STATE OF NEW JERSEY v. JEAN CLAU S. WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01316-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEAN CLAU S. WRIGHT, a/k/a

JEAN CLAUDE S. WRIGHT, a/k/a

JEAN-CLAUDE WRIGHT, a/k/a

JEANCLAUDE S. WRIGHT, a/k/a

JEAN WRIGHT, a/k/a JEAN C.

WRIGHT,

Defendant-Appellant.

______________________________

December 26, 2013

 

Submitted September 10, 2013 Decided

 

Before Judges Reisner and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1197.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the court denied his motion to suppress a handgun seized from a warrantless search of the vehicle in which he was traveling, defendant Jean Claude Wright was convicted by a jury in absentia of two counts of first-degree robbery, N.J.S.A. 2C:15-1(a); one count of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3; and two counts of fourth-degree aggravated assault, pointing a firearm, N.J.S.A. 2C:12-1(b)(4). Judge Richard F. Wells then sentenced defendant to concurrent terms of eleven years on the robbery counts, of which defendant was required to serve eighty-five percent before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged the remaining counts into the robbery counts.

Defendant now appeals. He argues the court erred in denying his suppression motion; one of the robbery convictions was against the weight of the evidence; he should have received a sentence in the second-degree range; and he was wrongfully denied jail credits. He sets forth his points on appeal as follows:

POINT I

 

THE SEARCH CANNOT BE JUSTIFIED UNDER THE PLAIN VIEW OR AUTOMOBILE EXCEPTIONS TO THE WARRANT REQUIREMENT.

 

A. Because the Officers Had No Reason to Believe That There Were Additional Suspects in the Trunk of the Car, They Had No Legal Basis to Enter the Car and Open the Glove Compartment to Access the Trunk Release. Thus, Any Evidence Observed from That Position Was Not in Plain View.

 

B. Exigency Cannot Excuse This Warrantless Search Because in Officer Wenger's Assessment, It was Feasible to Impound the Car Pending Application for a Search Warrant.

 

POINT II

 

THE FIRST-DEGREE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE FACTS ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT WRIGHT COMMITTED A THEFT AGAINST RANIERI (Not Raised Below).

 

POINT III

 

WRIGHT SHOULD BE RE-SENTENCED AS A SECOND-DEGREE OFFENDER.

 

POINT IV

 

PURSUANT TO STATE V. HERNANDEZ, 208 N.J. 24 (2011), WRIGHT IS ENTITLED TO JAIL CREDITS FOR THE TIME SPENT IN BURLINGTON COUNTY PRIOR TO HIS SENTENCING ON THE PRESENT MATTER.

 

Having carefully reviewed the record in light of the applicable legal principles, we affirm the suppression order, the conviction, and the sentence, but remand to correct the judgment of conviction to award defendant the disputed jail credits. The only issue worthy of extended discussion is the appropriateness of the warrantless search and seizure. We address that issue first, and briefly consider the remaining issues.

I.

A.

The sole witness at the suppression hearing was Burlington Township Police Sergeant Stephen Wenger.1 The State also introduced into evidence the mobile video recording (MVR) of the traffic stop that led to Wenger's seizure of the handgun.2

Shortly after 2:00 a.m. on October 11, 2008, police dispatch alerted Wenger that an armed robbery had just taken place in the parking lot of a bar in Cherry Hill. There were two victims. The two suspected robbers fled in a white Cadillac. One of the victims recorded the license plate number. A motor vehicle records search indicated that the Cadillac's owner lived at a particular address in Burlington Township. As Wenger drove to the address to see if the car had returned, he spotted the white Cadillac after it exited Interstate 295.

Wenger performed a traffic stop. The Cadillac came to a halt in the empty parking lot of a movie theater. Wenger ultimately could see four people in the Cadillac. While he awaited the arrival of assisting officers, he remained near his vehicle, shielded by his door and engine block, and commanded the occupants to remain in the car, and to show their hands. He also asked the driver, Ronald R. Saunders, Jr., to toss the keys out of the vehicle. Saunders complied.

