STATE OF NEW JERSEY v. VIRGIL D. BALDWIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0713-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIRGIL D. BALDWIN,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT L. KING,

Defendant-Appellant.

December 14, 2015

 

Submitted November 16, 2015 Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-02-00398.

Joseph E. Krakora, Public Defender, attorney for appellant Virgil D. Baldwin (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Robert L. King (Linda Mehling, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant Virgil D. Baldwin filed a pro se supplemental brief.

PER CURIAM

In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Virgil Baldwin and Robert King challenge their convictions for second-degree robbery, N.J.S.A. 2C:15-1, following a joint jury trial. On July 26, 2013, the trial judge sentenced Baldwin to an extended twenty-year prison term, subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On that same date, the judge sentenced King to a seven-year term subject to NERA. The judge also imposed appropriate fines and penalties on both defendants. These appeals followed.

On appeal, Baldwin raises the following contentions

POINT I

ONCE IT WAS CLEAR THAT THE JURY WAS WRESTLING WITH THE DISTINCTION BETWEEN ROBBERY AND THEFT, THE COURT WAS OBLIGATED TO INSTRUCT THE JURY ON THE ELEMENTAL DIFFERENCES BETWEEN ROBBERY AND THEFT IN THE CONTEXT OF THE FACTS. THE COURT'S FAILURE TO SO INSTRUCT THE JURY SERVED TO DENY DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).

POINT II

THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED DEFENDANT'S PRIOR RECORD IN IMPOSING AN EXTENDED-TERM SENTENCE. THE COURT ALSO ERRED WHEN CONSIDERING THE RANGE OF SENTENCE FROM WHICH THE BASE TERM COULD BE DETERMINED.

In his pro se supplemental brief, Baldwin provided the following argument for our consideration

POINT I

[] DEFENDANT DID NOT MEET THE REQUIREMENT FOR A MANDATORY EXTENDED TERM SENTENCE AS A [REPEAT] VIOLENT OFFENDER PURSUANT TO N.J.S.A. 2C:43-7.1b(1) AND THEREFORE HIS EXTENDED TERM SENTENCE IS ILLEGAL [AND] MUST BE VACATED.

King presents the following arguments

POINT I

THE TRIAL COURT BARRED DEFENSE COUNSEL FROM CROSS-EXAMINING EYEWITNESS LAWRENCE BACZO ABOUT THE CRIMINAL CHARGES PENDING AGAINST HIM, WHICH DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT AND CORRESPONDING STATE CONSTITUTIONAL RIGHTS, AND HIS RIGHT TO A FAIR TRIAL.

POINT II

THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY TO CONSIDER BACZO'S POSSIBLE MOTIVE TO CURRY FAVOR, AND ITS ERRONEOUS INSTRUCTION, WHICH TOLD THE JURY THAT IF IT FOUND BACZO WORTHY OF BELIEF, IT COULD CONVICT THE DEFENDANT ON BACZO'S TESTIMONY ALONE, DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

POINT III

CONFUSING AND INADEQUATE INSTRUCTIONS ON ACCOMPLICE LIABILITY, WHICH FAILED TO EXPLAIN ACCOMPLICE LIABILITY IN THE CONTEXT OF THE PERTINENT FACTS, ESPECIALLY AS THEY RELATED TO ROBBERY AND THEFT, DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

POINT IV

THE COURT'S DEFECTIVE INSTRUCTION ON CONSTRUCTIVE POSSESSION DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

Having considered these arguments in light of the record and applicable standards, we affirm.

I.

We glean the following facts from the trial record. On the evening of November 29, 2008, the victim, Ms. Ellsworth, drove a friend home and then returned to her house in Ocean Township. Unknown to Ellsworth, defendants were following her in a car driven by King. Upon her return, Ellsworth parked her car on the street in front of her house.

When Ellsworth went to remove her keys from the ignition, she saw a shadow outside the driver's side window and thought it was her roommate coming out to ask her to run an errand. Ellsworth opened the door and a hand reached into her car, grabbed her keys, and the grabbing motion pulled her out of the car. This motion "spun [her] around a little" and she testified that either a fist or an object hit her on the head while she stood outside the car. She described her assailant as an African-American man, taller than herself, wearing dark clothing, a watch cap pulled down on his head, and black gloves.

