STATE OF NEW JERSEY v. KERMAN COLEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2099-06T42099-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KERMAN COLEMAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2008 - Decided

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-10-1402.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kerman Coleman appeals from his August 18, 2006 conviction following a trial by jury on first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count four); two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (counts five and six); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven). The jury acquitted him of second-degree conspiracy to commit aggravated assault (count one). At sentencing, the judge merged counts three and four with count two and imposed a sentence of nineteen years imprisonment subject to the eighty-five percent parole disqualifier required by N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed concurrent five-year terms of imprisonment, concurrent to the sentence imposed on count two. Appropriate fines and penalties were imposed. We affirm.

I.

Jury selection began on May 15, 2006 and concluded on May 31, 2006. During jury selection on May 16, 2006, a prospective juror stated in open court, "I'm a New York City taxi driver. I've been robbed a few times by blacks. So I'm definitely prejudiced. I couldn't render a fair judgment." After the judge excused that juror for cause, all three defendants moved to excuse the jurors who were seated in the jury box at the time as well as other prospective jurors who were seated in the courtroom. They urged the judge to begin anew with a fresh pool of jurors.

The judge denied defendants' request. He concluded that the statement made by the prospective juror was not sufficiently prejudicial to have infected the jury pool as a whole. The judge did, however, decide to individually question each prospective juror at sidebar about whether the statement would adversely impact that juror's capacity to serve fairly and impartially. Each juror responded that the statement would have no such effect. Consequently, the judge neither removed any of the jurors, nor started with a fresh pool, nor took any further remedial action.

We now summarize the most pertinent portions of the trial testimony. Officer Edward Uranyi of the Chatham police department testified that on June 30, 2005, at approximately 9:00 p.m., he was dispatched to respond to an auto theft that was in progress at a restaurant on Roosevelt Avenue in Chatham. When Uranyi, in a marked police vehicle, arrived at the parking lot of the restaurant, he observed a Lexus emerge from the back of the same parking lot. The Lexus stopped briefly, turned its headlights off, and then accelerated toward Uranyi's vehicle at a speed of approximately 30 miles per hour, striking the patrol vehicle on the front driver's side. After hitting two other parked vehicles, the Lexus stopped. Due to the impact, the left side of Uranyi's patrol vehicle was crushed, pinning Uranyi in the vehicle and bruising his ribs and left shoulder. Because the Lexus was only three to four feet away from Uranyi's patrol vehicle after it stopped, Uranyi was able to see the driver's face. At trial, he identified defendant as the driver of the Lexus. Uranyi was not able to see the passenger well enough to identify him; however, the passenger was later identified as co-defendant Kenneth Daniels.

As Uranyi struggled to get out of his patrol vehicle, he shouted commands at defendant to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, defendant climbed out the window of the Lexus and attempted to flee. Uranyi was able to grab the back of defendant's shirt, but after a brief struggle, defendant broke free.

As defendant and Daniels ran toward Roosevelt Avenue, an Infiniti operated by co-defendant Jones drove past Uranyi's patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of defendant and Daniels. As Jones drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, defendant and Daniels were partially hanging out of the vehicle.

The Infiniti then accelerated, traveling at a speed of thirty to thirty-five miles per hour toward Officer Larry Dillon's vehicle. Like Uranyi, Dillon arrived at the scene after hearing the police dispatch. Officer Dillon testified that he attempted to avoid a collision with the Infiniti, but the Infiniti struck his right front bumper. The impact caused Dillon to sustain a separated shoulder and torn ligaments. The Infiniti kept driving and disappeared into a parking lot behind some businesses. Although Dillon was able to follow the Infiniti, Uranyi lost sight of both vehicles.

Uranyi then observed three individuals, including defendant, running from behind the businesses toward Roosevelt Avenue. Uranyi pursued them on foot through several backyards, but was unable to apprehend any of the three. Police officers from a number of surrounding communities, many of whom testified, ultimately apprehended all three defendants. Jones was identified by Officer Dillon as the driver of the Infiniti.

The State also produced the testimony of the owners of the Lexus and Infiniti. Each testified that he had not given defendant Coleman or Jones, respectively, permission to drive his vehicle.