As Wenger testified, and as was evident from the MVR, Wenger viewed the situation as highly dangerous and threatening. He was alone and outnumbered. He believed that one or more of the occupants were armed. As the hands of Saunders or other occupants fell from view, increasing Wenger's fear that one might be reaching for a weapon, Wenger repeated multiple times to the occupants to show their hands. Saunders repeatedly asked Wenger, "What did I do?" Wenger responded that he would tell him when other officers arrived, but warned him to show his hands and to remain in the vehicle.

Soon, six assisting officers arrived, two from neighboring Burlington City, and four from Burlington Township. Wenger explained that he and the four Burlington Township officers comprised the total Township police force on duty at that hour.

Wenger and the assisting officers remained behind, and a distance away from the Cadillac. Wenger and the other officers commanded the occupants to exit one by one. Wenger commanded Saunders to step out of the vehicle, to keep showing his hands, and to walk backwards toward the officers. Saunders left the driver's side door open. The situation remained tense, as Saunders deviated from the instructions, turning to face Wenger at one point, and dropping his hands near his waist at another point. Wenger shouted to him to turn away and continue backstepping. After Saunders approached Wenger's vehicle, Wenger commanded Saunders to kneel, and then lie face-down on the pavement, keeping his hands in view. An officer handcuffed Saunders. Although he was commanded to remain on the ground, he attempted to stand, until Wenger shouted to him to remain on the ground.

Defendant was in the front passenger seat. Wenger directed another officer, situated to his right, to order defendant to step out next. The officer did so, and defendant complied, apparently leaving his door open. Defendant backstepped toward the officers, as had Saunders, and also asked what he had done. He was placed in restraints as he lay on the pavement. The rear-seat passenger-side occupant, a third man, and the rear-seat driver-side occupant, a woman, separately exited the vehicle upon a third officer's command. As had the other two, they stepped backwards toward the officers, and were restrained on the ground.

After all four were restrained, officers approached the vehicle cautiously, weapons drawn, and scanned the interior, shouting "clear," as they confirmed no one else was hiding in the passenger compartment. Wenger then approached the trunk of the Cadillac. Wenger explained he wanted to be sure no one was hiding in the trunk of the vehicle. Wenger stood at the corner of the vehicle, with his rifle poised to shoot into the trunk. Wenger inquired whether there was a trunk-release button. Another officer opened the glove compartment in search of the button. However, the trunk did not open.

An officer retrieved the key from the pavement and kneeled at the bumper. Wenger explained that the officer situated himself below the trunk opening because if someone were in the trunk, they would most likely shoot up, rather than down. The officer unlocked the trunk, Wenger quickly scanned it, pointing his rifle, and determined no one was hiding inside.

As officers could be seen on the video patting down Saunders and defendant, Wenger approached the passenger side of the vehicle. While searching for the trunk-release button, an officer had discovered an empty holster in the glove compartment. As Wenger stood outside the vehicle, he viewed the holster in the open glove compartment, and then spotted a gun magazine on the floor about a foot in front of the front passenger seat. Wenger testified that as he observed the magazine, he also spotted a bulge under the car mat, about eight inches by a foot in size.

I'm asking, "Like, what do you see there?" And, you can see the bulge. The mat is up and you can see this gun case partially sticking out. It doesn't completely cover it. . . . It's off on the side where the mat is up and you can see the gun case through the side of the mat. And, I'm looking down through there, and I'm "What do you see?" And that's where she [another officer] reaches in and grabs it, pulls it out, and then we look in it.

 

In the video, Wenger is actually heard saying to a fellow officer, "See what you can find." After she responds, mostly inaudibly, he asks, "What's in that box?" The officer then announced it was a weapon. Wenger stated that as a private purchaser of handguns, he recognized the plastic box as one in which guns were stored or packaged.

Thereafter, one of the officers began to look more closely into the trunk of the vehicle, which was still open. Wenger interceded. As heard on the video, he explained that a search warrant would be needed to authorize a further search of the trunk. He then closed the trunk lid.

Each of the four Burlington Township officers soon left the scene with an arrestee. The two Burlington City officers returned to their jurisdiction. Wenger remained on the scene until a tow truck arrived to impound the vehicle.

Wenger explained that it would have been impractical to await a search warrant to authorize the seizure and search of the box. Burlington County had no process for obtaining telephonic warrants. Wenger would have had to leave the scene, and the vehicle, in order to prepare the required papers, obtain an assistant prosecutor's aid, and then find a judge at home. The Burlington City officers could not remain to guard the scene, and the Burlington Township officers had to process the prisoners and return to duty elsewhere.

