STATE OF NEW JERSEY v. DAVID GASKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID GASKINS,

Defendant-Appellant.

_______________________________________

January 10, 2014

 

Argued November 12, 2013 Decided

 

Before Judges Yannotti, Ashrafi and Leone.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-05-0729.

 

Brian O'Reilly, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. O'Reilly, on the brief).

 

Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, of counsel and on the brief).

PER CURIAM

Defendant David Gaskins was tried before a jury and found guilty of possession of a controlled dangerous substance (CDS), specifically cocaine, in a quantity of five ounces or more, with an intent to distribute, and other offenses. He was sentenced to an aggregate term of twenty-nine years of incarceration. Defendant appeals from the judgment of conviction dated July 19, 2010. We affirm.

I.

Defendant was charged with third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS (cocaine), with intent to distribute, in a quantity of five ounces or more, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of a CDS (heroin), in the quantity of less than one-half ounce, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count four); first-degree maintaining a CDS production facility, N.J.S.A. 2C:35-4 (count five); second-degree possession of a weapon while committing certain CDS offenses, N.J.S.A. 2C:39-4.1 (count six); and second-degree possession of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count seven).

In September 2007, Detective Orlando Robinson of the Paterson Police Department (PPD) commenced an investigation of a suspected drug dealer with the street name "Divine." A confidential informant (CI) had contacted Robinson and provided him with information about Divine. According to Robinson, the CI had provided law enforcement with reliable information for ten years, and that information led to "arrest, convictions, and confiscations of drugs and drug proceeds." The CI told Robinson about Divine's CDS production and distribution activities.

The CI revealed that Divine was a black male who made deliveries of crack cocaine, that the deliveries were made from a 1991 Dodge van with a specified New Jersey plate number, that Divine operated out of specific location on River Street in Paterson, and that Divine possessed guns, specifically a "'sawed-off' shot gun and hand gun." The CI also told Robinson that he/she was willing to participate in a "controlled buy" of CDS.

Consequently, Robinson set up the transaction, with the CI making the purchase from Divine. Before the purchase, the CI was strip-searched to ensure that he/she was free of money and contraband. Robinson and the CI then took up a surveillance position with a line of sight of the River Street location and the vehicle that Divine reportedly used. The CI contacted Divine to purchase crack cocaine.

After the CI contacted Divine, Robinson observed a man exit the River Street location. The CI told Robinson that the man was Divine. Divine drove the 1991 Dodge van to the prearranged drug transaction site, and Robinson followed him. At the transaction site, Robinson parked at a distance so that he would remain undetected, but he said he was close enough to view the transaction. Robinson stated that he never lost sight of the CI when the CI met with Divine.

The CI returned from the meeting with Divine and gave Robinson a quantity of crack cocaine that he purchased with the money that had been provided to him. Another PPD officer, who had been positioned at a surveillance site near the River Street location, observed Divine return there in the Dodge van.

Subsequently, Robinson conducted a registration check on the 1991 Dodge van with the New Jersey plate number that the CI had provided to him. The registration check revealed the van was registered to Frankie Gaskins Jr., who resided on 12th Avenue in Paterson.

Robinson then accessed the Department of Corrections website and conducted a search for a photo of Frankie Gaskins, and anyone with the last name of Gaskins. During the search, Detective Robinson came across a photo of defendant, who Robinson identified as Divine. The CI was later shown defendant's photo and the CI positively identified defendant as Divine.

During October 2007, Robinson engaged in further surveillance and observed defendant on several occasions. He saw defendant leave the River Street location, enter the Dodge van, and later meet with known drug dealers. At each meeting, the known drug dealers entered the Dodge van for a short period and then exited the van. Thereafter, defendant would return to the River Street location.

Robinson set forth these facts in an affidavit and requested the issuance of a "no knock" warrant to search: the second-floor apartment and attic at the River Street location, defendant's person, and the van that defendant was seen using. The search warrants were issued and executed on November 5, 2007.

