STATE OF NEW JERSEY v. JOHN FARKAS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2194-07T42194-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN FARKAS,

Defendant-Appellant.

________________________________________________________

 

Submitted January 5, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-803.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Kathleen O'Leary, Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury in June 2007, defendant John Farkas was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon (knife or machete) for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon (knife or machete) for an inappropriate purpose, N.J.S.A. 2C:39-5d; and third-degree terroristic threat, N.J.S.A. 2C:12-3a. The court merged all of the lesser convictions into the conviction for first-degree armed robbery. Defendant had three prior convictions that qualified him for an extended sentence. Hence, the court imposed an extended term of twenty-five years, within the statutory range of twenty years to life imprisonment, pursuant to N.J.S.A. 2C:43-7a(2). That sentence is subject to a mandatory eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following arguments for our consideration:

POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL FAILED TO FILE A MOTION FOR A WADE OR SUPPRESSION HEARING OR SUBSTANTIVELY ARGUE FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE (NOT RAISED BELOW).

A. DEFENSE COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE EVIDENCE.

B. COUNSEL FAILED TO PURSUE A WADE HEARING.

C. DEFENSE COUNSEL FAILED TO ARGUE HIS PRO FORMA JUDGMENT OF ACQUITTAL.

D. THE AGGREGATE OF DEFENSE COUNSEL'S ERRORS DENIED FARKAS A FAIR TRIAL.

POINT II: THE JURY INSTRUCTIONS WERE FATALLY FLAWED BECAUSE THEY CONFUSED AND MISSTATED OR OMITTED THE APPLICABLE LAW IN THIS CASE (NOT RAISED BELOW).

A. THE ATTEMPTED AGGRAVATED ASSAULT

WITH A DEADLY WEAPON.

B. THE IDENTIFICATION INSTRUCTION.

POINT III: FARKAS WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF TWENTY-FIVE YEARS WITH AN EIGHTY-FIVE PERCENT PAROLE BAR UNDER NERA. THE SENTENCE MUST BE VACATED.

After carefully reviewing defendant's arguments in light of the facts and applicable law, we affirm. Our affirmance is without prejudice to defendant's right to proceed by petition for post-conviction relief (PCR).

This matter arose out of a January, 10, 2006 robbery of a liquor store in Union City. At around 4:00 p.m., Arvind Patel was working alone when the suspect entered the liquor store wearing a mask, armed with a machete, and demanding cash. The robber took an unknown sum of money, placed it in a shoulder bag and left the store without causing injury. Before he left the store, the man removed his mask and looked back, which allowed Patel to see his face.

Patel went outside screaming for help and running after the man, towards 22nd Street. On 22nd Street, a bystander started running with Patel. The suspect made a left turn on Kerrigan Avenue and then a right turn on 21st Street. At that point, another bystander joined the chase. The suspect ran through a parking lot near a Hollywood Video that has access to Kennedy Boulevard. He then ran through the driveway of a funeral home. Patel did not follow the suspect. Instead, thinking that the suspect was running towards 20th Street, Patel went to 20th Street.

According to Patel, the suspect went across the funeral home's parking lot, where he lost a boot, and to a connected parking lot behind a building at 1916 Kennedy Boulevard. Patel testified that the suspect ran across some bushes, after which Patel does not know where he went. Patel ran to the front of the building and stood at the corner of 20th Street and Kennedy Boulevard, where he was joined by a bystander who called the police.

Peter Fernandez testified that he heard the owner of the liquor store yelling that he had been mugged or assaulted, and he "saw a guy running in front of the store owner." Fernandez started following the man, lost sight of him for approximately "five, eight, ten minutes," and saw him again at the parking lot exit on 20th Street when Fernandez observed him fall. At that point, Fernandez saw a machete inside the suspect's bag and took possession of it. He also observed the suspect lose a work boot and run towards "the other parking lot" and jump a fence. At that point, Fernandez lost sight of him and did not see him again.