In support of his motion to suppress, defendant argued that the State failed to prove exigent circumstances justifying the warrantless seizure and subsequent search of the box. Counsel asserted that once police arrested the four occupants, "there wasn't a security issue anymore."

Judge Wells disagreed. He found Wenger was credible. He also found no reasonable dispute that there was probable cause to search the Cadillac for a weapon. Wenger received a report of the armed robbery, and the vehicle's license plate matched the one described in the report.

Judge Wells found that the holster, magazine, and box were all observed in plain view. Citing State v. Bruzzese, 94 N.J.210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), for the three-part test for the plain-view exception to the warrant requirement, Judge Wells found the officers were lawfully in the viewing area, they discovered the evidence inadvertently, and they had probable cause to associate the items with criminal activity. In particular, he found that the police lawfully entered the vehicle to open the glove compartment, which led to the discovery of the holster. They did so for the justified, and non-pretextual purpose of conducting a protective sweep of the trunk. Judge Wells also credited Wenger's testimony that he observed the box, although it was partly covered by the floor mat, and he recognized it as the type that holds a gun.

Applying State v. Pena-Flores, 198 N.J. 6, 28-30 (2009), Judge Wells found that exigent circumstances justified the immediate search of the box. Notwithstanding the removal and arrest of the four individuals, exigent circumstances still existed. The judge found the officers had probable cause to believe a gun was in the vehicle, based on the discovery of the holster and the magazine. They were in close proximity to defendant Saunders's home, where confederates conceivably could disturb the car. Moreover, it would have posed a danger to allow a non-police tow truck operator to remove the vehicle. "[U]ntil the police officers were satisfied that there either wasn't a gun, at least in the passenger's compartment of the car . . . it would just be improvident to turn that car over" to a non-police tow truck operator. The court was convinced that it would have been impracticable to obtain a warrant. A telephonic warrant was unavailable, based on the practices in Burlington County at the time. Since the two Burlington City officers had to return to their jurisdiction, and the four assisting Township officers had to process the arrestees, Wenger would have had to leave the vehicle unguarded to obtain a warrant.

B.

We defer to the trial court's factual findings on a motion to suppress. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J.1, 15 (2009) (internal quotation marks and citations omitted); see also State v. Elders, 192 N.J.224, 243 (2007). We defer to the trial court's findings that are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Robinson, supra, 200 N.J.at 15. We are "not permitted to weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J.463, 472 (1999) (internal quotation marks and citations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J.328, 337 (2010) (citation omitted). Thus, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Applying these standards of review, we discern no basis to disturb Judge Wells's decision. Defendant essentially raises two objections to the police's activity. First, he argues that the police were not authorized to open the glove compartment, which led to the discovery of the holster, and, later, the magazine, gun box, and gun. Second, there was no exigency that justified a search of the box. We disagree.

A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); Bruzzese, supra, 94 N.J. at 236. Theplain view doctrine has been applied to observations of the contents of a stopped motor vehicle. Mann, supra, 203 N.J.at 341.

The police entered the vehicle's glove compartment in order to use the trunk-release button, so police could conduct a protective sweep of the trunk. Limited warrantless entry into a glove compartment for other purposes, such as proof of vehicle ownership, has been permitted. See, e.g., State v. Jones, 195 N.J. Super.119, 122-23 (App. Div. 1984). We need not endorse the routine entry into a car trunk in order to conclude that under the circumstances of this case, the police were authorized to conduct a sweep not only of the passenger compartment, but also the trunk of the Cadillac, and that access to the trunk-release button was reasonable.

Police may conduct a "protective sweep" of a home to ensure that there are no hidden persons who could threaten the officers' safety as they conduct lawful arrests. SeeMaryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (approving protective sweep of home); State v. Davila, 203 N.J.97, 115-16 (2010) (adopting Buie). To justify a sweep connected with an arrest, police must "restrict their search to the immediate vicinity of the arrest from which an attack might be launched," or "beyond the immediate area of arrest . . . if there are specific facts that would cause a reasonable officer to believe there is an individual within the premises who poses a danger to those present." Id.at 115 (internal quotation marks and citations omitted). The search must be "quick" and "no longer than is necessary to dispel the reasonable suspicion of danger." Ibid. (internal quotation marks and citations omitted). The search also must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Ibid. (internal quotation marks and citations omitted).