At the trial, Officer Ozzie Torres of the PPD testified about the execution of the search warrant. Torres said that he entered the building with other officers in the emergency response team (ERT) and went to the second floor. Torres said that they found defendant in the stairwell between the second floor and attic. Torres told defendant to step down the stairway. He handcuffed defendant and brought him to the living room of the apartment.

Detective Robinson testified that the officers entered the second-floor apartment and defendant was searched. A detective recovered keys from defendant's pocket. Defendant was also found in possession of about $1,027 in cash. Robinson searched the apartment with two other detectives. He said the apartment had a living room, kitchen and two or three bedrooms.

The detectives used the keys recovered from defendant to open two padlocks on a closed, closet door in the front bedroom of the apartment. Inside the closet, the detectives found a large quantity of a substance that Robinson immediately recognized as crack cocaine. They also found a gray camouflage jacket which contained documents addressed to David L. Gaskins, a handgun, and thirty-three glassine envelopes of suspected heroin.

In the same bedroom, the detectives found pieces of mail and a receipt with defendant's name. They found a letter addressed to "Divine." In addition, the detectives found drug paraphernalia, including empty plastic bags, a clear plastic bag with a loose quantity of a white powdery substance, a black plastic bag with empty plastic baggies, a digital calculator, a box of plastic sandwich bags, rubber gloves, other letters, filter masks, and a digital scale. The detectives also recovered a police scanner.

The detectives also searched a bedroom in the rear of the apartment. There, the detectives recovered sixty-one plastic bags of crack cocaine; two strainers, one with CDS residue; stirrers; two butter knives with CDS residue; a drinking glass with CDS residue; and a straight-edge razor.

The suspected CDS was tested and weighed at the New Jersey State Police laboratory. The evidence tested positive for CDS. The seized cocaine weighed more than 300 grams, or 12 ounces.

Lieutenant Daniel Bachok of the Passaic County Prosecutor's Office testified as an expert in the distribution of CDS. Bachok discussed the packaging of cocaine for both bulk and street- level purchases, and identified the items need to repackage the bulk package into street-level doses, including a razor, plastic bags, masks, baking soda and knives. He discussed the street value of a dose of crack cocaine and a glassine envelope of heroin.

Bachok was asked to assume certain facts, including the fact that the quantities of loose and powdered cocaine, a handgun, thirty-three glassine bags of heroin and drug-related paraphernalia had been recovered from an apartment. Bachok then was asked whether, based on these facts and his training and experience, the drugs found in the apartment were possessed for personal use or with intent to distribute. Bachok replied that the CDS was possessed with intent to distribute.

After the State rested its case, defendant moved pursuant to Rule 3:18-1 for a judgment of acquittal, arguing that the State failed to prove one of the elements of the charged offenses, specifically possession. The trial judge denied the motion. The judge stated that, viewing the evidence in its entirety, and giving the State the benefit of all favorable inferences, a reasonable jury could find defendant guilty of the charged offenses beyond a reasonable doubt.

Audrey Jackson then testified that defendant lived with her in a residence on Sheridan Street in Paterson, and that he was only present at the River Street location to take care of a pet belonging to his cousin, Frankie Gaskins. Jackson further testified that defendant was the father of her three children.

Defendant elected not to testify, but he produced a letter from Cablevision, which identified Satome Belfield as the service recipient for the River Street location's second-floor apartment, from April 5, 2007, until September 15, 2007. The letter also identified Randy McClam as the service recipient from October 25, 2007, until February 13, 2008. Defendant also produced utilities bills for the apartment, addressed to Randy McClam.

The jury found defendant guilty on all of the charges. The trial judge denied defendant's motion for a new trial based on newly discovered evidence. The judge thereafter granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). As noted, the judge sentenced defendant to an aggregate term of twenty-nine years of incarceration. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THERE WERE INSUFFICIENT FACTS SUPPORTING A FINDING OF PROBABLE CAUSE.

