STATE OF NEW JERSEY v. ANDRES J. PAYANO

NOT FOR PUBLICATION WITHOUT THE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.

ANDRES J. PAYANO,

a/k/a ANDRES J. PAUANO,

Defendant-Appellant.

________________________________

September 18, 2014

Submitted May 19, 2014 Decided

Before Judges Leone and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-0188.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Andres J. Payano appeals from his judgment of conviction for a street drug sale. At trial, his defense was that the police had misidentified him as the man selling the drugs. On appeal, he now challenges the evidence that a drug sale occurred. We affirm the convictions, but remand to correct the judgment of conviction.

I.

On July 18, 2011, Detective Alejandro Andino and other plain-clothes officers from the Essex County Sheriff's Bureau of Narcotics set up surveillance in Orange beginning at 4:55 p.m. He saw a Hispanic man with dreadlock braids, wearing a white T-shirt, blue jeans, and black sneakers, standing on Central Avenue near the entrance to a park. The Hispanic man had a conversation with an unidentified male, and then went into a nearby lot and retrieved something from the grass near the driver's-side wheel of a van parked in the lot. He returned and gave some items to the unidentified male in return for cash.

When the Hispanic man walked out of view down Central Avenue, Detective Andino radioed a description to backup officers. They saw defendant, who fit Andino's description, including the "dreads." They detained him around the corner on Central Avenue. Meanwhile, Lieutenant Vito D'Alessio searched the grass near the van's driver's-side wheel, and found a bag containing eighty-nine similarly-stamped glassine envelopes of heroin. He radioed the backup officers, who arrested defendant at 5:12 p.m. Defendant had $94, including sixteen $5 bills, one $10 bill, and four $1 bills. Detective Andino then arrived and identified defendant as the Hispanic man he had observed.

After the dismissal of other counts, defendant was tried on four counts: count five - third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); count six - third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); count seven - third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and count eight - second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1.

The jury convicted defendant on all charges. The trial court merged counts five and six into count seven. The court sentenced defendant on count seven to five years in prison with three years of parole ineligibility, and on count eight to a concurrent five-year term.

Defendant appeals, raising the following arguments

Point 1. Permitting Detective Andino to testify before the jury that he believed he had observed a drug transaction was impermissible lay opinion testimony that deprived defendant of a fair trial (plain error).

Point 2. The trial court erred in permitting improper expert testimony before the jury (plain error).

Point 3. The trial court erred in permitting the prosecutor to elicit testimony about the "high crime area" during its case-in-chief (plain error).

Point 4. The trial court erred in denying defendant's motion for acquittal.

Point 5. The trial court erred in permitting the prosecutor to elicit before the jury defendant's statements to police (plain error).

Point 6. The prosecutor violated defendant's rights by eliciting before the jury testimony that defendant was unemployed (plain error).

Point 7. The prosecutor improperly asked a defense witness when he told policemen about his knowledge of defendant (plain error).

Point 8. The prosecutor introduced improper rebuttal testimony, including referencing defendant's mugshot and inclusion in a "crime database" (plain error).

Point 9. The trial court erred in not declaring a mistrial during deliberations or failing to grant defendant a new trial on this ground (plain error).

Point 10. Defendant's sentence is improper and excessive.

II.

Defendant's defense at trial was "that the person who's selling the drugs is not Andres Payano." Defense counsel argued in both opening and closing that the issue at trial was "whether the Bureau of Narcotics got the right person." On appeal, however, several of defendant's claims challenge the admission of evidence of a drug sale.

"Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). "However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2). "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998). We must hew to that standard of review.

A.

Defendant now complains about Detective Andino's explanations for his actions. Andino testified that he watched the Hispanic man retrieve and exchange small items for cash. Defense counsel asked if Andino thought that was a sale, and Andino said he "believe[d] that was a sale." As a result, Andino notified the backup officers that he "believed" the Hispanic man was "dealing narcotics." While the backup officers detained the suspect, Andino remained in place to keep an eye on the "stash location," which he explained is a place "where you would store narcotics."

