STATE OF NEW JERSEY v. JAMARR L. LITTLES

NOT FOR PUBLICATION WITHOUT THE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.

JAMARR L. LITTLES, a/k/a

JAMAR L. LITTLES, a/k/a

BOBBY HART, a/k/a BOBBY

EVERETT, a/k/a MAR LITTLES,

Defendant-Appellant.

_____________________________

Argued March 18, 2014 Decided July 2, 2014

 

Before Judges Ostrer and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-10-2380.

 

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

 

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

PER CURIAM

Defendant, Jamarr Littles, appeals from his conviction, after a jury trial, of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1), and third-degree possession with intent to distribute less than a half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(3). Defendant asserts the court committed error in its instruction on the use of a cooperating co-defendant's testimony, and the prosecutor committed misconduct in his summation. He also appeals from his extended term sentence of nine years, with a four-and-a-half-year period of parole ineligibility. Defendant contends the court impermissibly double counted aggravating factors.

Having considered defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We will review the record relating to the jury instruction, and the prosecutor's summation in our legal discussion. We summarize the trial testimony here.

Gloucester Township Police patrolman Bryan Bonawitz testified that during a routine foot patrol at the La Cascata Apartment complex, he observed defendant, from a distance of about fifteen feet, engage in a hand-to-hand transaction in the parking lot with another man. Defendant received currency and transferred a small Ziploc-style plastic bag with an off-white rock substance. It was shortly after 4:00 p.m. on February 25, 2011. Bonawitz testified that his view was clear and unobstructed by other pedestrians or vehicles.

Bonawitz was accompanied by Sergeant Mark Benton and Patrolman Thomas Wynne. All three officers were in plain clothes. Bonawitz alerted his fellow officers to the transaction, which they had not observed. As they approached, defendant and the other man, James Cassidy, entered a nearby car. Bonawitz asserted it was the only vehicle in the area. Cassidy occupied the driver's seat; defendant the front passenger seat. Bonawitz and Wynne confronted Cassidy and Benton confronted defendant.

Bonawitz testified that he asked Cassidy what was going on. Cassidy "voluntarily admitted that he had just purchased one hundred dollars' worth of crack cocaine from the defendant." Cassidy said he purchased the cocaine with a one hundred dollar bill. The bag of cocaine was seized from Cassidy.1

Benton testified that he grabbed defendant's arm and seized the hundred dollar bill, which defendant still clutched in his hand. Benton searched defendant and seized another $677 in currency. Both officers testified that the apartment complex was a high crime, and high drug area.

Cassidy also testified for the State. He was indicted along with defendant and charged separately in a single count with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1). However, Cassidy had been admitted to the pre-trial intervention program (PTI) before defendant's trial.

Cassidy stated that he had known defendant for a couple of months. Cassidy called defendant in advance to arrange to purchase drugs from him. Cassidy testified that he purchased about a gram of cocaine, for which he paid $100 with a single bill. When confronted by police, he admitted his purchase and consented to a vehicle search.

However, contrary to Bonawitz's testimony, Cassidy asserted that there were two vehicles to the side of his vehicle, facing the direction from which the officers approached. Cassidy also claimed that he had handed defendant a cigarette and the two men were smoking "right before" the officers arrived.

Defense counsel attempted to demonstrate Cassidy's bias, by inquiring about his admission to PTI. Cassidy stated he had no prior convictions, he was married, and was employed. He agreed that PTI would enable him to avoid a conviction. Cassidy also anticipated seeking expungement of his arrest record. However, he insisted that testifying against defendant was not a condition of his admission to PTI, notwithstanding that he testified before the grand jury, and at trial at the State's request.

A deputy section chief of the county prosecutor's office grand jury unit testified generally about the nature of the PTI program, and Cassidy's participation. She explained that Cassidy's testimony was not a prerequisite of his participation. She confirmed that if Cassidy satisfied the other conditions of his supervision, the charges would be dismissed and he could seek expungement.

Defendant was the sole defense witness. He admitted that he possessed over $700 when arrested. He also did not dispute that Cassidy possessed cocaine. However, he denied that he engaged in a drug transaction.

Defendant asserted that he was living at the apartment complex with two roommates. He was on his way to the supermarket when he saw Cassidy, smoking a cigarette while standing by his car in the parking lot. Defendant was acquainted with Cassidy "through a friend of [his], Greg, from [his] work," and decided to ask Cassidy for a cigarette. Cassidy obliged, also handing defendant a lighter, which defendant returned. As the police officers approached, defendant claimed, Cassidy offered to drive defendant to the market. Defendant contended the car windows were closed, and police removed him and Cassidy from the vehicle. He emptied his pockets, and all his currency was seized at once. Defendant testified that he did not observe Cassidy's interaction with the police.

