STATE OF NEW JERSEY v. RAQUIL K. CLARK

NOT FOR PUBLICATION WITHOUT THE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.

RAQUIL K. CLARK, a/k/a

RAPHAEL BLAKENEY, JOEY BLAKENEY,

JOEY RALPH, RAFAEL BLAKENEY,

RAPLAEL BLAKENEY, RANDY CLARK,

Defendant-Appellant.

__________________________________________

May 14, 2014

 

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-11-1161.

 

Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the briefs).

 

Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Ms. Donnelly, on the brief).

PER CURIAM

Defendant Raquil K. Clark appeals from convictions following a jury trial for second-degree robbery and fourth-degree obstructing administration of law (obstruction), and also challenges the sentence of thirteen-years imprisonment. We affirm the conviction and sentence imposed on the robbery count. However, we reverse the fourth-degree obstruction conviction and remand to the trial court for resentencing as a disorderly persons offense.

I.

In November 2010, a Union County grand jury indicted defendant on charges of second-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. The primary defense at trial was that the evidence did not support a finding of attempted theft or robbery, but at most that defendant did not pay his cab fare, and neither did it support a finding of obstruction. The jury convicted defendant on both counts.

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

POINT I

 

THE JURY INSTRUCTIONS FOR ROBBERY FAILED TO IDENTIFY AND EXPLAIN LEGAL QUESTIONS CRITICAL TO THE JURY'S INQUIRY, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS, V, XIV; N.J. CONST. ART. 1, PARS. 1, 10. (Partially Raised Below).

 

A. THE TRIAL COURT NEGLECTED TO INSTRUCT THE JURY THAT TO BE GUILTY OF ROBBERY, CLARK MUST HAVE FORMED THE INTENT TO COMMIT THE THEFT BEFORE OR DURING, BUT NOT AFTER, HIS INTIMIDATION OF THE VICTIM. (Not Raised Below).

 

B. THE TRIAL COURT ERRED BY FAILING TO TAILOR THE CHARGE WITH AN INSTRUCTION EMPHASIZING THAT DEFENDANT'S PURPOSE, RATHER THAN THE VICTIM'S SUBJECTIVE FEAR, CONTROLS THE JURY'S INQUIRY. (Not Raised Below).

 

C. THE TRIAL COURT FAILED TO ADEQUATELY EXPLAIN THAT THE ONLY THEFT AT ISSUE WAS THE ATTEMPTED THEFT OF THE SATCHEL AND NOT THE THEFT OF SERVICES. (Partially Raised Below).

 

POINT II

 

THE TRIAL COURT ERRED BY ALLOWING THE INVESTIGATING OFFICER TO TESTIFY TO ISSUES SOLELY IN THE PROVINCE OF THE JURY. (Not Raised Below).

 

POINT III

 

THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

 

POINT IV

 

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE OBSTRUCTION CHARGE BECAUSE ANY PHYSICAL INTERFERENCE OCCURRED WHILE REFUSING TO SUBMIT TO AN ARREST AND NOT DURING AN INVESTIGATORY STOP.

 

 

POINT V

 

THE TRIAL COURT NEGLECTED TO INSTRUCT THE JURY ON ONE OF THE ELEMENTS OF FOURTH-DEGREE OBSTRUCTION, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Not Raised Below).

 

POINT VI

 

THE TRIAL COURT SHOULD HAVE IMPOSED A SENTENCE IN THE REGULAR SECOND-DEGREE RANGE AS THE FACTS OF THE CASE DETAIL ONE OF THE LEAST SERIOUS ROBBERIES IN ITS CLASS.

 

II.

Before addressing those contentions, we recount the factual background and trial proceedings as disclosed by the record.

On the evening of June 3, 2010, Oliver Mondragon was working as a cab driver in Elizabeth. On the seat beside him, Mondragon kept a "small briefcase," like a satchel, which contained approximately $200 in cash and a logbook. Sometime after 7:00 p.m., Mondragon was hailed by two men, one short and the other tall, who approached from a shop on Broad Street. At trial, Mondragon identified defendant as the short man. The pair asked Mondragon to take them to First and Bond Streets.