According to Fernandez, the suspect was wearing a brown jacket and "a big type of shoe, yellowish in color." He did not know the color of the pants. Fernandez joined Patel on the corner of 20th Street waiting for the police. He had the machete and the boot, which he gave to the police when they arrived. Ibid. According to Fernandez, the police went inside the building for about thirty to forty minutes, and he recognized defendant when the police brought him out in handcuffs. He described defendant as wearing a white t-shirt at that time. On cross-examination, Fernandez admitted that, although he told the police that he tackled the suspect, that was not true.

Guido Guirado, a resident of 1916 Kennedy Boulevard, testified that on January 10, 2006, at around 4:15 p.m., he was sitting in a parked vehicle on 20th Street, by the funeral home across the street from his building. He observed a man running and a former neighbor, Mr. Fernandez, running behind him. According to Guirado, the man fell and his boot came off. Guirado exited his car and walked to where the suspect was getting up. Fernandez slowed down at that point so as to avoid "run[ning] up on [the suspect]." Guirado stated that the man "reached for something in his bag, which was a machete," and Guirado "yelled at him to get his attention, and at that point [the man] turned around and continued running."

Guirado further stated that the man ran through the parking lot, tried jumping over a fence, kicked it multiple times, went through it and went down an alley next to the building. Guirado went to the front of the building and heard the man kicking the basement door. Guirado testified that when he looked, the man had entered the building. Guirado got his keys and went to the front of the building to "try to open the door." Guirado described what then happened:

As I opened the first set of doors, that I was running up the stairs, he was banging on the apartment door on the first floor asking to let him in, David, because there's a guy that lives downstairs . . . [a]nd at that point, I was trying to get the second door open, and they let him into the apartment, and the door closed behind him.

Guirado then went outside and asked Fernandez and two other people to watch the back of the building and the apartment windows. Ibid. He then saw Patel, whom he recognized as the owner of the liquor store and who told him, "he just robbed me." Guirado described the suspect as wearing "black combat boots, construction boots, baggy jeans," and a dark jacket. As to the color of the jacket, he stated, "I'd say brown."

Dominick DePinto, Sergeant for the Union City Police Department, testified that when he arrived at 1916 Kennedy Boulevard, he observed some police officers and civilians outside the building. Fernandez gave him the suspect's machete and boot. Next, DePinto entered the building and observed a few police officers knocking on an apartment door. DePinto testified that, as a result of speaking with Guirado, he handcuffed David Gonzales when Gonzales opened the apartment door. However, on cross-examination, DePinto stated that he did not have a chance to speak with Guirado or any of the officers standing by the apartment door when he entered the building.

Sergeant DePinto then saw Charlet Monteleone, whom the police also handcuffed and sat down on the floor. As a result of a conversation with Gonzales, the police searched the house, without consent and with their guns drawn. In the bedroom, they saw an elderly woman lying in bed and asked her if there was anyone else in the apartment, to which she replied "no." Sergeant DePinto testified that they "believe[d] [they] heard sounds coming from the [bedroom] closet," which prompted them to open the closet door, where they found Farkas on the floor, underneath some clothes. "He was wearing pants, no shoes, and no shirt." They handcuffed him, but did not place him under arrest, because they "didn't know if he was the guy who ran away."

When the police took Farkas outside the apartment, Guirado identified him "as the man who was running from the street into the building." The police then took Farkas outside the building, where he was identified by Fernandez and Patel. The police then went back inside the apartment to search for evidence. According to DePinto, he knew Gonzales and Monteleone from past police involvement and knew they were the tenants of the apartment. As a result of speaking with Monteleone, DePinto recovered from a freezer a boot that matched the one he received from Fernandez and a jacket, which he believed was gray in color. He then obtained a signed consent from Monteleone to search the apartment. He found a bag containing $1391.

Defendant testified on his own behalf and denied all allegations against him. According to defendant, on the date of the crime, he arrived at Gonzales's apartment at around noon and remained there until the police arrived. He had gone there to receive payment from a venture with Gonzales, which related to selling pretzels at Giants Stadium and other locations. They had last worked together two days before.

I

Defendant contends that he "was denied the effective assistance of counsel because defense counsel failed to file a motion for a Wade or suppression hearing or to argue substantively for judgment of acquittal at the end of the State's case.

