STATE OF NEW JERSEY v. OZCAN DEMIRBULAKLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3889-06T43889-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OZCAN DEMIRBULAKLI

a/k/a OZCAN DEMIRBULAKI,

Defendant-Appellant.

_________________________________

 

Submitted November 4, 2009 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-09-0745 and 05-09-0746.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant, Ozcan Demirbulakli, was convicted of three counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, three and four); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count two); and third-degree possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five). Thereafter, a second trial was conducted on the separately indicted charge of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). The same jury acquitted defendant of that offense. Finally, defendant was convicted by the court, sitting without a jury, of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2.

On count one, the trial judge granted the State's motion for an extended term sentence, N.J.S.A. 2C:43-6(f); R. 3:21-4(e), and imposed a nine-year term of imprisonment with a three and one-half year period of parole ineligibility. On counts three, four and five, the court sentenced defendant to concurrent five-year flat terms and imposed applicable fines and penalties.

Defendant presents the following issues for review on appeal:

POINT I

THE COURT'S CHARGE TO THE JURY ON THE MISTAKE-OF-FACT OR-LAW AFFIRMATIVE DEFENSE WAS ERRONEOUS DENYING DEFENDANT HIS RIGHT TO DUE PROCESS AND TO A FAIR TRIAL. ALTERNATIVELY, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. FIFTH AND SIXTH AMENDS.; N.J. CONST. ART. 1 PARS. 1 & 10. (Not Raised Below).

A. The Court's charge On Mistake-Of-Fact Or Law Defense Denied Defendant His Rights to Due Process And A Fair Trial.

B. Alternatively, Defendant Was Denied Effective Assistance Of Counsel.

POINT II

THE DEFENDANT'S EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:43-6(f), OF A NINE-YEAR BASE TERM WITH A THREE AND ONE-HALF-YEAR PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND UNDER STATE V. PIERCE, 188 N.J. 155 (2006). (Not Raised Below).

A. The Defendant's Nine-Year Extended Term Is Manifestly Excessive.

B. The Defendant Is Entitled To A Remand Pursuant To State v. Pierce.

After our review of the arguments submitted, in light of the record and applicable law, we affirm.

We summarize the facts. On August 3, 2005, defendant sold three grams of cocaine to Meredith Roberts, an undercover detective employed by the narcotics unit of the Somerset County Prosecutor's Office (SCPO), at a Dunkin' Donuts in Branchburg. The sale was arranged by a confidential informant working with the SCPO, who accompanied Roberts. When Roberts arrived, defendant and a man defendant identified as "Mark" were waiting in an ice cream truck. Roberts was motioned to go to the service window of the truck, where she was asked how many she wanted. Based on her response, Roberts was given three bags containing cocaine for which she paid $180.

Two days later, Roberts called defendant to arrange another purchase. Defendant met Roberts at a different Branchburg location and sold her three grams of cocaine. During this transaction, Roberts was alone and wearing a wire. Defendant was driving a Lincoln Town car and removed the drugs from under the lining of the passenger-side sun visor. Roberts paid defendant $180.

On August 8, 2005, Roberts called defendant's cell phone and arranged a third drug purchase. The sale was scheduled at a Dunkin' Donuts in Bound Brook. While en route, Roberts received a call from defendant changing the location to a BP gasoline station. The transaction occurred with Roberts paying $180 for three grams of cocaine. As defendant was leaving the gasoline station, he was stopped and arrested.

After receiving his consent, police searched defendant's car. The automobile search recovered drug paraphernalia, several cell phones, one of which held a bag of cocaine in the battery compartment, and a bag of cocaine located inside the driver's side door compartment. The police drove defendant to his residence. Defendant consented to a search and provided the access key. The search of the premises discovered additional bags of cocaine and drug paraphernalia.

Defendant waived his Miranda rights and, in a custodial statement, admitted selling the drugs to Roberts to support his family. He also claimed he was working undercover for the Drug Enforcement Administration (DEA) or the Federal Bureau of Investigation (FBI).

