STATE OF NEW JERSEY v. BRADY ROGERS

NOT FOR PUBLICATION WITHOUT THE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.

BRADY ROGERS a/k/a

BOBBY WALLACE ROGERS,

BRADY BOBBY WALLACE,

Defendant-Appellant.

_______________________________

October 6, 2014

Submitted September 30, 2014 Decided

Before Judges Reisner, Haas and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-06-0614.

Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, on the brief).

PER CURIAM

A Passaic County grand jury charged defendant Brady Rogers with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count four). Following a pre-trial N.J.R.E. 404(b) hearing, the judge permitted the State to introduce evidence concerning five prior interactions between the victim and defendant that were offered for the purpose of showing defendant's motive for the offenses charged in the indictment.

Defendant was tried before a jury, which found him guilty of the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1), as a lesser-included offense of first-degree robbery (count one);1 third-degree possession of a weapon for an unlawful purpose (count two); and fourth-degree possession of a weapon (count three). The jury found defendant not guilty of third-degree terroristic threats (count four).

At sentencing, the judge denied defendant's motion for a judgment of acquittal on count two, and granted the State's motion to impose an extended term. The judge merged count three into count two and sentenced defendant to a seven-year term of imprisonment on count two, with a three and one-half year period of parole ineligibility. The judge sentenced defendant to a concurrent six-month term on count one, and assessed appropriate fines and penalties. This appeal followed.

On appeal, defendant raises the following contentions

POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL (Raised below).

POINT II: THE PROSECUTOR'S COMMENTS DURING OPENING AND CLOSING ARGUMENT IMPROPERLY COMMENTED ON THE DEFENDANT'S RIGHT TO REMAIN SILENT CONSTITUTING EGREGIOUS MISCONDUCT DEPRIVING DEFENDANT OF A FAIR TRIAL. (Partially raised below).

POINT III: THE COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A DISCRETIONARY EXTENDED TERM SENTENCE PURSUANT TO N.J.S.A. 2C:43-7 & 2C:44-3a. THIS SENTENCE SHOCKS THE JUDICIAL CONSCIENCE.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The State developed the following proofs at trial. In October 2009, the victim began dating Q.W. Approximately three weeks later, defendant, who was Q.W.'s former boyfriend, approached the victim outside his apartment. Defendant told the victim "that he's her man and that I shouldn't be with her." The victim went back into his apartment and defendant left the scene.

On a second occasion, the victim opened his apartment door because Q.W. was coming for a visit. When he did so, he saw defendant and Q.W. standing at the door. Defendant told the victim, "you shouldn't be doing this, she's with me." The victim left defendant and Q.W. in the hallway to "figure it out." On a third occasion, defendant entered the victim's apartment while he and Q.W. were dressing to go out. Defendant said, "'Oh, this is what you all here doing, huh, getting dressed to go out[,]'" before running out of the apartment.

Near "the end of [20]09," the victim went into a restaurant to order food, while Q.W. waited outside in the car. Once inside, the victim saw defendant, who began taking off his shirt, "like he wanted to fight[.]" However, two other individuals intervened to prevent the altercation. In early January 2010, the victim and Q.W. were at a "cookout." The victim testified defendant approached him with "his hands up" and "wanted to fight me again," but Q.W. "jumped between the both of us[.]"

On January 17, 2010, the victim went to Q.W.'s home around 8:00 or 9:00 p.m., and then left about twenty minutes later to pick up food at a restaurant. He testified he had his cell phone with him and a glove containing rent money from his mother before he went to Q.W.'s house.

As the victim walked down the driveway of Q.W.'s home, he heard footsteps behind him. The victim testified defendant struck him from behind on the right side of the head and he "fell on the sidewalk." Defendant then jumped on top of the victim. Defendant "had a weapon in his hand with like a brass knuckle" and a large blade. The victim stated that defendant was "trying to jab that thing in my eye and trying to take my eye out." Defendant kept saying, "'I'm going to kill you, I'm going to kill you[.]'"

After a struggle, the victim freed himself and ran to the restaurant. When he arrived, he noticed he no longer had his phone and the glove containing his rent money. Before he entered the restaurant, the victim testified defendant "caught up with me at the door and he had the same object swinging it back and forth, left to right." The victim pushed defendant away and went into the restaurant, where he borrowed a phone, and called the police and Q.W.

When the police arrived, the victim told one of the officers that defendant "went into his coat pocket, took a cell phone and went into his back pocket and took a wallet with $400 in 20's." At trial, however, he acknowledged that the phone and rent money could have fallen out of his coat pocket during the attack.

