2023).
Under federal law, the automobile exception permits the warrantless
search of a car if it is "'readily mobile' and the officer has 'probable cause' to
believe that the vehicle contains contraband." State v. Witt, 223 N.J. 409, 422
(2015) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)). New Jersey
law authorizes the warrantless search of a car if the police "have probable cause
to believe that the vehicle contains contraband or evidence of an offense and the
circumstances giving rise to probable cause are unforeseeable and spontaneous."
Witt, 223 N.J. at 447 (quoting State v. Alston, 88 N.J. 211, 233 (1981)); see also
State v. Courtney, 478 N.J. Super. 81, 93 (2024). Further, that probable cause
did not exist "well in advance" of the search. Smart, 253 N.J. at 174. This test
represents "a sharp departure from a more narrow construction of the automobile
exception previously adopted . . . ." State v. Rodriguez, 459 N.J. Super. 13, 21
(2019).
B.
A-1114-23 12 Defendant contends "the motion court's reliance on the SET members [']
testimony that the ShopRite parking lot was a 'high crime area' was insufficient
to support reasonable articulable suspicion that defendant was involved in
criminal activity." Additionally, defendant argues the observations by Taranto
were not enough to create reasonable suspicion that he was engaging in criminal
activity. He further avers that Taranto did not recognize him or have prior
knowledge that he was involved in criminal activity, nor did Taranto state he
observed him exchange any objects for money.
Defendant asserts "where police do not see a hand-to-hand transaction,
they still must see something to support a reasonable suspicion that a drug
transaction occurred." Moreover, he argues the subsequent observations by
Taranto of Lacicero—him driving to a secluded area of the ShopRite parking
lot, looking down at his lap and then bending down and back up prior to driving
away—did not create reasonable suspicion. Defendant proclaims that on cross-
examination, Taranto conceded he did not see what Lacicero was looking at in
his lap, and that he admitted Lacicero could have been looking at his phone or
wallet.
Next, defendant argues that even if Taranto's observations did create
reasonable suspicion, it would only pertain to Lacicero using drugs in his truck
A-1114-23 13 and not that defendant had partaken in any criminal activity. He contends that
for a seizure of a person there must be particularized suspicion which "cannot
be undercut or avoided" just because "coincidentally there exists probable cause
to search or seize another" individual.
Defendant also argues the trial court erred in finding probable cause to
search his vehicle because it erred in finding MacRae's testimony credible over
his. Here, defendant asserts MacRae's testimony is not credible, because it is
"simply implausible" defendant would cooperate and "volunteer 'that he had an
amount of cocaine in the back seat of the car,'" after being Mirandized.
Defendant argues the trial court erred by finding his testimony was not credible.
Specifically, without his alleged statement that there were drugs in the car that
belonged to him, there was no probable cause that his car contained contraband.
As such, police were not permitted to conduct a search, "let alone a warrantless
search" of the car.
In the alternate, defendant argues if probable cause did exist that his car
contained contraband, the warrantless search was illegal because it did not
comport with our state's automobile exception. He posits the circumstances
leading to this warrantless search were not unforeseeable or spontaneous,
because Taranto was surveilling the parking lot that was known for a high
A-1114-23 14 volume of narcotics transactions. Defendant argues that MacRae's investigatory
stop was "wholly connected" to Taranto's prior surveillance and investigation of
the high crime area so that the probable cause was not unforeseeable because
the SET members believed defendant had just conducted a drug transaction
using his car. Additionally, he contends the circumstances were not spontaneous
because it developed "over the course of a surveillance operation by multiple
officers."
We disagree with defendant's arguments and conclude the court correctly
determined police had probable cause to believe evidence of a crime was present
in defendant's vehicle which arose spontaneously and unforeseeably, allowing
police to conduct a warrantless on-scene search of defendant's vehicle.
Stop of Defendant
To determine whether reasonable suspicion exists, a court must consider
the totality of the circumstances, viewing the "whole picture" rather than taking
each fact in isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019) (quoting
State v. Stovall, 170 N.J. 346, 361 (2002)). This analysis may also consider
police officers' "background and training," including their ability to "make
inferences from and deductions about the cumulative information available to
A-1114-23 15 them that might well elude an untrained person." Id. at 555 (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002)).
When considering the officers' testimony, under the totality of the
circumstances, there was articulable reasonable suspicion for MacRae to stop
defendant in the ShopRite parking lot. Taranto stated he was not there looking
for anyone specific, nor did he receive information from a confidential informant
that a narcotics transaction would take place that night. As to the location,
Taranto averred it was chosen because of the high volume of narcotics
transactions; he estimated he had conducted around one hundred surveillances
there as a member of the SET, but that not every surveillance had ended in an
arrest or observation of drug related activity.