Prior to trial, the court held a hearing to evaluate whether defendant's statement was properly obtained and voluntarily made. Corporal Michael Price, the arresting officer who Mirandized defendant and participated in the search of defendant's car and residence, testified regarding the events and seizures following arrest. Defendant, who was born in Turkey, also testified with the aid of an interpreter. Defendant stated he learned English as a second language and was only moderately proficient. Defendant challenged Price's testimony and denied Price read him his rights. Defendant insisted Price just told him to sign the form, which he did. The court determined defendant's courtroom testimony demonstrated he was "very comfortable with the English language" and "fully understood the context in which he was answering questions[.]" The court also found defendant was attempting to "downplay his comprehension of the English language[.]" The court concluded defendant knew what was occurring, knew he was under arrest, and knowledgably waived his rights prior to giving his custodial statement.

In addition to Roberts and Price, the State presented SCPO detectives Joseph Walsh, Francisco Roman, Omar Belgrave, Edward Conway, III, Mark Matthews, and George Ramos, who testified at trial regarding their respective roles in the undercover surveillance operation, defendant's arrest, and the search of his vehicle at the scene. Warren Township Police Officer Eric Yaccarino discussed his back-up role in defendant's arrest, and Montgomery Township Police Officer Andrew Perry explained his participation with the SCPO operation and the search of defendant's residence.

The defense elicited testimony from SCPO detective John Fodor, who acknowledged in May or June 2005, defendant informed the narcotics unit what he knew regarding a Plainfield drug dealer and, at the request and under the supervision of the SCPO, made a telephone call to attempt to set up a drug purchase. The alleged supplier would not travel to Somerset County, and defendant was not asked to act further. Prior to this event, defendant had assisted the SCPO by providing information in an "identity investigation" and, from April to December 2003, aided "an extortion/kidnapping investigation," which was primarily run by the FBI.

FBI agent Carrie Brzezinski explained she was aware of defendant's aid in the attempted kidnapping investigation but stated defendant provided no assistance to the FBI in any narcotics investigation and was not acting with Bureau authorization in July and August 2005. Agent Brzezinski also explained the FBI's rules and practices in using informants, which included an informant is not to act on his own, must not buy or sell drugs, and should call the Bureau if he is in trouble or being threatened.

Matthew Maltese of the Newark office of the DEA testified defendant "was attempting to provide assistance" to the DEA in late 2004 or early 2005, and the agency discussed the possibility of using him but defendant never participated in the informant's training program and was not a DEA "informant at any time." Maltese stated the FBI suggested he talk to defendant who made phone calls for the SCPO, which "went nowhere." Maltese met with defendant and instructed him that informants cannot engage in criminal activity, and if he developed into an informant, he would not "have a license to do whatever he want[ed] because he's working with the DEA." Maltese emphasized defendant was not told to sell drugs, never sought permission to act beyond that one meeting, and never reported he felt threatened.

Finally, defendant testified on his own behalf. He did not deny he engaged in the three drug transactions with Roberts but explained his intention was to buy drugs from "Joe," a supplier, "to get him arrested." Defendant acknowledged that as an informant for the SCPO and the FBI, he was specifically told not to buy weapons, drugs or do other things without the knowledge of the police. He also knew he was not to "sell drugs on [his] own" and needed approval from the authorities to take any action. Defendant admitted he did not tell anyone after he made the first sale to Roberts.

At the charge conference, defendant asserted the court should instruct the jury regarding the defense of mistake of fact or law and proffered a proposed jury charge. The prosecutor argued defendant's mistake must be reasonable. After further discussion, the defense agreed with a corresponding modification to the proposed charge, which was used by the court.

Following instructions regarding the elements of the offenses charged and the applicable mental states, the judge charged the jury regarding the asserted defense, stating:

In defense of the charge of distribution the defendant . . . contends he is not guilty because at the time of the offense he was mistaken or ignorant as to matters of fact and law with regard to the offense changed.

Our law provides in part ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and the mistake negatives [sic] the culpable mental state required to establish the offense.

["]Reasonably["] means an objectively reasonable standard, that is what a reasonable person in the same situation would conclude.

On appeal, defendant argues the court erred by erroneously instructing the jury because the charge stated defendant's mistaken belief that his sale of CDS to Roberts was privileged by his status as a government informant must have been reasonable. Defendant contends the error warrants reversal of his conviction.