While they are "particularly suited for post-conviction review," State v. Preciose, 129 N.J. 451, 460 (1992), "generally, ineffective assistance of counsel claims are not entertained on direct appeal 'because such claims involve allegations and evidence that lie outside the trial record.'" State v. Allah, 170 N.J. 269, 285 (2002) (quoting Preciose, supra, at 460). Notably, however, where "the trial record discloses the facts essential" to such claim, a "defendant should not be required to wait until post-conviction relief to raise the issue." Id. at 285 (reviewing an ineffective assistance of counsel claim on direct appeal where "the record establishe[d] that defense counsel did not make a Rule 3:10-2(c) motion" to request dismissal on a double jeopardy defense claim based on his misunderstanding of the law). The case at bar does not fit that exception that permits review of claim of ineffective assistance of counsel on direct appeal. Here, defendant asserts that defense counsel's failure to have filed a motion to suppress evidence that was unlawfully obtained was "clearly unjustifiable and prejudiced the defendant," but beyond defendant's assertion that defense counsel should have recognized the need to challenge a warrantless search and seizures of evidence and the suggestiveness of the one-on-one showup identifications, there is no basis from which one can glean the thought process or rationale of counsel. Defendant further asserts that counsel should have objected to violations of the Fourth Amendment because the police conducted three warrantless searches inside a third-party's home, which resulted in defendant's apprehension and seizure of "highly incriminating evidence." On the basis of those assertions, we are not in a position to conclude that defendant was deprived of reasonably competent counsel.

A claim of ineffective assistance of counsel based on failure to file a suppression motion requires the defendant to show that the "'Fourth Amendment claim [was] meritorious,'" in addition to satisfying the Strickland test. State v. O'Neal, 190 N.J. 601, 618 (2007) (citing State v. Fisher, 156 N.J. 494, 501 (1998)).

Basically, "[t]he State has the burden of proof to demonstrate by a preponderance of the evidence that the warrantless seizure was valid." Id. at 611. State v. Pineiro, 181 N.J. 13, 20 (2004). "'[W]arrantless searches based on exigent circumstances must . . . be reasonable, and the opportunity to obtain a warrant is one of the factors to be weighed.'" State v. Hutchins, 116 N.J. 457, 470 (1989) (quoting United States v. Hultgren, 713 F.2d 79 (5th Cir. 1983)). "Exigency must be determined on a case-by-case basis." State v. Pena-Flores, 198 N.J. 6, 28 (2009). The term "exigent circumstances" is indicative of the "'heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant.'" Hutchins, supra, 116 N.J. at 464 (quoting Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc)). There are a number of factors a court may consider when they are material or have "particular pertinence in the case at bar." Id. at 465. The inquiry focuses on the nature of the investigation, in that "a delay in obtaining a warrant is more likely to be reasonable when part of an 'immediate, ongoing investigation' rather than a 'planned' or 'routine' search or arrest." Ibid. The Supreme Court has noted that "'[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant.'" State v. Pena-Flores, supra, 198 N.J. at 29-30 (quoting State v. Johnson, 193 N.J. 528, 556 n.7 (2008)).

Arguably, this case involved "hot pursuit." Hot pursuit may present exigent circumstances, however, hot pursuit alone is an insufficient justification for the warrantless entry into a home. State v. Bolte, 115 N.J. 579, 592 (1989). The inquiry is whether the suspect poses a danger to the police or the public. Id. at 593. Typically, a danger exists where the police believe the suspect has committed a felony offense. Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). Additionally, the police do not have to directly observe the suspect enter into the home. See Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (upholding a warrantless search where the police were told that the defendant had fled into his home, and the police arrived five minutes later).

