STATE OF NEW JERSEY v. BRANDON STOKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6640-06T46640-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON STOKES,

Defendant-Appellant.

__________________________________

 

Argued May 18, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1927.

Randy P. Davenport argued the cause for appellant.

Hilary L. Brunell, Executive Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney, Ms. Brunell, on the brief).

PER CURIAM

A jury convicted defendant Brandon Stokes of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). At sentencing, the trial judge merged count one into count two and count five into counts two and three and imposed the following sentence: a twelve-year term of imprisonment on count two with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent twelve-year term of imprisonment on count three with NERA parole ineligibility; and a concurrent five-year term of imprisonment on count four. The judge also imposed the appropriate assessments and penalty.

On appeal, defendant raises the following contentions:

POINT ONE

DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE STATE ELICITED TESTIMONY THAT A NON-TESTIFYING CO-DEFENDANT HAD IMPLICATED DEFENDANT IN THE ROBBERIES.

POINT TWO

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING WELLINGTON'S GUILTY PLEA DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).

POINT THREE

BY MOLDING THE JURY CHARGE ON THE ISSUE OF THE VOLUNTARINESS OF DEFENDANT'S STATEMENT TO THE POLICE TO ONLY INCLUDE THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND ESSENTIALLY DIRECTED THE JURY TO FIND DEFENDANT'S STATEMENT CREDIBLE IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

POINT FOUR

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.

POINT FIVE

BECAUSE DEFENDANT WAS SUBJECT TO A DE-FACTO ARREST WITHOUT PROBABLE CAUSE, HIS STATEMENT, OBTAINED BY EXPLOITATION OF THAT ARREST, MUST BE SUPPRESSED.

POINT SIX

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We reject these contentions and affirm.

We summarize the facts from the record. On February 13, 2006, defendant, Tyquan Wellington (Wellington), Marcus Boone (Boone) and Ibn Baker (Baker) were all at Wellington's cousin's home in Elizabeth, drinking alcohol. At the time, defendant was twenty-one years old, Boone was twenty-three and Wellington and Baker were sixteen.

After several hours, defendant, Wellington, Boone and Baker left the house. Traveling in Boone's car, they made several stops, eventually stopping at another house in Elizabeth. Wellington testified at trial that defendant exited the car, went into the house and returned with a silver, .380 caliber handgun, which he gave to Baker. Wellington also saw defendant put a black gun in his left pocket.

Wellington also testified that defendant said to the group that he knew of people in the area of 18th Avenue in Newark that had money, and suggested that they rob somebody. As Boone drove down 18th Avenue, the group saw two men walking in the same direction as the car, who defendant chose to rob. Defendant told Boone to pull over, and he and Baker exited the car with their guns; however, the two males were armed, and a shoot-out occurred. Baker was shot and seriously wounded. Defendant escaped harm. He pulled Baker into the car, but no one called for help. Instead, the group drove to University Hospital in Newark. As they approached the hospital, defendant and Boone instructed the group that they were "going to say we didn't know [Baker] so we could go home that night." After carrying Baker into the hospital, the trio told the hospital staff that they found him on the side of the road and were just helping him. Baker died from his gunshot wounds.

Detective Michael Chirico of the Newark Police Department Homicide Unit was dispatched to the scene of the shooting, where he learned that three witnesses claimed to have found Baker and took him to the hospital. Chirico went to the hospital and interviewed defendant, Boone, and Wellington. All three informed the detective that they were driving around when they heard gunshots, that they saw an individual lying in the street, who they brought to the hospital, and that they did not know the individual. However, after speaking with the young men for approximately fifteen minutes, Chirico heard someone in the waiting room say that they were Baker's friends. The trio were then transported to police headquarters. During the drive, defendant instructed Wellington and Boone two or three times to "stick to the story."

At police headquarters, Wellington was separated from the others and interviewed in his parents' presence. During the interview, Wellington admitted that the group had attempted to rob the two men, and that they had a gun. After receiving his Miranda rights, Wellington gave a recorded statement; however he did not mention the attempted robberies; but said that Baker had a gun when he exited Boone's car and was shot.

After receiving his Miranda rights, Boone gave a recorded statement confessing to the attempted robberies and inculpating defendant. After receiving and waiving his Miranda rights, and after signing a Miranda form, defendant gave a recorded statement confessing to the attempted robberies.