"'The trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]'" State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986) (quoting State v. Fair, 45 N.J. 77, 90 (1965)). Because there was no objection to the modified charge, our review must be guided by the plain error standard. See R. 2:10-2 (stating error is reversible when it is "clearly capable of producing an unjust result"). The failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [ ] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The Court has found plain error, even in the absence of an objection, where a flawed charge failed to explain material issues. State v. Warren, 104 N.J. 571, 578-79 (1986). "'Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error,'" Warren, supra, 104 N.J. at 579 (quoting State v. Grunow, 102 N.J. 133, 148-49 (1986)), because the erroneous jury charge typically is a "'poor candidate[] for rehabilitation[.]'" Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)). However, the allegation of error must be assessed in light of "the totality of the entire charge, not in isolation[,]" and considered in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

Next, we note New Jersey's Code of Criminal Justice (the Code), N.J.S.A. 2C:1-1 to 104-9, "require[s] a voluntary act and a culpable state of mind as the minimum conditions for liability. See N.J.S.A. 2C:2-1 and -2." State v. Sexton, 160 N.J. 93, 98 (1999). Generally, "no person should be guilty of an offense unless the person 'acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.'" Id. at 99 (quoting N.J.S.A. 2C:2-2(a)). The offenses for which defendant was charged in counts one, three, four and five include, as an element, the culpable mental states of "knowingly or purposely" possessing controlled dangerous substances or possession with the intent to distribute. See N.J.S.A. 2C:35-5(a). No additional mental state is found in N.J.S.A. 2C:35-7 (count two), which rejects as a defense ignorance of the boundaries of a school zone when distributing CDS.

The Code also provides that ignorance or mistake as to a matter of fact or law is a defense to a criminal charge when the mistake "negat[es] the culpable mental state required to establish the offense[.]" N.J.S.A. 2C:2-4(a)(1); State v. Wickliff, 378 N.J. Super. 328, 334 (App. Div. 2005). A mistake does not actually provide a defense, but instead "'makes proof of a required culpability element impossible,'" such that the State cannot meet its burden of proving all the elements of a crime beyond a reasonable doubt. State v. Pena, 178 N.J. 297, 306 (2004) (quoting Sexton, supra, 160 N.J. at 100).

Before we examine the question of whether mistake was properly charged, we first dispel defendant's suggestion that the Supreme Court's holding in Sexton requires a trial court to instruct the jury regarding what he describes as the State's burden to "disprove[] beyond a reasonable doubt defendant's mistake-of-fact defense." This is not the case. In fact, Sexton, supra, 160 N.J. at 106, made clear the State's burden is only to prove defendant's mental state beyond a reasonable doubt. State v. Drew, 383 N.J. Super. 185, 197 (App. Div.), certif. denied, 187 N.J. 81 (2006). The Supreme Court observed: "To require the State to disprove beyond a reasonable doubt defendant's reasonable mistake of fact introduces an unnecessary and perhaps unhelpful degree of complexity into the fairly straightforward inquiry of whether defendant" acted with the requisite mental state required by the criminal offense. Sexton, supra, 160 N.J. at 107.

We turn to defendant's substantive claim. Defendant urges reversal because the court's instruction was erroneous; namely, the statement that a mistake negates the mental state if "defendant reasonably arrived at the conclusion underlying the mistake." We agree with defendant that a mistake of fact need not be "reasonable" to negate the required mental state of the crime, id. at 101, and the court's suggestion otherwise was error. However, our review of the record reveals no mistake of fact was asserted, and defendant's proofs did not evince a mistake of law. Defendant's mistake focused on whether his conduct was criminal, which is governed by N.J.S.A. 2C:2-4(a). Defendant's proofs failed to clearly and convincingly satisfy the requirements of that statute. Additionally, we determine the instruction given to the jury properly placed the burden on the State to prove the mental state required to establish the offense. Therefore, the error did not possess a clear capacity "to bring about an unjust result." R. 2:10-2.

