STATE OF NEW JERSEY v. KABIR CONWAY

NOT FOR PUBLICATION WITHOUT THE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.

KABIR CONWAY,

Defendant-Appellant.

________________________________________

December 10, 2015

Submitted October 28, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-07-1656.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

A jury convicted defendant Kabir Conway of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count six); third-degree distribution of less than five pounds of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count seven); and third-degree distribution of marijuana within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count eight).

Before us, defendant raises the following issues

POINT I.

THE OPINIONS PROVIDED BY DETECTIVE MENDEZ AND DETECTIVE COLON EXTENDED BEYOND THE SCOPE OF PERMISSIBLE LAY WITNESS TESTIMONY, IN VIOLATION OF STATE V. MCLEAN. (Not Raised Below)

POINT II.

THE TRIAL JUDGE INPERMISSIBLY DIRECTED THE JURY'S VERDICT ON ESSENTIAL ELEMENTS OF THE CHARGED OFFENSES. (Not Raised Below)

POINT III.

THE TRIAL JUDGE ERRED IN DISCOURAGING THE JURY FROM PURSUING ITS PLAYBACK REQUEST FOR THE DEFENSE'S KEY WITNESS. (Not Raised Below)

POINT IV.

THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS REQUIRES REVERSAL. (Not Raised Below)

POINT V.

IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE PRESENT SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

A. The Sentencing Court Accorded Undue Weight To Aggravating Factors Three, Six, And Nine.

B. The Court Below Impermissibly Applied A Non-Statutory Aggravating Factor When Determining Conway's Sentence.

C. The Sentencing Judge Should Have Found Mitigating Factor Eleven.

D. The Sentence Imposed Was Not Offense-Oriented, As Required By State v. Roth And State v. Hodge.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We briefly summarize the relevant facts and procedural history from the record before us. On April 27, 2010, Detectives Noel Mendez and Angel Colon of the Essex County Sheriff's Department conducted surveillance of a house on Salem Street in Newark. There is conflicting testimony from the State and defense witnesses regarding what transpired.

The State's version of the events was presented by Mendez and Colon, who testified as fact witnesses. Mendez observed defendant approach K.H.1, who was standing near an abandoned house next to the house under surveillance. Defendant engaged K.H. in a brief conversation and then handed him an item which K.H. smelled and placed in his right pocket. Mendez testified that he did not see an exchange of money and believed the interaction appeared to be "a possible drop of CDS [controlled dangerous substance]." Defendant did not object to the characterization of the transaction. It was not until cross-examination that Mendez explained that a "drop of CDS" meant that drugs were given to K.H. to sell for defendant. However, Mendez stated that since K.H. was never observed engaging in a drug transaction after receiving the object from defendant, no charges were filed for employing a juvenile to distribute CDS.2 Colon also characterized the interaction between defendant and K.H. as a "hand to hand" transaction. There was also no objection to this comment.

As defendant began walking southbound, Mendez observed T.H. emerge from the driveway of the abandoned house. At that point, Mendez detained K.H. and Colon detained the defendant and T.H. Mendez testified that there was "a strong smell of marijuana" emanating from K.H's person. Mendez observed a clear plastic bag containing suspected CDS inside a pocket located on K.H.'s hoodie in "plain view," despite the fact that it was not hanging out of the pocket. When Mendez asked K.H. what was in his pocket, K.H. responded that it was "a little bit of weed." Mendez removed the plastic bag from K.H.'s pocket and arrested him.3 Upon learning of this, Colon arrested defendant and searched his pants pocket, finding numerous small plastic bags containing suspected crack cocaine and glassine envelopes with heroin stamped "Hellboy" in red.

The defense's version of the events differ. K.H. testified that he and T.H. stopped in the alleyway located near the house under surveillance. K.H. stated that he was selling drugs at the time and had used the alleyway as his stash location. While K.H. and T.H. were stopped in the alleyway, defendant exited the house. Defendant observed that K.H. was holding marijuana and asked him if he could smell it. K.H. agreed. Defendant smelled the marijuana and handed it back to K.H. As K.H. and T.H. began to walk down the street, Mendez and Colon detained all three men, and marijuana was recovered from K.H.'s pocket. The detectives proceeded to search defendant and took his car keys. The detectives then walked into the alleyway and when they returned, they were holding suspected crack cocaine and heroin labeled "Hellboy," which K.H. testified belonged to him.