Mondragon stated that when the two men entered the taxi, he discerned that "they weren't good people," based primarily on where they were going, and so locked the security divider between the front and back seats of the vehicle. He then proceeded to drive to First and Bond. During the trip, he overheard the two men discussing his small briefcase. When they arrived at the destination, the passengers exited the vehicle and when Mondragon asked defendant for the seven-dollar fare, defendant replied, "[M]other f**ker, I don't pay nothing to you."

Mondragon opened the driver's side door and stepped out to collect the fare. In response to another request for payment, defendant said, "[F]**k you . . . . I'm going to punch you in your face." Defendant raised his hand to behind his ear and formed it into a fist, though he did not "take a full swing." Mondragon then got back inside the cab because he was afraid defendant was going to hit him. Mondragon locked the doors, but failed to raise the front-passenger-side window.

Defendant then approached the taxi and "put half of his body inside" the open window "to go and get the briefcase." He grabbed the "briefcase," which was on the front seat next to Mondragon and tried to pull it out of the vehicle. Mondragon hung on to it and a pulling match ensued. On redirect of Mondragon, the following exchange took place.

Q. And when you were fighting with [defendant] did you think that he was going to hit you?

 

A. Yes.

 

Q. What made you think that?

 

A. Well, my survival skills or any person's survival skills will . . . let you know when you see someone's face and they have a look of they're going to like assault you, that makes you protect yourself.

 

Q. And he was trying to take this bag away from you?

 

A. Yes. He wanted to take my bag.

 

As this was happening, defendant shouted profanities and said that he was not going to pay anything. They struggled over the satchel for approximately five to ten minutes, after which defendant was persuaded by his companion to release the bag and leave.

Mondragon then drove his car to Trumbull Street to look for the police. As he was parking in front of a bar, he observed an unmarked police vehicle approaching and flagged it down. Sergeant John Maloney of the Elizabeth Police Department was one of the officers in the car. He was accompanied by Detective Robert Holongas, while another detective was nearby in an unmarked truck. Maloney later described Mondragon as "excited" and "upset" while he informed the policemen that he "had just been robbed" on First Street.

After Mondragon recounted what had transpired, the officers told him they would follow him as he drove back toward First and Bond to try and locate the suspects. A few minutes later, Mondragon found defendant and the other passenger walking nearby First and Bond. Mondragon identified defendant to the police officers as the man who attempted to take the satchel, jumping out of his car and shouting, "that's them, that's them." He watched as the officers detained the two men.

Since Mondragon was "a hundred percent certain" of the identification, Maloney "latched" onto the tall man while Holongas detained defendant. The officers identified themselves as police. Asked to explain what he meant by "latched," Maloney testified that he was concerned about weapons since Mondragon had reported a robbery, and so the officers took physical control over the two men to conduct a "pat down search." According to Maloney, defendant "wouldn't put his hands on the car" and "physically interfered with us conducting our investigation at that point." As Maloney testified:

[Defendant] was yelling that he was just going to his brother's house. He was yelling that we had no right to stop him. . . . [E]very time he was instructed to put his hands on the car he removed his hands from the car and we had to exert more pressure on him to have him stay at the car.

 

Defendant and the other passenger were handcuffed and placed inside Maloney's vehicle. Defendant acknowledged having taken the cab ride and that he had refused to pay the fare.

Only two witnesses testified for the State at trial: the taxi driver Mondragon, and Sergeant Maloney. At the close of the State's case, defendant moved for a judgment of acquittal on both counts, which the judge denied. Defendant did not testify nor did he present any witnesses. The trial proceeded to summations and then jury charges, several aspects of which are now challenged by defendant on appeal. As previously mentioned, the jury returned verdicts of guilty on both counts of the indictment.

III.

