NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3724-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALPHONSE J. ANDERSON, a/k/a, ALPONSE ANDERSON, ANDERWSON J. ALPHONSE, ANDERSON ALPHONSE, and, ANDERSON ALPONSE,
Defendant-Appellant. ______________________________
Submitted December 2, 2019 – Decided March 6, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-06-0388.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Kelsey Alina Ball, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Alphonse Anderson, appeals from his trial convictions for
possession of controlled dangerous substances with intent to distribute and
simple possession of those same substances. One of the critical issues at trial
was whether defendant resided in the apartment where the drugs were found
during the execution of a search warrant. Defendant on appeal contends that the
trial court erred in denying his Fourth Amendment motion to suppress.
Defendant does not challenge the validity of the search warrant or the manner
in which the search of the apartment was executed. Rather, he contests the
seizure of a house key found on his person that linked him to the apartment.
That seizure occurred at the time of the raid but a block away from the
apartment.
Defendant also contends the trial court erred in denying his motion to
exclude medical correspondence found during the warrant search that also
linked him to the apartment. That motion was not based on the Fourth
Amendment but rather on the prosecutor's failure to disclose the documents in a
timely manner. Finally, defendant contends the sentence imposed is illegal and
excessive.
A-3724-17T2 2 We have reviewed the record in light of the applicable legal standards and
conclude that the trial court properly denied defendant's Fourth Amendment
motion to suppress physical evidence. The house key at issue was seized during
the course of a lawful “Terry”1 stop that escalated to an arrest when the
reasonable suspicion that justified the detention ripened into probable cause.
We also conclude that the trial court did not abuse its discretion in denying
defendant's motion to exclude medical documents bearing defendant's name
based on the State’s failure to turn the documents over in discovery in a timely
fashion. The remedy fashioned by the trial court for the discovery violation —
providing defense counsel an opportunity to review the documents before they
were admitted into evidence—was adequate given the surrounding
circumstances. Although we do not condone the prosecutor's failure to obtain
the discoverable documents from the Elizabeth Police Department in a timely
fashion, we conclude defendant was not unfairly prejudiced by the discovery
violation.
Although we affirm defendant’s trial conviction, we agree with him that
the trial court imposed an illegal sentence. As the State acknowledges, the
sentencing court was required to merge the convictions for simple possession
1 Terry v. Ohio, 392 U.S. 1 (1968). A-3724-17T2 3 and possession with intent to distribute. Relatedly, the sentencing court
improperly imposed a concurrent extended term of imprisonment pursuant to
N.J.S.A. 2C:43-6(f) on defendant's simple possession conviction, even though
that offense is not eligible for that form of enhanced punishment. We therefore
remand the matter to the trial court to merge the convictions and correct the
sentence.
I.
On February 21, 2017, police executed a search warrant at an apartment
from which codefendant Levar Davis had distributed illicit drugs. 2 Police found
marijuana, cocaine, heroin, drug paraphernalia, and cash in the apartment.
Police also seized a prescription bottle with defendant's name on it and
correspondence addressed to defendant.
Defendant moved to suppress physical evidence seized from his person at
the time of the police raid while he was detained a block away from the
apartment. The trial court convened an evidentiary hearing after which the trial
2 Codefendant Davis is not a party to this appeal. A-3724-17T2 4 judge denied defendant's motion, concluding that defendant had been lawfully
stopped, frisked, and arrested.
After trial, a jury convicted defendant of possession of a controlled
dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(1), and possession
with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3). The trial court granted the State's application for imposition of
a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced
defendant to two concurrent eight-year prison terms, each with a four-year
period of parole ineligibility.
Defendant now raises the following contentions for our consideration:
POINT ONE
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF HIS INVESTIGATIVE DETENTION.
POINT TWO
DEFENDANT WAS UNDULY PREJUDICED BY THE TRIAL COURT'S ADMISSION OF BELATEDLY PRODUCED DISCOVERY MATERIALS.
POINT THREE
THE SENTENCE IMPOSED ON DEFENDANT IS ILLEGAL AND EXCESSIVE.
A-3724-17T2 5 II.
A.
We first address defendant's Fourth Amendment contention. The
gravamen of defendant's argument is that he was unlawfully stopped by two
police officers who were not personally aware of the facts justifying his
detention.