Defendant testified at trial and gave a very different version of what happened. He said that the group went to 18th Avenue to buy marijuana, and that the two men walking down the street said they would sell it to them. Baker exited the car to purchase the drugs. Defendant was exiting the car when he heard gun shots. He dove to the ground until the shooting stopped, at which point he saw Baker laying on the ground. He helped Baker into the car, and the group drove to the hospital. At the hospital, Boone told the police that they did not know Baker.

Defendant also testified that the police forced him, Boone, and Wellington to submit to a gunpowder residue test, which had negative results. Defendant also claimed that he never received any Miranda rights before the police began questioning him, and that Chirico accused him of lying, slapped him in the face, and advised him that Boone gave a taped statement admitting the attempted robberies and inculpating defendant. Defendant further claimed that Chirico slapped him again when defendant said that Boone was lying. At this point, defendant admitted the attempted robberies because he was scared and wanted the detective to stop slapping him.

I.

Defendant first contends that the State violated his constitutional right to confrontation by eliciting testimony from him stating that Boone, a non-testifying co-defendant, gave a recorded statement implicating him in the attempted robberies. We disagree.

The State introduced defendant's taped statement at trial but did not mention Boone's taped statement. It was defendant who introduced Boone's taped statement on his direct examination as follows:

Q. What were [the police] saying to you?

A. They asked me what we were doing out there.

Q. What did you tell them?

A. Trying to buy weed.

Q. And what then occurred?

A. [Chirico] told me I was lying. He told me that he had a tape of me doing the robbery. I told him to play the tape. He told me don't worry about it, he got something better for me.

Q. Did he hit you in any way?

A. Yes, he did.

. . . .

Q. Okay. When [Chirico] told you he had a tape of you doing the robbery, what then occurred?

A. I asked him could I see the tape.

Q. And what did he say?

A. He said, "Don't worry about the tape."

Q. Then what happened?

A. He told me that he has something better, and he pulled out a tape recorder with [Boone] on it.

Q. And did he tell you . . . anything?

A. He said that

[THE COURT]: Would you be more specific?

Q. Well, Brandon, you're standing accused of robbery, correct?

A. Yes.

Q. You confessed to robbery, correct?

A. Yes.

Q. Why?

A. Because I was scared and I didn't want to be hit anymore, and I wanted to go home.

Q. Okay. What occurred after he played that tape. What then happened?

A. Um, I tried to tell him that [Boone] was lying.

Q. Then what happened?

A. He told me I was lying and slapped me again.

Q. And at some point did you tell him anything?

A. Did I tell who, Chirico?

Q. Let me rephrase, excuse me. Withdraw the question, please, Your Honor.

[THE COURT]: All right.

Q. Did you tell him you committed a robbery?

A. Yes I did.

On cross-examination, the State elicited the following testimony from defendant:

Q. It's your testimony that you and Detective Chirico and Detective Rubin were the only people in that room?

A. Yes, Ma'am.

Q. And he played a tape?

A. Yes, he did.

Q. Of what?

A. Of [Boone].

Q. On that tape did [Boone] confess to the robbery?

At this point in the questioning, defense counsel objected on Confrontation Clause grounds because Boone would not be testifying at trial. The judge overruled the objection, finding that defense counsel had introduced Boone's taped statement and, thus, the State had the right to fair questioning on the subject. The State then continued its cross-examination as follows:

Q. Mr. Stokes, did [Boone] confess on that tape?

A. Yes, he did.

Q. Did he tell the police that you were all involved in committing a robbery?

A. He said that we planned to do a robbery.

Q. We, including you, meaning all of you?

A. Everybody.

Q. And that's why you falsely confessed because [Boone] did, that's your testimony?

A. No. Because I was being hit.

In summation, the prosecutor briefly referred to Boone's taped statement to address defendant's claim that Chirico slapped him. She said, "The police already have two confessions. Do you really need to beat a third one out of [defendant]? You already have two. There is no need for that."

A defendant who introduces prejudicial evidence cannot later condemn the proceedings because such evidence has been heard. See State v. McDavitt, 62 N.J. 36, 48 (1972) (holding that the defendant cannot claim prejudice after "knowingly pursing a subject fraught with the danger" of exposing damaging testimony); State v. Morse, 106 N.J. Super. 1, 4 (App. Div. 1968) (holding that the defendant cannot claim error where he introduced evidence that he admitted ownership of the heroin found on him), aff'd 54 N.J. 32 (1969); see also State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (discussing the concept of invited error).