The owner of the Infiniti, David Garramone, also testified that during the evening of June 28, 2005, two days before the events in question, he looked out the fifth-story window of his office building in Woodbridge and saw two vehicles parked next to his Infiniti coupe. He then observed an unknown individual get out of the back of his car and open the trunk. At that point, Garramone told a colleague to call police and ran down the stairs of the building. As he reached the ground floor, he saw all three of the cars, including his, driving away. Garramone then reported his vehicle stolen.

Two days later, Garramone received a phone call from the Woodbridge police department advising him that Chatham police had recovered his vehicle. When he retrieved his car, he observed considerable body damage, including a damaged lock on the driver's door.

Detective Corporal William Stitt of the Morris County Sheriff's Department found a locksmith tool kit in the interior of the Infiniti after the Infiniti was recovered on the night in question. A Chatham police officer who was assisting him found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation conducted later that night revealed five other vehicles in the restaurant parking lot with damage to their door locks similar to that on the Infiniti.

After the State rested, all three defendants moved for a judgment of acquittal. The judge denied each motion. None of the defendants testified. Only Daniels presented witnesses, both of whom testified about the point of impact of the police vehicles with the Lexus and Infiniti on the night in question. The State called no rebuttal witnesses.

During the charge conference, the judge denied all defendants' request that he refrain from charging second-degree robbery as a lesser included offense on the first-degree robbery count. The judge also specified during the charge conference the precise counts on which he would instruct the jury that each defendant was charged either as a principal or as an accomplice. Before charging the jury, the judge advised defense counsel that in order to protect courtroom security, he intended to have all three defendants in ankle shackles when the jury entered the courtroom with its verdict. After consulting with counsel about the appropriate method of hiding the ankle shackles from the jury, the judge decided to seat defendants at a "bench" in the courtroom when the jury verdict was read. Although the record does not describe the "bench" or its placement in the courtroom, apparently the ankle shackles could not be seen by the jurors if defendants remained seated. The State asserts in its brief, and defendant does not contest, this description of the seating arrangements in the courtroom:

[D]efendants never stood up. They were shackled at the ankle and their pants covered the shackles. They were not handcuffed at all and the shackles were invisible to the jury. Also, the three defendants and their three attorneys were all seated together, two tables away from the jury box. Besides the two tables, there were also two Assistant Prosecutors between the jury and the defendants and their attorneys.

The judge agreed to announce that everyone should remain seated when the jury entered the courtroom with its verdict so as not to draw undue attention to defendants, who would remain seated to avoid the awkwardness of rising while wearing ankle shackles. With that additional precaution, all three defendants agreed to this plan.

When the jury notified the judge it had reached a verdict, the jury was brought into the courtroom. With the jurors seated in the jury box, but before taking the verdict, the judge reviewed the verdict sheet and realized that the jury had not completed the entire verdict sheet and had consequently returned only a partial verdict. The judge sent the jury back to the jury room to continue its deliberations.

Defendants then asked the judge to poll the jury to determine whether any jurors had seen defendants in ankle shackles. The judge denied the request, reasoning that the shackles were not visible because defendants were seated.

The jury subsequently returned with a complete verdict, finding defendant guilty of the charges we have described. On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S REQUEST TO DISMISS THE JURY PANEL AND BEGIN JURY SELECTION ANEW FOLLOWING PREJUDICIAL REMARKS MADE BY A PROSPECTIVE JUROR DURING VOIR DIRE.

II. THE TRIAL COURT ERRED BY REFUSING TO VOIR DIRE THE JURY REGARDING WHETHER ANY JUROR HAD OBSERVED ANY OF THE DEFENDANTS IN SHACKLES DURING THE DELIBERATION PROCESS.

III. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE FIRST DEGREE ROBBERY EMBODIED IN COUNT II OF THE INDICTMENT.

A. The State Failed to Present a Prima Facie Case Against the Defendant with Respect to the First Degree Robbery Charge Regarding the Lexus.

B. The State Failed to Present a Prima Facie Case Against the Defendant with Respect to First Degree Robbery Regarding the Infiniti Either as a Principal or as an Accomplice.

IV. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY AND THE NEED TO DETERMINE THE DEFENDANT'S CRIMINAL CULPABILITY WITH RESPECT TO THE DIFFERENT DEGREES OF ROBBERY REGARDING THE INFINITI EMBODIED IN COUNT II OF THE INDICTMENT. (NOT RAISED BELOW).

V. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

II.

In Point I, defendant argues that the comment "I was robbed by blacks" made by a prospective juror was so "inflammatory and prejudicial in nature that those who heard [it] had to have been adversely impacted in deciding the defendants' fate, their comments to the contrary notwithstanding." Defendant further argues that because his and his co-defendants' request to dismiss the jurors and begin again with a new panel was made during a relatively early stage of jury selection, the court should have granted that request, especially in light of the inflammatory nature of the juror's remark. The failure to do, defendant argues, denied him the right to a fair trial, warranting a reversal.

The State disagrees, arguing that because the judge carefully and privately questioned each of the jurors who was seated in the jury box at the time the offending remark was made, this court should defer to the judge's conclusion that each juror should be permitted to continue to serve.

The Court has held that a reviewing court should generally defer to a trial judge's findings concerning a juror's impartiality, or lack thereof:

"A sensitive weighing and appraisal of a juror's entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment. . . ." It has also been observed that this Court is "perhaps too far removed" from the realities of the voir dire to appreciate the nuances concealed by a "bloodless record"; therefore deference to the trial court is usually prudent.

[State v. Williams, 113 N.J. 393, 410-11

(1988)(citations omitted).]

"A decision on the potential bias of a prospective juror is addressed to the sound discretion of the trial judge. Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992).

Defendant has provided no meritorious basis upon which to reject the judge's conclusion that the jurors remained fair and impartial. Because the record is devoid of any evidence suggesting that the jurors were negatively impacted by the comment, and because there is evidence in the record, namely the jurors' responses to the judge's questioning, to support the judge's finding that the jurors were not prejudiced, we defer to the judge's determination on this issue. Consequently, we reject the argument defendant raises in Point I.

III.

In Point II, defendant argues that the judge erred when he rejected a defense request to question the jurors about whether any of them had observed defendants in shackles. Defendant maintains that when the jury returned to the courtroom and rendered a partial verdict, the panel could have observed defendants in ankle shackles because nothing covered the front of their feet. He argues that because of the ankle shackles, the jury could have become prejudiced against him prior to resuming its deliberations. For that reason, he maintains that the judge erred by refusing to question the jury on that subject.

As we observed in State v. Damon, the use of visible shackles or restraints on a defendant is disfavored:

A defendant's freedom from handcuffs or shackles is important to his right to a fair and impartial trial. . . . One of the reasons for not keeping a defendant restrained is "to avoid a prejudice in the mind of the jury against the accused as being a dangerous man. . . ."

The trial judge's discretion to keep a defendant restrained is "sharply limited." There must be "sound reason" for the exercise of this discretion and a "strong case of necessity." . . . Additionally, "[i]n any case where the trial judge, in the exercise of sound discretion determines that the defendant must be handcuffed or shackled, it is of the essence that he instruct the jury in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt."

[State v. Damon, 286 N.J. Super. 492, 498-99 (App. Div. 1996)(citations omitted).]

In this case, the court decided to place defendants in ankle shackles when the jury verdict was returned because the issue of security was "most acute" at that time. The judge recognized the importance of concealing the shackles from the jury's view, and adopted measures to accomplish that objective. Defendant's counsel agreed to these precautionary methods. Nothing in the record even remotely suggests the jury could have or did observe defendant's ankle shackles.

Although it is true that a "trial court may not require a defendant to appear before the jury in restraints absent compelling reasons," State v. Artwell, 177 N.J. 526, 534 (2003), the instant matter differs from Artwell because here, unlike in Artwell, defendant's shackles were in all likelihood not visible to the jury. Nothing in the record suggests that the placement of the "bench" and the judge's instruction that everyone remain seated failed to accomplish the desired objective of concealing the shackles. Had the restraints been visible, the judge would have been required to issue the curative instruction that Damon requires. Defendant's claim that the jury could have seen the shackles is purely speculative and lacks support in the record. For these reasons, defendant's claim in Point II lacks merit.

IV.