The circumstances leading to defendant's encounter with the officers are
thoroughly recounted in the trial court's written opinion and need only be
summarized briefly in this opinion. On February 21, 2017, officers assigned to
the Elizabeth Police Department Narcotics Division executed a search warrant
at one of the apartments in a two-family house on Olive Street. The Superior
Court judge who issued the warrant authorized a "no knock" 3 entry of the
premises.
3 See generally State v. Johnson, 168 N.J. 608 (2001) (explaining the circumstances when police executing a search warrant of a residence are authorized to dispense with the general rule that requires them to announce their identity and purpose before entering). As noted, defendant does not challenge the validity of the search warrant or the manner in which it was executed. We nonetheless note that police were executing a court-authorized “no knock” search warrant to highlight potential officer safety concerns associated with detaining persons who had just left the target premises. A-3724-17T2 6 The affidavit in support of the warrant application included information
about several "controlled buys" involving codefendant Davis, who was known
to live in the targeted apartment. Although defendant was not personally
involved in those drug transactions, he was specifically mentioned in the search
warrant affidavit. For example, the affiant who applied for the warrant,
Detective Athanasios Mikros, attested in the application that he personally knew
that defendant was a high-ranking member of the Haitian Posse street gang. The
affidavit also included information from a confidential informant who stated that
defendant lived with Davis. The affidavit further asserted that on several
occasions during the course of the investigation, police officers observed
defendant and Davis entering and exiting the apartment and both appeared to
have their own set of keys.
As the police were preparing to execute the raid, Detective Mikros
observed defendant and another person leave the apartment and cross Route 1
and 9. Detective Mikros instructed Officers Figueiredo and Xavier by radio to
detain defendant and the other individual. Those two officers, who were in a
marked patrol car, had previously been instructed by Mikros to remain near the
target apartment to support the law enforcement operation. Officers Figuerido
and Xavier were stationed across Route 1 and 9 and saw defendant cross the
A-3724-17T2 7 highway. The ensuing detention, however, occurred more than a block from the
apartment. The two-family house, moreover, was not within the officers' line of
sight when they initiated the stop.
Officer Figuerido testified that as he approached defendant, he
immediately detected the smell of marijuana. The officer conducted a pat down
of defendant, revealing a set of keys. By this time, the narcotics raid had begun.
When contraband was found in the apartment, Detective Mikros instructed
Officer Fiueredo by radio to place defendant under arrest, at which time the keys
were seized as evidence. 4 The trial judge noted in his opinion that Officer
Figueiredo's testimony at the motion to suppress was presented in a "thoughtful,
competent, thorough, and professional manner," and the judge found him to be
"a highly credible witness."
B.
When reviewing a trial court's decision in a motion to suppress, we defer
to the court's factual findings so long as they are "supported by sufficient
credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014)
(citing State v. Elders, 192 N.J. 224, 243 (2007)). "By contrast, the task of
appellate courts generally is limited to reviewing issues of law. Because legal
4 It was later confirmed that one of the keys unlocked the door to the apartment. A-3724-17T2 8 issues do not implicate the fact-finding expertise of the trial courts, appellate
courts construe the Constitution, statutes, and common law 'de novo—"with
fresh eyes" . . . .'" State v. S.S., 229 N.J. 360, 380 (2017) (quoting State v.
Morrison, 227 N.J. 295, 308 (2016)). We need not defer, therefore, to a trial
judge's interpretive conclusions "unless persuaded by their reasoning."
Morrison, 227 N.J. at 308 (citing State v. Goodwin, 224 N.J. 102, 110 (2016)).
Applying these basic principles to the record before us, we affirm the
denial of defendant's Fourth Amendment suppression motion substantially for
the reasons set forth in the trial court's comprehensive and cogent written
opinion. We note, first, that the trial court correctly concluded that defendant's
detention was not automatically authorized as incident to the execution of the
search warrant. The United States Supreme Court held in Michigan v. Summers
that a warrant to search a premises for contraband "implicitly carries with it the
limited authority to detain the occupants of the premises while a proper search
is conducted." 452 U.S. 692, 705 (1981). In Bailey v. United States, however,
the Court placed geographic limits on the scope of the Summers doctrine,
holding that the Summers categorical rule authorizing detention did not apply
because Bailey was not in "the immediate vicinity of the premises to be
searched" when he was stopped. 568 U.S. 186, 200–01 (2013). In the case
A-3724-17T2 9 before us, the trial court likewise found that defendant's detention was initiated
only after he was outside the spatial constraint established in Bailey. Ibid. The
State has not cross-appealed that determination.