The man opened the rear door and took Ellsworth's purse from the back seat. The purse contained her checkbook, a wallet with her identification, $30 in cash, and a few other items. The man then ran north on Overbrook Avenue towards Roosevelt Street as Ellsworth yelled for help. Although the area was dark, Ellsworth observed a car in the distance with its headlights on.

Shortly thereafter, a young neighbor, Mr. Baczo, ran toward Ellsworth yelling, "I saw the car. I saw the car. I hit it [with a screwdriver]." Baczo had heard Ellsworth's screams and observed a man run up the street and jump in the passenger side of the car that then began to head west on Roosevelt Avenue. It was too dark, however, for Baczo to see the man's face or observe anything else about him. Baczo reported that when he saw the dark, two-door Saturn drive past, he threw a screwdriver at its passenger rear quarter panel. Baczo, a mechanic, was able to identify the vehicle as a Saturn because he "know[s] cars" and has worked on them his entire life.

At the scene, Baczo gave the police a description of the car, its travel pattern, and how the man ran to enter the car. He later went to police headquarters where he gave police a formal statement. He positively identified a photo of a dark, two-door Saturn with flip headlights, which he claimed was the "same, exact vehicle" he saw.

After this incident, but prior to trial, Baczo was charged with a criminal offense in Arizona. He testified that he was not offered anything by the prosecution in exchange for his testimony. He stated that he was not worried about his pending Arizona charge and that it was irrelevant to his testimony in this case.

Ocean Township patrol officer Jeffrey Malone was dispatched to Overbrook Avenue at 11:52 p.m. He met with Ellsworth, who reported that her keys and purse had been stolen. She also told Malone that she had been hit on the head and injured as a result. Malone summoned an ambulance, and Ellsworth was evaluated and treated at the scene.

Around midnight, Long Branch patrolman Robert Bataille received an alert reporting a robbery in Ocean Township, where a green Saturn was seen leaving the area. About five or ten minutes later, Bataille observed a green Saturn driving north into Long Branch from Ocean Township. He then began to follow the Saturn and called headquarters to look up the license plate, which he learned was registered to Paul Lynn King of Fayetteville, North Carolina.

Bataille saw two African-American men seated in the front of the car. He turned on his lights and pulled the Saturn over, at which point he saw the two men looking and reaching toward the rear seat. Bataille approached the Saturn when backup officers arrived. He spoke to the driver, who identified himself as Robert King.

Another police officer looked through the window of the car and saw a checkbook on the passenger side floor. The officer observed the name "[Ms.] Ellsworth" printed on a check, which matched the name of the victim as reported to Bataille. Additionally, police noted a mark on the Saturn's rear passenger side in the area where Baczo advised he hit it with a screwdriver.

Defendants were ordered out of the car, arrested, and searched. The police found a wallet insert with clear plastic windows containing Ellsworth's license, social security card, PBA card, and motor vehicle disabled person's identification card hidden in Baldwin's sock. Baldwin testified that he only put the identification in his sock when King directed him to do so as they were being pulled over. Inside the car, police found black gloves, and Ellsworth's purse and checkbook.

At trial, Baldwin admitted to the theft but denied using any force against Ellsworth. He claimed the entire idea was King's and that he went along with it because he owed King money. Baldwin testified that he met and became friends with King while working at a rubber plant in Red Bank, and King would drive Baldwin to and from work. On November 29, 2008, while Baldwin was working at ShopRite in Neptune, King called and asked to hang out after work. King picked Baldwin up at 8:00 p.m. and they went to King's home in Keansburg. Baldwin noticed he had left his wallet at ShopRite, so King drove him back to retrieve it. King felt that Baldwin should give him some money for always helping him. Although Baldwin did not wish to do so because he was saving to get an apartment with his girlfriend, he felt bad and thought King "was kind of right."