In Point III, defendant argues that "a fair review of the credible evidence elicited during the course of the trial demonstrated the State failed to present a prima facie case establishing the requisite elements of first degree robbery embodied in Count II of the indictment, either with respect to the theft of the Lexus or the theft of the Infiniti." Accordingly, he maintains that the judge erred by denying his Rule 3:18-1 motion for a judgment of acquittal on the robbery count, which was count two.

At the close of the State's case or after all evidence has been given, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. When, as here, a motion is made at the close of the State's case, the trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). An appellate court will apply the same standard as the trial court to decide if the trial judge should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964).

We begin with the robbery involving the Lexus, which, according to the proofs presented at trial, was driven by defendant. Defendant argues that "the State, at best, presented a prima facie case regarding the Lexus only with respect to a second degree robbery." He argues that the evidence fails to establish that the Lexus was utilized as a deadly weapon. Specifically, defendant contends that the photographs demonstrated the Lexus had no damage on its front bumper. Rather, the damage was confined to the wheelwell on the driver's side extending to the rear. Accordingly, he argues that if his intention "was to ram the police vehicle, he certainly would have done so with the front of the Lexus." Defendant also maintains that the impact between the Lexus and Officer Uranyi's vehicle was slight because the Lexus air bag was not activated.

Finally, defendant argues that Patrolman Uranyi pulled into the parking lot at an angle in an attempt to block as much of the exit as possible. Under these circumstances, defendant argues, "it was clear the defendant was merely attempting to escape from the scene and, as such, sideswiped the officer's car which was blocking the exit." Defendant maintains that he "could not possibly have intended to utilize the Lexus as a deadly weapon since ramming the officer's vehicle would only have rendered [the Lexus] inoperable, thus leading to his easy capture."

Essentially, defendant argues that the State failed to prove an element of the crime of first-degree robbery: that defendant used or threatened the immediate use of a deadly weapon. This use or threatened use of a deadly weapon raises second-degree robbery to a first-degree crime. See N.J.S.A. 2C:15-1(b).

A deadly weapon is "any . . . device, . . . which in the manner it is used . . . is known to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1(c). Defendant's argument that he did not use the Lexus as a deadly weapon lacks merit because it ignores a court's obligation to afford the State the benefit of all favorable inferences that a reasonable jury could draw from the evidence. See State v. Wilder, 193 N.J. 398, 406 (2008)(interpreting Rule 3:18-1). In this case, the State's testimony demonstrated that defendant, the driver of the Lexus, stopped the vehicle approximately 100 feet from Uranyi's vehicle, and then immediately accelerated toward Uranyi, striking the driver's side of Uranyi's vehicle at a speed of approximately thirty miles per hour.

Although defendant is correct that a reasonable jury could infer from defendant's conduct that he was merely attempting to escape the scene and did not intend to strike Uranyi's vehicle, it is also possible that a reasonable jury could have concluded that defendant purposely crashed the Lexus into Uranyi's patrol vehicle while Uranyi was in it, with the purpose of inflicting serious bodily injury or death.

Thus, a reasonable jury could have found either of those two possibilities; however, merely because a jury could have chosen the scenario that would render defendant innocent of first-degree robbery does not mean that the State failed to prove an element of that crime. See Ibid. All that is required by Rule 3:18-1 for a judge to deny a motion for acquittal is that the State present enough evidence so that a reasonable jury could conclude that defendant used the car as a battering ram, causing it to become a deadly weapon. See Ibid. The State is not required to demonstrate that the jury could reach no other conclusion. Here, the State presented sufficient evidence to survive a Rule 3:18-1 dismissal motion on the robbery charge involving the Lexus, because a reasonable jury could have concluded defendant used the Lexus as a "deadly weapon" as defined by N.J.S.A. 2C:11-1(c). Defendant's arguments to the contrary lack merit.

We turn next to defendant's argument that the judge erred when he denied defendant's Rule 3:18-1 motion as it pertained to the robbery involving the Infiniti. For the following reasons, defendant argues that the State failed to present a prima facie case against him with respect to first-degree robbery involving the Infiniti either as a principal or as an accomplice. First, he maintains that the evidence was insufficient to support a guilty verdict with him as a principal because he was a passenger and thus did not have custody or control of the Infiniti. Second, the Infiniti's collision with Officer Dillon's vehicle did not occur during flight from the theft because the theft had been completed two days earlier. Third, defendant contends he "could not possibly have been deemed guilty as an accomplice since he could not possibly have shared any intent of co-defendant Jones to utilize the vehicle as a deadly weapon." Finally, he asserts the evidence shows that co-defendant Jones was merely attempting to evade apprehension and did not intend to assault or injure Officer Dillon.

