NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4920-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASU LEE, a/k/a RASHAN H. LEE, RASU H. LEE, RESU H. LEE, LEE RASU, and RASA LEE,
Defendant-Appellant. __________________________
Submitted March 26, 2019 – Decided April 26, 2019
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-06-0545.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rasu Lee was tried before a jury and found guilty of second-
degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
Defendant appeals from the judgment of conviction (JOC) signed by the trial
court on May 31, 2017. We affirm.
I.
We briefly summarize the relevant facts, drawn from the evidence
presented at trial. On July 30, 2014, at approximately 3:30 a.m., officers Ralph
Merced and Alba Fernandez of the City of Passaic Police Department (PPD)
were on patrol in a marked police vehicle. The officers had been dispatched to
the area of Passaic Avenue and 5th Street to respond to a disorderly-persons
report. After dispersing the individuals, the officers were traveling north on 5th
Street, when they observed a black Toyota Camry, which was parked on the
opposite side of the street.
As the officers drove closer to the Toyota, it suddenly made a sharp U-
turn, and almost struck the officers' patrol car. Merced testified that he had to
apply his "brakes and wait for the car to clear the U[-]turn." The officers began
to follow the Toyota and they notified the dispatcher so that he could "run the
plate." Merced noticed that there were three persons in the Toyota: the driver
A-4920-16T3 2 and two passengers, one in the front and one in the rear. According to Merced,
the rear passenger repeatedly looked back at the officers' vehicle as they
followed the Toyota.
At the intersection of Mercer Street and 4th Street, the driver made a left
turn onto Mercer, but failed to come to a complete stop at the stop sign. The
Toyota turned right onto 3rd Street and the officers followed. They activated
the lights and sirens on the police vehicle, and the Toyota immediately pulled
over to the curb.
Merced illuminated the interior of the Toyota with his spotlight. He
observed the front passenger lean forward and make what he described as
"furtive movements." It appeared to Mercer as if the front passenger was trying
to conceal something beneath his seat. The other individuals were just sitting in
the car waiting for the officers to approach.
The officers exited their patrol vehicle. Merced approached the Toyota
on the driver's side, and Fernandez approached the car on the passenger side.
Merced attempted to speak with the driver. As he was doing so, the front
passenger, who was later identified as defendant, asked repeatedly why they
were being stopped.
A-4920-16T3 3 Merced asked the driver to step out of the vehicle. She did so willingly.
Merced and the driver walked to the rear of the Toyota. Defendant asked why
the driver had to exit the car, since she had only run a stop sign. The driver was
charged with careless driving and failing to stop at a stop sign.
Meanwhile, Fernandez remained by the passenger side of the Toyota,
where she shined her flashlight into the car. Fernandez testified that she
observed "defendant kicking a white plastic bag that was located near his feet,
trying to get it out of [her] view." At around that time, officers Ronnie
Villalobos, Francisco Urena, and Roberto Oquendo of the PPD arrived as
backup.
Villalobos stood in front of the Toyota to watch the passengers inside,
using his flashlight. He noted that defendant appeared nervous and fidgety, and
he was moving his feet in a backwards direction. Villalobos also observed a
white plastic bag behind defendant's heels. Villalobos testified that when
Merced had the driver exit the car, defendant screamed, "shut the fuck up, shut
up, you don't have to say anything."
After Merced spoke with the driver, he returned to speak with the rear
passenger, who was later identified as the driver's daughter. She provided the
officer with a false name. She was later arrested and charged with several
A-4920-16T3 4 offenses. At that point, Villalobos heard defendant scream again: "shut the fuck
up, you don't have to tell them anything, they don't have a – they don't have a
warrant."
Merced obtained identifying information from defendant and checked
with the dispatcher to determine if defendant had any active warrants. After
dispatch informed Merced defendant had no such warrants, Merced told
defendant he could leave. As defendant was exiting the Toyota, Merced was
standing near the front passenger door with his flashlight. Near the front
passenger seat, Merced observed a white bag with the barrel of a handgun
extending from it. Merced called out, "gun, gun."
Villalobos ran to the passenger side of the Toyota and restrained
defendant. Merced retrieved the weapon, removed the bullets, and placed
defendant under arrest. The gun was a Glock 17 nine-millimeter handgun with
thirteen rounds of ammunition in the magazine and one in the chamber.
A grand jury later charged defendant with second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); third-degree receiving
stolen property, N.J.S.A. 2C:20-7 and -2(b)(2)(b) (count two); fourth-degree
possession of a prohibited device, N.J.S.A. 2C:39-3(f) (count three); and
A-4920-16T3 5 second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count
four).