 

POINT II

THE COURT ERRED IN REFUSING TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT AND SURVEILLANCE POINTS.

 

A. The Court erred in denying defendant's motion to discover the identity of the CI.

 

B. The Court erred in denying defendant's motion to disclose surveillance points.

 

POINT III

DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM WAS DENIED DUE TO THE ABSENCE OF REQUIRED HEARINGS ON HIS MOTIONS TO OBTAIN DISCOVERY AND TO SUPPRESS EVIDENCE.

 

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXPLORE THE ISSUE OF THIRD-PARTY GUILT.

 

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE; THE ABSENCE OF EVIDENCE OF DEFENDANT'S POSSESSION OF ANY ITEMS IN THE BACK ROOM REQUIRED THE COURT TO SUA SPONTE STRIKE JURY CONSIDERATION OF THAT EVIDENCE. R. 3-18-1; R. 2:10-2.

 

POINT VI

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY-DISCOVERED EVIDENCE. R. 3:20-1.

 

POINT VII

DEFENDANT'S SENTENCE WAS EXCESSIVE.

 

II.

We turn first to defendant's contention that the trial court erred by denying his motion to suppress the evidence obtained in the search of the second-floor apartment on River Street. Defendant contends that Detective Robinson's affidavit did not establish probable cause to search the premises. He argues that Robinson's affidavit failed to include sufficient facts to corroborate the CI's tip, and did not credibly demonstrate that the CI was reliable. We disagree.

"When a search is conducted pursuant to a warrant, the defendant has the burden of proving the [18] invalidity of that search . . . ." State v. Sullivan, 169 N.J.204, 211 (2001). Appellate courts must "'accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Id. at 211-212 (quoting State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

To issue a search warrant, the State must establish probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched. State v. Keyes, 184 N.J.541, 553 (2005) (citing Sullivan, supra, 169 N.J.at 210). Probable cause is "generally understood to mean 'less than legal evidence necessary to convict though more than mere naked suspicion.'" Ibid.(quoting Sullivan, supra, 169 N.J.at 210-11).

Information provided by an informant "may constitute a basis for probable cause." State v. Smith, 155 N.J.83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). A court should consider the totality of circumstances when evaluating whether the informant's tip provided a sufficient basis to establish probable cause. Ibid.

The reliability of an informant's tip may be shown "by demonstrating that the informant proved to be reliable in previous police investigations." Sullivan, supra, 169 N.J.at 213 (citing State v. Novembrino, 105 N.J. 95, 123 (1987)). However, "past instances of reliability do not conclusively establish an informant's reliability." Smith, supra, 155 N.J.at 94. Independent police corroboration is an essential component of the determination of probable cause. Sullivan, supra, 169 N.J.at 213 (citing Smith, supra, 155 N.J.at 95).

Here, defendant filed a motion to suppress the evidence obtained in the search of the River Street apartment, and the motion judge denied the application for reasons stated in a written opinion dated September 9, 2009. In his opinion, the judge noted that, in his affidavit, Robinson stated that he had extensive experience in narcotics investigations. The affidavit detailed Robinson's lengthy relationship with the CI, the particular information that the CI provided and its relationship to defendant, the controlled CDS purchase made by the CI, and Robinson's subsequent corroborating surveillance.

The judge rejected defendant's contention that probable cause was lacking, noting that defendant "fail[ed] to consider the numerous corroborating circumstances detailed in the affidavit." The judge stated that the CI had provided the address of defendant's location, a detailed description of his vehicle, and a description of certain guns that defendant possessed.

The judge pointed out that Robinson stated in the affidavit he had "worked with the CI for approximately [ten] years and made [numerous] arrests" as a result of the CI's tips. The judge determined that, despite defendant's claims to the contrary, Robinson had sufficiently corroborated the CI's tip and verified that defendant was engaging in illegal drug transactions with others.