Detective Andino's explanations of his actions did not name defendant. They drew no objection, and indeed were partially elicited by the defense. They were not offered as opinions of an expert based on training and experience. Thus, Andino's explanations can be distinguished from the improper opinion in State v. McLean, 205 N.J. 438 (2011). In McLean, the defendant repeatedly objected when a detective stated that, based on his training and experience, the named defendant was engaged in a hand-to-hand drug transaction. The Court found that "the reference in the question to his training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one." Id. at 462. "Even had he been qualified as an expert, he would not have been permitted to offer testimony about what he thought he had seen because he identified defendant by name" and thus gave an opinion on the defendant's guilt. Id. at 461-62.

The Court in McLean also noted that allowing an office "to testify about a belief that the transaction he or she saw was a narcotics sale" would permit opinion testimony about a straightforward transaction which "does not fall outside the ken of the jury." Id. at 461. Even if the rationale of McLean precludes Detective Andino's explanations, defendant cannot show plain error.

Detective Andino's explanations were not "clearly capable of producing on unjust result." R. 2:10-2. First, defendant did not contest that a drug sale had occurred. Second, Andino's brief explanations only told the jury the self-evident facts that he summoned backup officers to detain defendant because he believed a drug sale had occurred, and that he thought drugs were stashed where drugs were later found. It is "'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 (2002). The same is true of Lieutenant D'Alessio's statement that Andino had radioed him about possible "narcotic activity." Finally, the State's expert similarly defined "stash location."

B.

Defendant also challenges parts of the testimony by Detective Reginald Holloway, the State's expert in the field of narcotics distribution and packaging. At defendant's request, counsel objected to the State calling an expert. Counsel argued that "[t]he issue in this case is identification, not . . . whether there was a distribution," and there was "not really a [] factual dispute," so the use of an expert was "unnecessary." The trial court noting that the State still had to prove all the elements of the offense, permitted the expert to testify. The court carefully limited the expert's testimony, but had "no hesitation in allowing . . . expert testimony about why a stash location is used, what is a stash location. That's not something that's commonly known to a jury." The expert testified that stash locations were hiding places used "to separate the narcotics from the distributor," and explained when, where, how, why and by whom stash locations were used.

"[O]ur case law 'does not license the use of a narcotics expert to tell a jury that which is obvious.'" State v. Sowell, 213 N.J. 89, 102 (2013) (quoting State v. Nesbitt, 185 N.J. 504, 514 (2006)). "[T]o be admissible, expert testimony should 'relate[] to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge.'" Id. at 99 (quoting State v. Odom, 116 N.J. 65, 71 (1989)).

In State v. Thompson, 405 N.J. Super. 76 (App. Div.), certif. denied, 199 N.J. 133 (2009), we had "no doubt concerning the appropriateness of the State presenting expert opinion testimony as to . . . drug dealers' use of stash items," which are objects, "'such as a shoe or a can with a false bottom, where a dealer will place drugs for the purpose of concealing them from law enforcement.'" Id. at 80, 82. Here, the trial court found that jurors would be equally unfamiliar with stash locations. That was not an abuse of discretion. "Whether expert testimony is admissible rests in the trial court's sound discretion." State v. Summers, 176 N.J. 306, 312 (2003).

Defendant did not object during the expert's testimony, but now challenges three statements. First, defendant complains about the prosecutor's hypothetical question positing that subject A approached subject B, and subject B went to another location to get something, and then returned and exchanged that item for currency from subject A. The prosecutor then asked: "What would you conclude about the location to which you saw subject B go?" The expert responded: "it would be my opinion that subject B had just responded to a stash location."

Defendant cites State v. Baskerville, 324 N.J. Super. 245, 254-55 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), where the prosecutor posed similar hypothetical facts. In Baskerville, however, the prosecutor asked an open-ended question, to which the expert responded not only that a stash location was being used, but also that "'[i]n my opinion the individual was [] selling narcotics.'" Id. at 255. We found that "his opinions that drug transactions had, in fact, occurred . . . were fatally beyond the pale of the permissible." Id. at 257. We held that "as an opinion on the ultimate question," the testimony was improper and "unduly prejudicial in the circumstances." Id. at 258, 263; see State v. Boston, 380 N.J. Super. 487, 491, 493-95 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006).