Defendant filed a motion to suppress the evidence obtained in the search
of the vehicle. The judge conducted an evidentiary hearing on the motion. The
judge determined that the officers had lawfully seized the weapon and denied
the motion. The trial in the matter commenced on March 21, 2017. After the
jury was selected, the State decided to proceed only on count four of the
indictment, charging defendant with certain persons not to have weapons, in
violation of N.J.S.A. 2C:39-7(b).
During the evidentiary portion of the trial, the State presented testimony
from Merced, Fernandez, Villalobos, Detective David Ware of the Passaic
County Prosecutor's Office, and Antonio Pereira, a ballistics expert from the
Newark Police Department. After the State rested, defendant moved for a
judgment of acquittal. The trial judge denied the motion.
The jury found defendant guilty of the certain persons offense. The judge
thereafter granted the State's motion for imposition of a discretionary extended
term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The judge
sentenced defendant to a fourteen-year term of incarceration, with a seven-year
period of parole ineligibility. This appeal followed.
A-4920-16T3 6 On appeal, defendant argues:
POINT I LATE DISCLOSURE OF PERTINENT DISCOVERY INFORMATION DENIED [DEFENDANT] A FAIR TRIAL.
POINT II THE WARRANTLESS STOP AND SEARCH OF THE MOTOR VEHICLE VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE NEW JERSEY AND THE UNITED STATES CONSTITUTIONS.
POINT III COMMENTS BY THE PROSECUTOR ON FACTS NOT IN EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV THE CHARGE TO THE JURY ON CERTAIN PERSONS NOT TO HAVE WEAPONS WITHOUT SANITIZATION OF THE PREDICATE CONVICTION WAS ERROR.
POINT V THE EXTENDED TERM SENTENCE IMPOSED BY THE COURT OF FOURTEEN (14) YEARS WITH SEVEN (7) YEARS OF PAROLE INELIGIBLITY WAS EXCESSIVE AND SHOULD BE REDUCED.
II.
Defendant first argues that he was denied a fair trial due to the State's late
disclosure of certain information. We disagree.
A-4920-16T3 7 The record shows that jury selection began on March 21, 2017. On March
23, 2017, during a pretrial interview, Villalobos told the assistant prosecutor that
during the motor vehicle stop on July 30, 2014, defendant screamed, "what the
fuck," and told the driver that she did not have to let the police look in the car
without a warrant. Villalobos also told the assistant prosecutor that defendant
stated that he was not trying to move his feet to hide the white bag. The assistant
prosecutor then disclosed this information to defense counsel, who asserted that
the State had violated the discovery rules by failing to disclose these statements
earlier.
On March 27, 2017, as jury selection was continuing, defense counsel
sought to bar Villalobos from testifying about the statements. The judge denied
the application and ruled that the State could present the evidence at trial. The
judge stated that since jury selection was still continuing, the defense had
sufficient time to address this new evidence.
Jury selection was completed on March 28, 2017. On that date, defense
counsel advised the judge that the assistant prosecutor had disclosed additional
information she obtained during a pretrial interview with Merced. The assistant
prosecutor reported that when Merced approached the Toyota, defendant said,
"come on, you know who I am." The next day, before the jury was sworn, the
A-4920-16T3 8 assistant prosecutor also stated that Fernandez had informed her that she saw
defendant get into the Toyota carrying a white bag. The State did not, however,
present this evidence at trial.
On appeal, defendant argues that the State violated the discovery rules,
and the trial judge erred by failing to take appropriate action to address the
violation. Defendant asserts that he was prejudiced by the State's failure to
disclose the statements he allegedly made to Villalobos during the motor vehicle
stop in a timely manner. He also contends that in her summation, the assistant
prosecutor relied heavily on the statements Villalobos attributed to defendant .
He claims he did not have sufficient time to prepare his defense. He argues that
because of the late discovery, he rejected the State's plea offer.
The court rules require the State to make discovery available to defense
counsel "upon the return or unsealing of the indictment." R. 3:13-3(b)(1).
"Discovery . . . includes exculpatory information or material," R. 3:13-
3(b)(1)(A), and includes "any admissions or declarations against penal interest
made by the defendant that are known to the prosecution but not recorded." R.
3:13-3(b)(1)(B).
Moreover, the State has "a continuing duty to provide discovery pursuant
to this rule." R. 3:13-3(f). Therefore,
A-4920-16T3 9 [i]f at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule . . . it may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.
[Ibid.]