The two men went to a bar after picking up Baldwin's wallet, and each had a drink paid for by King. Baldwin testified that King then suggested that Baldwin help him steal identifications. While driving home on Route 35, King pointed out Ellsworth's car and noted that she had a front seat passenger. Consequently, King told Baldwin that the woman's purse would likely be in the back seat. The men followed Ellsworth's car while she dropped her friend off and returned home. Baldwin testified that King assured him he could just grab the purse without hurting anyone.

King parked his car at the corner of Roosevelt and Overbrook, and Baldwin ran to the rear driver's side door of Ellsworth's car. Baldwin was wearing a black knit hat, black gloves, and dark clothes, which matched the description given by Ellsworth. Baldwin could see something on the back seat, but the back door was locked, so he opened the front door as Ellsworth was getting out. According to Baldwin, Ellsworth hit her head on the door and dropped her keys. Baldwin denied pulling her out of the car, hitting her, or making any type of bodily contact with her, contrary to her claim that he hit her with an object or his fist. Baldwin picked up the keys, opened the back door, and retrieved the purse. He kept the keys so that Ellsworth would not follow him. He ran back to the car, got in, gave the purse to King, and King drove away.

Baldwin admitted that in 1994 he had been sentenced on two separate indictments. On one indictment he was convicted of first, second, and third degree crimes and received a twenty-five-year prison term, including a ten-year parole disqualifier and lesser concurrent sentences. On the second indictment he was convicted of a first-degree crime and was sentenced to a concurrent eighteen-year term.

In their summations, defense counsel urged the jury to find Baldwin guilty of theft and not robbery. Turning to the accomplice liability issue, King's counsel argued that there was insufficient evidence to show that King was Baldwin's accomplice. She contended that Baczo was the only witness who suggested that a second person was on the scene, that Baczo's testimony was not credible, and that it was more likely that Baldwin committed the crime alone.

During deliberations, the jury requested "[Ellsworth's] testimony of how she was removed from the car and [defendant's] testimony of how [Ellsworth] was removed from the car." After that testimony was read back, the jury later made a second request for "[o]ne, . . . a written transcript of [Ellsworth's] testimony that was read to us this morning and, two, [her] police statement from the night of the incident." In response, the judge informed the jury that the police statement was not in evidence, and that there was no official transcript but only the court reporter's notes. The judge advised the jury that it could have the testimony read back instead. The jury then requested, and received, a second read-back of Ellsworth's testimony about being pulled from the car. The jury reached a verdict about one hour later, finding both defendants guilty of robbery.

II.

For the first time on appeal, both defendants separately challenge various aspects of the jury instructions. Because defendants did not object to the charges at trial, we review the instructions for plain error. R. 1:7-2; R. 2:10-2. See also State v. Singleton, 211 N.J. 157, 182 (2012). Plain error is error that is "clearly capable of producing an unjust result[.]" R. 2:10-2.

"In the context of jury instructions, plain error is 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. McKinney, ___ N.J. ___, ___ (2015) (slip op. at 24) (citations omitted). To determine if an error in the charge constitutes plain error, we consider the charge as a whole. Ibid. If the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). "It is a well-settled principle that appropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). Jury instructions are "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).

A.

Baldwin argues that the trial court failed to properly instruct the jury on the differences between robbery and theft within the context of the present case. He maintains he did not use force against Ellsworth, threaten her, or intend to cause her to fear bodily injury, so that the jury should have acquitted him of second-degree robbery and found him guilty only of third-degree theft. For the jury to properly understand the distinction between the two crimes, Baldwin asserts that it was essential for the court to tailor its charge to the facts of the case.

Under N.J.S.A. 2C:15-1a,

[a] person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.

Additionally, for a theft to be considered robbery, the force must have been against the person, not the object of the theft or any other type of property. State v. Sein, 124 N.J. 209, 213-16 (1991). Specifically, "[t]he theft statute [] includes purse-snatchings from the grasp of an owner, while the robbery statute includes purse-snatchings that involve some degree of force to wrest the object from the victim . . . [and therefore,] robbery requires more force than that necessary merely to snatch the object." Id. at 217.

Also, a defendant must knowingly inflict injury and/or knowingly use force in the course of a theft to convert theft to robbery. State v. Sewell, 127 N.J. 133, 149-50 (1992). Thus, the court must "instruct the jury to determine that the infliction of injury or use of force must have been done knowingly." Id. at 150.