The Supreme Court has agreed that the expert in Baskerville improperly opined on the ultimate issue "that a person whose behavior tracked the defendant's was selling drugs." Sowell, supra, 213 N.J. at 101; McLean, supra, 205 N.J. at 452; State v. Reeds, 197 N.J. 280, 299 (2009); Nesbitt, supra, 185 N.J. at 516. Here, by contrast, the expert's response to the hypothetical confined itself to stash locations and did not opine on the ultimate issue of whether defendant had engaged in drug distribution.

We find no reversible error. Defendant was not disputing that drugs were distributed from a stash location, but only that he was not the person making the distribution. The failure to object to the particular testimony he cites on appeal "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999). Finally, the court told the jurors they "were not bound by such expert's opinion," and repeatedly instructed them that "the ultimate determination as to whether or not the State has proven defendant's guilt beyond a reasonable doubt is to be made only by the jury." See Summers, supra, 185 N.J. at 317; State v. Berry, 140 N.J. 280, 304 (1995).

Second, defendant complains about a statement by the expert prompted by defense cross-examination. On cross-examination, defense counsel had asked "[i]f someone is not observed doing anything," but has fifteen $5 bills in his pocket, would that mean anything to the expert if there was no evidence of "illegal or suspicious activity." The expert said possession of currency was not a crime. On redirect, the prosecutor asked "if you saw a hand-to-hand transaction" from the individual to a third person, and then recovered narcotics and found money on the individual, "what would you conclude about the money?" The expert responded that it would be his "opinion that the recovered currency were, indeed, the proceeds from the illegal distribution of narcotics." Defendant did not object.

The trial court had allowed expert testimony on the importance of the denominations of the cash. Defendant does not dispute that "expert opinion is, of course, admissible on" whether money "was proceeds from a drug transaction." United States v. Agudelo, 988 F.2d 285, 287 (1st Cir. 1993); see Summers, supra, 176 N.J. at 315-16. Furthermore, the prosecutor was entitled to respond to the defense's cross-examination. We find no reversible error.

Third, defendant now complains that the expert stated that the area was known for "the illegal distribution of narcotics." Such testimony can be admissible in appropriate circumstances. See Summers, supra, 176 N.J. at 315-17 (holding that an expert properly testified "that the [drug] exchange took place in a high-crime area"); see also McLean, supra, 205 N.J. at 459 (noting allowance of lay opinion "about whether a neighborhood is a 'high crime area'"). In any event, defendant did not object to this particular testimony, which did not implicate him and arguably aided his defense that someone else was the drug seller. We find no reversible error from this unexploited statement.

III.

We next reject defendant's claim that the evidence was insufficient. Defendant argues he was misidentified, but the jury could credit Detective Andino's identification of defendant as the Hispanic man he had seen retrieving items from the grass near the van's tire and exchanging the items for cash. Combined with Lieutenant D'Alessio's discovery of the heroin in the grass near the tire, and the $94 in cash in defendant's pocket, there was ample evidence that defendant possessed heroin with intent to distribute. D'Alessio also testified that the site was within 500 feet of the park and 1000 feet of a school. "'[V]iewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

IV.

Defendant claims error in the cross-examination addressing his testimony that he had just bought food with a $100 bill, which he got from his bank account, and received his change in small bills to pay for his transportation to North Brunswick to attend summer courses at DeVry University. The prosecutor cross-examined defendant

Q. When you were arrested by the officers you told the officers that you were unemployed. Correct?

A. I never told them that, no.

Defendant admitted that when he was booked he answered the questions about his name, address, date of birth, height, and weight, but said he had not told the officers that he was unemployed, or that he was a student, because they did not ask. He did not object at trial, but he raises two claims on appeal.