The search for evidence under the exigent-circumstances exception is limited to what is necessary to apprehend a perpetrator or to prevent the destruction of evidence of the crime. State v. Stupi, 231 N.J. Super. 284, 289 (App. Div. 1989) (suppressing the evidence that was found in a search conducted after the defendant had been arrested, where the location could have been secured until a warrant was obtained). In Stupi, responding to a report of robbery upon a taxi driver, the police followed footsteps in the snow leading to a residence, where the clothing of the man who opened the door matched the description given by the taxi driver. 231 N.J. Super. at 286-87. The police entered the home with consent and arrested the defendant. Id. at 287. After administering Miranda warnings, they asked where the proceeds from the robbery were hidden. Ibid. The defendant stated the money might be in the basement. Ibid. We held that although exigent circumstances justified the police entering the home, that justification did not apply to searching the cabinet where the money was found. Id. at 289 (granting defendant's motion to suppress). Compare, however, the more recent opinion by the Supreme Court in O'Neal, supra, 190 N.J. at 606, where a police officer's question to the defendant that elicited defendant's response without prior Miranda warnings was held to violate Miranda, but constituted harmless error under the circumstances.

Thus, even if a "defendant has a meritorious Fourth Amendment claim," that does not necessarily mean that a motion to suppress, if properly made, would ultimately be successful. Of course, if a suppression motion had been filed, there would have been a full airing of the evidence before trial. Johnson, supra, 365 N.J. Super. at 37 (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)). In Johnson, a homeowner allowed the police to enter his home to execute an arrest warrant against his son. After the son had been arrested and removed from the house, the police re-entered the home to search for a weapon allegedly used by the son in the charged crimes. During the search, the police found the defendant, allegedly in possession of a weapon. There, we determined that, not only the defendant's Fourth Amendment claim had merit, but "[g]iven the critical significance of the evidence to his successful prosecution," the defendant suffered prejudice, meeting the second prong of the Strickland test. Id. at 36.

Significantly, in Johnson there had been a post-trial evidentiary hearing on defendant's motion for a new trial, at which defense counsel testified that he did not file a motion to suppress based on his belief that such motion would lack merit because "the owner of the home had consented to police entry." Id. at 33. Accordingly, we concluded that review on direct appeal was appropriate because the record contained the essential evidence. Id. at 36 (holding also that the first prong of the Strickland test was satisfied).

In the present case, assuming, as we do, that the police were justified to enter the apartment to search for defendant, under Johnson and Stupi, it may have been improper for the police to return to search the apartment for evidence after they had handcuffed and removed defendant from the building. Sergeant DePinto testified that the police did not obtain consent to search the apartment until after they had re-entered and found defendant's jacket and boot. Defendant also questions the validity of Monteleone's consent since she was also handcuffed and placed on the floor, upon initial contact with the police. Defendant argues consent was obtained "as an afterthought." The record is not sufficiently developed in this regard, and the details of the interactions between Monteleone and the police are not part of the trial transcript.

In sum, defendant's Fourth Amendment and Sixth Amendment claims might have merit, but the record lacks evidence that would be necessary for analysis under the first prong of the Strickland test. Defense counsel's failure to move to suppress evidence may have been a matter of strategy or incompetence. Similar deficiencies in the record apply to the remaining issues raised by defendant in support of his claim of ineffective assistance of counsel, specifically that counsel failed to pursue a Wade hearing and to argue his pro forma judgment of acquittal. Therefore, review of defendant's claim of ineffective assistance of counsel is inappropriate on this direct appeal.

II

Defendant contends that "the jury instructions were fatally flawed because they confused and misstated or omitted the applicable law in this case." This objection was not raised below, which defendant claims represents another example of defense counsel's ineffective assistance.

Where a defendant fails to challenge a jury instruction below, the appellate court reviews such claim "under the plain-error standard." State v. Bunch, 180 N.J. 534, 541 (2004) (citing R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997)). That means, "'[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result." Id. at 541 (quoting Afanador, supra, 151 N.J. at 54). "As applied to a jury instruction, plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 288-89 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). Notably, "[t]he alleged error is viewed in the totality of the entire charge, not in isolation. In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case." Id. at 289.

Defendant was charged with aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2), because during the course of the robbery, the suspect was holding a machete "a couple of inches" from the victim's neck. Defendant contends that although such charge was based on an attempt to cause injury, rather than purposefully or knowingly causing bodily injury, the trial judge erred by not instructing the jury that the required mens rea was purposeful or knowing. We perceive no merit in defendant's argument.