Defendant raises several purported errors by the trial judge concerning the instruction on robbery. The judge instructed the jury on N.J.S.A. 2C:15-1(a)(2), explaining that the State needed to prove "one, that the defendant was in the course of committing a theft, [and] two, that while in the course of committing that theft the defendant threatened another with or purposely put another in fear of immediate bodily injury." The judge also instructed the jury on attempted theft from a person.1

Defendant first asserts that the judge erred by failing "to adequately explain" to the jury that the only theft at issue with respect to the robbery count was his alleged attempt to steal the satchel, and not his failure to pay the cab fare. That contention is belied by the record and has no basis in fact. R. 2:11-3(e)(2). In response to a request by defense counsel during the charge conference, and consistent with the prosecutor's theory of the robbery during summation,2 the judge explicitly charged the jury that the theft at issue, as a predicate to the robbery charge, concerned the attempted taking of the satchel:

As I have said, the State must prove beyond a reasonable doubt that the defendant was in the course of committing a theft. In this case the State alleges that the theft involves Mr. Mondragon's briefcase. I think it was also referred to as a satchel or a folder. In this charge I refer to it as a briefcase.

 

Appropriate and proper jury charges are essential to a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). Jury instructions, therefore, must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). If, as here, defense counsel did not object to the jury charge at trial, the plain error standard applies. State v. Singleton, 211 N.J. 157, 182 (2012).

Under that standard, we reverse only if the error was "clearly capable of producing an unjust result," id. at 182-83 (quoting R. 2:10-2), and consider the totality of the circumstances when making this determination, State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). A reviewing court must consider the asserted defects within the overall context of the charge as a whole, rather than in isolation. State v. Chapland, 187 N.J.275, 289 (2006); State v. Simon, 161 N.J. 416, 477 (1999). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super.273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).

An improper instruction is harmless if it does "not demonstrably impair[] the ability of the jury to deliberate impartially upon its verdict" or if it "does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence." State v. Simon, 79 N.J. 191, 207 (1979)(citations omitted). In those circumstances, a conviction should not be reversed. See ibid.

Pursuant to N.J.S.A. 2C:15-1(a)(2), "[a] person is guilty of robbery if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury." The State must prove, beyond a reasonable doubt, that the actor's conduct threatens the victim with or purposely puts the victim in fear of immediate bodily injury to compel the victim to give up his money or other property. State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). The analysis is based upon the totality of the circumstances, and there are no special words or conduct required. Ibid.; State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998).

Defendant contends that the trial court incorrectly omitted the following portion of the model jury charge on robbery:

To find the defendant guilty of robbery, the intent to commit theft must precede or be coterminous with the use of force. In other words, the defendant must have formed the intent to commit a theft before or during his/her use of force. If you find the defendant formed the intent to commit a theft after his/her use of force, then he/she cannot be found guilty of robbery[.]

 

[Model Jury Charge (Criminal), "Robbery In the Second Degree" (2009).]

 

Defendant argues that "the lack of an instruction on timing was clearly capable of producing an unjust result."

In support of this argument, defendant relies upon State v. Lopez, 187 N.J. 91 (2006). In Lopez, the defendant struck and killed the victim. Id. at 93. Thereafter, the defendant decided to steal the victim's jewelry. Ibid. The Court observed that "without the intention to steal evidenced by a theft or attempted theft, there can be no robbery." Id. at 98. The Court held that our robbery statute "requires that the threats of violence be carried out in furtherance of the intention to commit a theft." Id. at 101.

Lopez does not support defendant's argument in this case. Mondragon testified that during the trip, he overheard defendant say to his companion "that [Mondragon] had a briefcase . . . on the seat." This statement was made prior to defendant's threat to punch the victim. Unlike Lopez, the evidence presented here indicated that defendant formed the intent to commit the theft of the briefcase before he threatened Mondragon. Ibid. Moreover, the threatening action by defendant when he partially entered the taxi through the window demonstrated threats of violence carried out by defendant in furtherance of his intention to commit the theft of the briefcase.

Defendant's conduct was sufficient to establish purposeful, fear-inducing conduct, N.J.S.A. 2C:15-1(a)(2), under the totality of the circumstances. State v. Cassady, 198 N.J. 165, 179 (2009). In light of that evidence, we are satisfied that the omission of the aforementioned portion of the robbery charge was not an error "clearly capable of producing an unjust result." R. 2:10-2.