First, defendant argues that the trial court erred in not sua sponte analyzing whether there was an infringement of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, "issues relating to the admissibility of statements by defendant" must be raised "prior to the pretrial conference[.]" R. 3:9-1(d); see State v. Elkwisni, 384 N.J. Super. 351, 360 n.3 (App. Div.), aff'd, 190 N.J. 169 (2007); see also State v. Robinson, 200 N.J. 1, 18-22 (2009) (holding defendant may not raise on appeal a suppression argument not previously raised).

To the extent the prosecutor's questions related to defendant's responses to the officers during booking, the "'routine booking question' exception . . . exempts from Miranda's coverage questions to secure the 'biographical data necessary to complete booking or pretrial services.'" Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528, 552 (1990); see State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div.), certif. denied, 126 N.J. 331 (1991). Whether a defendant is employed "falls within the benign category of 'basic identifying data required for booking and arraignment.'" United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986). Moreover, defendant had been advised of his Miranda rights by the arresting officer, and he does not claim involuntariness. See United States v. Duarte, 160 F.3d 80, 82 (1st Cir. 1998).

In any event, "[a] defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial." State v. Tucker, 190 N.J. 183, 189 (2007) (citing Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980)). Here, the premise of the prosecutor's questions was that defendant had told the officers he was unemployed; defendant's denial did not convert the question into a comment on silence. Defendant similarly denied that he told the officers he was a student, a single question that did not rise to the level of plain error. See State v. Elkwisni, 190 N.J. 169, 181 (2007); State v. Alston, 70 N.J. 95, 98 (1976).

Because defendant's denials went unrebutted, there was no need for the trial court to give Model Jury Charge (Criminal), "Statements of Defendant" (June 14, 2010). Regardless, defendant did not request such an instruction, and has not shown plain error. State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).

Second, defendant claims that the prosecutor's questions about unemployment violated State v. Mathis, 47 N.J. 455 (1966). Mathis held it is "improper and injurious" for a prosecutor to introduce evidence for the sole purpose of arguing "that defendant had no apparent means of income and hence was likely to commit a crime for dollar gain." Id. at 472. Here, "we are satisfied that the prosecutor's references to defendant's lack of employment at the time of the offense were not intended to be impermissibly suggestive of indigency as a motive for crime." State v. Zola, 112 N.J. 384, 427 (1988). The prosecutor was trying to contradict defendant's testimony that he was a student, and thus had the sixteen $5 bills to pay to commute to college, rather than as the proceeds of drug dealing. See State v. Patterson, 435 N.J. Super. 498, 511 (App. Div. 2014). Unlike State v. Terrell, 359 N.J. Super. 241, 245-48 (App. Div. 2003), certif. denied, 177 N.J. (2004), here the prosecutor made no mention of defendant's alleged unemployment in closing argument. Defendant fails to show plain error. See State v. Robinson, 139 N.J. Super. 58, 63 (App. Div. 1976).

V.

Defendant next challenges the response to belated alibi testimony. A friend of defendant testified that defendant was at the friend's house until 5:00 p.m., that he left to buy some food from a nearby store and that he never returned as expected. The prosecutor objected that this was a partial alibi, but no alibi notice had been filed. On cross-examination, the prosecutor elicited that the friend knew defendant had been arrested, and subsequently talked to defendant and reviewed the police reports, but he did not come forward to reveal this alibi to the police in the year since the arrest, even though a detective had contacted him. The friend responded that revealing an alibi to the police was not how "the justice system" works, and that trial was the appropriate time to come forward. In his summation, the prosecutor rhetorically asked why the friend did not "come forward and tell anyone what [he] knew that would help [his] friend," and argued that the friend only recently fashioned the alleged alibi. Defendant did not object to this cross-examination and summation, but challenges it on appeal.

Defendant cannot show plain error. "[I]f a witness appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure." State v. Silva, 131 N.J. 438, 442 (1993). "[A] proper foundation is laid by asking whether 'the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities.'" Id. at 447-48.