Defense counsel preemptively referred to defendant's prior convictions during his direct examination of defendant. However, on cross-examination, the State elicited two convictions in 2005, for fourth- and second-degree crimes, for which defendant received probation. The State also elicited a second-degree crime in 2006, for which defendant received a five-year prison term. Defendant contended that he was carrying a substantial amount of cash because he was concerned about theft in his apartment. He asserted he earned the money doing construction work, claiming he had done apprenticeships with roofer's and bricklayer's unions, and was enrolled for the Spring 2011 semester at Strayer University.

Aspects of defendant's testimony reflected improvisation and self-contradiction. An issue in dispute was whether the seizure of currency occurred while defendant was seated in the vehicle, and whether the window was open, particularly given the time of year. Defendant insisted that the window was closed. In passing, defendant asserted, "I believe it snowed the night before" the arrest. When asked follow-up questions, he modified his answer, stating "it snowed in that time frame," and after further questioning, admitted, "I can't remember." Similarly, defendant denied it was warm that day, asserting he was wearing "I guess, goose jacket, I guess, heavy winter coat, jacket on." Asked to estimate how cold it was, defendant answered "[f]orties, fifties, I'm not totally sure." Asked if a temperature in the "forties and fifties is . . . cold," defendant answered, "Better yet, I -- I don't know." Although he asserted he knew Cassidy through a co-worker, defendant later testified he knew him through a neighbor. Defendant asserted he lived at the complex for six months, but he denied it was a "pretty bad area," and disclaimed knowledge of drug dealings there.

Defendant presents the following points on appeal:

POINT I

 

THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT IT COULD ONLY USE THE CODEFENDANT'S ADMISSION OF GUILT TO ASSESS HIS CREDIBILITY AND NOT AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT, AND THIS FAILURE VIOLATED THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FEDERAL AND NEW JERSEY CONSTITUTIONS (Not raised below).

 

 

 

 

POINT II

 

THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE STATED IN HIS SUMMATION THAT THE POLICE HAD NO MOTIVE TO LIE.

 

POINT III

 

THE TRIAL COURT IMPROPERLY DOUBLE COUNTED DEFENDANT'S PRIOR RECORD AND FAILED TO CONSIDER THE NATURE OF THE OFFENSE AND THE PRESENCE OF MITIGATING FACTORS WHEN IT IMPOSED AN EXCESSIVE NINE[-]YEAR SENTENCE FOR POSSESSION AND SALE OF LESS THAN A HALF OUNCE OF DRUGS.

 

II.

A.

We reject defendant's contention that the prosecutor's remarks in summation resulted in plain error. The prosecutor's comments largely constituted a fair response to defense counsel's summation, which challenged the State's witnesses' motivation and bias. The prosecutor's comments rested largely on record evidence. To the extent the comments expressed a personal belief in the witnesses' truthfulness, they were harmless.

In summation, defense counsel characterized the trial as a contest of credibility between the officers and Cassidy on one side, and defendant on the other. He also highlighted discrepancies between Cassidy's and Bonawitz's testimony. Counsel asked the jury to question Cassidy's motivation. Although acknowledging the deputy section chief's assertion that Cassidy's testimony was not a condition of PTI, defense counsel argued, "Members of the jury, I think we know better. You know, . . . if it walks like a duck, smells like a duck, it's a duck. Mr. Cassidy was offered PTI, was offered a deal, so to speak, to testify . . . ." Counsel urged the jury to be a "little wary about Mr. Cassidy's motivation."

Counsel also critiqued Benton's failure to acknowledge the presence of a van near Cassidy's vehicle, insinuating that he purposely avoided it.2 Counsel argued:

But who has an axe to grind? Who has the more of the lie? Guess what members of the jury? At this point, we know -- we know -- really, we know about four things.

 

We know Officer Benton or Bonawitz have a little -- have -- they have some cleaning up to do, right? Because they -- they said some things that [were] inconsistent with Mr. Cassidy. We know what Mr. Cassidy has to do, right? He has something hanging over his head, too, now.

 

In apparent response, the prosecutor urged the jury to credit the testimony of the officers and Cassidy. Defendant objects to the following underlined comments, which we place in the context of the prosecutor's remarks:

Officer Bonawitz and Sergeant Benson [sic] testified they weren't being defensive. They were answering questions. If they weren't sure about something, they didn't try to make up an answer. They told you, "I'm not sure. I don't remember." If they thought that it was in their report, they certainly told you, well, or they told me, "Can I look at my report?" They didn't want to make things up.