Defendant asserts that a more definitive charge, tailored to the evidentiary circumstances of the case, was required "to effectively instruct the jury that it is the defendant's purpose, rather than the victim's perception of fear, that is relevant to their analysis." We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We note, however, that the judge gave the following charge to the jury:

[T]he State must also prove beyond a reasonable doubt that while in the course of committing that theft the defendant threatened another with or purposely put another in fear of immediate bodily injury.

I have used the phrase with purpose. You may hear me use that phrase or the word purposely again. I shall now explain what that means. A person acts purposely with respect to the nature of his conduct or a result thereof if it is a person's conscious object to engage in conduct of that nature or to cause such a result.

The phrase bodily injury means physical pain, illness, or impairment of physical condition. Although no bodily injury need have resulted, the prosecution must prove that the defendant either threatened the victim or purposely put him in fear of such bodily injury.

Should you find that the State has failed to prove any one of these elements of the crime of robbery beyond a reasonable doubt, these elements being, one that the defendant was in the course of committing a theft, and two, that while in the course of committing a theft the defendant threatened another with or purposely put him in fear of immediate bodily injury, then you must return a verdict of not guilty of robbery.

[Emphasis added.]

Next, defendant contends that Sergeant Maloney presented to the jury an inadmissible and highly-prejudicial personal opinion when he stated the following during his testimony:

Detective Holongas took a statement from the victim. It became clear that they had attempted - - that [defendant] had attempted to rob the cab driver. He was charged criminal attempted robbery.

 

[Emphasis added.]

 

Defense counsel failed to object, and the prosecutor did not follow up on the comment but immediately transitioned to another line of questioning. Further, the sergeant's testimony was immediately preceded by Mondragon's detailed account of the alleged attempted robbery. The prosecutor did not elicit the challenged comment, ask the officer to "opine on the credibility of the State's case," State v. Miraballes, 392 N.J. Super. 342, 359 (App. Div.), certif. denied, 192 N.J. 75 (2007), or to "express[] a direct opinion that defendant is guilty of the crime charged," State v. Odom, 116 N.J. 65, 77 (1989); see also Singleton, supra, 326 N.J. Super. at 354.

Maloney's testimony "was not tantamount to an expert opinion that defendant purposefully or knowingly" committed the crime charged. State v. Papasavvas, 163 N.J. 565, 609 (2000). Rather, Maloney merely explained why he had arrested defendant. In sum, the statement was not, as required by Rule 2:10-2, "clearly capable of producing an unjust result."

Defendant contends that "for all intents and purposes, Maloney's encounter with [defendant] constituted an arrest." N.J.S.A. 2C:29-1, he argues, encompasses only those situations where a suspect fails to comply with police commands during an investigatory stop. Defendant asserts that the appropriate charge here should have been N.J.S.A. 2C:29-2, resisting arrest, and therefore the court erred by denying his motion for judgment of acquittal.

N.J.S.A. 2C:29-1(a) provides as follows:

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

 

The offense is a fourth-degree crime "if the actor obstructs the detection or investigation of a crime." N.J.S.A. 2C:29-1(b). The obstruction or impairment "must be carried out in [the] manner [specifically] described in the statute." State v. Camillo, 382 N.J. Super. 113, 118 (App. Div. 2005). The statute does not require physical contact, but it does require obstruction by physical conduct. Id. at 121-22; see also State v. Berlow, 284 N.J. Super. 356, 360 (App. Div. 1995) ("[D]efendant must have affirmatively done something to physically interfere or place an obstacle to prevent the police from performing an official function.").

"Simply stated, if the police are performing a law enforcement function in an appropriate manner, i.e., not with an excessive use of force, then a citizen is obligated to comply with the directions of the police." State v. Brennan, 344 N.J. Super. 136, 143 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). "Failure to do so can result in a number of offenses, including obstruction, N.J.S.A. 2C:29-1; hindering, N.J.S.A. 2C:29-3(b); resisting arrest, N.J.S.A. 2C:29-2 and . . . defiant trespass[,] [N.J.S.A. 2C:18-3(b)]." Ibid.