We review authority interpreting N.J.S.A. 2C:2-4(a) and addressing the nature of a mistake of fact or law defense. The Supreme Court has held that a defendant's mistake of fact need not be "reasonable" to negate the required mental state of the crime such that a factual mistake, even if unreasonable, "may constitute a defense to a crime requiring a culpable mental state higher than recklessness or negligence." Sexton, supra, 160 N.J. at 101. In Sexton, the defendant was handed a gun, which he was told was not loaded. Id. at 96. While defendant handled the gun it discharged, killing another. Ibid. The Court concluded defendant's ignorance regarding weapons and his belief that the gun was unloaded were relevant to negate the required mental state for the charge of murder; however, defendant's handling of the weapon would not negate the mental state for reckless manslaughter. Id. at 102-05.

In Wickliff, supra, we held a mistake of law could negate the requisite mental state for conviction if it entailed a mistake concerning legal issues that are relevant to prove the elements of an offense. 378 N.J. Super. at 335. The defendant, a bail bondsman, was charged with criminal trespass after a forced entry into a premises. Id. at 331-32. Defendant argued the court erred in excluding evidence supporting a defense of mistake of law; that is, based upon his training, which included federal law, he mistakenly believed he was legally authorized to forcibly enter the home to recapture a felon. Id. at 338. We specifically noted "[t]he mistakes of law covered by subsection (a) [N.J.S.A. 2C:2-4(a)] do not involve errors over whether actions are criminal; they are mistakes concerning legal issues that are relevant to proof of the elements of an offense." Wickliff, supra, 378 N.J. Super. at 335 (citing Cannel, New Jersey Criminal Code Annotated, Comment 2 on N.J.S.A. 2C:2-4 (2009)).

More recently, the Supreme Court in Pena, supra, reviewed the trial court's refusal to charge the defense of incomplete mistake, N.J.S.A. 2C:2-4(b), where the defendant believed he was smuggling stolen furs but was charged instead with distribution of the $800,000 of cocaine found in his suitcase. 178 N.J. at 300-01. The Court examined the question of whether the statute applied when the crime defendant believed he was committing was not a lesser included offense to the crimes charged, id. at 307, and answered affirmatively.

We also note that at the time of trial, the Model Jury Charges (Criminal) contained no charge regarding ignorance or mistake. Subsequently, a charge to be used when N.J.S.A. 2C:2-4(a) is claimed, which tracks the language in Sexton, was adopted on May 7, 2007, stating:

If you find that the State has failed to prove beyond a reasonable doubt that defendant did not believe that (mistake of fact or law), then you must find him/her not guilty of (offense charged). However, if you find that the State has proven beyond a reasonable doubt that defendant did not believe (mistake of fact or law), and you find that the State has proven all of the elements of the offense beyond a reasonable doubt, then you must find him/her guilty of (offense charged).

[Model Jury Charge (Criminal), "Ignorance or Mistake" (2007).]

Therefore, in accordance with Pena, Sexton and Wickliff, a charge must instruct the jury of its role to determine whether the State had proven, beyond a reasonable doubt, that a defendant possessed the mental state designated in the offense charged. In this matter, the jury at a minimum "could not hold defendant criminally liable for the CDS possession [and distribution] offenses with which he was charged unless it found he knew or was aware . . . he possessed CDS." Pena, supra, 178 N.J. at 305.

Defendant did not assert he was mistaken regarding a factual element of the offenses charged. He admitted he sold cocaine to Roberts. He never suggested he was under the reasonable (or unreasonable) belief that he possessed and sold something other than cocaine or that he mistakenly believed cocaine was not a CDS. Rather, defendant maintained his actions were in furtherance of a government criminal investigation and, therefore, not a criminal act. Essentially, defendant argued his actions of buying and selling CDS, done in an attempt to independently gather information regarding a drug supplier, were privileged, not criminal. Defendant's claim implicates a mistake of law.

In this regard, it is important to distinguish between ignorance of the legal standard established by the statute the defendant is alleged to have violated, N.J.S.A. 2C:2-2, excusable only under the narrow terms available under subsection (c) of N.J.S.A. 2C:2-4, and a mistake as to some external body of law which may destroy the mens rea for the crime charged, addressed in subsection (a) of that statute and modified in Sexton.

[Wickliff, supra, 378 N.J. Super. at 335.]