The protective sweep doctrine has been applied to vehicles. SeeUnited States v. Jones, 471 F.3d 868, 874-75 (8th Cir. 2006) (approving protective sweep of passenger compartment of passenger car), cert. denied, 551 U.S. 1121, 127 S. Ct. 2953, 168 L. Ed. 2d 275 (2007); United State v. Thomas, 249 F.3d 725, 729-30 (8th Cir. 2001) (approving protective sweep of van); Commonwealth v. Lopes, 914 N.E.2d 78, 89-91, 93 (Mass. 2009) (same). As Professor LaFave has explained, "When lawful police activities are being conducted in the immediate proximity of a vehicle which, by its nature, does not permit ready viewing from the outside of any occupants, there may be a basis to conduct a 'protective sweep' of that vehicle." 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 7.4(i) (5th ed. 2012).

The protective sweep of a vehicle may include the trunk if justified by the circumstances. SeeState v. K.N., 66 So. 3d 380, 384-85 (Fla. Dist. Ct. App. 2011) (approving protective sweep of trunk); State v. Graca, 708 A.2d 393, 395-98 (N.H. 1998) (approving protective search of trunk where police found one suspect lying down on back seat, and trunk was ajar). Cf.United States v. Arnold, 388 F.3d 237, 238-241 (7th Cir. 2004) (approving search for weapon in trunk, which was accessible through rear seat).

In this case, Judge Wells credited Wenger's testimony that there were reasonable grounds to suspect that a person may have been concealed in the trunk. We discern sufficient credible evidence to support that finding. Wenger perceived the traffic stop to be extremely high-risk and he treated it as such. The vehicle stopped was a full-size Cadillac that could have easily carried five passengers; it also had a large trunk in which an adult could easily have fit. Only four persons were found in the passenger compartment. Prior to the police inspection of the vehicle, there was an extended period of time in which a person may have had the opportunity to enter the trunk area through an opening in the rear seat. While Wenger awaited the arrival of assisting officers, the occupants of the vehicle repeatedly dropped their hands, and Saunders repeatedly distracted the sergeant with questions and hand movements. There was no evidence that Wenger was given a definitive count of persons in the vehicle. Also, although Wenger had probable cause to believe at least one occupant was armed, none of the arrestees were found to have possessed a weapon.

Thus, there were specific facts that caused Wenger to reasonably believe a person may have been concealed in the trunk. Once he decided to conduct a protective sweep of the trunk, he performed the sweep quickly, and only took the time necessary to assure himself no one was hidden inside. He did not strayfrom his purpose. Indeed, later, he prevented another officer from conducting a further search of the trunk.

We also reject defendant's argument that even if the police were authorized to conduct a protective sweep of the vehicle, they should have used the key, rather than enter the car to find the release button. It was obvious that using the key posed added risk to the officers. If a person, possibly armed, were hidden in the trunk, the officer unlocking the trunk would have been dangerously close to his line of fire. Only after the effort to open the trunk with the release-button failed did Wenger ask an officer to retrieve the keys. The officer then crouched below the trunk lid for his own safety as he unlocked the trunk, and Wenger pointed his rifle at it.

In sum, we discern no basis to disturb Judge Wells's finding that the officer was lawfully in the viewing area of the glove compartment when it was opened in the effort to find the trunk-release button. When Wenger stepped to the open, passenger side of the vehicle to view the holster, he too was lawfully in the viewing area as he looked into the vehicle.3 At that point, he viewed not only the empty holster, but also the ammunition magazine and the bulge in the floor mat that partially concealed the box that he concluded resembled a gun box. He discovered these items inadvertently, and he recognized them as contraband and evidence of criminal activity. Thus, the discovery and seizure of all these items was justified by the plain view exception. SeeMann, supra, 203 N.J.at 341 (finding that plain view exception justified police entry into vehicle to seize bags of what appeared to be drugs, notwithstanding the prior arrest of suspect).