"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. Smith, 224
N.J. 36, 48 (2016) (citing State v. Clark, 347 N.J. Super. 497, 507, 510 (App.
Div. 2002)). That right includes "a meaningful opportunity to present a
complete defense." Ibid. (quoting State v. Garron, 177 N.J. 147, 168 (2003)).
Here, the record shows that the assistant prosecutor disclosed the
information learned from Villalobos shortly after she learned of this information
during her pretrial interview with him, which was six days before the trial
testimony began on March 29, 2017. Defendant has not established that the
statements attributed to him were unduly prejudicial. He also has not shown
that the State's failure to disclose this evidence earlier deprived him of the ability
to present a complete defense, or affected his ability to evaluate the State's plea
offer.
A-4920-16T3 10 We note that Merced had testified at the pretrial suppression hearing about
the motor vehicle stop and the discovery of the weapon in the car. Therefore,
defendant was well aware of the substance of the evidence the State intended to
present at trial, which included the movements of the passengers in the car,
defendant's disruptive conduct, and the recovery of the loaded gun under
defendant's seat. The statements that Villalobos attributed to defendant were
not essential to the State's proofs.
We therefore reject defendant's contention that because the State delayed
in producing the statements in discovery, he was denied a fair trial or a fair
opportunity to evaluate the State's plea offer.
III.
Defendant next argues that the trial judge erred by denying his motion to
suppress the evidence seized in the Toyota. We disagree.
Where, as in this case, the trial court denies a defendant's motion to
suppress, we defer to the court's findings of fact "so long as those findings are
supported by sufficient credible evidence in the record." State v. Handy, 206
N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
Deference is afforded "because the 'findings of the trial judge . . . are
substantially influenced by his [or her] opportunity to hear and see the witnesses
A-4920-16T3 11 and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State
v. Reece, 222 N.J. 154, 166 (2015) (first alteration in original) (quoting State v.
Locurto, 157 N.J. 463, 471 (1999)).
"An appellate court should disregard those findings only when a trial
court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249,
262 (2015) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). The legal
conclusions of a trial court are, however, reviewed de novo. Id. at 263 (citing
State v. Gandhi, 201 N.J. 161, 176 (2010)).
The Fourth Amendment to the United States Constitution and Article 1,
paragraph 7 of the New Jersey Constitution protect persons from unreasonable
searches and seizures. Warrantless searches are presumed invalid, but the State
may overcome that presumption by showing that the search fell within one of
the recognized exceptions to the warrant requirement. See State v. Hill, 115
N.J. 169, 173-74 (1989) (citing State v. Patino, 83 N.J. 1, 7 (1980)).
On appeal, defendant argues that the officers did not have a reasonable,
articulable suspicion to undertake an investigative stop of the vehicle. However,
in this case, the officers did not make an investigatory stop. The officers stopped
the vehicle because they observed the driver of the Toyota violate the laws
governing the operation of motor vehicles in this State.
A-4920-16T3 12 We note that "[a] motor vehicle violation, no matter how minor, justifies
a stop without any reasonable suspicion that the motorist has committed a crime
or other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.
2011) (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). Here, it is
undisputed that the driver of the Toyota drove past the stop sign at 4th and
Mercer Streets without coming to a complete stop. Therefore, the officers were
justified in stopping the vehicle.
Defendant argues the police did not have probable cause to undertake a
warrantless search of the automobile. The record shows, however, that the
officers seized the weapon in the car pursuant to the plain view exception to the
warrant requirement.
That exception allows the police to seize contraband in plain view without
a warrant if three requirements are met: "(1) the officer must be lawfully in the
viewing area when making the observation; (2) 'the discovery of the
evidence . . . must be inadvertent,'" State v. Gonzales, 227 N.J. 77, 91 (2016)
(alteration in original) (citation omitted) (quoting Coolidge v. New Hampshire,
403 U.S. 443, 469 (1971) (plurality opinion)); and (3) the "police officer must
have 'probable cause to associate the property with criminal activity.'" State v.
A-4920-16T3 13 Bruzzese, 94 N.J. 210, 237 (1983) (quoting Texas v. Brown, 460 U.S. 730, 738
(1983)).1
Furthermore, an "observation into the interior of an automobile by a police
officer located outside the automobile is not a 'search' within the meaning of the
Fourth Amendment." State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.
2013) (quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)).
When an officer seizes contraband in plain view from an automobile, "it [is] not
necessary for the State to establish exigent circumstances under the automobile
exception." Id. at 537 (citing State v. Pena-Flores, 198 N.J. 6, 32 (2009)).