Here, defendant's friend knew about the charges, had reason to know his testimony would provide a partial alibi, had a motive to act as defendant's "good friend," appears knowledgeable about the criminal justice system, and indeed knew a detective was trying to contact him. See id. at 446; State v. Perez, 304 N.J. Super. 609, 612-613 (App. Div. 1997). The prosecution thus had a right to cross-examine and to comment in summation. "The failure to object leads us to conclude that counsel 'did not in the atmosphere of the trial think [the examination] out of bounds.'" State v. Holden, 364 N.J. Super. 504, 512 (App. Div. 2003) (quoting State v. Johnson, 31 N.J. 489, 511 (1960)). Further, the trial court instructed the jury that the friend had no duty to come forward, and that the jury could consider whether he did so "only for the limited purpose of deciding whether it affects the credibility of [the friend's] account." Thus, defendant cannot show an abuse of discretion, let alone an error "clearly capable of causing an unjust result." Id. at 513; see Silva, supra, 131 N.J. at 444, 449.

VI.

Defendant now contests the rebuttal testimony about his arrest photograph. After defendant testified that he "never had dreadlocks in my life," the prosecutor presented rebuttal testimony from Detective Michael Gilmore. He said he was asked to retrieve "an arrest photo for the defendant," and went into the "New Jersey Crime Information System," which "holds criminal history checks" and is a place to "get a mugshot of a defendant." Gilmore "obtained the mugshot for our defendant in this case," namely the "photo for July the 18 of 2011." The defense had "[n]o objection." On surrebuttal, defendant testified that the photo was "the picture of [him] after [he was] arrested on the day of this incident," and that it showed him in "box braids," not "dreads." On appeal, however, defendant claims Gilmore's testimony was highly prejudicial.

There was a "valid reason[] for the State to offer a photo of a defendant to meet its burden of proof at trial," namely to show defendant's hair style on the day of the arrest matched Detective Andino's description. See State v. Lazo, 209 N.J. 9, 19 (2012). The use of "[a]rrest photos raise particular concerns, though, because they can inject prejudice by suggesting a defendant has a prior criminal record." Ibid. Accordingly, "an arrest photo may be admitted only if it is presented 'in as neutral a form as possible.'" Ibid. Thus, references to such photos as "mug shots are generally impermissible because they imply a criminal record." State v. Johnson, 421 N.J. Super. 511, 521 (App. Div. 2011). Here, a more sanitized presentation would have been desirable, omitting the references to "mugshots," "criminal history checks," and perhaps the name of the database. See Lazo, supra, 209 N.J. at 28. "However, 'solitary, fleeting references [to mug shots] generally will not constitute reversible error.'" Johnson, supra, 421 N.J. Super. at 521 (quoting State v. Harris, 156 N.J. 122, 173 (1998)).

More importantly, both Detective Gilmore and defendant made clear that the photo was from defendant's arrest for this July 18, 2011 crime. The testimony thus did not suggest that defendant had a prior criminal record, only this arrest. Because the jury was necessarily aware of this arrest, "there was no harm." Harris, supra, 156 N.J. at 173. Defendant cannot show plain error.

VII.

Defendant now complains that the trial court did not give the deadlocked jury instructions. After three days of trial, the jurors deliberated for two hours. The next morning, they heard a readback of Detective Andino's testimony lasting until 12:55 p.m., and after lunch obtained a repeat of certain jury instructions. At 4:22 p.m. that afternoon, the jurors sent a note stating: "At this point it appears as though we will not reach a unanimous decision. Please advise."1 The following morning, after consulting with counsel, the court told the jurors: "You have only been deliberating[] about a day, in essence." The court simply instructed them "to continue your deliberations." Two hours later, the jury reached a verdict.

Defendant did not object at the time. Nonetheless, he now contends the court should have read the Model Jury Charge (Criminal), "Judge's Inquiry When Jury Reports Inability to Reach Verdict" (June 10, 2013). However, that model instruction did not exist when defendant's case was tried in November 2012.