The trial court correctly recognized, however, that its conclusion that the
detention was not authorized under the Summers doctrine does not necessarily
mean the detention was unlawful. Rather, it means the onus is on the State to
establish an independent basis upon which to justify the detention.
The Supreme Court in Bailey recognized that Terry's investigatory stop
rule can provide an independent lawful basis for detention. Id. at 202. In that
instance, the Court expressed no view on whether there was reasonable
suspicion to justify a Terry stop, leaving that fact-sensitive question to be
addressed by the Court of Appeals on remand. Ibid. The Court of Appeals
ultimately found there was a lawful basis to detain Bailey under the Terry stop-
and-frisk doctrine. United States v. Bailey, 743 F.3d 322, 335 (2d Cir. 2014).
In reaching that conclusion, the court noted there is no bar to considering
"ownership or occupancy of premises to be searched in making a reasonable
suspicion assessment under Terry. Indeed, such a conclusion would be at odds
with Supreme Court precedent instructing that reasonable suspicion be
determined from the totality of circumstances." Ibid. In other words, in
A-3724-17T2 10 deciding whether reasonable suspicion exists to justify an investigative
detention under Terry, a reviewing court may consider the facts that had
convinced a judge to issue the search warrant.
Applying those principles to the case before us, we conclude there was
reasonable suspicion to believe that defendant was involved in criminal activity
outlined in the search warrant. Detective Mikros was the affiant who prepared
the search warrant application and thus was personally aware of the facts that
linked defendant to the apartment. Mikros, moreover, observed defendant
leaving that apartment moments before the raid. The detective also had reason
to believe defendant was a high-ranking member of a local street gang and
attested to that circumstance in the warrant application. Considering the totality
of these circumstances, Detective Mikros was aware of facts constituting a
reasonable and articulable suspicion sufficient to justify a Terry stop and frisk.5
See State v. Privott, 203 N.J. 16, 28 (2010) (deeming an officer's knowledge that
5 We add that in this case, the officers smelled the odor of marijuana, permitting the immediate escalation of the police-citizen encounter from a Terry stop to an arrest. See infra note 6 and accompanying text. Given that the police would have been permitted to conduct a search incident to arrest, which is a more thorough and expansive search than the limited pat down authorized, we conclude the pat down search would have been lawful in this case even if there was no basis to suspect that defendant was carrying a weapon. A-3724-17T2 11 defendant was associated with violent street gangs a relevant circumstance
supporting an investigatory stop).
Furthermore, we reject defendant's contention that the officers who
actually initiated the stop were required to be personally aware of the facts
constituting reasonable suspicion. Officers Figueiredo and Xavier had been
directed to detain defendant by Detective Mikros. As the trial court aptly noted
in its written opinion, "[i]t is understood that 'effective law enforcement cannot
be conducted unless police officers can act on directions and information
transmitted by one officer to another and that officers, who must often act
swiftly, cannot be expected to cross-examine their fellow officers about the
foundation for the transmitted information.'" State v. Crawley, 187 N.J. 440,
457 (2006) (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir.
1976)).
Because the trial court correctly found that Officers Figueiredo and Xavier
were acting on Detective Mikros's instructions and thus had lawful authority to
initiate a Terry stop and frisk, we need not address the State's alternate argument
that the officers detected the smell of marijuana on defendant's person—and
A-3724-17T2 12 therefore had grounds to arrest—even before they effectuated a Terry stop.6
Rather, we view the smell of marijuana as further justification for defendant's
arrest following the initial lawful detention that was based on Detective Mikro's
instruction. See Nishina, 175 N.J. at 517 ("New Jersey courts have recognized
that the smell of marijuana itself constitutes probable cause 'that a criminal
offense ha[s] been committed and that additional contraband might be present.'"
(alteration in original) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479
(App. Div. 1995))). Although the smell of marijuana by itself established
probable cause to arrest defendant, we believe that even without the odor of
marijuana, the officers had probable cause to arrest when they were advised by
Detective Mikros that controlled substances had been found in the apartment
defendant had just left. In these circumstances, the seizure of the key found on
defendant’s person was lawful as a search incident to the arrest. See State v.