As Maloney testified:

[Defendant] was yelling that he was just going to his brother's house. He was yelling that we had no right to stop him. . . . [E]very time he was instructed to put his hands on the car he removed his hands from the car and we had to exert more pressure on him to have him stay at the car.

According to Maloney, defendant "wouldn't put his hands on the car" and "physically interfered with us conducting our investigation at that point." Defendant's conduct here satisfied the requirements of N.J.S.A. 2C:29-1. See, e.g., Wanczyk, supra, 201 N.J. Super. at 266 ("Defendant, by verbally and physically abusing the officers and physically resisting their efforts to complete their 'pat-down,' purposely impaired the police officers' efforts to perform their official function.").

Defendant also asserts that the Legislature did not intend to "incorporate" the crime of resisting arrest into the obstruction statute. Prior to April 28, 2000, N.J.S.A. 2C:29-1 included specific language that the statute "does not apply to flight by a person charged with crime, refusal to submit to arrest." See Cannell, New Jersey Criminal Code Annotated, comment 2 to N.J.S.A. 2C:29-1 (2013). The 2000 amendment removed this exclusionary language, see L. 2000, c. 18. Accordingly, we conclude the trial judge did not err by denying defendant's motion for a judgment of acquittal.

Finally with regard to the obstruction conviction, defendant contends that the trial judge failed to instruct the jury on the additional required element of "obstruct[ing] the

. . . investigation of a crime" under N.J.S.A. 2C:29-1(b) in order to escalate the offense to a crime of the fourth degree. As this element was necessary to increase the penalty for the obstruction charge, defendant contends, the absence of an instruction as to this element violated his due process rights under Apprendi v. New Jersey, 530 U.S 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Accordingly, defendant contends that he could only be guilty, at most, of a disorderly persons offense under N.J.S.A. 2C:29-1(a). We agree.

Omission from the jury instructions of a material element of the crime is plain error. R. 2C:1-14(i); see also Federico, supra, 103 N.J. at 176; Green, supra, 86 N.J. at 288; State v. Castaldo, 271 N.J. Super. 254, 258 (App. Div. 1994); State v. Butler, 27 N.J. 560, 595-96 (1958). Here, the trial judge instructed that N.J.S.A. 2C:29-1 required the State to prove three elements. With respect to the third element, the judge charged:

[T]he State must prove beyond a reasonable doubt . . . that in committing the act the defendant . . . attempted to obstruct, impair, or pervert the administration of law or the official governmental function of investigating a crime.

 

While these instructions were correct, the judge erred by failing to include the portion of the model charge pertaining to the grading of the offense. Model Jury Charge (Criminal), "Obstructing Administration of Law or Other Governmental Function" (2000), instructs the court, "when grading of the offense is at issue," to charge as follows:

If you find the defendant guilty of obstructing the administration of law or other governmental function, you must go on and determine whether the State has proven beyond a reasonable doubt that the defendant has obstructed the investigation or detection of a crime, or prosecution of a person for a crime. In this case, the State alleges that the defendant obstructed the identification, detection, or prosecution of ____ for the crime of ____. If you find that the State has proven this allegation beyond a reasonable doubt, then you must find the defendant guilty of obstruction of the investigation or detection of a crime, or prosecution of a person for a crime. If the State has failed to prove this allegation beyond a reasonable doubt, you must find the defendant not guilty of obstructing the investigation or detection of a crime, or prosecution of a person for a crime, but guilty of obstructing the administration of law or other governmental function.

 

[Ibid.]

 

We are therefore constrained to reverse defendant's conviction on the fourth-degree offense. However, because there was sufficient evidence supporting a conviction for disorderly persons obstruction, the judge should have molded the verdict to convict on that lesser-included offense. See State v. Farrad, 164 N.J. 247, 265-66 (2000). A court "has the power to enter a judgment of conviction for a lesser included offense where the jury verdict, of necessity, constitutes a finding that all the elements of a lesser included offense have been properly established and no prejudice to the defendant will result." State v. Hauser, 147 N.J. Super. 221, 228 (App. Div.), certif. denied, 75 N.J. 27 (1977).