Neither party disputes that K.H. was brought to a juvenile detention center after the incident, where he admitted that the drugs recovered from the alleyway were his. A further search revealed twenty-four more plastic bags of crack cocaine hidden inside the bottom of K.H's hoodie. K.H. eventually entered a guilty plea in Family Court as a juvenile with respect to the marijuana and crack cocaine discovered on his person. He was never charged with the drugs found in the alleyway.

At the conclusion of the trial, the judge instructed the jury on the elements of each count and reiterated the instruction that each element must be proven beyond a reasonable doubt. After the State pointed out that the judge failed to instruct the jury regarding the parties' stipulations, the trial judge commented

[T]here are several stipulations. In other words, there are . . . by agreement of the parties[,] . . . documents that are in evidence that will be of great assistance to you in the course of your deliberations . . . . [T]hey are marked S-6, S-13, and S-15. S-6 is the laboratory report, which reports to you the composition of the substances. In other words, that's the document that purports to confirm the fact that the cocaine is cocaine and the heroin is heroin and the marijuana is marijuana.

S-13 and S-15 are the thousand foot letter and map which . . . provides [sic] additional evidence to supplement the testimony that you heard with regard to the location of the premises where the alleged acts occurred, and whether they are within a thousand feet of a school.

[(Emphasis added).]

Thereafter, the jury submitted a note to the judge which merely stated, "testimony from minor, ([K.H.])." The judge responded to the note by telling the jury

[T]his is not a question and I don't know what it means. I'm only trying to guess. And, then, you'll have to come back to me with more specificity if you haven t got the answer that you're looking for. [K.H.] just testified this morning . . . . You just heard from the man a little while ago . . . . If you want to hear what he said the first time all over again[,] you don't get to hear portions of it and you don t get to review a transcript, you can hear it in real time[,] just the same amount of time in which you heard it the first time from beginning to end on audiotape. If that's what you're asking for you have to say specifically that that's what you're asking for. It is now 3:30, if you come back with a request for anything, . . . just so you understand[,] what you're asking for is going to by necessity require us to come back tomorrow, okay? Because it's already 3:30. So, it's up to you as to what you want. So return to the . . . jury room, continue your deliberations. If you're satisfied with the answer I gave you, if you are requesting something else please write it down in the form of a question and turn on the light.

[(Emphasis added).]

The next day, in responding to another note from the jury asking the judge to reiterate the elements of distribution and possession, the judge recharged the jury and further emphasized

So the [possession] statu[t]e when read together with the indictment identifies the element[s] that the State was required to prove beyond a reasonable doubt to establish the guilt of the defendant on those two counts of the indictment.

First is the S-1C in evidence is cocaine. And S-1B in evidence is heroin. They've done that . . . through the lab reports which were stipulated in evidence.

After resuming deliberations, the jury did not renew its request for a playback of K.H.'s testimony and convicted defendant on all eight counts.

At sentencing, the judge granted the State's motion for mandatory extended terms pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7. In reviewing defendant s criminal record4 the judge explained,

[T]he sentence[s] of 11 years clearly didn t have an impact on you. Eleven years of drug sentences and, nevertheless, when you re on the street what you do is sell drugs. There hasn t been any period of time in your 32 years, it would seem, especially when considering the juvenile history as well that you have been out of the street selling drugs.

The judge then discussed the impact that defendant s criminal conduct had on his family,

And, you needed to think about your mother and your children when you embarked or continued to conduct yourself in the manner in which society has determined does great harm for yourself, others, known or unknown to you. But more significantly, I suppose in light of what you re presenting as a in an effort of mitigation, although not formal mitigation, is the impact that your behavior has had on your family. I have a great deal of sympathy for them, but it is you that caused the problem, and we need to protect society from you as well as . . . your family . . . . The amount of danger you bring upon themselves [sic] based upon your conduct is . . . significant.

Finding "no reason to mitigate [the] sentence," the judge applied aggravating factors three, six, and nine in sentencing defendant. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); -1(a)(6) (the extent of defendant's prior criminal record and the seriousness of the current offense); and -1(a)(9) (the need for deterrence). After merger, defendant was sentenced to three concurrent ten-year terms of imprisonment, with five-year periods of parole ineligibility. This appeal followed.

II.

As defendant did not raise any issue set forth in points one, two and three of his brief prior to his appeal, our standard of review requires that we find plain error under Rule 2:10-2 before we may reverse the conviction. Under that standard, we must conclude that an error was "clearly capable of producing an unjust result," ibid, or in other words, that it was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997) (citation omitted).