We recognize that the Fourth Amendment generally protects the owner of a "container that conceals its contents from plain view." Johnson, supra, 171 N.J. at 213 (internal quotation marks and citation omitted). However, whether a container's contents are visible is only one factor in determining whether there is probable cause to both seize and open the container. Id.at 214. Visibility, therefore, is not a prerequisite, if there is other evidence to support probable cause that the container contained contraband. The Court distinguished a clear plastic bag from an opaque container "where there were no surrounding circumstances to support probable cause that the cannister contained drugs." Id.at 218. However, the Court made clear that an opaque container can be seized pursuant to the plain view exception if there is evidence of its contents:

The Court [in Texas v. Brown, 460 U.S. 730, 742-43, 103 S. Ct. 1535, 1543-44, 75 L. Ed. 2d 502, 513-15 (1983)] also observed that an officer's inability "to see through the opaque fabric of the balloon [was] all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents particularly to the trained eye of the officer." Ibid. Similar to the officer in Texas v. Brown, who testified that, based on his experience, he was aware that narcotics were frequently packaged in such balloons, Officer Wilson testified that, based on his experience, he was convinced that the "light-colored" object contained drugs, and that crack cocaine was often packaged for distribution in plastic zip-lock baggies.

 

[Johnson, supra, 171 N.J.at 218-19 (alteration in original).]

 

Applying the same reasoning to this case, it was apparent to Wenger that the box likely contained a gun and he was therefore justified in opening it. Aside from Wenger's familiarity with such boxes, there was strong circumstantial evidence that the box contained a gun. Dispatch reported that an occupant of the Cadillac was armed. Wenger found an empty holster, and a magazine; thus it was reasonable to suspect a gun was nearby. SeeUnited States v. Spencer, 1 F.3d 742, 746 (9th Cir. 1992) (stating that police were justified in believing that a firearm might be in vehicle after discovering empty shoulder holster under occupant's jacket).

Moreover, to the extent there may have been uncertainty regarding the box's contents, exigent circumstances justified Wenger's decision to order the box opened, to confirm his suspicion that it contained the gun. Wenger was not obliged to simply seize the box, and await a search warrant for permission to open it. Until he opened it, he could not exclude the possibility that the gun used in the robbery remained elsewhere in the vehicle. The officers had not searched the car for the gun and, once the gun was found in the box, they did not.

"Exigent circumstances" is a flexible, inexact concept that can adapt to apply to the unique facts of each case. State v. Cooke, 163 N.J. 657, 676 (2000). Exigency amounts to "circumstances that make it impracticable to obtain a warrant when the police have probable cause to search a car." Ibid. (internal quotation marks and citation omitted). First, the stop must be unplanned, and second, the officers must have "articulable reasons to believe that the evidence would be at risk if a search was delayed." Pena-Flores, supra, 198 N.J. at 23-24 (internal quotation marks and citation omitted). "[P]olice safety and the preservation of evidence, which are the policy rationales underlying the search incident to arrest exception are also the preeminent determinants of exigency for purposes of applying the automobile exception." Id. at 28 (internal quotation marks and citations omitted).

Legitimate considerations in determining whether exigent circumstances exist include

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

 

[Pena-Flores, supra, 198 N.J. at 29.]

 

In this case, many of these factors weigh in favor of a finding of exigent circumstances. It was after two o'clock in the morning; the stop was in a desolate parking lot; Wenger would soon be left alone with the vehicle once the other officers departed; the vehicle was close to Saunders's home; it would not be safe to leave the car unguarded if Wenger had to leave to secure a warrant; nor would it be practicable to leave Wenger alone, in a desolate mall parking lot, while a warrant was sought by someone else, given the likely delays. See Cooke, supra, 163 N.J. at 675.

In sum, we discern no error in the court's decision to deny defendant's motion to suppress.

II.

We address briefly defendant's remaining issues on appeal, considering first his argument that his conviction for one of the counts of robbery was against the weight of the evidence.

According to the State's evidence, Saunders had pulled his Cadillac behind the parked vehicle of Frank Ranieri and Christopher Holder, blocking their exit from the parking lot of a Cherry Hill bar. Ranieri asked Saunders to move his car. According to Ranieri, he did so politely, but Saunders became irate, and accused Ranieri of "disrespecting" him.