Because he was "having difficulty seeing from [his] eye[,]" the victim went to the hospital and was given medication. He testified he "couldn't see out of my eye for like two weeks."

The next day, a detective went to defendant's apartment building and spoke to the landlord. The landlord told the detective that defendant would sometimes "hang out" in the basement of the building with friends. The landlord consented to a search of the basement and the detective found a machete "under the staircase." The blade was inside of a sheath and the handle portion of the weapon had "knuckles with . . . circles inside of it" protruding from the sheath. The detective showed the machete to the victim, who identified it as the weapon used by defendant during the attack.

Defendant did not testify at trial and he presented no witnesses.

II.

In Point I, defendant argues the trial judge erred in denying his motion for acquittal after the jury rendered its verdict. Defendant asserts that his conviction for possession of a weapon for an unlawful purpose under count two was inconsistent with his acquittal on the robbery charge and the lesser-included offenses of third-degree and fourth-degree aggravated assault (count one), and on the terroristic threats charge (count four). Based upon these acquittals, defendant contends the State could no longer prove he had an unlawful purpose for possessing the weapon and, therefore, the judge should have granted his motion for acquittal on count two. We disagree.

A defendant's motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. On a motion for judgment of acquittal, the governing test is

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

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).

In her charge to the jury at the conclusion of the case, the judge instructed the jury as follows

Now in this case the State contends that the defendant's unlawful purpose in possessing the weapon was to commit the armed robbery/robbery, and/or terroristic threat, and/or aggravated assault. . . .

Now you must not rely upon your notions of the unlawfulness [of] some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged.

The unlawful purpose alleged by the State may be inferred from all that was said or done, and from all of the surrounding circumstances of this case. However, the State need not prove that the defendant accomplished his unlawful purpose of using the weapon. The charge here is possession for an unlawful purpose.2

Defendant contends the jury acquitted him of the robbery, aggravated assault, and terroristic threat charges and, therefore, no "unlawful purpose" could have existed for his possession of the machete. In support of this argument, defendant principally relies upon State v. Turner, 310 N.J. Super. 423 (App. Div. 1998). In that case, the defendant was indicted for aggravated assault by pointing a gun at the victim and possession of a firearm for an unlawful purpose. Id.at 428-29. The trial judge instructed the jury that the commission of an aggravated assault was the unlawful purpose for the possession of a weapon for an unlawful purpose charge. Id.at 432. Under these circumstances, we found that the defendant's acquittal on the assault charge erased the unlawful purpose in possessing the gun that the defendant pointed at the victim, and we concluded that the conviction must be reversed, stating

[T]he judge identified the unlawful purpose during his charge as the aggravated assault of [the victim] by pointing a firearm at her. This was the only purpose the jury was directed to consider, and it was the identical purpose they were told to consider when deliberating on the assault charge.

[Id. at 432.]

Defendant also cites State v. Whittaker, 326 N.J. Super. 252 (App. Div. 1999), where the defendant was convicted of possession of a revolver with the purpose to use it unlawfully against the victim. Id.at 256. In instructing the jury, the trial judge identified the unlawful purpose in the weapon possession charge as the assault upon the victim with the handgun. Id.at 260. However, the jury acquitted the defendant of the aggravated assault charge. Ibid. Citing to Turner, supra, 310 N.J. Super.at 434, the court reversed defendant's conviction because the only unlawful purpose identified in the jury instructions was the assault of the victim and the defendant was acquitted of this charge. Whittaker, supra, 326 N.J. Super.at 260.

However, five years later in State v. Banko, 182 N.J. 44, 55 (2004), our Supreme Court squarely held that a jury may render an inconsistent verdict, provided there is adequate evidence to support the charges on which the defendant is convicted. The Court reasoned that consistent verdicts are not required because the jury is entitled to evaluate each count of an indictment on its own merits. Ibid.

In Banko, the defendant was charged with attempted aggravated sexual assault and possession of a weapon for an unlawful purpose. Banko, supra, 182 N.J. at 45-46. The State's theory was that the defendant used a firearm to prevent the victim from leaving the home where the attempted assault allegedly occurred, and the trial judge instructed the jury that that was the unlawful purpose underlying the weapon possession charge. Id. at 51. The jury acquitted the defendant of attempted aggravated sexual assault, but found him guilty of possession of the weapon for an unlawful purpose. Id. at 52.