The judge concluded that "there is nothing in the affidavit indicative of deficient facts to establish a basis of probable cause," and the issuance of the search warrant was justified. We agree. We are convinced there is sufficient credible evidence to support the judge's findings and the determination that Robinson's affidavit established probable cause for the issuance of the search warrant.

Defendant further argues that the motion judge erred by failing to conduct an evidentiary hearing on his suppression motion. We do not agree. An evidentiary hearing was not required because Robinson's affidavit established probable cause for the issuance of the search warrant.

III.

Next, defendant argues that the trial court erred by refusing to order the State to disclose of the identity of the CI and the points from which the police conducted their surveillance. He contends that this information was essential to his defense.

A. Identity of the CI

N.J.R.E. 516 provides that a witness may refuse to disclose the identity of a person who has furnished information to law enforcement purporting to disclose a violation of state or federal law, unless "(a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues."

The purpose of the "informant's privilege" codified in N.J.R.E. 516 "is to encourage citizens to communicate their knowledge of the commission of crimes to law enforcement officials." State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003) (citing State v. Salley, 264 N.J. Super. 91, 96 (App. Div. 1993)). This privilege "'has long been considered essential to effective enforcement of the criminal code.'" Ibid. (quoting State v. Milligan, 71 N.J. 373, 381 (1976)).

However, the privilege is not absolute. Id. at 604. "A court must 'balance the public interest'" in ensuring the free flow of information to law enforcement against a defendant's right to contest the charges against him. Ibid. (quoting Salley, supra, 264 N.J. Super. at 98).

In determining whether disclosure is necessary, the court should be guided by "'the particular circumstances of each case, taking into consideration the crime[s] charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'" State v. Burnett, 42 N.J. 377, 385 (1964) (quoting Roviaro v. United States,353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646(1957)). In reviewing a trial court's decision denying disclosure, we apply an abuse of discretion standard. Milligan, supra, 71 N.J.at 384.

Defendant contends that disclosure of the CI's identity was essential to determine Robinson's credibility. He also contends that this information was essential to a proper defense of the case in view of what defendant claims is the State's failure to show that the CI was reliable. We cannot agree.

Here, Robinson's affidavit set forth sufficient facts to show that the CI's tip was reliable. The CI had provided Robinson with valuable information in the past, and Robinson confirmed the tip regarding defendant with his own surveillance and the controlled CDS purchase that he set up and observed. Thus, as we have determined, the search warrant was validly issued.

The validity of the search was not at issue at trial, where the key issues related to defendant's possession of the CDS and the weapon recovered from the River Street location. As the motion judge stated in his opinion of October 21, 2009, defendant was endeavoring to gather information to challenge the warrant, not the charges for which he was tried. Robinson's affidavit established probable cause for the warrant, and disclosure of the CI's identity was not required for the trial.

Defendant also contends that the State never established any "specific concern" about disclosure of the CI's identity, and the court should have conducted a N.J.R.E. 104 hearing to show that the application of the informant's privilege was required. As we stated previously, N.J.R.E. 516 provides that disclosure of a CI's identity is not required unless disclosure is essential to the defense. An evidentiary hearing was not required in this matter because the record provided a sufficient factual basis for the court's determination on the validity of the search warrant.

B. Surveillance Points

Defendant additionally argues that the motion judge erred by refusing to order the disclosure of the points from which the police observed defendant engage in what appeared to be illegal, CDS-related activity. Defendant recognizes that N.J.R.E. 515 provides a privilege against disclosure of such official information, but he contends that the motion judge erred by failing to conduct a N.J.R.E. 104 hearing on this issue.

The precise location of a police surveillance point is privileged because the public has an interest in protecting ongoing surveillance, and in protecting police officers and the public from reprisals. State v. Garcia, 131 N.J. 67, 74-75 (1993). Disclosure may, however, be ordered to protect a defendant's constitutional rights. Id. at 79-80. The defendant must make a "substantial showing" of need for the "exact" location. Id. at 80-81.