Ranieri claimed that Saunders followed him as he returned to his vehicle, and then announced a robbery, demanding Ranieri's property. Meanwhile, defendant approached wielding a handgun. He pointed it at Ranieri, and threatened to kill him if he did not surrender his property. Ranieri handed over $20. Holder testified that defendant then approached him, as he sat in the passenger seat. Defendant threatened him with the gun, and demanded his property. Defendant seized Holder's wallet.

Another bar patron, William Smith, testified that while he was seated in his vehicle comforting an ill friend, he observed the robbery from four or five parking spaces away. As Saunders and defendant fled, Ranieri followed in his car and was able to record the license plate and report it.

Saunders testified in his own defense. He denied that he threatened or robbed Ranieri. He claimed that defendant pointed the gun at Ranieri and Holder. Saunders also presented several character witnesses. Defendant did not appear at trial and presented no witnesses.

The jury acquitted Saunders of the robberies of Ranieri and Holder, but convicted him of possession of a weapon for an unlawful purpose. The jury convicted defendant of all charges.

Defendant argues that his conviction of robbery of Ranieri was against the weight of the evidence. In effect, he argues that the jury's conviction was inconsistent with its verdict acquitting Saunders of the same charge. Defendant argues that if the jury disbelieved Ranieri's testimony that Saunders received Ranieri's $20, then there was no robbery of which to convict defendant.

We reject defendant's argument on two grounds. First, as defendant did not move for a new trial pursuant to Rule 3:20-1, he is barred from arguing before us that his conviction was against the weight of the evidence. See R.2:10-1 (stating "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); cf.State v. Scherzer, 301 N.J. Super.363, 407 (App. Div.), certif. denied, 151 N.J.466 (1997).

Second, we perceive no merit to defendant's motion. Cf.State v. Smith, 262 N.J. Super.487, 511-12 (App. Div.) (considering, in the interests of justice, whether verdict was against the weight of the evidence, notwithstanding failure to comply with Rule 2:10-1), certif. denied, 134 N.J. 476 (1993). In particular, even if there were some measure of inconsistency in the jury's acquittal of Saunders and conviction of defendant, that alone is insufficient to warrant reversal. Inconsistent verdicts are permissible in our system, so long as there is sufficient evidence in the record to sustain the conviction. See State v. Banko, 182 N.J. 44, 46, 53-54 (2004); see also State v. Muhammad, 182 N.J. 551, 578 (2005) ("In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty."). We discern no miscarriage of justice in the jury's verdict; based on our review of the record, the trier of fact could rationally have reached the verdict in this case. Smith, supra, 262 N.J. Super. at 511-12 (stating standard for considering whether verdict is against weight of the evidence).

Defendant also argues that the trial court erred in not sentencing defendant to a downgraded term in the second-degree range pursuant to N.J.S.A. 2C:44-1(f)(2). We disagree. A defendant must meet a high hurdle to justify a downgrade. See State v. Megargel, 143 N.J. 484, 501-02 (1996); State v. Lake, 408 N.J. Super. 313, 328-29 (App. Div. 2009) (reversing trial court's imposition of downgraded term). Defendant has failed to establish that the court mistakenly exercised its discretion in sentencing defendant within, but near the bottom, of the first-degree range. Any further discussion is not warranted in a written opinion. R. 2:11-3(e)(2).

Finally, consistent with State v. Hernandez, 208 N.J. 24, 50 (2011), which the Court decided after Judge Wells sentenced defendant, the State does not contest defendant's entitlement to 290 days of jail credit for time served on another charge that was ultimately dismissed before his sentence in this case. We agree, and remand for the court to amend defendant's judgment of conviction to provide those additional jail credits.

Affirmed, but remanded for amendment of the judgment of conviction.

1 Wenger's position in the police department had changed by the time of the hearing. We refer to him by the title he had at the time of the incident.

2 Defendant failed to appear at the suppression hearing, which was conducted on what was supposed to be the first day of trial after jury selection. Defendant's counsel apparently had not moved to suppress the evidence until after jury selection was completed.

3 Indeed, even if the holster had remained in a closed glove compartment, Wenger may well have stood in the same spot, looking into the vehicle.