In this case, the motion judge found that Merced was lawfully within the
viewing area because the motor vehicle stop was lawful, that Merced's discovery
of the gun was inadvertent, and that it was apparent the weapon was associated
with criminal activity. There is sufficient credible evidence in the record to
support the judge's determination that the plain view exception applied and the
officers lawfully seized the weapon.
1 In Gonzales, the Court eliminated the inadvertence prong of the plain view exception. Gonzales, 227 N.J. at 99. However, the Court applied that new rule of law prospectively as of the date of the opinion—November 15, 2016. Id. at 77, 101. The search at issue in this case took place on July 30, 2014. Therefore, we analyze the officers' actions under the standard that applied before Gonzales was decided. A-4920-16T3 14 IV.
Defendant argues that in summation, the assistant prosecutor made
comments about facts that were not in evidence. He contends the prosecutor's
remarks deprived him of a fair trial. Again, we disagree.
At summation, the assistant prosecutor discussed the second prong of the
certain persons offense: whether the defendant purchased, owned, possessed, or
controlled the firearm. The assistant prosecutor then made the following
comments:
For a minute, imagine you get – you get into a car. Okay? You know that you have a bag, and you put the bag underneath you. You don't want anybody else to know what the bag is, because you know what is in that bag is illegal. You're not allowed to have that bag.
After the assistant prosecutor completed her summation, defendant's
attorney objected and argued that the assistant prosecutor's remarks assumed
facts not in evidence, specifically, that defendant entered the Toyota with the
gun. The assistant prosecutor argued that she had used a hypothetical to make
her point, and this is permitted in a closing argument. The trial judge then
instructed the jury:
Okay. Members of the jury, let me just remind you this. That I told you a few times that, and I'll reiterate again, that anything either one of the lawyers says in summation is not evidence, you know.
A-4920-16T3 15 Number two, a lawyer's recollection, either side, recollection of the facts if it does not comport with your recollection it is your collective recollection that counts.
And, number three, the prosecutor indicated in her summation that imagine the – imagine you getting into a car with a white bag and contraband in it or – or a gun. I just want to remind you again that it's your recollection of any facts that were testified to that count.
So, . . . there is no testimony in this case that the defendant was seen getting into the car with a white bag. But if you heard that, that's your recollection. I don't recall that, but in any event it's your recollection that counts. Okay? All right.
On appeal, defendant argues that the prosecutor's comments deprived him
of a fair trial because her hypothetical was based on Fernandez's observations
of defendant getting into the Toyota, which the judge had excluded because of
its late disclosure. Defendant claims that the prosecutor's comments were an
improper attempt to bolster the State's case on the issue of possession of the
weapon.
"[P]rosecutors are permitted considerable leeway to make forceful,
vigorous arguments in summation." State v. Nelson, 173 N.J. 417, 472 (2002)
(citing State v. Chew, 150 N.J. 30, 84 (1997)). When reviewing a prosecutor's
comments, the court must assess the comments "in the context of the entire trial
A-4920-16T3 16 record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998)). Even if
the prosecutor's comments constitute misconduct, the misconduct will not be
grounds for "reversal unless it [was] 'so egregious that it deprived the defendant
of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.
Frost, 158 N.J. 76, 83 (1999)).
A prosecutor cannot make direct comments on facts not in evidence, nor
may the prosecutor draw unreasonable inferences from the evidence. See State
v. T.J.M., 220 N.J. 220, 236 (2015). In this case, the State presented evidence
showing the white bag with the weapon on the floor of the car where defendant
was sitting; however, the State did not present any direct evidence or testimony
establishing that defendant entered the car with the bag. Even so, based on all
the evidence, it would not have been unreasonable for the jury to infer that
defendant had entered the car with the bag.
In any event, even if the prosecutor erred by commenting about a person
entering a car with a bag, the comments were not clearly and unmistakably
improper. The prosecutor prefaced her comments by noting that she was using
a hypothetical to make her point. Moreover, the comment was made in the
context of a discussion of other evidence the State had presented showing
defendant's consciousness of guilt, which included his movements in the car and
A-4920-16T3 17 his disruptive behavior. Furthermore, the judge's instruction eliminated any
potential for prejudice from the prosecutor's comments. We therefore reject
defendant's contention that the prosecutor's remarks deprived him of a fair trial.
Defendant further argues that the judge's instruction to the jury on the
certain persons charge was flawed because the judge did not sanitize the
evidence of the predicate offense.
Here, defendant refused to stipulate to the predicate offense. During the
pretrial conference, the trial judge decided that he would include the statutory
citation of the predicate offense in the jury charge so that the State could meet
its burden of proving beyond a reasonable doubt that element of the certain-
persons charge.