As we have stated, N.J.S.A. 2C:2-4(a)(1) permits the defense of mistake of law if it negates an element of the offense including "the culpable mental state required to establish the offense." Wickliff, supra, 378 N.J. Super. at 334. Thus, if defendant's mistake relates to his legal obligation, it could negate the culpability element of the drug offenses with which he was charged. Alternatively, a claim made under N.J.S.A. 2C:2-4(c), requires a defendant to prove "by clear and convincing evidence," State v. Elrose, 277 N.J. Super. 548, 558 (App. Div. 1994), "a good faith defense based on ignorance of the law where, among other things, there has been on the part of a defendant 'reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous contained in . . . [a] judicial decision, opinion, judgment or rule,' or 'diligent pursuit by all means available' to ascertain the meaning of the law." Wickliff, supra, 378 N.J. Super. at 336 (quoting N.J.S.A. 2C:2-4(c)).

At best, the arguments presented by defendant suggest he held a mistaken belief that his acts were not criminal. Yet, defendant never proffered clear and convincing evidence to satisfy the requisites of legal mistake under N.J.S.A. 2C:2-4(c). Defendant never testified that he received or relied upon advice that he could buy and sell illegal narcotics. To the contrary, his own testimony made clear, as did the testimony of Fodol, Brzezinski, and Maltese, that if defendant were an informant he could not act independently and was not to buy or sell drugs. Moreover, defendant had not discussed his intended drug sales with any governmental supervisor.

Regarding a possible legal mistake proffered, pursuant to N.J.S.A. 2C:2-4(a), we conclude the evidence submitted was lacking. The court allowed the requested instruction on mistake and correctly advised the State was to prove defendant's culpable mental state of either "purposely" or "knowingly," N.J.S.A. 2C:2-2(b)(1) and (2), possessing and selling cocaine. In defining purposely, the judge directed the jurors that they were required to find defendant had the "conscious object to engage in conduct of that nature." In defining knowing conduct, the judge explained the jurors were required to find defendant was "aware that his conduct is of that nature or that such circumstances exist" or that "he is aware that it is practically certain that his conduct will cause such a result." This mental state requires a defendant to "be aware that he performed [the] act" charged, State v. Overton, 357 N.J. Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003), not that he know the conduct is criminalized. Thus, the criminal charge may be defeated by a showing that the defendant did not appreciate the action undertaken.

Here, the evidence clearly shows defendant possessed cocaine and had arranged to sell and then sold the CDS to Roberts, retaining the profits. Moreover, defendant explained he knew informants could not act to sell or buy drugs independently without authorization of their government handler. Additional evidence of defendant's knowing actions include: his admission of knowledge that the sale of cocaine was illegal; changing the location of the transaction; telling Roberts the Dunkin' Donuts was "too hot," as he tried to evade police detection; using multiple cell phones to contact Roberts; and secreting the drugs in his car, a cell phone, and the ice cream truck. Defendant knew he was not authorized by the local police, the FBI or the DEA.

Unlike the defendant in Wickliff, supra, this defendant adduced no "competent evidence tending to show his belief that he acted as a matter of right pursuant to lawful authority." 378 N.J. Super. at 338. The opposite was proven. Thus, defendant's claimed mistaken belief that his illegal actions would be excused because he was attempting to gain the confidence of and expose a drug supplier is not cognizable as a mistake of law, pursuant to N.J.S.A. 2C:2-4(a)(1). Wickliff, supra, 378 N.J. Super. at 335 (citing Cannel, supra, comment 2 on N.J.S.A. 2C:2-4 (2009)). There is no mental state that can be negated by a failure to understand the illegal nature of an act and N.J.S.A. 2C:2-4(a)(1) does not benefit defendant.

Despite the lack of evidence of mistake of fact and the limited proofs supporting a mistake of law, defendant's claims were fully aired and the trial court included his mistake charge in its jury instructions. Significantly, the jury was expressly instructed that if the State failed to prove, beyond a reasonable doubt, that defendant acted with the requisite mental culpability, it must find defendant not guilty of the offense charged.