6 The State argues that the officers detected the odor of marijuana as they approached defendant to conduct a "field inquiry." See State v. Nishina, 175 N.J. 502 (2003) (explaining that "[a] field inquiry 'is a limited form of po lice investigation that . . . may be conducted "without grounds for suspicion" '" provided the civilian with whom the officer is conversing reasonably believes that he or she is free to walk away without answering any question (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002))). Given that Officers Figueiredo and Xavier had been given explicit orders from Detective Mikros to detain defendant, we do not believe the officers were about to initiate a consensual field inquiry when they smelled the odor of marijuana. A-3724-17T2 13 Dangerfield, 171 N.J. 446, 463–64 (holding police following a valid custodial
arrest for a criminal offense may conduct a search of the person of the arrestee
solely on the basis of the lawful arrest).
III.
We next address defendant's contention that the trial court erred by
admitting into evidence medical-related correspondence seized from the
apartment during the raid. These documents bore defendant's name and thus
helped to link him to the apartment. The State does not dispute this discoverable
material was not turned over in a timely manner as required by R. 3:13-3(b).
The issue before us, therefore, is not whether there was a discovery violation,
but rather whether the remedy fashioned by the trial court was appropriate to
safeguard defendant’s right to a fair trial.
The circumstances of the discovery violation were revealed during an
N.J.R.E. 104 hearing convened by the trial court. At that hearing, Union County
Detective Jon Klimaszewski testified that in response to a defense discovery
request for all correspondence found in one of the bedrooms in the apartment,
he visited the Elizabeth Police Department to obtain what he believed to be a
complete set of documents seized from the apartment. As it turns out, the
Elizabeth Police Department failed to provide Klimaszewski with
A-3724-17T2 14 approximately twenty pages of medical documents that had been found in the
apartment while executing the search warrant.
On or about July 24, 2017, while reviewing all of the evidence as part of
the preparation for the upcoming trial, Detective Klimaszewski realized these
documents had not been provided to him during his first visit to the police
department. He immediately prepared a supplemental report and the prosecutor
informed defense counsel of the additional material that had not previously been
disclosed. On Thursday, July 27, 2017, defense counsel visited the Union
County Prosecutor's Office and was provided access to the documents. 7
On Tuesday, August 1, 2017, just before opening arguments were
scheduled, defense counsel made an oral motion in limine to exclude the twenty
pages of medical documents from evidence. The trial court denied the motion
to exclude the documents and instead offered to adjourn the trial for a d ay to
give counsel further opportunity to review the documents. Counsel declined the
adjournment, explaining, "I don't need the time to review the documents."
7 The State acknowledges that it thereafter failed to produce copies of the documents for defense counsel despite his request that they be scanned and sent to him electronically. Thus, while defense counsel had an opportunity to read the documents five days before opening arguments, he was not provided with a copy of the documents until the morning of trial. A-3724-17T2 15 Counsel argued the mere existence of the documents bearing defendant's name
was prejudicial.
Based on the testimony and arguments presented at the N.J.R.E. 104
hearing, the trial court found the State had not acted in bad faith. The judge
further noted that defense counsel had the opportunity to see the documents five
days prior to opening arguments, which the judge characterized as "well in
advance" of trial. The court concluded that although the prosecutor's office
should have turned over the records sooner, defense counsel should have made
the in limine motion when he first learned about the documents, not on the
morning of scheduled opening arguments. The court thereupon denied
defendant's request to exclude the medical documents and instead ordered the
State to not introduce them until after lunch so that defense counsel would have
another opportunity to review the material during the break.
We begin our review of the trial court's ruling by reaffirming the
importance of timely and complete discovery. As the New Jersey Supreme
Court explained in State v. Scoles, "[t]o advance the goal of providing fair and
just criminal trials, we have adopted an open-file approach to pretrial discovery
in criminal matters post-indictment." 214 N.J. 236, 252 (2013). "Once an
indictment has issued," the Court explained, "a defendant has a right to
A-3724-17T2 16 automatic and broad discovery of the evidence the State has gathered in support
of its charges." Ibid. (citing R. 3:13-3).
When a party fails to comply with its obligations, the discovery rule
expressly states that the court may "grant a continuance or delay during trial" or
"enter such other order as it deems appropriate." R. 3:13-3(f). A court's failure
to take appropriate action to remedy a discovery violation can implicate the
defendant's right to a fair trial. State v. Clark, 347 N.J. Super. 497, 507, 510
(App. Div. 2002).