In this case, defendant failed to establish that disclosure of the surveillance points was required for his defense. Defendant was charged with unlawful possession of the CDS with intent to distribute, unlawful possession of a weapon and other offenses.

The charges were based on the evidence obtained when the police executed the search warrant at the River Street location, and defendant's guilt or innocence did not turn on any observations made during the surveillance. Therefore, disclosure of the police surveillance points was not essential to presenting a defense at trial.

Moreover, it is reasonable to assume that disclosure of the surveillance points would compromise present or future prosecutions or possibly endanger lives or property. See id. at 78. Because the information related to the issuance of the search warrant, rather than any matter in dispute at trial, disclosure was not required.

We accordingly conclude that an evidentiary hearing on this issue was not required.

IV.

Defendant additionally contends that he was denied a fair trial because the trial judge refused to allow him to present evidence of potential third-party guilt. Again, we disagree.

At trial, defendant sought to admit a judgment of conviction for Randy McClam, who had been identified as a cable service recipient for the River Street apartment, and whose name appeared on utility-service bills for the apartment. Defendant also wanted to question witness Audrey Jackson about McClam, in an apparent attempt to show that the CDS found in the apartment belonged to McClam, rather than defendant.

A defendant in a criminal case has the right to present a complete defense. State v. Cotto, 182 N.J. 316, 332 (2005). This includes the "right to introduce evidence of third-party guilt 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Ibid.(quoting State v. Fortin, 178 N.J. 540, 591 (2004)).

Thus, a defendant's right to present evidence of potential third-party guilt is limited. State v. Sturdivant, 31 N.J.165, 179 (1959)), certif. denied,362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960). A defendant cannot introduce evidence of "some hostile event and leave its connection with the case to mere conjecture." Ibid.The defendant must establish that there is "some link between the evidence and the . . . crime[s]" with which he is charged. State v. Koedatich, 112 N.J. 225, 301 (1988) (citations omitted), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

In this case, defendant failed to establish the required link between McClam's prior conviction for possession of CDS and the offenses for which defendant was charged. At trial, the State presented extensive evidence that defendant possessed the CDS found in the apartment.

Defendant was found in possession of the keys that were used to open the padlocks on the closet in the front bedroom in the River Street location. There, the detectives recovered cocaine, heroin, a handgun and documents addressed to defendant. They found the drug paraphernalia in the rear bedroom of the apartment.

The fact that McClam might have been convicted of a CDS-related offense was insufficient to establish a link between McClam and evidence recovered in the apartment. There was insufficient evidence to show that McClam's involvement in the offenses for which defendant was charged was anything other than "mere conjecture." Seeibid.

Furthermore, additional questioning of Audrey Jackson regarding McClam's connection to the River Street apartment was insufficient to support a claim of third-party guilt. The fact that the utility and cable service bills may have been in McClam's name did not negate the theory of the State's case, which was that defendant used the apartment as a "stash location," while he resided elsewhere. Therefore, the trial judge did not abuse his discretion by refusing to permit defendant to question Jackson further on McClam's connection to the apartment.

V.

Defendant additionally argues that the trial judge erred by denying his motion for a judgment of acquittal at the end of the State's case.

A motion for judgment of acquittal is governed by R. 3:18-1 which provides:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittalof one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

 

Moreover, the test for deciding a motion for judgment of acquittal is:

whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

[State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011) (quoting State v. D.A., 191 N.J. 158, 163 (2007)).]

 

Defendant argues that there was insufficient evidence to show that he had a connection to the CDS and items found in the front bedroom of the apartment. He says there was a complete absence of evidence that he had control or even access to the other bedroom. Defendant further argues that there was insufficient evidence to show that the River Street apartment was used continuously as a CDS-production facility.

We disagree with these arguments. Here, the State established defendant's connection to the evidence found in the front bedroom of the apartment, which included the keys recovered from defendant that opened the padlocked closet containing the CDS and documents addressed to defendant. In that room, the police also recovered items used for the packaging of CDS for distribution and additional documents addressed to defendant.