Pursuant to N.J.S.A. 2C:12-1, "[a] person is guilty of aggravated assault if he[/she] . . . [a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1b(2). In the case at bar, the trial judge defined aggravated assault and, consistent with the Model Jury charges, instructed the jury, in relevant part as follows:

However, the State is alleging attempted bodily injury. So the elements would be, Number [One], that the defendant attempted to cause bodily injury to another. Two, that the defendant attempted to cause bodily injury by the use of a deadly weapon. And three, that the defendant acted purposely or knowingly.

[emphasis added.]

The judge then stated the required mens rea as "purposefully and knowingly," and later as "purposely or knowingly." The judge defined "purposely" and "knowingly" in detail. In addition, the judge restated the charge as follows:

The law provides that a person is guilty of attempt if acting purposely he, Number [One], engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be.

Two, did anything with the purpose of causing serious bodily injury to another without further conduct on his part. This means that the defendant did something designed to cause serious bodily injury without having to take any further action. Did anything that under the circumstances as a reasonable person would believe them to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of a crime.

The step taken must be one that is strongly corroborated of the defendant's criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the steps he has or he or she has already taken. These preparatory steps must be substantial and not just very remote preparatory act.

[emphasis added.]

In response to the jury's request for clarification as to the definition of aggravated assault and the difference between attempting and threatening, the judge repeated the instructions as originally given for aggravated assault and terroristic threats. Included in that reiteration was the requirement that the State prove beyond a reasonable doubt that defendant acted "purposely or knowingly." The court charged:

Here, the State alleges that the defendant attempted to cause bodily injury. To find the defendant [guilty] of causing or attempting to cause bodily injury to another with a deadly weapon, the State must prove, beyond a reasonable doubt, the following elements. Number [One], that the defendant attempted to cause bodily injury to another, and Number [Two], that the defendant attempted to cause bodily injury by the use of a deadly weapon, and Number [Three], that the defendant acted purposely or knowingly.

The court then discussed each element, including that "[t]he third element that the State must prove beyond a reasonable doubt is that the defendant acted purposefully purposely or knowingly." At that point, the judge again repeated the definitions of "purposely" and "knowingly."

Viewing the charge in its entirety, we are satisfied that the court did not commit plain error with regard to mens rea.

Defendant also contends that, since "[t]he defense theory was misidentification[,] . . . it was imperative that the jury correctly understand how to evaluate identifications." With regard to the proofs relating to his identification, defendant contends that "[t]he circumstances were so inherently prejudicial that a correct instruction in accordance with State v. Romero, 191 N.J. 59 (2007) was indispensable." Defendant claims that the identification instruction was flawed because the court read an outdated version of the Model Charge.

In Romero, supra, decided about one month before the start of the trial in this case, the Court cautioned that the powerful effect of eyewitnesses requires particular care. 191 N.J. at 75. Accordingly, the Court referred the model charge on out-of-court identifications to the Model Jury Charge Committee to consider new language contained in the opinion, and stated that trial courts should utilize the additional language set forth in its opinion while the model charge was being revised by the Committee. Id. at 76. The additional language was as follows:

Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification.

[Ibid.]

Notably, while determining that "further improvement" by the inclusion of new language was warranted, the Court noted that the model charge on out-of-court identification, as it stood, "adequately caution[ed] juries." Id. at 75. And while the new language fashioned by the Court was not requested nor used, the trial court did caution the jurors that they must decide "whether the . . . witnesses' identification of the defendant was reliable and believable or whether it is based on mistake." The trial judge said more than once that "[t]he ultimate issues of trustworthiness of both in court and out of court identification are for you to decide." Because the charge without the additional language was characterized by the Court as "adequate," and because the provisional language promulgated by the Court was so new, we do not conclude that the trial court committed plain error by failing to include the additional language stated in Romero, particularly where the trial court emphasized the need for the jurors to assess the reliability and trustworthiness of the identifications.