Defendant also now argues that the court should have given the model charge on further deliberations, also known as the Czachor charge. See State v. Czachor, 82 N.J. 392, 405 (1980).2 Notably, the court had recently instructed the jury with exactly the same language as part of its jury charge. See Model Jury Charge (Criminal), Criminal Final Charge, "Deliberations" (Apr. 19, 2004). Whether a trial court must reinstruct a jury with the Czachor language "'should be guided in the exercise of sound discretion by such factors as the length and complexity of trial and the quality and duration of the jury's deliberations.'" State v. Ross, 218 N.J. 130, 144 (2014) (quoting Czachor, supra, 82 N.J. at 407).

In State v. Figueroa, 190 N.J. 219, 226 (2007), after three days of trial and deliberating for only one day, the jurors sent a note advising that "we cannot unanimously agree on the verdict." Given this "relatively benign communication" and "the brevity of the deliberations," the Court found "no error in the trial court's decision not to inquire specifically about whether further deliberations would likely result in a verdict." Id. at 239-40. "By the same token, because the jury had only been deliberating briefly," the Court did not "fault the trial court for deciding to require the jury to continue its deliberations." Id. at 240.

In the similar situation here, the jury did not report a "definite deadlock after a reasonable period of deliberations." Czachor, supra, 82 N.J. at 407. Thus, "[t]he judge acted well within her discretion in not instructing the jury in accordance with Czachor." State v. Diferdinando, 345 N.J. Super. 382, 393 (App. Div. 2001); see Ross, supra, 218 N.J. at 144-145.

The court's simple instruction "to continue your deliberations" contained no coercive language. Cf. Figueroa, supra, 190 N.J. at 226-27, 241-43; State v. Adim, 410 N.J. Super. 410, 421-30 (App. Div. 2009). The absence of coercion is evidenced by the jury's subsequent request for a readback of defendant's testimony, and the rereading of the instructions defining possession with intent to deliver, before reaching a verdict. Again, defendant has failed to show plain error.

VIII.

Defendant lastly claims that his sentence is excessive. In fact, he received the minimum sentence of five years in prison with three years of parole ineligibility. See N.J.S.A. 2C:43-6(a)(2), 2C:35-7(a), 2C:35-7.1(a). He challenges the court's explanation of its finding of aggravating factors three, six, and nine, and its rejection of mitigating factors one and two and any mitigation based on his age of twenty. See N.J.S.A. 2C:44-1(a)(3), (a)(6), (a)(9), (b)(1)-(2). However, the court properly addressed the factors, emphasizing defendant's "very serious criminal history" as a juvenile, the resulting risk and need for deterrence, and the seriousness of the harm. See State v. Miller, 411 N.J. Super. 521, 534-35 (App. Div. 2010), aff'd in part, 205 N.J. 109, 127-28 (2011); State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). The court correctly found the aggravating factors outweighed the non-existent mitigating factors. Under our "limited" and "deferential" standard of review, we reject defendant's challenges to his sentence. See State v. Bolvito, 217 N.J. 221, 228 (2014).

To its credit, the State now concedes that for sentencing purposes the count seven violation of N.J.S.A. 2C:35-7 must merge into the count eight violation of N.J.S.A. 2C:35-7.1. See State v. Parker, 335 N.J. Super. 415, 420-26 (App. Div. 2000). The minimum term of parole ineligibility under count seven survives the merger. Ibid.; see State v. Dillihay, 127 N.J. 42, 53-56 (1992).

Thus, we affirm the convictions, and remand to the trial court to modify the judgment of conviction.

1 A second note stated: "Two jurors would like to see you at sidebar." One juror raised only an upcoming vacation, and there is no indication that the second juror's concern related to deliberations.

2 Defendant cites the Model Jury Charge (Criminal), "Judge's Instructions on Further Jury Deliberations" (Jan. 14, 2013), then known as Model Jury Charge (Criminal), Criminal Final Charge, "Further Jury Deliberations" (May 23, 1994).