We focus on the second of defendant's four arguments and agree that the State failed to present a prima facie case of first-degree robbery involving the Infiniti because the collision of the Infiniti with Officer Dillon's vehicle did not occur while "in the course of committing a theft." A robbery, whether first- or second-degree, must arise from a theft. A theft is deemed complete when the perpetrator has reached a point of at least temporary safety. State v. Mirault, 92 N.J. 492, 500-01 (1983). Thus, if the defendant has reached a point of temporary safety, the defendant is no longer deemed to be "in the course of committing a theft," and this necessary element of robbery is not satisfied. Ibid.

Here, the Infiniti had been stolen two days prior to the day in question. Presumably, defendants had, at some point, reached a point of temporary safety after initially stealing the Infiniti. The State did not prove that defendants had been in "immediate flight" for the entirety of that two-day interval. Thus, we agree with defendant that there is insufficient evidence to support a finding of first-degree robbery involving the Infiniti, either as a principal or as an accomplice, because the element of "in the course of committing a theft" was not satisfied.

The judge's error in denying defendant's Rule 3:18-1 motion as it pertained to the robbery of the Infiniti does not, however, call into question defendant's conviction on the robbery count. The robbery charge that is contained in count two of the indictment was premised on two theories: the robbery involving the Lexus and the robbery involving the Infiniti. The verdict sheet required the jury to make a separate determination with respect to each:

2a) As to the crime of Robbery of the Lexus

(using a deadly weapon), we, the jury, find Defendant

Not Guilty Guilty

2b) As to the crime of Robbery of the Lexus

(not using a deadly weapon), we, the jury, find Defendant

Not Guilty Guilty

2c) As to the crime of Robbery of the Infiniti (using a deadly weapon accomplice), we, the jury, find Defendant

Not Guilty Guilty

2d) As to the crime of Robbery of the Infiniti (not using a deadly weapon accomplice), we, the jury, find Defendant

Not Guilty Guilty

Because the record is sufficient to justify defendant's conviction for the first-degree robbery involving the Lexus, and because the jury made a separate determination concerning that robbery, the denial of his Rule 3:18-1 motion on count two must be affirmed despite defendant's meritorious argument concerning the robbery involving the Infiniti. Nothing in the record demonstrates that the jury's deliberations concerning the Infiniti in any way tainted its deliberations concerning the robbery involving the Lexus.

Indeed, the judge instructed the jurors that they were obliged to "separately" consider each "particular charge" based upon the evidence and the law. Juries are presumed to have followed a judge's instructions. State v. Burns, 192 N.J. 312, 335 (2007). Consequently, we conclude that defendant has not presented any meritorious basis upon which to disturb the judge's denial of his Rule 3:18-1 motion as it pertains to the robbery count.

V.

We turn next to defendant's argument in Point IV that the trial judge failed to adequately instruct the jury on the principles of accomplice liability in relation to his alleged participation in the robbery involving the Infiniti. Specifically, defendant maintains that because the judge utilized the "wrong" accomplice liability charge, the judge failed to adequately explain to the jury that an accomplice can be guilty of a different, and lesser, degree of offense than the principal. The judge, he argues, "never attempted to relate accomplice liability principles to first and second degree robbery."

We have concluded in Part IV of this opinion that the judge erred when he denied defendant's Rule 3:18-1 motion for a judgment of acquittal on the robbery charge involving the Infiniti. In light of that conclusion, there is no need to address defendant's arguments respecting the jury charge pertaining to defendant's liability as an accomplice to that very robbery. As an aside, we note that defendant does not argue that the jury charge was defective concerning his alleged participation as a principal in the robbery involving the Lexus. Thus, no further discussion of the jury charge is warranted.

VI.

In Point V, defendant argues that the sentence imposed was manifestly excessive. Specifically, he maintains that "the trial court abused its discretion by imposing virtually the maximum possible nineteen-year term on Count II."