In State v. Marshall, the Court made clear "[t]he choice of sanctions
appropriate for discovery-rule violations is left to the broad discretion of the
trial court." 123 N.J. 1, 134 (1991) (citing State v. Torro, 229 N.J. Super. 215,
223 (App. Div. 1988), disapproved of on other grounds by State v. Velez, 119
N.J. 185, 187 (1990)); see also State v. Broom-Smith, 406 N.J. Super. 228, 239
(App. Div. 2009), aff’d, 201 N.J. 229 (2010) (reviewing the trial judge's
discovery ruling for an abuse of discretion).
As a general proposition, appellate courts "defer to a trial court's
resolution of a discovery matter, provided its determination is not so wide of the
mark or is not 'based on a mistaken understanding of the applicable law.'" State
ex rel. A.B., 219 N.J. 542, 554 (2014) (quoting Pomerantz Paper Corp. v. New
A-3724-17T2 17 Cmty. Corp., 207 N.J. 344, 371 (2011)). "An abuse of discretion 'arises on
demonstration of manifest error or injustice,' or when 'there has been a clear
error in judgment[.]'" Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57
(2019) (first quoting Hisenaj v. Keuhner, 194 N.J. 6, 20 (2008), then quoting
State v. Brown, 170 N.J. 138, 147 (2001)). Said differently, an abuse of
discretion occurs when the trial judge's "decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d
1260, 1265 (7th Cir. 1985)).
Applying these legal principles to the discovery violation that occurred in
this case, we conclude that the trial court did not abuse its discretion in deciding
not to impose the extreme sanction of excluding the medical correspondence
found during the execution of the search warrant. Defense counsel had been
alerted to the existence of the documents bearing defendant’s name five days
before the trial started. The five-day notice of the documents afforded defense
counsel sufficient time to adjust his trial strategy, protecting defendant's right to
a fair trial.
A-3724-17T2 18 Furthermore, as we have noted, counsel had been provided timely
discovery concerning other trial evidence that linked defendant to the apartment,
including the key found on defendant's person and trial testimony from two
witnesses who claimed that defendant and codefendant Davis lived together in
the apartment. In these circumstances, we do not believe that defendant suffered
undue prejudice or otherwise was deprived the right to a fair trial.
We note that defendant in his appellate brief argues the belatedly supplied
documents "altered the landscape upon which Defendant had made his decisions
to proceed to trial and his trial preparations." By referring to his decision to
“proceed to trial,” defendant intimates, without explication, that he might have
pled guilty had the medical correspondence been disclosed in a timely fashion.
So far as we can tell, defendant did not make this argument before the trial court.
Nor has defendant presented any evidence or proffer, whether by certification
or even by argument of counsel, that he would have pled guilty pursuant to a
plea agreement had this material been disclosed in a timely fashion.
Finally, with respect to the discovery issue, we note that the trial court
lamented that this situation occurs all too frequently with large urban police
departments. The court stated:
It's very clear that these are documents that in the ordinary course, had the prosecutor been aware of them,
A-3724-17T2 19 would have turned them over. This happens particularly when you're dealing with a large urban police department like Elizabeth. There's nothing novel about this. It is unfortunate and regrettable every time it happens.
We take this opportunity to emphasize that such departments are by no
means exempt from the discovery rules. Our case law makes abundantly clear
that once "a case is referred to the prosecutor following arrest by a police officer
as the initial process, or on a complaint by a police officer, . . . local law
enforcement is part of the prosecutor's office for discovery purposes." State v.
W.B., 205 N.J. 588, 608 (2011) (citations omitted) (citing State v. Winne, 12
N.J. 152, 171 (1953)). Therefore, it is the prosecutor's responsibility not just to
report discovery violations promptly, as happened in this case, but to prevent
violations from occurring in the first place. We thus expect that hereinafter, all
discoverable material retained by a police department after execution of a search
warrant will be turned over to the prosecutor so that the prosecutor can provide
it to defense counsel when discovery is due under R. 3:3-13(b).
IV.
We next address defendant's sentencing contentions. The State concedes
that the trial court was required to merge defendant's conviction on count one
into his conviction on count three. See State v. Selvaggio, 206 N.J. Super. 328,
A-3724-17T2 20 330 (App. Div. 1985) ("[C]onvictions for possession merge into . . . convictions
for the simultaneous possession with intent to distribute the same substance.").
Furthermore, the sentencing court improperly imposed a concurrent extended
term on the conviction for count one under N.J.S.A. 2C:43-6(f) even though that
offense is not eligible for an extended term under that statutory provision.