As the State maintains, the evidence found in the front bedroom was sufficient to show that defendant possessed the CDS with intent to distribute and also was operating a CDS-production facility. Moreover, the amount of CDS and the CDS-related items allowed the jury to infer that the property had been used as a CDS-production facility on an ongoing basis.

In addition, the evidence showing defendant's relationship to the apartment permitted the jury to infer that the items found in the rear bedroom were connected to his CDS-related activities. In this regard, we note that there was no evidence that Belfield had legal control of this room or the entire apartment. She was not named as a tenant under the lease.

We conclude that the trial judge correctly determined that the State had presented sufficient evidence to support the charges and defendant was not entitled to a judgment of acquittal.

VI.

In addition, defendant contends that the judge erred by denying his motion for a new trial based on certain newly discovered evidence.

In support of this motion, defendant submitted utility records for certain persons who allegedly occupied the River Street apartment. He also provided credit card statements for Frankie Gaskins, which were addressed to the River Street location. In addition, defendant presented cable television statements for September 2007 to December 2007, that were addressed to defendant at a Sheridan Avenue location in Paterson. Based on these records, defendant claimed that he resided at the Sheridan Avenue location, and Frankie Gaskins occupied the River Street apartment.

To secure a new trial based upon newly discovered evidence, defendant must show that the evidence is "1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

As the trial judge recognized, the evidence that defendant submitted in support of his motion was evidence that could have been discovered prior to trial, by the exercise of reasonable diligence. Furthermore, the evidence probably would not change the jury's verdict if a new trial was granted, because it was not inconsistent with the State's claim that defendant used the River Street apartment as a "stash location" while maintaining a residence elsewhere. Indeed, the State's expert testified at trial that persons who distributed CDS and maintain a facility for the production of CDS often use locations other than their residences. According to the expert, "stash" houses are employed to avoid detection.

We conclude that the trial judge correctly denied defendant's motion for a new trial.

VII.

In addition, defendant argues that his sentence is excessive.

Here, the trial judge determined that defendant was subject to mandatory extended-term sentencing pursuant to N.J.S.A. 2C:43-6(f). Defendant was convicted of possessing CDS with intent to distribute and maintaining a CDS production facility. He had previously been convicted of second-degree CDS distribution.

The judge found aggravating factors three (risk that defendant will commit another offense); six (defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge noted that defendant was forty years old, and had a long history of convictions for disorderly-persons and indictable offenses. The judge also noted defendant's failed attempts at rehabilitation and his violations of probation/parole. The judge did not find any mitigating factors.

The judge merged count one (third-degree possession of CDS) with count two (first-degree possession of CDS with intent to distribute) and sentenced defendant to twenty-two years of incarceration, with an eleven-year period of parole ineligibility. The judge also merged count three (third-degree possession of CDS) with count four (third-degree possession of CDS with intent to distribute), and imposed a concurrent five-year term, with a two-year period of parole ineligibility.

The judge additionally imposed a concurrent fourteen-year term, with a five-year period of parole ineligibility, on count five (first-degree maintaining a CDS-production facility). The judge also sentenced defendant to a consecutive seven-year term on count six (second-degree possession of a firearm while committing a CDS offense), and a concurrent term of six years, with a five-year period of parole ineligibility, on count seven (second-degree certain persons not to have weapons).

Defendant argues that he should have been given a lesser sentence. He contends that the judge erroneously failed to find mitigating factor eleven (incarceration will entail an excessive hardship to defendant or his dependents). N.J.S.A. 2C:44-1(b)(11).

Defendant also argues that the judge impermissibly counted his prior criminal record twice: in granting the State's motion for an extended term, and in finding aggravating factors that lengthened the sentence. He contends that there is nothing exceptional about his conduct that warrants such a lengthy sentence. He further argues that the judge did not provide sufficient reasons for the eleven-year parole ineligibility period imposed on count two.

In our view, these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We are convinced that the sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.