They also, like I said, admitted that they didn't remember anything. And the one thing that they did or, at least, Sergeant Benton did, they did not try to make their case any better than it was. What do I mean by that?

 

Sergeant Benton told you, "I did not see the transaction. Only Patrolman Bonawitz saw the transaction. We approached them. I saw them getting in the car. I grabbed his hand and I got the $100 bill. But I didn't see the transaction."

 

Now, if they wanted to lie, if they wanted to make their case better, how easy would it have been for Sergeant Benton to say, yes, I was standing right next to him. Yes, I saw the transaction. . . .

 

He didn't do that. He didn't put that in his report. Why? Because it's not the truth. Because it's not what happened. They testified to what happened.

 

Defendant also objects to additional comments, found in the context of the following argument:

There is nothing that you heard during this entire trial that would suggest to you that Mr. Cassidy had any reason, whatsoever, to lie or to hold a grudge against the defendant. And that pertains to the police officers, too. There's nothing that you heard during the course of this trial that would suggest that they would have a reason to lie here, that they dealt with the defendant before. That they had some sort of grudge against him. You've heard nothing that would suggest that they were making things up.

 

. . . .

 

The bottom line, ladies and gentlemen, what this case boils down to is who are you going to believe. Are you going to believe the two officers who saw what they saw? Mr. Cassidy who's never been in trouble or a guy with three felony convictions? Out of those people, who do you think is more likely to take his oath to tell the truth seriously? I submit to you that it's the officers and it's Mr. Cassidy.

 

We recognize that a prosecutor should not vouch for the credibility of a witness. State v. Frost, 158 N.J. 76, 85 (1999). "A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). A prosecutor may not broadly contend that a police officer had no motive to lie. State v. R.B., 183 N.J. 308, 331-32 (2005). Rather, the prosecutor should "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001).

However, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). A prosecutor may also respond to defense counsel's arguments. State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) (citing State v. Wilson, 57 N.J. 39, 50 (1970)), aff'd on other grounds, 195 N.J. 493 (2008); State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000) ("A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted.").

Here, the prosecutor did not argue that the police officers should be believed simply due to the nature of their office, see R.B., supra, 183 N.J. at 332, or the punishment they would suffer if caught in a lie. Frost, supra, 158 N.J. at 85. The prosecutor addressed the police witnesses' willingness to admit unfavorable facts, and to concede the absence of memory, as factors supporting their credibility. Although the prosecutor did assert the officers "didn't want to make things up," and "testified to what happened," those remarks must be viewed in the context of the prosecutor's broader argument, and his response to the defense contention that the officers were "cleaning up" their version of events. Likewise, the prosecutor's remarks about Cassidy's testimony did not constitute a blanket endorsement of his credibility. Rather, it addressed the issue whether Cassidy was motivated by a promise or grant of favorable treatment his admission to PTI.

Moreover, as defendant did not object to any of the prosecutor's comments, defendant must show plain error to be entitled to a new trial. See State v. Feal, 194 N.J. 293, 312 (2008). In other words, he must demonstrate that the prosecutor's conduct was so egregious that it deprived defendant of a fair trial. Frost, supra, 158 N.J. at 83.

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred. Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.

 

[Id. at 83-84 (internal quotation marks and citations omitted).]

 

Having examined the record as a whole, we are not persuaded that the prosecutor's remarks denied defendant a fair trial.

B.

We also discern no error in the court's instruction regarding the proper use of Cassidy's testimony. Defendant argues that the court was required to deliver, in full, the model charge on the testimony of a co-defendant who has pleaded guilty. The model charge includes alternative sections: one where a witness is a co-defendant; and another where the witness is not. In the former, the charge includes paragraphs specifically addressing the case in which the co-defendant has also pleaded guilty. The charge provides:

TESTIMONY OF A COOPERATING CO-DEFENDANT OR WITNESS

 

(When witness is a co-defendant)

 

__________, who was [charged with] [indicted for] the crime(s) that defendant is on trial for, has testified on behalf of the State.

 

(When witness is a co-defendant and has pleaded guilty prior to defendant's trial)

 

_________, who was [charged with] [indicted for] the crime(s) that defendant is on trial for, has pleaded guilty to (one/some of) those charges, namely _______, and has testified on behalf of the State. Evidence of ________'s plea of guilty may be used only in determining the credibility or believability of the witness' testimony. A jury has a right to consider whether a person who has admitted that he/she failed to comply with society's rules would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted or pleaded guilty to a crime. You may consider such evidence along with all the other factors that I mentioned previously in determining the credibility of a witness. However, you may not use ______'s plea of guilty as evidence that this defendant is guilty of the crimes that he/she is charged with.

