STATE OF NEW JERSEY v. JOHN L. HARRIS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0303-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN L. HARRIS, a/k/a
JOHN STEVENSON,
LEROY J. HARRIS,
JOHN L. HARRIS III,
JOHN L. HARRIS 3RD, and
JOHNLEROY HARRIS,
Defendant-Appellant.
__________________________
Submitted January 19, 2022 – Decided March 17, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment Nos. 18-05-
0663 and 18-07-0925.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Markarian, Assistant Deputy Public
Defender, of counsel and on the briefs).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following an unsuccessful motion to suppress evidence obtained from a
warrantless search, defendant John L. Harris pled guilty to a single offense of
third-degree burglary, N.J.S.A. 2C:18-2(a)(1), charged in a twenty-two-count
indictment. Defendant was thereafter sentenced in accordance with a plea
agreement to an extended eight-year custodial term, subject to a four-year period
of parole ineligibility. He now appeals his conviction and sentence.
Based on the proofs elicited at the suppression hearing, we conclude
defendant was under arrest at the time of the warrantless search, and that search
was properly conducted as a search incident to his arrest. We therefore affirm
the denial of defendant's suppression motion, though for reasons slightly
different than those expressed by the trial court. See State v. Heisler, 422 N.J.
Super. 399, 416 (App. Div. 2011) (stating an appellate court is "free to affirm
the trial court's decision on grounds different from those relied upon by the trial
court"). We also find no error in the sentence imposed by the court.
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I.
We begin with a summary of the facts derived from the suppression
hearing. At 12:07 a.m. on February 9, 2018, Mount Holly Township police
officers responded to Robin's Nest, a local restaurant, after a break-in alarm had
sounded. Lieutenant (then Sergeant) James Harper, a twenty-three-year veteran
of the department, testified that when he arrived at the scene at 12:22 a.m., three
other patrolmen were already conducting an initial search of the restaurant.
Once the owner arrived, the police were able to access the security camera
system. The officers watched the footage and observed a suspect in the kitchen
and behind the bar, seemingly searching for a cash register.
Lieutenant Harper explained that the surveillance video revealed a
"medium height and build" suspect wearing a knit cap, a heavy black jacket with
a hooded jacket underneath, "lighter-colored pants," and a "drawstring backpack
with two fluorescent stripes angled on the side." He described the suspect's hat
as a "beanie [with a] little puff on top" and "different levels of color." He
testified that the video also showed the suspect "looking for a cash register" and
taking "a bottle of alcohol on the way out."
At this point, Officer Tim Podeszwa, who watched a portion of the
surveillance video, sent out a broadcast report with a description of the suspect
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while the other officers worked to access and review additional video footage.
The initial broadcast described the suspect as a white male, wearing a hoodie
with a black jacket on top, and a black beanie-type hat and carrying a stringed
backpack adorned with two florescent stripes.
At approximately 12:30 a.m., approximately thirty minutes after the alarm
sounded, Officer Declan Deveney, who was on patrol in the area, observed
defendant, a black male walking from the direction of Robin's Nest wearing
clothing that matched the broadcast description. Officer Deveney also stated in
his report that he was familiar with defendant from information "passed on from
the detective bureau as he was a suspect in several commercial burglaries
throughout the township." Before approaching defendant, however, Officer
Deveney called Officer Podeszwa to confirm the suspect's race, to which Officer
Podeszwa responded "it could possibly be a black male."
Shortly thereafter, Officer Deveney radioed Officer Tom Greenwich, also
on patrol nearby, to stop defendant on the corner of King and Washington
streets, which was approximately a five-minute walk from the Robin's Nest.
Officer Podeszwa remained at the restaurant while Lieutenant Harper left to
meet Officers Deveney and Greenwich, who stood with defendant in the parking
lot of another nearby restaurant.
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Defendant sat on the sidewalk speaking briefly with Officers Greenwich
and Deveney until Lieutenant Harper arrived at approximately 12:45 a.m. with
Officer Matthew Kline. Upon observing defendant, Lieutenant Harper testified
that he noticed defendant's backpack matched the backpack visible in the
surveillance video. He described defendant's backpack on the video as "a very
unique drawstring bag, as it seemed to have two reflective stripes going . . .
basically up to down and slashing out to the sides on an angle." He stated that
he "observed the backpack that [defendant] was . . . wearing at that time was
exactly like that backpack."