Accordingly, it is necessary to vacate the illegal sentence and remand to impose
a lawful sentence.
Defendant also argues that his sentence of eight years imprisonment with
a four-year period of parole ineligibility is excessive. He acknowledges that the
trial court was required to impose an extended term as a repeat offender under
N.J.S.A. 2C:43-6(f) due to his prior fourth-degree conviction for possession of
marijuana with intent to distribute. See State v. Irrizary, 328 N.J. Super. 198,
202 (App. Div. 2000) ("The extended sentence imposed by N.J.S.A. 2C:43-6(f)
is mandatory"). Accordingly, the court was required to impose a state prison
sentence within the extended term range for his current third-degree
conviction—five to ten years—and a term of parole ineligibility of one third to
one half of the imposed sentence or three years, whichever is greater. N.J.S.A.
2C:43-6(f). "Where, within that range of sentences, the court chooses to
sentence a defendant remains in the sound judgment of the court" subject to
A-3724-17T2 21 applicable aggravating and mitigating factors. State v. Pierce, 188 N.J. 155, 169
(2006). In this instance, the court did not impose the maximum possible prison
and parole-ineligibility term, choosing instead to impose an eight-year term of
imprisonment with a four-year term of parole ineligibility.
"Appellate courts review sentencing determinations in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). An appellate
court "does not sit to substitute its judgment for that of the trial court," State v.
O'Donnell, 117 N.J. 201, 215 (1989). We are "bound to affirm a sentence, even
if [we] would have arrived at a different result, as long as the trial court properly
identifies and balances aggravating and mitigating factors that are supported by
competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114
N.J. 394, 400–01 (1989)). In other words, a sentence challenged on appeal
must be affirmed unless:
(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."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).]
A-3724-17T2 22 Applying these general sentencing principles to the record before us, we
conclude the trial court acted within the ambit of its discretion in imposing an
eight-year prison sentence with a four-year term of parole ineligibility. The
sentencing judge, who heard the trial and thus was familiar with the offense
conduct, considered both the nature and circumstances of the offense and
defendant's background, including his four prior convictions. The court found
aggravating factors three (the risk that defendant will commit another offense),
six (the extent of the defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted), and nine (the need to deter). N.J.S.A.
2C:44-1(a)(3), (6), (9). Those aggravating circumstances are supported by
credible evidence in the record. State v. Dalziel, 182 N.J. 494, 505 (2005)
(citing Roth, 95 N.J. at 356–64). The court found no mitigating factors and
concluded that the aggravating factors substantially outweighed the
(nonexistent) mitigating factors.
We note that defendant on appeal claims there are discrepancies between
the judgment of conviction and the transcript of the sentencing court's oral
decision. Defendant argues, for example, the court at the sentencing hearing did
not find on the record that aggravating factor six applies. Our review of the
transcript of the sentencing hearing contradicts defendant's appellate assertion.
A-3724-17T2 23 The record does show that the judge originally indicated he would not consider
aggravating factor six. Later in the course of the hearing, however, the judge
reconsidered that decision and concluded aggravating factor six applies.
Accordingly, the judgment of conviction accurately reflects the trial court's
ultimate oral decision with respect to this aggravating factor, which is amply
supported by defendant's significant criminal history.
Defendant also contends on appeal that when the sentencing judge
concluded that the aggravating factors substantially outweigh the mitigating
factors, the judge in his oral decision failed to state that he was "clearly
convinced" of that determination. The judgment of conviction, in contrast,
includes this language. See State v. Williams, 310 N.J. Super. 92, 98 (App. Div.
1998) ("[T]he sentencing judge must be 'clearly convinced that the aggravating
factors substantially outweigh the mitigating factors' before imposing a parole
disqualifier." (quoting State v. Dunbar, 108 N.J. 80, 92 (1987))). This
discrepancy is of no moment because, as we have noted, defendant was subject
to an automatic, mandatory term of imprisonment and parole indelibility
pursuant to N.J.S.A. 2C:43-6(f) based on his prior possession-with-intent-to-
distribute conviction. The sentencing judge, therefore, was not required to make
a finding that he was clearly convinced the aggravating factors outweigh the
A-3724-17T2 24 mitigating factors under N.J.S.A. 2C:43-6(b) before imposing a period of parole
ineligibility.
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
A-3724-17T2 25