Also, under the "opening the door" doctrine, defendant could not introduce Boone's taped statement and then prevent the State from addressing it. "[The 'opening the door'] doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of the evidence for the defendant's own advantage[.]" State v. James, 144 N.J. 538, 554 (1996) (citing United States v. Lum, 466 F. Supp. 328, 334-35 (D. Del.), aff'd, 604 F.2d 1198 (3rd Cir. 1979)). The doctrine "authorizes admitting evidence which otherwise would have been irrelevant or inadmissible, in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." Ibid. (citing Lum, supra, 466 F. Supp. at 334-35). (Emphasis in original.)

Further, "[t]he doctrine of 'curative admissibility' provides that when one party introduces inadmissible evidence, thereafter the opposing party may introduce otherwise inadmissible evidence to rebut or explain the prior evidence." Id. at 555 (citing United States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980)). (Emphasis in original.) In other words, this doctrine operates to permit the State to clarify, for contextual purposes, those portions of evidence which are selectively introduced by the defendant. Ibid.

Here, defendant introduced Boone's taped statement in an attempt to bolster his claim that Chirico forced him to confess by hitting him. Also, knowing that Boone had confessed to the robberies and had inculpated him, defendant also attempted to discredit Boone as a liar. Having done so, he created an inference for the jury that Boone had falsely inculpated him in the crimes. He also left open the question of whether he admitted to the robberies because Chirico had hit him or because Boone had inculpated him. Accordingly, we agree with the judge that the State was entitled to fair questioning on the subject. In its questioning and summation, the State did not create any further prejudice beyond that which defendant had already created.

We also note that, assuming an error occurred, it was harmless. There was ample independent evidence supporting the jury's verdict, including defendant's confession. State v. Roach, 146 N.J. 208, 226 (1996), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

II.

Defendant's next contention concerns the proper jury charge for Wellington's guilty plea. Wellington pled guilty pursuant to a plea agreement and was adjudicated as a juvenile. As part of his plea agreement, he testified for the State at defendant's trial. His testimony was the State's main evidence against defendant. Defendant contends for the first time that the judge should have tailored Model Jury Charge (Criminal), Testimony of a Cooperating Co-Defendant Or Witness, Revised 2/6/06 (the Cooperating Co-Defendant Charge), to instruct the jury that Wellington's adjudication of delinquency could not be used as substantive evidence of defendant's guilt, and that the jury should carefully scrutinize Wellington's testimony in light of his special interest in the case.

Because defendant did not object below, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, we "must disregard any error unless it is 'clearly capable of producing an unjust result.' Reversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004)); Macon, supra, 57 N.J. at 333; R. 2:10-2.

Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). As most lay people do not understand legal jargon, the court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

In determining the proper charge for Wellington's testimony, the judge initially indicated that she would give Model Jury Charge (Criminal), Testimony of a Cooperating Co-Defendant or Witness, Revised 2/6/06, which states as follows:

_________, who was [charged with] [indicted for] the crime(s) that defendant is on trial for, has pleaded guilty to (one/some of) those charges, namely ____________, and has testified on behalf of the State. Evidence of ________'s plea of guilty may be used only in determining the credibility or believability of the witness' testimony. A jury has a right to consider whether a person who has admitted that he/she failed to comply with society's rules would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted or pleaded guilty to a crime. You may consider such evidence along with all the other factors that I mentioned previously in determining the credibility of a witness. However, you may not use ______'s plea of guilty as evidence that this defendant is guilty of the crimes that he/she is charged with.

The law requires that the testimony of such a witness be given careful scrutiny. In weighing (his/her) testimony, therefore, you may consider whether (he/she) has a special interest in the outcome of the case and whether (his/her) testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.

[(Emphasis added).]

Because Wellington was a juvenile offender, the judge subsequently concluded that the above-emphasized part of the charge was inappropriate. See State v. Guenther, 181 N.J. 129, 148-49 (2004) (noting that juvenile convictions may not be used for the purpose of impeaching the general credibility of a witness but may be used to expose possible bias, prejudice or ulterior motive). Defendant concedes this determination was proper. He argues, however, that Wellington's status as a juvenile did not justify omitting the entire charge, which the judge should have modified to include language informing the jury that Wellington's juvenile adjudication of delinquency could be considered on the issue of whether he was influenced by a hope or expectation of favorable treatment.