 

OR

 

(When witness is not a co-defendant)

 

_________________, a witness herein, has testified to facts which may show some involvement on (his/her) part in CHOOSE AS APPROPRIATE: [the criminal situation out of which the indictment and trial of the defendant arose] [another criminal matter].

 

(In all cases)

 

The law requires that the testimony of such a witness be given careful scrutiny. In weighing (his/her) testimony, therefore, you may consider whether (he/she) has a special interest in the outcome of the case and whether (his/her) testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.

 

If you believe this witness to be credible and worthy of belief, you have a right to convict the defendant on (his/her) testimony alone, provided, of course, that upon a consideration of the whole case, you are satisfied beyond a reasonable doubt of the defendant's guilt.

 

[Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006) (emphasis added).]

 

Consistent with the direction of the model charge, and State v. Begyn, 34 N.J. 35, 54-56 (1961), the court asked defense counsel whether the defense requested the charge. Judge Anthony M. Pugliese recognized that the charge needed to be tailored, because Cassidy did not plead. The following colloquy ensued:

[THE COURT:] With respect to testimony of a cooperating co-defendant or witness, [defense] counsel, . . . it is up to you as to whether or not you want to ask for that. You know, you have Mr. Cassidy testify. I'm not sure if you want the charge or not. You're familiar -- I'm sure you're familiar with the charge. But it is really not to be given unless you've requested it. I don't know if you'd like -- you would like that charge or not.

 

[DEFENSE COUNSEL]: Judge, can I just see that for two seconds?

 

THE COURT: Sure. Counsel, both of you come on up. And -- hold on.

 

[DEFENSE COUNSEL]: Yes.

 

THE COURT: In this charge, when a -- this section is deleted when a witness is a co-defendant who has pled guilty, because that hasn't happened.

 

[DEFENSE COUNSEL]: Uh-huh.

 

THE COURT: He hasn't pled guilty prior to trial. This is the applicable section. So, the way it reads is "James Cassidy was charged with the crime" and was indicted -- "was -- was charged with the crime that the defendant is on trial for and has testified on behalf of the State," -- because he was, in fact, charged with the possession charge. He's testified to facts which mentioned some involvement in his -- on his part in possessing. The law requires that --

[DEFENSE COUNSEL]: Uh-huh.

 

THE COURT: -- the testimony be given care[ful] . . . scrutiny . . . .

 

[DEFENSE COUNSEL]: Uh-huh. That's fine. I'm fine with that.

 

The judge then confirmed that "counsel for defendant has indicated that he does want the charge with respect to cooperating witness."

Consistent with the charge conference, Judge Pugliese delivered the following instruction to the jury:

Now, Mr. James Cassidy testified. And Mr. Cassidy was indicted for one of the same charges that the defendant is on trial for. And Mr. Cassidy testified on behalf of the State in this case. Now, he . . . has testified to facts which may show some involvement on his part that he was in possession of cocaine.

 

Now, the law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal. If you believe this witness to be credible and worthy of belief, you have a right to convict a defendant on Mr. Cassidy's testimony alone, provided, of course, that upon a consideration of the whole case, you are satisfied beyond a reasonable doubt of the defendant's guilt.

 

Simply put, the court did not err in omitting the paragraph preceded by the heading, "When witness is a co-defendant and has pleaded guilty prior to defendant's trial," because Cassidy did not plead guilty. The omitted charge is designed to bar use of the co-defendant's guilty plea as substantive evidence of the guilt of the defendant on trial. The charge is not designed to address the use of in-court testimony of the co-defendant, or admissible out-of-court declarations of a co-defendant. "The policy underlying this rule is that once a defendant is on trial, he 'is entitled to have the question of his guilt determined upon the evidence against him, not on whether a Government witness or co-defendant has plead [sic] guilty to the same charge.'" State v. Stefanelli, 78 N.J. 418, 430 (1979) (alteration in original) (quoting Babb v. United States, 218 F.2d 538, 542 (5th Cir. 1955)). The guilty plea is itself an out-of-court statement. See N.J.R.E. 803(c)(25); State v. Felton, 131 N.J. Super. 344, 352 (App. Div. 1974), certif. denied, 68 N.J. 140 (1975). A guilty plea may also be the product of a variety of circumstances particular to the co-defendant. Stefanelli, supra, 78 N.J. at 433. Evidence of the guilty plea may nonetheless be admissible for the purpose of undermining the credibility of the co-defendant, State v. Adams, 194 N.J. 186, 208 (2008), as is a conviction under N.J.R.E. 609.