Here, the judge's instructions were faithfully based upon the Model Jury Charge (Criminal), "Robbery in the Second Degree" (2009). The charge clearly advised the jury that, to find defendant guilty of robbery, the State was required to prove that he knowingly inflicted bodily injury or used force upon another while committing a theft. After instructing the jury on the indicted charge, the judge read the model jury charges for the lesser-included offenses of theft from the person and receiving stolen property. In his brief, Baldwin concedes that the trial court properly instructed the jury with the model charges on second-degree robbery and third-degree theft. He maintains, however, that the court was required to mold the charge to the facts of the case.

Notably, Baldwin did not submit a proposed charge to the court that integrated the facts with the legal elements of robbery or theft, nor did he object when the court instructed the jury. We observe that "[t]rial courts have broad discretion when commenting on the evidence during jury instruction." State v. Brims, 168 N.J. 297, 307 (2001). Generally, "summarizing the strengths and weaknesses of the evidence is more appropriately left for counsel." State v. Robinson, 165 N.J. 32, 45 (2000). That is precisely what occurred here. At trial, Baldwin admitted to the theft, but steadfastly denied the use of any force. Counsel for Baldwin then zealously argued that position in his summation. Ultimately, after having the testimony read back, the jury found Ellsworth's account to be the more credible version.

Our review of the court's charge in its entirety reveals no basis to conclude either that the charge as a whole misinformed the jury as to the controlling law, or was clearly capable of producing an unjust result. R. 2:10-2. Baldwin's generalized contention that the court erred in not integrating the facts of the case into its charge fails to establish that the jury was somehow confused, or that the trial court misapplied its discretion.

B.

In a similar vein, King challenges the court's accomplice liability charge. Like Baldwin, King addresses the distinction between robbery and theft and argues that "[t]he evidence cried out for an instruction tailored to the facts." King contends that the court's failure to mold the charge to the facts was critical here because "[t]here was ample evidence from which the jury could have found that King intended to aid Baldwin in committing a theft rather than a robbery."

N.J.S.A. 2C:2-6 provides in pertinent part

c. A person is an accomplice of another person in the commission of an offense if

(1) With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it; [or]

(b) Aids or agrees or attempts to aid such other person in planning or committing it . . . .

When the State proceeds under a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). In such a case, a "jury must be instructed that defendant 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, supra, 267 N.J. Super. at 528), certif. granted, 158 N.J. 74 (1999), and aff'd, 162 N.J. 580 (2000); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.") (emphasis omitted).

"[J]ury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997). Thus, "when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

In this case, there is no question that the judge meticulously defined and discussed accomplice liability, robbery, lesser-included offenses, and all related legal concepts. Notably, the judge specifically instructed the jury that

[i]n order to convict the defendant as an accomplice to the specific crime charged, the robbery, you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of that offense [with] which he is charged.

The judge advised the jury that "[i]f you find the defendant Robert King guilty of either form of robbery, then you need not consider any lesser charge." He then went on to instruct

[i]f, however, you find that the defendant Robert King [is] not guilty of robbery or as acting as an accomplice of Virgil Baldwin on the specific crime charged, here robbery, then you should consider whether the defendant did act as an accomplice of Virgil Baldwin, but with the purpose of promoting or facilitating the commission of some lesser offense than the actual crime charged in the indictment.

Importantly, the judge emphasized that

[a]gain, our law recognizes that two or more persons may participate in the commission of an offense, but each may participate therein with a different state of mind. The liability or responsibility of each defendant for any ensuing offense is dependent on that individual defendant's own state of mind and not anyone else's.

Viewed as a whole, the court's charge was appropriate and complied with Bielkiewicz's mandate that each accomplice be evaluated based on his own state of mind. The absence of any objection strongly suggests that competent trial counsel perceived no harm from the jury charge as given. See State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) ("Where there is a failure to object, it may be presumed that the instructions were adequate.") (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003), certif. denied, 177 N.J. 572 (2003)), certif. denied, 205 N.J. 81 (2011). We discern no plain error in the court's accomplice charge.