In rejecting the defendant's argument that his acquittal on the sexual assault charge erased the unlawful purpose underlying his possession of the weapon, the Court stated

In this matter, that defendant was acquitted of the substantive charge of attempted aggravated sexual assault is not fatal to the conviction for possession of a weapon for an unlawful purpose. The superficial inconsistency between the two charges does not void the legitimacy of the jury's conviction. The jury may have chosen to convict on possession of a weapon for an unlawful purpose, the purpose being, as the court instructed in respect of the State's theory of the case, to confine [the victim] and to assault her sexually. And, yet, the jury could have determined not to convict defendant on the substantive offenses for reasons known only to the jury.

We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted.

[Banko, supra, 182 N.J., at 56.]

The Court then reviewed the record and found sufficient factual support for the defendant's conviction for possession of a weapon for an unlawful purpose. Ibid. The defendant did not deny that he possessed a firearm and the Court found that, even though defendant was not convicted of attempted assault, the jury could have believed he had that unlawful purpose based on the victim's testimony that the defendant pointed the gun at her and told her she "wasn't going anywhere" and that "'he was going to f--k me[.]'" Id. at 57.

In summarizing its reasons for affirming the defendant's conviction for possession of a weapon for an unlawful purpose, the Court stated

[E]ven though the jury may have accepted some of [the victim's] testimony about defendant's expressed intention to have sexual relations with her while he possessed his . . . gun in her presence, the jury may have not believed entirely her version about how the evening unfolded. Alternatively, it may have rendered a compromise verdict. The verdict is explainable also on the basis of lenity. Regardless of which of the ways noted, we conclude that the record contains sufficient evidence from the witnesses, even if their stories were not accepted in full, to support the unlawful purpose charge on which defendant was found guilty.

[Id. at 58.]

Applying these principles in this case, we conclude there was sufficient credible evidence in the record to support defendant's conviction for possession of the machete for an unlawful purpose, even though he was acquitted of aggravated assault and the other purposes identified by the judge in her instructions to the jury. The victim testified defendant jabbed the machete toward his eye while threatening to kill him. The victim's testimony about the five prior incidents in which defendant demonstrated he was angry that the victim was dating Q.W. and that he had a motive for assaulting the victim with the weapon. The police found the machete in the basement of defendant's apartment building, where he was known to meet with friends. Under these circumstances, a jury could properly find beyond a reasonable doubt that defendant possessed the machete with the purpose to commit an aggravated assault upon, or make terroristic threats to, the victim. Reyes, supra, 50 N.J. at 458-59.

As in Banko, supra, 182 N.J. at 57-58, the jury's acquittal of defendant on the aggravated assault and terroristic threats charges does not change this conclusion. The jury may have accepted the victim's testimony about defendant's expressed intent to kill him, without believing the entirety of his testimony. As the trial judge explained in denying defendant's motion for an acquittal, this may have been a compromise verdict or an attempt at lenity. Whatever the cause of the inconsistent verdicts, we conclude, consistent with Banko, that the record contains sufficient evidence to support defendant's possession of a weapon for an unlawful purpose conviction.

III.

In Point II, defendant contends that, during his opening and closing arguments to the jury, the prosecutor improperly commented upon defendant's decision not to testify at trial. It is well settled that "a prosecutor should not in either obvious or subtle fashion draw attention to a defendant's decision not to testify." State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002). In reviewing a claim that a prosecutor has violated this rule, we must "consider the 'fair import' of the State's [arguments to the jury] in [their] entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). Having done so, we conclude that no impropriety occurred.

In his opening remarks to the jury, the prosecutor told the jurors that they should ask themselves three questions during the trial

The first question, who, who did you hear it from? I don't mean me, I don't mean [defense counsel.] I mean who came into this courtroom, swore an oath, took this seat and answered our questions before all of you. Number [t]wo, what did they say? Of course I don't need exactly the words that they used, but also think about their body language, their demeanor, their tone. Quite frankly, ladies and gentlemen, size them up. When they sit in that hot seat, you size them up for who they are and what they're saying, just like we sized you up during jury selection and just like you're sizing me up right now. That's what you should do. And, finally, do you believe them?

Defendant did not object to these comments at the time they were made.

In his summation, defendant's attorney made a spirited argument in which he summarized the testimony of the witnesses, pointed out alleged inconsistencies, and forcefully argued that the jurors should conclude from his version of events that defendant was not guilty of all of the charges. In response, the prosecutor made the following comments to the jury

You heard the testimony, you sized up the witnesses. Now it's up to you to tell us what you believe, who you believe. Do you believe [the victim]? Do you believe [the police officer who interviewed the victim]? Do you believe [the detective who found the machete]? Or do you believe [defense counsel]?

. . . .