Viewing this charge as a whole, we conclude the jury understood the State must prove defendant knew he possessed and sold a CDS and that the jury must determine whether "the claimed mistake negated the culpable mental state required to establish the offense." The charge properly instructed the applicable mental states for the charged offenses and told the jury the claimed legal mistake was designed to challenge the State's proofs regarding defendant's alleged purposeful or knowing actions. In light of this record, the evidence of defendant's knowing criminal conduct was overwhelming and, because there was no evidence of a mistake of fact or law under N.J.S.A. 2C:2-4(a)(1), the court's additional instruction that defendant must have "reasonably arrived at the conclusion underlying the mistake" did not rise to plain error. R. 2:10-2. Accordingly, we conclude the error did not lead the jury to a result it might otherwise not have reached, State v. Macon, 57 N.J. 325, 336 (1971), and was not "clearly capable of producing an unjust result." R. 2:10-2.

For future guidance, we remind trial judges that they must fully evaluate the nature of the claimed mistake and its effect on the State's proofs. When appropriately including a mistake instruction, the court must contour the charge in light of the facts of the case. Pena, supra, 178 N.J. at 319.

Alternatively, defendant seeks reversal contending he was denied the effective assistance of counsel based on the flawed jury charge. To obtain relief based on ineffective assistance grounds, he is obliged to show both the particular manner in which counsel's performance was deficient and the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209-10 (1985); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986).

Based upon our determination regarding the jury charge, we reject defendant's argument. We are persuaded that counsel's alleged deficiency in drafting the jury charge failed to meet the prejudice prong of the Strickland test. Defendant has not demonstrated that, but for counsel's deficiency, there was a reasonable probability that the outcome of the proceeding would have been different. State v. Russo, 333 N.J. Super. 119, 139 (App. Div. 2000).

We conclude our review by considering the points raised by defendant as to the sentence imposed. Defendant argues his extended term sentence, N.J.S.A. 2C:43-6(f), was manifestly excessive and suggests the judge did not follow the guidance provided by our Supreme Court in State v. Pierce, 188 N.J. 155 (2006).

In imposing the sentence, the trial judge found aggravating factor three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3), based on defendant's utilization of drug sales as an income source; factor nine, N.J.S.A. 2C:44-1(a)(9), (the need to deter defendant and others from violating the law), noting defendant sold CDS from an ice cream truck, which placed children at risk; and factor eleven, N.J.S.A. 2C:44-1(a)(11) (the imposition of a non-custodial sentence would be viewed by defendant as a cost of doing business). The judge reviewed and rejected defendant's arguments, finding no applicable mitigating factors, N.J.S.A. 2C:44-1(b). Thus, the court found the aggravating factors preponderated over the nonexistent mitigating factors. After denying the State's motion for consecutive sentences, see State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the court imposed the sentence stated above.

We review a judge's sentencing decision under an abuse of discretion standard. Pierce, supra, 188 N.J. at 169-70; State v. Roth, 95 N.J. 334, 363-64 (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)). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and we must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). In determining the propriety of a sentence, we must make sure the sentencing guidelines have been met, the findings on aggravating and mitigating factors are based upon "'competent, reasonably credible evidence,'" and that the sentence is not "'such a clear error of judgment that it shocks the judicial conscience.'" Id. at 501 (quoting Roth, supra, 95 N.J. at 363-64).

Defendant concedes he was eligible for an extended term based upon his prior conviction for drug distribution. In this regard Pierce is inapplicable. Rather, defendant's arguments challenge the discretion exercised by the court in assessing the applicable aggravating and mitigating sentencing factors when imposing a sentence within the extended range mandated by N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137 (2006).

Our review reveals the court properly provided a factual basis for its application of the aggravating and mitigating factors, complied with the statutory sentencing guidelines and imposed a sentence, which was properly within the appropriate range for the offenses. State v. Ghertler, 114 N.J. 383, 389 (1989); Roth, supra, 95 N.J. at 362-64. We discern no error in the court's assessment of defendant's eligibility for an extended term. Thomas, supra, 188 N.J. at 149-52. Accordingly, we have no basis to interfere with the sentence imposed.

 
Affirmed.

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

Defendant also testified during an N.J.R.E. 104 hearing, which was held to discern the scope of his testimony regarding his presentation of the defenses of duress and necessity.

(continued)

(continued)

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January 29, 2010