Also for the first time on appeal, King alleges error in the court's charge regarding Baczo's testimony. Specifically, King argues that the court failed to properly instruct the jury to consider that Baczo had a potential motive to curry favor through his testimony. However, after Baczo testified, and again in his final charge, the judge made reference to Baczo's pending Arizona charge. The judge then instructed the jury that, in weighing Baczo's testimony, it could consider "whether in order to obtain terms favorable to himself he agreed to tell the truth and did not" and 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." The jury was thereby properly advised of the need to assess Baczo's testimony in light of his pending criminal charge.

King additionally contends that the charge was erroneous because it instructed the jury that, if it found Baczo worthy of belief, it could convict defendants on Baczo's testimony alone. However, the judge immediately continued

provided of course upon a consideration of the whole case you are satisfied beyond a reasonable doubt of an individual defendant's guilt.

In considering whether the testimony of Larry Baczo was worthy of belief, you may consider such corroborating evidence which the State may offer. And if following a consideration of all the evidence you are satisfied of the guilt of either one or both of the defendants, you have a right then to convict them.

On the other hand if you are left with a reasonable doubt as to their guilt, you should acquit that particular defendant or both.

We are satisfied that any misstatement by the judge that it could convict defendants based on Baczo's testimony alone does not rise to the level of plain error. We conclude based upon our reading of the charge as a whole that the jury was properly instructed that it should evaluate all the evidence in the case in arriving at its ultimate determination whether the State proved defendants' guilt beyond a reasonable doubt. "[T]he charge should be examined as a whole to determine its overall effect." McKinney, supra, slip op. at 24 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Finally, King argues that the court gave a defective instruction on constructive possession, which deprived him of a fair trial. This argument requires little discussion. The trial court instructed the jury on possession, including constructive possession, by closely following the model charge. The trial judge's obligation is to "instruct the jury as to the fundamental principles of law which control the case." State v. Butler, 27 N.J. 560, 595 (1958). The judge need not do so in the precise language of the model charges, so long as the judge conveys to the jury the fundamental principles guiding their deliberations. State v. Loftin, 146 N.J. 295, 374 (1996).

Here, the constructive possession charge represented an accurate statement of the law. We discern no error, no less plain error.

III.

We next address King's argument that his confrontation rights were violated when the court precluded him from questioning Baczo about the nature of his pending charge. King contends that Baczo's testimony was "crucial to the State's claim that King was an accomplice to Baldwin's crime, because Baczo was the only witness who claimed, inferentially, that a second person was at the scene inside the Saturn." The State in turn argues that King's rights were safeguarded because the jury learned that Baczo had a pending criminal charge and was instructed that it could consider it in assessing Baczo's credibility.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to confront those who testify against him. U.S. Const. amend. VI; N.J. Const. art. I, 10; State v. Cabbell, 207 N.J. 311, 328 (2011); State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002). The right to cross-examine a witness lies at the heart of the right to confrontation embodied in the Sixth Amendment. Gaikwad, supra, 349 N.J. Super. at 86. Impeaching the credibility of witnesses is one of the primary reasons for cross-examination. Id. at 87.

A defendant's right to confront his accusers, though guaranteed, is not absolute. State v. Harvey, 151 N.J. 117, 188 (1997). The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985). "[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Id. at 22, 106 S. Ct. at 295, 88 L. Ed. 2d at 21.

Here, on direct examination, Baczo testified that he had a pending criminal charge in Arizona that arose after he assisted Ellsworth. He also stated that he had not been offered anything by the State in return for his testimony, nor did he expect any favorable treatment. On re-cross examination by King's counsel, the following exchange ensued

Q: Let me ask you this. You're charged in Maricopa County[,] Arizona with burglary. Correct?

[The Prosecutor]: I'm going to object. Beyond the scope of redirect.

(Sidebar)

The Court: If and when [defendants] testify, I would not let [the prosecutor] cross-examine them on the nature of the charge. I think it's inappropriate for you to mention the nature of the charge that he's charged with.

We agree with King that, in sustaining the objection, the judge improperly conflated the right to impeach a witness for bias with the standard governing the use of a prior criminal conviction to impeach a testifying defendant. See State v. Brunson, 132 N.J. 377, 380 (1993) (requiring that a defendant's convictions be sanitized so as to preclude reference to the underlying crimes).