At the trial, the State introduced a certified copy of a JOC, which stated
that defendant had been convicted on January 12, 2001, of knowingly possessing
a defaced firearm, in violation of N.J.S.A. 2C:39-3(d), a fourth-degree offense.
In summation, the assistant prosecutor noted that this evidence established a
predicate offense for the certain persons charge.
In his final instructions to the jury, the judge discussed the elements of the
certain persons charge, and referenced the unredacted predicate offense. The
A-4920-16T3 18 judge stated that in order for the jury to find defendant guilty, the State had to
prove all elements of the offense beyond a reasonable doubt. The judge said the
State had to prove that "Exhibit S-3 is a firearm[,]" and that "defendant
purchased, owned, possessed, or controlled the firearm on July 30th, 2014." The
judge also said that the State had to prove that "defendant is a person who has
been previously convicted of a crime of the fourth degree, specifically [N.J.S.A.]
2C:39-3[(d)]."
On appeal, defendant argues that the instruction was inconsistent with
State v. Brown, 180 N.J. 572, 585 (2004), where the Court held that "[i]f the
defendant does not stipulate [to the predicate offense], then the trial court should
sanitize the offense or offenses and limit the evidence to the date of the
judgment." However, in State v. Bailey, 231 N.J. 474, 490 (2018), the Court
overruled Brown and "h[e]ld that a certain persons conviction cannot stand
without proof that a defendant has been previously convicted of an offense
specifically enumerated in the certain persons statute." The Court determined
that if a defendant refused to stipulate to a predicate offense, the State must
produce the JOC, "with the unredacted nature of the offense, the degree of
offense, and the date of conviction." Id. at 490-91.
A-4920-16T3 19 Defendant recognizes that Bailey overruled Brown, but argues that we
should nevertheless apply Brown because his trial took place before Bailey was
decided. We cannot agree. In Bailey, the Court found that the "over-
sanitization" required by the model jury charge adopted after Brown "prevents
a jury from finding beyond a reasonable doubt a required element of the certain
persons offense – a clear constitutional infirmity." Id. at 488-89.
In this case, the trial court followed the procedure that the Court in Bailey
found to be constitutionally required. We therefore reject defendant's contention
that we should vacate his conviction and remand for a new trial using the
framework expressly rejected in Bailey.
VI.
Defendant also challenges his sentence. Defendant does not dispute that
he met the criteria for imposition of a discretionary extended term as a persistent
offender, pursuant to N.J.S.A. 2C:44-3(a). He argues, however, that the
sentence imposed is excessive.
The scope of our review of the trial court's "sentencing decisions is
relatively narrow and is governed by an abuse of discretion standard." State v.
Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401
(1989)). "The reviewing court must not substitute its judgment for that of the
A-4920-16T3 20 sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v.
O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm a sentence unless:
(1) the sentence guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Where, as here, a defendant is eligible for an extended term under N.J.S.A.
2C:44-3(a), the court is authorized to impose a sentence that is within a range
that "reaches from the bottom of the original-term range to the top of the
extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The ordinary
term for the certain persons offense is between five years and ten years, N.J.S.A.
2C:43-6(a)(2); and the extended term for the offense is between ten and twenty
years. N.J.S.A. 2C:43-7(a)(3).
When sentencing defendant, the judge found aggravating factor three,
N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six,
N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the
seriousness of the offenses for which he has been convicted); and nine, N.J.S.A.
2C:44-1(a)(9) (need to deter defendant and others from violating the law). The
A-4920-16T3 21 judge noted that defendant's prior criminal record, which includes six prior
indictable convictions, was "atrocious." The judge found no mitigating factors.
As stated previously, the judge sentenced defendant to fourteen years of
incarceration, with a seven-year period of parole ineligibility.
On appeal, defendant contends the State overreached in seeking an
extended term because the ordinary minimum for the certain persons offense is
five years of incarceration, with five years of parole ineligibility. He
acknowledges that he has prior convictions. He asserts, however, that except
for the predicate weapons offense, the prior convictions were for drug offenses.
He also asserts that he did not brandish the weapon. It was found during a motor
vehicle stop. He contends the judge should have imposed a five-year prison
term, with five years of parole ineligibility.
We are convinced, however, that the trial judge followed the sentencing
guidelines and the sentence imposed here does not represent an abuse of
discretion. As noted, defendant's criminal record included six prior indictable
convictions, including a prior weapons offense. We therefore reject defendant's
contention that his sentence is excessive.
Affirmed.
A-4920-16T3 22