Lay Witness Testimony

Defendant argues plain error in that the State's witnesses Mendez and Colon exceeded the bounds of permissible lay witness testimony when opining that they witnessed defendant engage in a CDS transaction in violation of State v. McLean, 205 N.J. 438 (2011). Specifically, as a lay witness, Mendez exceeded the scope of permissible testimony when stating that he observed defendant engage in "a possible drop of CDS," or a "drug drop." As such, Mendez' testimony amounted to expert testimony and gave an opinion of defendant's guilt. And, Colon gave impermissible lay witness testimony by insinuating that a drug transaction occurred when he and Mendez approached defendant due to a "reasonable suspicion to investigate some type of hand-to-hand" transaction between defendant and K.H.

Alternatively, defendant argues that that even assuming that Mendez and Colon were qualified as experts, they would not be permitted to testify as expert witnesses due to their roles as the investigating officers in this case, McLean, supra, 205 N.J. at 454, and would only be able to opine as to whether defendant was distributing CDS if it was presented as a hypothetical. State v. Odom, 116 N.J. 65, 81-83 (1989). We are not persuaded by any of defendant's arguments.

In McLean, the arresting police officer who was conducting surveillance was asked on direct examination if based upon his experience and training he suspected that a transaction between defendant and another individual "'was a hand-to-hand drug transaction.'" McLean, supra, 205 N.J. at 446. The Court held the testimony inadmissible as was the officer's testimony that defendant would "retrieve his suspected drugs from his suspected drug stash" inside a car parked nearby. Id. at 445, 462-63. The Court stated that the officer had not been qualified as an expert in drug transactions to provide his opinion regarding the nature of the exchange between the defendant and the other persons that he had observed. Id. at 461-62. Furthermore, the challenged testimony would not have been admissible under N.J.R.E. 702, even from a qualified expert witness, because the officer's observations and the conclusions to which they led "were not outside the common understanding of the jurors." Id. at 462 (citing State v. Nesbitt, 185 N.J. 504, 514-16 (2006)). The Court concluded,

In short, the testimony of the police detective, because it was elicited by a question that referred to the officer's training, education and experience, in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury.

[Id. at 463.]

While this case bears similarities to McLean, there are key facts which are distinguishable. First, Mendez' testimony was not presented to solicit his conclusion about the nature of the transaction he observed based upon his training and experience, but to merely explain what he did after he saw the transaction.

Second, there were no statements by Mendez or Colon on direct examination that the juveniles were dealing drugs for defendant or buying drugs from defendant. In McLean, there were references to a "buyer" on direct examination. The theory that the juveniles were selling drugs for defendant was introduced by defense counsel on cross-examination of Mendez. As noted, Mendez acknowledged that defendant was not charged for using juveniles to sell drugs. Thus, if error, he cannot complain given that Mendez' testimony was invited. See State v. Williams, 219 N.J. 89, 100 (2014) (citation omitted) ("The invited-error doctrine is intended to 'prevent defendants from manipulating the system' and will apply 'when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned."), cert. denied, __U.S.__, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).

Third, unlike in McLean, K.H. was arrested by police and admitted to possessing heroin stashed in the alleyway with the same "Hellboy" markings as found on defendant. Thus, Mendez' conclusion about what he observed in the encounter was much less significant than the officer's opinion testimony in McLean that the defendant was selling drugs.

Fourth, defense counsel raised no objection to the testimony and, in fact, pursued it on cross-examination. There was nothing in the direct or cross examinations of the officers that implied to the jury it should rely upon their experience and judgment in concluding defendant was guilty of the charges. The absence of an objection and the totality of the evidence in this case lead us to conclude that the use of the disputed words was not particularly prejudicial or likely to lead "the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Thus, we conclude Mendez' testimony was not plain error. R. 2:10-2.

Jury Instructions

Defendant argues that the judge impermissibly directed the jury's verdict on essential elements of the charged offenses in the way he charged the jury. He asserts that the judge improperly instructed the jury that the State had satisfied its burden of proving the first elements of counts one through six that the substances seized from defendant were CDS based upon the stipulated lab reports. Defendant further asserts that the judge's exclusion of the Model Jury Charge (Civil), 1.12(E), "The Evidence" (1998), advising jurors of their authority to accept or reject stipulated facts, was an "omission [that] robbed the jury of the critical directive that it was not bound by the parties' stipulations and thus, relieved the State of its burden of proving the composition of the substances and the purported incident's distance from school property beyond a reasonable doubt." Lastly, defendant takes issue with the judge's indication that the documents admitted via stipulation would be of "great assistance," asserting that the "language signaled to the jury the trial judge's belief that the documents were probative, if not dispositive, of the statements contained therein." Ultimately, defendant relies on State v. Ragland, 105 N.J. 189, 193-96 (1986), and State v. Collier, 90 N.J. 117, 123 (1982), to urge a reversal, maintaining that reversal is required when a directed verdict occurs on an element of an offense.