We part company, however, with King's contention that he was unfairly prejudiced by the court's evidence ruling. Here, while the precise nature of the charge was not mentioned, the jury was made aware that Baczo had a pending criminal charge. Additionally, Baczo's Arizona arrest arose after Ellsworth was accosted, so that Baczo's potential motivation to seek favorable treatment simply did not exist when he provided his statement to police. That statement was consistent with Baczo's trial testimony that he observed the actor enter the passenger seat of a car that was driven by another individual.

Moreover, Baczo's testimony did not stand alone in establishing King's role as an accomplice, as King contends. Rather, Baczo corroborated Baldwin's account that King was involved in the planning and commission of the robbery by driving Baldwin to and from Ellsworth's home. Further, the police testimony established that King was driving the Saturn and possessed the stolen property shortly after the robbery occurred. On these facts, we conclude that the court's decision to preclude reference to the specific nature of Baczo's pending charge was harmless and lacked the clear capacity to lead to an unjust result. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.

IV.

Finally, Baldwin challenges his twenty-year extended term sentence. He argues that the trial court improperly double-counted his prior record when it imposed the extended term. He further claims that the court erroneously calculated the range of the extended sentence. In his supplemental brief, he contends that he did not meet the statutory criteria for a mandatory extended term sentence. We find no merit to these contentions.

A review of Baldwin's prior criminal history reveals that on January 3, 1996, he was sentenced to eighteen years in prison for a first-degree robbery that he committed on November 27, 1993. Also on January 3, 1996, he was sentenced to twenty-five years of imprisonment for manslaughter stemming from a January 10, 1994 incident in which he shot and killed his robbery victim. He was released on parole on August 1, 2006. Accordingly, Baldwin's conviction here for second-degree robbery mandated that he be sentenced to an extended term under the provisions of the "Three-Strikes Law," N.J.S.A. 2C:43-7.1a.

Baldwin mistakenly relies on State v. Pierce, 188 N.J. 155 (2006), in contending that the permissible range of the extended sentence was between five and twenty years, rather than the ten- to-twenty-year range that the trial judge utilized. In Pierce, the Court remanded the case to determine an appropriate sentence within the expanded range extending from the bottom of the ordinary-term to the top of the extended-term range. Id. at 171. However, Pierce is easily distinguishable from the present case because it involved discretionary extended terms. Here, under the "Three Strikes Law," the judge had no discretion. Rather, he was obligated to grant the extended-term motion filed by the State and to sentence Baldwin within the ten-to-twenty-year range set by statute. N.J.S.A. 2C:43-7a(3).

In imposing the maximum twenty-year sentence subject to NERA, the court identified three aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1a(3); (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1a(6); and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1a(9). The court concluded that the aggravating factors substantially outweighed the non-existent mitigating factors.

Contrary to Baldwin's argument, the court did not engage in impermissible double counting by relying on his prior criminal history to impose both an extended term and the maximum period of confinement. In addition to the two offenses that made Baldwin extended-term eligible under the "Three Strikes Law," he also had convictions for third-degree unlawful possession of a weapon and second-degree possession of a weapon for an unlawful purpose. Equally important, in his detailed analysis, the judge considered not only the number of defendant's prior convictions but also their seriousness. He concluded that Baldwin "is a true menace to society" and that the need to protect the public from Baldwin's unlawful conduct was paramount.

As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a and b, it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").

We are satisfied the judge 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, including the imposition of a mandatory extended term under N.J.S.A. 2C:43-7.1. The sentence the judge imposed does not constitute such clear error of judgment as to shock our judicial conscience. Accordingly, we discern no basis to disturb it.

Lastly, in his supplemental brief Baldwin argues that the State did not prove that he had two prior convictions for crimes committed on separate occasions so as to render him extended-term eligible under the "Three Strikes Law." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Pursuant to N.J.S.A. 2C:43-7.1, the State must show that defendant committed two or more qualifying crimes on prior and separate occasions, regardless of the dates of conviction. The State clearly did so here.

Affirmed.