III

Defendant contends that his sentence of twenty-five years, of which eighty-five percent must be served before he is eligible for parole, is manifestly excessive. "[A] sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989) (citing State v. Roth, 95 N.J. 334, 362-65 (1984)). In reviewing the sentence, our courts may:

(a) [R]eview sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[State v. Kirk, 145 N.J. 159, 175-76 (1996) (quoting Roth, supra, 95 N.J. at 364-65).]

While the reviewing court "must undertake a careful and vigorous review of any claim that a trial court abused its sentencing discretion," it should not "simply substitute its own judgment for that of the sentencing court when disagreeing with the sentence imposed." Id. at 176 (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). Moreover, "appellate courts should exercise sparingly their power of review of a trial court's sentencing discretion." Id. at 176 (citing State v. Ghertler, 114 N.J. 383, 388 (1989)). It is subject to those limited parameters that we must review defendant's claim that the sentence is excessive.

Significantly, defendant was eligible for extended-term sentencing. Upon application by the State, a court may sentence a defendant to an extended term where the defendant was convicted of a crime of the first degree and is a persistent offender. N.J.S.A. 2C:44-3a.

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[Ibid.]

In addition, in determining the appropriate sentence the court found aggravating factors (3), (6) and (9) applicable to defendant. Those facts are:

(3) The risk that the defendant will commit another offense;

 
. . .

(6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;

. . .

(9) The need for deterring the defendant and others from violating the law;

[N.J.S.A. 2C:44-1a.]

Moreover, the offense of which defendant was convicted is subject to NERA. NERA provides that "[a] court imposing a sentence of incarceration for a crime of the first or second degree, enumerated in subsection d[,] [including robbery,] shall fix a minimum term of [eighty-five percent] of the sentence imposed, during which defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2.

In the present case, defendant was convicted of first- degree armed robbery, third-degree aggravated assault, third-degree possession of a knife/machete for an unlawful purpose, fourth-degree possession of a knife/machete for a inappropriate purpose and third-degree terroristic threat. The trial court merged all charges with the robbery charge. The statutory range for the extended sentence was twenty years to life, subject to the mandatory eighty-five percent period of parole ineligibility under NERA. N.J.S.A. 2C:43-7a(2).

Defendant had three prior convictions that met the requirements for extended-term sentencing. After considering all the facts, the court found aggravating factors three, six and nine and sentenced defendant to an extended term of twenty-five years with a parole ineligibility of eighty-five percent.

As to aggravating factor number six, the court considered recidivism, based on defendant's prior criminal record, including twenty-five "prior contacts with the criminal justice system[,] [a]lbeit, a lot of them are Municipal matters." The court did not elaborate on aggravating factor number nine. Having found no mitigating factors, the court stated that it was "clearly convinced that the aggravating factors outweigh the mitigating factors in this case."

Defendant contends that the record "strongly supported the finding of at least two mitigating factors under N.J.S.A. 2C:44-1b: (1) the defendant's conduct did not cause serious harm; and (2) the defendant did not contemplate that his conduct would cause serious harm."

Although a court does not have "'discretion' to refuse to consider a mitigating factor that is supported by the record," the court may "accord[] such weight as the judge determines is appropriate." State v. Dalziel, 182 N.J. 494, 504 (2005). It may not "simply decline to take into account a mitigating factor that is fully supported by the evidence." Ibid. However, in this case, the record does not support defendant's claim that the court abused its discretion in finding no mitigating factors. First, defendant did threaten harm. Second, there is nothing in the record to support that defendant did not contemplate that his conduct would cause or threaten serious harm.

Defendant further contends that "the court failed to provide a sufficient qualitative analysis in support of its determining the length of sentence in view of the [eighty-five percent] mandatory parole bar." Although a more detailed statement of the factual basis for factor nine and for factor six may have been helpful to appellate review, considering the great deal of deference afforded to the trial court and the applicable extended range of twenty years to life, a sentence of twenty-five years is not clearly unreasonable so as to shock the judicial conscience.

 
Affirmed.

State v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 4252 (1987), requires the petitioner to show (1) "'that counsel's performance was deficient,'" and (2) "'that the deficient performance prejudiced the defense,'" meaning "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

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

(continued)

(continued)

4

A-2194-07T4

April 30, 2009