Was there inconsistencies? Were there some errors? Was there that . . . moment in this case, like you see on tv, or this dramatic, "Uh-oh somebody screwed up"? No. What was there? Two and a half years after the fact they're asking somebody to tell you what had happened to the best of their recollection and they can't get it right away right on point, slight little nuances. But did the main story change? Did things really change that you suddenly believe, "You know what, maybe this didn't happen"? Did you hear anything to reasonably believe that he [the defendant] wasn't there with this knife hiding outside waiting for [the victim] to come out?

. . . .

And the only thing I ask you to do, and that's my final thing I ask you to do, is after you've already said "Who testified? What did they say? Do you believe them?", when you're in there trust yourself, don't trust anything else, trust what's inside of you, what do you believe happened.

Defendant did not object to any of these comments. However, at the conclusion of the State's summation, the judge brought the attorneys to sidebar to specifically ask defendant's attorney whether he objected to the prosecutor's arguments

THE COURT: Okay. [Defense counsel], do you have any comments on the summation?

[DEFENSE COUNSEL]: No.

[THE COURT]: Okay. I'm just a little bit concerned and I just want to hear from both of you, just on the phrasing of a few things the prosecutor said. He said, "Let's look at this. Who did you hear from?" At one point it was, "Do you believe the witnesses or do you believe [defense counsel]?" "Did you hear anything to reasonably believe that he wasn't there with the knife?" I think some of these comments get very close to the defendant not testifying. If you want me to say -- particularly, "Who did you hear from?" I think that's inappropriate. If the prosecutor had indicated, "Let's go through what the witnesses said," I think that's a different phrasing. Do you have any comments? I may or may not say something. If you're not asking me to say anything, then I'll consider it, but I think the phrasing got very close to the defendant didn't testify and no defense evidence was presented. So do you have any comments?

[DEFENSE COUNSEL]: I don't. You know what, because especially during jury selection we really pounded that issue.

[THE COURT]: Well, I know that we did, but I think I have a responsibility based upon some of the phrasing in the summation, and I don't believe there was any intent to do anything wrong, - -

[DEFENSE COUNSEL]: No, I don't think so either and I would ask you not to address it because I think it may raise different issues. I would ask you just to leave it alone. I didn't get a sense - - obviously we looked at this differently. I didn't get a sense that this was bordering on the inference that the defendant didn't testify . . . .

Defendant's attorney explained that "[w]hen [the prosecutor] made that phrase, my sense was, 'Who did you hear from?' he was referring to the four witnesses that [were] presented, that's who he heard from." The judge asked defendant's attorney whether he wanted her to provide any instruction to the jury concerning the prosecutor's comments. Defense counsel replied that no such instruction was necessary at that time because the judge would instruct the jurors that they could not consider defendant's decision not to testify during her final charge.

On appeal, defendant argues for the first time that the prosecutor's comments were improper under Cooke. We disagree.

Because defendant did not object to the comments at trial, we apply the "plain error" standard of review. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

Prosecutors are given "considerable leeway" in making opening and closing arguments. State v. Williams, 113 N.J. 393, 447 (1988). Prosecutors' comments in opening statements are to be limited to "facts [they intend] in good faith to prove by competent evidence." State v. Hipplewith, 33 N.J. 300, 309 (1960). Likewise, their summations are "limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). "When a prosecutor's comments indicate or imply a failure by the defense to present testimony, the facts and circumstances must be closely scrutinized to determine whether the defendant's Fifth Amendment privilege to remain silent has been violated and his right to a fair trial compromised." Cooke, supra, 345 N.J. Super. at 486 (citing State v. Sinclair, 49 N.J. 525, 549 (1967); State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991)).

To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, "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." State v. Frost, 158 N.J. 76, 83 (1999) (internal quotation marks omitted). This assessment requires the court to 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." Ibid. If opposing counsel fails to object to the improper remarks, "the remarks will not be deemed prejudicial[,]" because the failure to object "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 83-84. Moreover, the failure to object "deprives the court of an opportunity to take curative action." Id. at 84.

Here, we discern no impropriety in the prosecutor's remarks. Viewed in the context in which they were made, the comments were in response to defense counsel's arguments concerning the facts presented to the jury and how the jury should view them. The prosecutor's comment about whether the jury heard "anything to reasonably believe that [the defendant] wasn't there" at the scene of the assault was tied directly to the prosecutor's observation that, although defense counsel had raised inconsistencies in the witnesses' testimony, these "slight little nuances" did not alter "the main story" presented by the witnesses.