Defendant contends that the court erred in relying upon one of the three aggravating factors, the risk that defendant would re-offend, N.J.S.A. 2C:44-1(a)(3). Although the judge also applied two other aggravating factors, the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9), defendant confines his arguments respecting the aggravating factors to the judge's finding, pursuant to N.J.S.A. 2C:44-1(a)(3), that defendant presents a risk of re-offending. According to defendant, he has successfully completed a program in a halfway house, the judge was in receipt of a letter from his former employer attesting to his qualities as an employee and he had expressed genuine remorse and acknowledged "full responsibility for his actions." Thus, he argues the court should not have concluded that he was at risk to re-offend.

Defendant also argues that the judge erred by ignoring applicable mitigating factors. According to defendant, mitigating factors (8) and (9) were applicable because he "had made significant strides toward rehabilitation by accepting full responsibility for his conduct and exhibiting genuine remorse." Consequently, he argues, it was clear his conduct was the result of circumstances unlikely to recur, see N.J.S.A. 2C:44-1(b)(8), and his character, attitude and background were such that he was "unlikely to commit another offense." See N.J.S.A. 2C:44-1(b)(9). For those reasons, he asserts that the judge was required to have found mitigating factors (8) and (9).

Had the judge found those mitigating factors, defendant argues there would have been a preponderance of mitigating factors that would have required the judge to impose a sentence "toward the lower end of the applicable range for a first degree offense, or 10 years." At worst, defendant argues, "the aggravating and mitigating factors essentially counterbalanced each other so as to warrant a sentence in the middle of the applicable range."

Before beginning our analysis of defendant's argument, we emphasize that our review of a claim of excessive sentencing is limited. So long as the sentence imposed is within the applicable statutory framework and the aggravating and mitigating factors are based upon competent and credible evidence in the record, we will not disturb a sentence unless "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005)(quoting State v. Roth, 95 N.J. 334, 364 (1984)).

Here, in addition to finding the three aggravating factors we have already described, the judge found two mitigating factors: "defendant's remorse" and "the hardship that shall befall his minor children and his elderly mother, all of whom relied on this defendant for financial and emotional support."

The finding of aggravating factor three, that defendant presents a risk of re-offending, is well-supported by the record. Defendant's history of five adjudications of delinquency and four adult indictable convictions, all incurred by the time he was merely twenty-three years old, lend ample support to the conclusion that defendant presents a risk of committing another offense. See N.J.S.A. 2C:44-1(a)(3).

Defendant's extensive prior record likewise justifies the judge's decision to reject mitigating factors (8) and (9). Nor do defendant's completion of a program at a halfway house, or his employment from 2002 through 2005, justify the conclusion that his conduct was the result of circumstances unlikely to occur, see N.J.S.A. 2C:44-1(b)(8), or that his "character and attitude" make re-offending unlikely. See N.J.S.A. 2C:44-1(b)(9). This is especially so since both such events failed to deter defendant from committing the present offense.

Finally, we agree with the judge's conclusion that the three aggravating factors so outweighed the two mitigating factors as to justify a sentence at the top of the first-degree range. As the judge aptly observed, "the nature and circumstances of this episode of brazen unlawfulness in which this defendant stole a Lexus motor vehicle and then operated that vehicle at a high rate of speed directly at a law enforcement patrol vehicle investigating the call of a motor vehicle theft, coupled with defendant's prior criminal history, demand significant incarceration." The sentence does not shock the judicial conscience. See Dalziel, supra, 182 N.J. at 501.

Affirmed.

Defendant was tried jointly with co-defendants Terrique Jones and Kenneth Daniels. The appeals have not been consolidated, but have been calendared for disposition back-to-back. We have issued separate opinions for Jones and Daniels, under docket numbers A-0968-06 and A-1341-06, respectively.

Of the eight jurors who heard the remark in question, five were subsequently excused by defendant or one of his co-defendants, through the exercise of peremptory challenges. The judge made the same inquiry of each new prospective juror who was seated in the jury box.

We need not address this contention because the jury was not asked to determine if the State proved him guilty as a principal in the robbery involving the Infiniti. The verdict sheet reflects that the jury's consideration of defendant's participation was limited to his status as an accomplice.

(continued)

(continued)

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A-2099-06T4

October 23, 2008