The Court has explained that a guilty verdict "may be molded to convict on a lesser-included offense," even where the trial judge did not instruct the jury on such offense, if "'(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense and (3) defendant's guilt of the lesser included offense is implicit in, and part of, the jury verdict.'" Id. at 266 (quoting Hauser, supra, 147 N.J. Super. at 228).

We conclude that a molded verdict is appropriate under the circumstances. Defendant had his day in court and each element of disorderly persons obstruction is contained in the fourth-degree offense. In essence, due to the judge's omission of the obstruction grading instruction, the jury was charged on and found defendant guilty of the lesser-included disorderly persons offense. Accordingly, we reverse defendant's conviction for fourth-degree obstruction, and remand to the trial court (1) for entry of an amended judgment of conviction to reflect defendant's conviction for disorderly persons obstruction, and (2) to resentence defendant on that count.

Defendant argues that the trial judge should not have sentenced him to an extended term on the robbery count "because the circumstances of the offense depict a relatively non-serious crime compared to others in its class." However, the judge described the incident where defendant "attempted to grab [the victim's] briefcase with force face to face with this victim. This was a crime of violence and this was defendant's second robbery. . . ."

Defendant also asserts that the judge erred by declining to find mitigating factors present here, and thus imposed a manifestly excessive sentence. Defendant argues that since he did not use a weapon, the victim was not physically hurt and no property was actually taken, those facts should have positively influenced the sentence imposed and the term should have been no greater than ten years.

In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court reiterated that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. Id. at 608. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

To impose an enhanced sentence, the judge must (1) determine if the defendant is eligible within the statutory criteria of N.J.S.A. 2C:44-3(a);3 (2) determine if an extended sentence will be imposed; (3) weigh aggravating and mitigating factors to determine the base term of the extended sentence; and (4) determine if a term of parole ineligibility will be imposed. State v. Pierce, 188 N.J. 155, 164 (2006); State v. Dunbar, 108 N.J. 80, 89 (1987). The court is not required to sentence defendant to an enhanced term. Pierce, supra, 188 N.J. at 169.

In this case, the judge reviewed defendant's substantial prior criminal record and found him to be a persistent offender in accordance with the terms of the statute. He concluded that an extended term of imprisonment should be imposed. The judge found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The judge found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). The judge explained his findings on the record. We find no abuse of discretion in the judge's findings with respect to the aggravating and mitigating factors, see Bieniek, supra, 200 N.J. at 610-11, or ultimately the thirteen-year sentence imposed. State v. Roth, 95 N.J. 334, 364-66 (1984).

Here, the judge followed the statutory provisions and sentenced defendant within his discretionary authority. Finally, the judge noted that defendant's conviction on count one was subject to a mandatory period of parole ineligibility under NERA. We are satisfied the sentence imposed was well supported by the record and discern no basis to disturb this sentence on appeal.

For the foregoing reasons, defendant's conviction for fourth-degree obstruction is reversed. The matter is remanded to the trial court for entry of an amended judgment of conviction finding defendant guilty of the disorderly persons offense of obstruction and for sentencing on that charge.

Affirmed in part; reversed in part; and remanded for amendment of the judgment of conviction and resentencing in conformity with this opinion. We do not retain jurisdiction.

 

 

 
 

 

 

 

1 Attempted theft is sufficient to support a robbery conviction. See State v. Farrad, 164 N.J. 247, 258 (2000)(explaining that a defendant may nevertheless be found guilty of robbery "even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury").

2 During her closing statement, the prosecutor told the jury:

I submit to you the payment or nonpayment of that $7 are not what we are arguing would be attempted robbery. We get to the robbery when he gets into his cab and that defendant then tries to steal his bag.

3 N.J.S.A. 2C:44-3(a) provides in part:

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.