"[A]ppropriate and proper charges to a jury are essential for a fair trial." Collier, supra, 90 N.J. at 122 (quoting State v. Green, 86 N.J. 281, 287 (1981)). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)).

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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.

[Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (1997)). Moreover, "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (citation omitted).

In Collier, the Court reversed defendant's conviction where at the close of evidence, despite defendant's objection, the trial court directed a verdict of guilty on the charge of contributing to the delinquency of a minor. Collier, supra, 90 N.J. at 119-21. The Court noted

The import of the directed verdict on the contributing charge was that the trial court told the jury that, no matter whom they believed, the defendant's conduct was criminal. In a case where so much turned on credibility, the likelihood that the jury was improperly influenced by such a suggestion cannot be gainsaid.

 
[Id. at 123.]

In Ragland, the same jury that had convicted defendant on a possession of a weapon charge, tried defendant on the charge of certain persons not to possess a weapon. Ragland, supra, 105 N.J. at 192. The jury was told by the judge that since it had already decided defendant was in possession of a sawed-off shotgun then it must find defendant guilty of a certain persons offense. Ibid. The Court reversed, concluding that the trial court's instruction constituted an unavoidable directed verdict by not allowing the jury to consider the evidence on each charge independently. Id. at 196, 212-13.

Applying these principles, we do not find any plain error in the trial judge's jury instructions. While we find that the judge's comments were gratuitous and its failure to follow the model charges were unfortunate, they do not warrant reversal of defendant's conviction. Defendant's reliance on Collier and Ragland is misplaced. Neither case involved a plain error analysis. In Collier, the court overruled defendant's two objections that the jury instructions tainted the entire procedure. Collier, supra, 90 N.J. at 121. And, Ragland involved the "unique problem that arises when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon[,]" which require separate trials. Ragland, supra, 105 N.J.at 193. Neither Collier nor Ragland involved a situation, as in here, where the court's comments related to evidence that was stipulated to by the parties. Given that the comments were in the context of the stipulations, we cannot conclude that there was an unjust result. Defendant conceded that the seized substances were CDS and they were possessed within the boundaries of a school zone. Moreover, the court repeatedly adhered to the model charges by commenting that the State had the burden of proof to establish each element of the offenses charged. Defendant should not be entitled to a new trial under these circumstances.

Jury Playback Request5

Defendant contends that the trial judge denied his constitutional right to a fair trial by failing to honor the jury's request to hear K.H.'s testimony played back after it had commenced its deliberations. Since the request was made at the end of the trial day, the judge told the jury to clarify its request. When the jury returned the next day, it did not renew its request for a playback. Defendant argues that the judge discouraged a playback of his key witness by misstating the law in advising the jury that it had to listen to the entirety of K.H.'s testimony. We are not persuaded.

In State v. Wilson, 165 N.J. 657 (2000), our Supreme Court discussed that jury requests for read-back, although usually granted, are discretionary

The rules governing the readback of testimony are relatively straightforward. It is well-established that "the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court."

However, that broad grant of discretion is not unbridled. For example, "where the testimony is reasonably available, a judge should not refuse to grant a jury request to have it read merely because the reading would take time . . . . [T]here is no just reason for insisting that laymen jurors must have an unfailing and unanimous memory of all the testimony they hear in the courtroom."

[Id. at 660 (citations omitted).]

Subsequent to Wilson, the Court explained in State v. Miller, 205 N.J. 109 (2001), that a jury's request for read-back of a witness's testimony should ordinarily be granted

Juries routinely ask to review trial testimony when they deliberate. Absent some unusual circumstance, those requests should be granted. The requests are a clear sign that the evidence sought is important to the deliberative process. They also reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial. As a result, the true administration of justice requires that judges typically accede to jury requests to review testimony. Judges should not decline a request simply because it would take time.

[Id. at 119-20 (citations omitted).]

In this case, the court could have handled the jury's request more appropriately by not referring to the fact that K.H. had just testified that morning and that if they wanted a playback they would have to come back the next day. The court also misstated the law that the jury could not hear a specific portion of K.H.'s testimony. Nevertheless, we do not find that an unjust result occurred.

A part of the problem was that the jury's note was not in the form of a question, but in the form of a statement. Nevertheless, in an attempt to clarify the meaning of the note, the court did inform the jury that if it wanted a playback of K.H.'s testimony, it needed to request a playback. Though the jury chose not to do so, we are not convinced that the judge's comments discouraged a playback. Moreover, defendant did not object, thereby indicating that there was no concern about the lack of a playback.