As Bonawitz testified without objection, Cassidy readily admitted he possessed cocaine when first approached by police officers. At trial, Cassidy confirmed the truth of those statements. Cassidy's in-court statement that he purchased cocaine from defendant with a hundred dollar bill, and that he surrendered the cocaine to the police, was admissible and the jury was entitled to consider whether it was true. However, as the court properly instructed the jury, the statements were entitled to careful scrutiny, because of Cassidy's possible motives to curry favor, or to exact revenge.

Although we discern no error, to the extent the court committed error, it was invited. See State v. A.R., 213 N.J. 542, 561 (2013). "Mistakes at trial are subject to the invited-error doctrine. Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. . . ." Ibid. (alteration in original) (internal quotation marks and citation omitted). The court inquired whether defense counsel wanted the charge delivered, making it clear that delivery of the charge was the defense's option. Defense counsel requested the charge, and did not object to the trial court's tailoring. The trial judge expressed his intention with reasonable clarity in the charge conference, noting that Cassidy did not plead guilty, and his testimony required "careful scrutiny." Defense counsel confirmed he wanted the court to deliver the charge as described. After the court delivered the charge, defense counsel did not object.

In any event, we do not believe that the omitted paragraph was capable of producing an unjust result. SeeAdams, supra, 194 N.J.at 208-09. "[W]here a defendant fails to object contemporaneously to a jury charge, a plain error standard applies." State v. Nero, 195 N.J.397, 407 (2008) (citation omitted). Defense counsel thoroughly cross-examined Cassidy and raised questions about his motives to lie both at the scene and at trial to protect himself at defendant's expense.

C.

Finally, we reject defendant's argument that the court impermissibly double counted defendant's prior record as an aggravating factor in sentencing. The court granted the State's motion for a mandatory extended term based on defendant's 2005 conviction for second-degree distribution. Defendant argues that the court impermissibly double counted the conviction in imposing a sentence of nine years, with four-and-a-half years of parole ineligibility. We disagree.

As only the one drug distribution conviction was needed to justify the extended term, N.J.S.A.2C:43-6(f), the court was free to consider defendant's other convictions to determine the seriousness of his criminal record. State v. Vasquez, 374 N.J. Super.252 (App. Div. 2005), upon which defendant relies, is not to the contrary. In that case, the trial court expressly used a prior school zone conviction the defendant's only prior conviction both to justify the extended term and to sentence to the maximum of that term. Id.at 267-68.

Judge Pugliese reviewed defendant's extensive prior record, to conclude that "since 2002, except for the times he was incarcerated, [defendant] averaged either a Municipal Court or a Superior Court conviction approximately once ever[y] six months." Defendant's municipal court convictions included marijuana possession, obstruction, and disorderly conduct. Aside from the drug distribution conviction, his Superior Court convictions included fourth-degree resisting arrest, N.J.S.A.2C:29-2(a); second-degree sexual assault, N.J.S.A.2C:14-2(c)(4), for which he received a five-year sentence; and fourth-degree violating a condition of a special sentence, N.J.S.A.2C:43-6.4(d), for which he was sentenced to 270 days. In sum, aside from the drug distribution conviction, there was ample support for aggravating factor six, N.J.S.A.2C:44-1(a)(6) "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted."

The court also relied on defendant's record in finding aggravating factor three, N.J.S.A.2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense." The court noted defendant's extensive juvenile record, and repeated offenses while on probation or parole. In view of defendant's persistent offending, and the failure of prior sanctions to correct defendant's behavior, the court concluded there was a need to deter, aggravating factor nine, N.J.S.A.2C:44-1(a)(9). In sum, Judge Pugliese appropriately made a "qualitative assessment" of defendant's record and the risks he posed. SeeState v. Fuentes, 217 N.J.57, 78 (2014).

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).

Affirmed.

1 We note that defense counsel did not interpose a hearsay objection to Cassidy's out-of-court statement inculpating defendant as well as himself. See N.J.R.E. 803(c)(25) (stating that a statement against interest is admissible against an accused in a criminal action only if made by the accused); see, e.g., State v. Rivera, 351 N.J. Super. 93, 106-07 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003).

2 Counsel apparently intended to refer to Bonawitz, as counsel had questioned Bonawitz, and not Benton, regarding the presence of other vehicles that might have obscured his line of sight.