Moreover, Taranto testified that while conducting general surveillance of
the ShopRite parking lot he observed defendant's activities with the woman and
Lacicero. Taranto noted, based on his training and experience, that narcotics
distributors will often meet with multiple persons in parking lots. As such, his
suspicions were raised when he saw defendant stop speaking to the woman in
the sedan and subsequently walk over and begin to speak to Lacicero, who was
in the truck. Taranto testified he then observed defendant lean into Lacicero's
truck briefly. After making that observation Taranto maintained surveillance on
A-1114-23 16 the truck as he drove it to a secluded part of the parking lot. Taranto then drove
past the truck twice. Taranto testified he had observed what he believed was
Lacicero examining and then using narcotics. Taranto then proceeded to follow
the truck, with the intention of having a marked unit make a stop. Taranto
relayed what he had just observed, including a description of defendant and his
vehicle, so that other members of SET, who were conducting surveillance at
nearby parking lots, could locate and make contact with defendant when he
exited the store. Under the totality of the circumstances, using his training and
experience, Taranto had articulable reasonable suspicion that a narcotics
transaction had just taken place. Taranto relayed his observations to the other
SET members nearby, one of which was MacRae; this allowed MacRae to act
on that information and stop defendant when he exited the store.
Search of Defendant's Car
"In assessing whether probable cause exists, courts 'must look to the
totality of the circumstances and view those circumstances from the standpoint
of an objectively reasonable police officer.'" State v. Diaz, 470 N.J. Super. 495,
529 (App. Div. 2022) (quoting State v. Gibson, 218 N.J. 277, 293 (2014)).
"[C]ourts are to give weight to 'the officer's knowledge and experience' as well
as 'rational inferences that could be drawn from the facts objectively and
A-1114-23 17 reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154
N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
Probable cause, however, "cannot be based upon a mere hunch." State v.
Sansotta, 338 N.J. Super. 486, 491 (App. Div. 2001). Probable cause "requires
'a practical, common[-]sense determination whether, given all of the
circumstances, there is a fair probability that contraband or evidence of a crime
will be found.'" State v. Myers, 442 N.J. Super. 287, 301 (App. Div. 2015)
(quoting State v. Moore, 181 N.J. 40, 46 (2004)).
Defendant's contention that the trial court erred in crediting MacRae's
testimony over his is belied by the record. Here, after carefully weighing the
conflicting testimony before him, the court determined the officers were
"forthright in their answers" and "readily conceded" unfavorable information or
when a detail could not be remembered. On the other hand, the court found
defendant's testimony was inconsistent and illogical. The court's determinations
rested squarely on its ability to observe the witness's demeanor, tone of voice,
and physical reactions to questions posed of them. See State v. Sims, 65 N.J.
359, 373 (1974). Because the judge's analysis was based on sufficient credible
evidence in the record, it will not be disturbed.
A-1114-23 18 Here, probable cause arose during MacRae's investigatory stop, allowing
him to conduct a search of defendant's Jeep under the automobile exception.
MacRae testified, and the court found credible, that he approached defendant
when he exited the ShopRite. Further, MacRae testified he clearly had his police
badge around his neck, identified himself as a police officer, and explained that
he was conducting a narcotics related investigation. Additionally, MacRae
stated he advised defendant of his Miranda rights, to which defendant responded
that he understood those rights. MacRae testified that he explained to defendant
what Taranto had observed, to which defendant then stated he had cocaine in the
back seat of his Jeep. The statement made by defendant combined with the
totality of Taranto's earlier observations of him, gave MacRae probable cause
that defendant had conducted a narcotics transaction and evidence would be
found within the Jeep.
Spontaneous and Unforeseeable
Alternatively, defendant argues even if there was probable cause to search
his vehicle, it did not develop spontaneously and unforeseeably. He argues
under Smart this search was foreseeable because MacRae's surveillance
occurred only after Taranto relayed his observations from his surveillance of the
parking lot. This reliance is misplaced. In this case, unlike in Smart, Taranto
A-1114-23 19 was conducting a general surveillance of the ShopRite parking lot; MacRae was
on duty at the same time conducting general surveillance of the Kohl's parking
lot which was located nearby. Moreover, Taranto had no previous interaction
with defendant, nor did he know of him when he observed the suspicious
activity.