The judge decided that Model Jury Charge (Criminal), Prior Adjudication Of Delinquency, Revised 3/22/2004, was the proper charge, and instructed the jury as follows:

Evidence has been introduced to show that Tyquan Wellington has been previously adjudicated a juvenile delinquent and is presently on probation. This evidence of this witness' present status does not have any bearing on the general credibility to be given his testimony. Rather, the evidence has been admitted to allow you to determine whether his testimony has been influenced by possible bias, prejudice, interest or ulterior motive. More specifically, this evidence may be relevant to the question whether testimony is influenced by a hope or expectation of favorable treatment.

The judge instructed the jury as follows:

As judges of facts you are to determine the credibility of the witnesses, and in determining whether a witness is worthy of belief and therefore credible, you may take into consideration a number of factors. You may consider the appearance and demeanor of a witness on the stand; the manner in which they testified; the witness' interest in the outcome of the trial, if any; their means of obtaining knowledge of the facts; the witness' power of discernment, meaning their judgment, their understanding; the witness' ability to reason, observe, recollect and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness gave; whether the witness made any inconsistent or contradictory statements; and any and all other matters in evidence which serve to support or discredit a witness' testimony. Through this analysis, as judges of facts, you weigh the testimony of each witness and then decide the weight to give to it. Through that process, you may accept all of a witness' testimony, a portion of a witness; testimony, or none of it.

Defendant relies on Murphy, supra, to support his contention that the judge should have modified the charge to a limiting instruction that the jury could not consider Wellington's guilty plea as substantive evidence of defendant's guilt. However, we specifically noted in Murphy, supra, 376 N.J. Super. at 122, that our Supreme Court "has not directed that the limiting instruction must also state that the jury may not consider the witness's guilty plea as substantive evidence of defendant's guilt." Thus, that portion of Model Jury Charge (Criminal), Testimony of a Cooperating Co-Defendant or Witness, remains discretionary. Further, we held that the trial judge should have provided the limiting instruction because he had enhanced the witness' credibility by instructing the jury that "a guilty plea will not be accepted by a judge unless the judge is satisfied that the witness was guilty of the charge to which he or she pleaded guilty[,]" and the prosecutor in his summation unduly enhanced a witness's credibility Id. at 122-25. Such enhancements did not occur here.

Here, the judge gave a remarkably thorough jury charge spanning sixty pages. She sufficiently crafted Model Jury Charge (Criminal), Prior Adjudication Of Delinquency, to fit the circumstances of this case and included language defendant requested. Our careful examination of the entire charge satisfies us that no error occurred.

III.

Defendant next contends for the first time that charging the jury on the issue of the voluntariness of his statement to the police, which incorporated only the State's theory, the judge took the issue from the jury, effectively directing them to find the statement was voluntary and credible. This contention lacks merit.

Even though the trial judge is the sole arbiter of the "voluntariness" of a defendant's confession, the jury charge must include language that the jury should decide whether or not the statement was true before they considered it as evidence. State v. Hampton, 61 N.J. 250, 272 (1972); State v. Martinez, 387 N.J. Super. 129, 137 (App. Div.), certif. denied, 188 N.J. 579 (2006). N.J.R.E. 104(c) codified the Court's holding in Hampton. See also State v. Morton, 155 N.J. 383, 428 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In an earlier case, the Court recognized the inherent weakness in admitting an oral incriminating admission by a defendant where misunderstanding and imperfect recollection may render the evidence unreliable. State v. Kociolek, 23 N.J. 400, 421 (1957). There, the Court held that a jury was to be instructed to "'weigh and consider such testimony with caution.'" Ibid. Thus, under Hampton and Kociolek, the trial judge must instruct the jury on the general credibility of a defendant's admission, and where the admission is oral, the jury must be instructed to consider the admission with caution. State v. Jordan, 147 N.J. 409 (1997). However, failure to give a Hampton or Kociolek instruction is not fatal per se. Id. at 425-26. Each case is to be reviewed under the plain error standard. Ibid. See also Martinez, supra, 387 N.J. Super. 138 (holding failure to give Hampton and Kociolek charges to disregard alleged oral admission by defendant unless they found the admission credible did not constitute plain error).