Significantly, defense counsel took this same view of the prosecutor's comments when they were made, and carefully explained to the judge that he did not view the remarks as improper. Frost, supra, 158 N.J. at 83-84. He did not ask that the remarks be withdrawn and specifically declined the judge's offer to provide an immediate instruction to the jury. Id. at 83.

As requested by defense counsel, the judge addressed defendant's decision not to testify in her final charge to the jury

Now, ladies and gentlemen, as I have instructed you, the State has the burden of proving each and every essential element of the offenses charged beyond a reasonable doubt. No burden with respect to proof is imposed upon the defendant. He is not obligated to prove his innocence. He has neither the burden nor the obligation to testify as a witness or to present other evidence.

In this case, [defendant] did not testify or present evidence. The fact that he did not testify or present evidence should not be considered by you or enter into your discussions during your deliberations in the jury room, because again he has no obligation of burden of proof with respect to the evidence.

She further explained that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence, and must not be treated as evidence."

Under these circumstances, we conclude that no error, plain or otherwise, occurred. The prosecutor's comments were reasonably related to the testimony at trial and were responsive to defense counsel's arguments to the jury. Defense counsel agreed that no impropriety occurred, requested no immediate instruction, and the judge charged the jury at the end of the trial on the issue in the manner requested by defendant.

Moreover, even if an error occurred, it was invited by defendant. "A defendant cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). The doctrine of invited error "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applied if the trial court relies on a defendant who is able to convince or mislead the court into taking a position that defendant now urges is error on appeal. Ibid.

That is clearly the case here. The judge highlighted a possible issue for defendant's consideration and defense counsel advised the judge that he perceived no impropriety in the prosecutor's comments. Defense counsel declined the judge's offer to provide the jury with an immediate instruction and the judge instructed the jury on the issue of defendant's decision not to testify as requested by defendant's attorney. Thus, we reject defendant's contention on this point.

IV.

Finally, in Point III, defendant argues that his sentence was excessive. He claims the court did not "consider[] the entire range of sentencing options[;]" sentenced him "for the violent crime of aggravated assault for which he was not convicted[;]" and did not "differentiat[e] the aggravating factors [it] used to establish the base term sentence and period of parole ineligibility." These contentions lack merit.

Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

The abuse of discretion standard applies to a judge's decision to impose an extended term. State v. Pierce, 188 N.J. 155, 166 (2006). A judge has discretion to impose an extended term when a defendant meets certain age and criminal history criteria to be considered a persistent offender. N.J.S.A. 2C:44-3a. Once a judge finds that the persistent offender statute applies, the judge must consider aggravating and mitigating factors, including the need to protect the public, to determine the term of imprisonment. Pierce, supra, 188 N.J. at 169.

Applying Pierce, supra, the judge considered defendant's entire criminal history. With regard to defendant's eligibility for an extended sentence, the judge found that "defendant is now 39 years old. All of his offenses were committed after the age of 18, and the last offenses were well within the ten-year period when he committed this offense. So he is certainly eligible for the extended term." She next considered the sentencing range, noting that the ordinary term was anywhere between probation and five years with a two and one-half year period of parole ineligibility. The judge then explained that the extended term range "goes up to ten years with up to five years of parole ineligibility[,]" making the full range between probation and ten years with a five-year parole disqualifier. She further noted that the extended term was not a mandatory sentence.

The judge next considered the statutory aggravating and mitigating factors

The aggravating factors I will now indicate. Risk of committing another offense. I think there's a substantial risk that the defendant will commit another offense, given his history. Prior record I have gone through. And obviously there's a strong need to deter this defendant, as well as others, from committing this type of offense.

Mitigating factors. If his work history is accurate, then I would consider it a reasonably good work history. I don't have any reason to dispute it at this point. He indicates he worked at the university for several years. I don't find really any other mitigating factors.

The aggravating factors are extremely strong and very substantially outweigh the one mitigating factor.

The judge determined that this offense was "very violent" because the jury believed that a machete was used in some way to attack the defendant. Contrary to defendant's argument, the judge did not state or imply that she was considering defendant to have committed an aggravated assault.

After a thorough consideration of all the relevant factors, the judge imposed a seven-year prison term, which was three years less than the maximum term permitted, and a three and one-half year period of parole ineligibility. We are satisfied the judge did not abuse her discretion in imposing an extended term; made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record; and applied the correct sentencing guidelines enunciated in the Code. The sentence does not shock our judicial conscience and we perceive no basis for disturbing it. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).

Affirmed.

1 The jury also found defendant not guilty of the lesser-included offenses of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3).

2 At defendant's request, the judge did not instruct the jury that the offense of simple assault could also constitute an unlawful purpose for defendant's possession of the machete.