Additionally, the fact that Taranto's general surveillance took place at an
area known for a high number of narcotics transactions does not make this stop
not spontaneous and foreseeable. Taranto testified that he had conducted
"approximately one hundred or more" surveillances of that parking lot, to which
"dozens" of arrests had resulted, but also that every surveillance had not resulted
in an arrest or observation of drug related activity. (emphasis added). As such,
Taranto's observation of defendant' suspicious activities was not foreseeable, it
was equally as likely that Taranto would not observe drug activity or make a
drug related arrest while conducting general surveillance that night. As testified
to by MacRae, it was not until defendant admitted to him that he had a small
amount of cocaine in the car that his investigatory stop arose to probable cause
that evidence of a narcotics crime would be found in the Jeep. Moreover, it had
only been approximately thirty-five minutes from the time Taranto made his
initial observations, to the time MacRae then approached defendant for the
A-1114-23 20 investigatory stop based on reasonable suspicion. This is far from the facts in
Smart, where the Court found the warrantless search to be "deliberate,
orchestrated, and wholly connected" to the nearly two months investigation that
police had been conducting of the defendant. Smart, 253 N.J. at 172. As stated
by the Smart court, "whether the circumstances giving rise to probable cause
were unforeseeable and spontaneous is a fact-sensitive inquiry that should be
analyzed case by case . . . ." Id. at 173. Under the facts in the present case,
probable cause developed spontaneously and unforeseeably.
III.
We next consider defendant's arguments seeking a remand for
resentencing. Defendant contends the sentencing court erred in failing to
explain its application of aggravating factor nine, N.J.S.A. 2C:44-1a(9) and that
his sentence is excessive.
Appellate review of sentencing decisions "is relatively narrow and is
generally governed by an abuse of discretion standard." State v. Blackmon, 202
N.J. 283, 297 (2010). The reviewing court may not substitute its judgment
regarding an appropriate sentence for that of the trial court. State v. Case, 220
N.J. 49, 65 (2014); State v. Lawless, 214 N.J. 594, 606 (2013). The test to be
applied is "whether, on the basis of the evidence, no reasonable sentencing court
A-1114-23 21 could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383,
388 (1989). Thus, a sentence should be affirmed unless a reviewing court
determines that (1) the sentence violated legislative policies, (2) the aggravating
or mitigating factors were not supported by credible evidence, or (3) the
sentence, although imposed in accordance with the sentencing guidelines, is
"clearly unreasonable so as to shock the judicial conscience." Roth, 95 N.J. at
364-65, 365-66; see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989)
(outlining principles of appellate review of sentencing decisions).
Aggravating factor nine invokes "[t]he need for deterring the defendant
and others from violating the law." N.J.S.A. 2C:44–1(a)(9). The sentencing
court's determination is a "qualitative assessment" of the risk of recidivism, but
"also involve[s] determinations that go beyond the simple finding of a criminal
history and include an evaluation and judgment about the individual in light of
his or her history." State v. Thomas, 188 N.J. 137, 153 (2006). "'Deterrence
has been repeatedly identified in all facets of the criminal justice system as one
of the most important factors in sentencing,' and 'is the key to the proper
understanding of protecting the public.'" State v. Fuentes, 217 N.J. 57, 78–79
(2014) (quoting State v. Megargel, 143 N.J. 484, 501 (1996)). "'[D]emands for
deterrence are strengthened in direct proportion to the gravity and harmfulness
A-1114-23 22 of the offense.'" Ibid. (quoting State in Interest of C.A.H. and B.A.R., 89 N.J.
326, 337 (1982)).
For purposes of N.J.S.A. 2C:44–1(a)(9), deterrence incorporates two
"interrelated but distinguishable concepts," the sentence's "general deterrent
effect on the public in addition to its personal deterrent effect on the defendant."
State v. Jarbath, 114 N.J. 394, 405 (1989) (citing C.A.H., at 334-45). In the
absence of a finding of a need for specific deterrence, general deterrence "has
relatively insignificant penal value." Ibid. (citing State v. Gardner, 113 N.J.
510, 520 (1989)). In weighing the applicability of aggravating factor nine, the
sentencing court accordingly focuses on the need to deter the individual
defendant "from violating the law." N.J.S.A. 2C:44–1(a)(9).
Here, the sentencing court acknowledged defendant's nearly four-year
period of being crime free, making changes in his life, and sentencing him as he
stood before it on that day. However, the court found that aggravating factor
nine applied, because "the need for deterring you and others from violating the
law" still existed. This factor was amply supported by credible evidence in the
record. See Blackmon, 202 N.J. at 296-97.
This was defendant's twelfth indictable conviction. He was extended term
eligible and could have received a sentence of up to twenty years. Therefore,
A-1114-23 23 his seven-year sentence, in the middle range for a second-degree crime and
below his negotiated ten-year agreement, does not "shock the conscience" and
is not excessive.
To the extent we have not specifically addressed any remaining
arguments, it is because we find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1114-23 24