Also, as a general rule, the trial judge must give a charge that is impartial and which gives equal treatment to both sides. For example, if a judge remarks on infirmities in the State's evidence, [he or she is] "'required, in the interests of fairness, to mention the State's explanations' for those weaknesses." State v. Robinson, 165 N.J. 32. 45 (2000) (quoting State v. Walker, 322 N.J. Super. 535, 551 (App. Div.), certif. denied, 162 N.J. 487 (1999)). Likewise, if the court "refers to the State's evidence in any significant way, it must also refer to the defendant's contrary contentions." Ibid. This balance is appropriately left to the sound discretion of the trial judge in order to customize their jury charge based on the facts of each case. Ibid.

Here, the judge instructed that jury that, "[r]egardless of what the attorneys have said or I may say in recalling the evidence in this case, it is your recollection of the evidence that must guide you as judges of the facts." Following Model Jury Charge (Criminal), Statements of Defendant (Revised January 29, 1996), the judge also instructed the jury as follows, in relevant part:

Now, there is for your consideration in this case a tape recorded statement allegedly made by the defendant [].

. . . .

It is your function to determine whether or not the statement was actually made by the defendant and, if made, whether the statement or any portion of it is credible. You should therefore weigh and consider this evidence very carefully.

In considering whether or not the statement is credible, you should take into consideration the circumstances and the facts as to how the statement was made, as well as all other evidence in the case relating to this issue.

Now, it is the state's contention in this case that the defendant, prior to giving any statement, was advised by law enforcement authorities of his Miranda rights. You'll hear them again on the tape that he had the right to remain silent, that anything said against him could be used in a court of law, etc... and, you will recall the testimony. This was the testimony of Detective Chirico that after being read his rights, that the defendant voluntarily and knowingly waived his rights. It is the state's contention that the statement was then voluntarily given after the defendant was advised of his rights.

If, after consideration of all these factors you determine that the statement was not actually made, or that the statement is not credible, then you must disregard the statement completely. If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think is appropriate to the portion of the statement you find to be truthful and credible.

[(Emphasis added).]

Our careful review of the entire charge satisfies us that the judge fulfilled her Hampton obligation. She instructed the jury that defendant "allegedly" made the statement to the police, that they must consider all of the evidence regarding the credibility of the statement, and that they must carefully assess the statement's credibility against the State's contention that defendant received his Miranda warnings and made the statement voluntarily.

We are also satisfied that the judge committed no error, let alone plain error, by her limited reference to the State's evidence on the voluntariness of defendant's statement. She properly instructed the jury to consider all of the evidence relating to this issue, not just the State's evidence.

IV.

Defendant also contends for the first time that his statement was the product of an unlawful detention. We will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concerns matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 326 (2005). Further, if defendant wished to challenge the statement on Fourth Amendment grounds, he was required to file a motion before trial. R. 3:5-7; R. 3:10-2. His failure to do so bars him from now raising this issue. State v. Del Fino, 100 N.J. 154, 160 (1985); State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1985), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843; 102 L. Ed. 2d 975 (1989).

V.

We now address defendant's challenge to his sentence. Defendant contends that the judge gave too much weight to certain aggravating factors and not enough weight to a certain mitigating factor. We disagree.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.

Here, the jury convicted defendant of two counts of first-degree robbery, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. Pursuant to N.J.S.A. 2C:43-6, the discretionary sentencing range on first-degree robbery alone is ten and twenty years. The judge sentenced defendant to twelve years, which was two years greater that the sentence defendant requested.

In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted) and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law), and mitigating factor N.J.S.A. 2C:44-1b(11) (the imprisonment of the defendant would entail excessive hardship to himself or his dependents). Defendant requested but the judge refused to find mitigating factors N.J.S.A. 2C:44-1b(7) (the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense), N.J.S.A. 2C:44-1b(8) (the defendant's conduct was the result of circumstances unlikely to recur) and N.J.S.A. 2C:44-1b(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense).

 
We discern no abuse of discretion in defendant's sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence, and the sentence imposed is below the mid-range for first-degree offenses. Defendant has six adult arrests and a prior conviction for theft, for which he received probation, and which was close in time to the commission of the offenses in this case. Defendant was also the ring leader in the robberies, and he had a pending robbery charge at the time of sentencing.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966).

U.S. Const. amend VI.

Footnote three of this charge warns that "[t]here may be circumstances where this last sentence is not appropriate." See State v. Murphy, 376 N.J. Super. 114, 122-23 (App. Div. 2005). Thus, this portion of the charge is discretionary.

U.S. Const. amend IV.

Defendant suffers from a medical condition.

(continued)

(continued)

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