Cumulative Errors

Defendant contends that the cumulative effect of impermissible lay testimony, the directed verdict on essential elements of the charged offenses, and the judge's discouragement of playback of K.H.'s testimony served to unduly prejudice defendant and requires reversal. We disagree.

When multiple errors are alleged, "the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). A defendant is entitled to a fair trial, but not a perfect one. State v. R.B., 183 N.J. 308, 333-34 (2005) (citations omitted). While we recognize that the court made missteps during the trial, there were no plain errors with respect to those situations. Accordingly, the argument of cumulative prejudice fails.

III.

Finally, defendant asserts that his sentence three concurrent ten-year terms of imprisonment, with five-year periods of parole ineligibility is manifestly excessive and unduly punitive. His claim is premised upon three arguments.

First, defendant alleges that the trial judge misapplied the aggravating factors. Defendant claims that the judge applied aggravating factors three, six and nine exclusively on defendant's prior criminal record without articulating how his record dictates his future conduct. Citing State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002) and N.J.S.A. 2C:44-1(a), defendant also contends that the judge improperly considered as an aggravating factor the alleged harm defendant posed to his family, and also did not set forth how such harm occurred.

Next, defendant asserts that the court failed to consider mitigating factor eleven, presumably based upon the State's improper reasoning that it was inapplicable because defendant owed approximately $36,000 in child support arrears. N.J.S.A. 2C:44-1(b)(11) (excessive hardship upon the defendant or his dependents). Defendant argues that his arrears does not preclude a finding of excessive hardship.

Lastly, relying upon State v. Roth, 95 N.J. 334 (1984) and
State v. Hodge, 95 N.J. 369 (1984), defendant contends that the sentence was excessive because it was not offense-oriented. Defendant argues his conduct was not particularly egregious, thus a mid-range sentence of no more than seven years should have been imposed.

We begin with a review of our well-settled applicable legal principles. Review of a criminal sentence is limited; an appellate court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation omitted).

If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

With these principles in mind, we find no reason to disturb the trial court's sentence. Initially, it must be pointed out that at sentencing, defense counsel conceded that aggravating factors three, six and nine applied. Based on the record before us, we agree. In considering defendant's prior eight disorderly persons convictions and seven felony convictions, of which two were school zone CDS convictions, the judge found that defendant's prior eleven years of incarceration did not deter his criminal conduct. This was credible evidence to support defendant's maximum sentence within the extended term range based upon his prior CDS offense conviction. See N.J.S.A. 2C:43-6(f); N.J.S.A. 2C:43-7(c).

Defense counsel stated that there were no facts on the record which suggest a mitigating factor. Yet, defendant's mother spoke at sentencing, stating that defendant's thirteen-year old son was having a difficult time with his father's absence. Hence, despite defense counsel's comment that there were no mitigating factors for the court to consider, the mother's comments sufficiently placed mitigating factor eleven before the court. See State v. Blackmon, 202 N.J. 283, 297 (2010) (citation omitted). While these comments did not persuade the judge to apply mitigating factor eleven, defense counsel is incorrect to assert that the mitigating factor was not considered. Moreover, there is no indication that the judge rejected this factor based upon the State's suggestion that there would be no financial hardship on defendant's children given his substantial child support arrears if he would be incarcerated for a lengthy term. Accordingly, we do not find any evidence in the record that would indicate that the judge abused his discretion in failing to consider any mitigating factor, including number eleven. Thus, in light of the aggravating factors applied and the lack of any mitigating factors, the sentence imposed on defendant does not shock our judicial conscience. See Roth, supra, 95 N.J. at 364-65 (1984).

Affirmed.

1 K.H. was a juvenile at the time of the incident. For purposes of protecting his identity, as well as T.H., a juvenile, they will be referred to by their initials.

2 N.J.S.A. 2C:35-6.

3 The plastic bag in K.H.'s pocket contained a total of eighteen bags of suspected marijuana.

4 Defendant had been arrested twenty-eight times as an adult. Eight of those arrests resulted in disorderly person s convictions. He was sentenced for a total of eleven years in prison for, among other things, third-degree possession of a CDS with intent to distribute, third-degree possession with the intent to distribute CDS within a thousand feet of the school, and third-degree distribution of CDS. Prior to his adult transgressions, defendant had five adjudications of delinquency.

5 We prefer to use the term "playback" because it more accurately reflects the current practice of audio recording court proceedings, instead of a "read-back" which involves the past practice of a court reporter reading back his or her transcript of the proceedings.