Lieutenant Harper further noted that defendant's height and build matched
that of the suspect in the video, his "jacket and coat over [the] top of the jacket
matched," and defendant also wore "light[] colored" jeans. Lieutenant Harper
additionally observed that the suspect in the video was wearing boots and
gloves, as was defendant.
Finally, Lieutenant Harper testified that he recognized defendant as "a
subject [he was] familiar with" from other burglaries in town because he "had
track fliers put out by the detective bureau that [defendant] was a suspect in
several burglaries in our town." Lieutenant Harper also stated that defendant
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was carrying a laptop bag, which he found to be "very significant" because he
knew that laptops had been stolen during other recent burglaries.
Lieutenant Harper testified that after making these observations, and
before speaking with defendant, he "believe[d] [defendant] was the suspect in
the burglary from the Robin's Nest," and that he had sufficient evidence to arrest
him. Body camera footage at the time, however, revealed Lieutenant Harper
commenting that he did not believe he had "enough to prove he did my [breaking
and entering]." Lieutenant Harper acknowledged this comment at the
suppression hearing, but remained steadfast when testifying that based on all the
circumstances, including the "clothing description, size and build, having a
laptop, the flier that the suspect was a suspect in, numerous burglaries, [his
location] two blocks away from the Robin's Nest in the less than [thirty] minute
time period gave [him] enough" to take defendant into custody at that time.
Lieutenant Harper approached defendant and asked him about his
whereabouts that night and the contents of his bag. Defendant told the officers
that he had "just [been] dropped off," and was Ott's, a bar down the street. He
then opened his drawstring backpack to show Lieutenant Harper the contents,
revealing several cans of beer.
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Lieutenant Harper then asked about the contents of defendant's laptop bag.
Defendant opened the bag to reveal a laptop, trash bags, and an open bottle of
Fireball whiskey. Lieutenant Harper performed a cursory search of the laptop
bag, and defendant told the officers that he had carried the bottle of whiskey
from his place of work in Philadelphia. Lieutenant Harper asked defendant,
"Did you make a mistake tonight in going to the store down there, the Robin's
Nest?" to which defendant responded "No, I went in Ott's and I came out of
Ott's."
Lieutenant Harper then asked defendant if he was in possession of any
weapons, such as a crowbar, and searched him, unzipping his jackets and
searching through his pockets. After frisking defendant, Lieutenant Harper
conducted a second, more thorough search of the laptop bag, unzipping an inner
pocket. Lieutenant Harper testified that he did so to search for "proceeds of the
burglary," but did not seize anything from the bag. In addition, Lieutenant
Harper explained that he did not handcuff defendant because there were
"sufficient officers on scene that [he] felt that it was safe." He further testified
that at the time he looked through defendant's laptop bag, he was not free to
leave.
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Lieutenant Harper and the other officers then checked whether defendant
had any outstanding warrants and told him that once that process was complete,
defendant could "get on [his] way." While awaiting the results of their inquiry,
Lieutenant Harper and Officer Kline debated whether they had enough evidence
to arrest defendant, with Lieutenant Harper stating, "we need to get this guy on
something," and Officer Kline responded that he was confident defendant was
the suspect shown on the surveillance video based on defendant's clothing
matching the suspect on the tape.
Lieutenant Harper then received a call from Officer Podeszwa who
informed him that officers at Robin's Nest had obtained additional security
camera footage. Lieutenant Harper returned to Robin's Nest, leaving defendant
with officers on the sidewalk for approximately twenty-five minutes, from 12:50
a.m. to 1:15 a.m., to allow him time to view the additional security footage. In
this additional footage, the suspect's face was now clearly visible, unlike the
prior clips that the officers had viewed.
Lieutenant Harper stated he observed the suspect climbing through the
window and testified that after viewing the additional footage, he was able to
identify defendant definitively based upon "the facial hair," "skin tone," and
clothing defendant was wearing. He testified that this additional video, which
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revealed defendant in Robin's Nest, provided additional evidence that
established defendant's involvement in the robbery. He testified that he did not
believe the new footage was necessary to effectuate defendant's arrest, as he
already had sufficient information based upon his earlier observations.
Lieutenant Harper therefore returned to the sidewalk where officers were
detaining defendant, formally arrested him, and brought him to the police
station. At the police station, Lieutenant Harper searched defendant's coat, and
found a "two-tone[d] stripe[d] hat" in the pocket that matched the hat in the
surveillance footage. In defendant's laptop bag, he uncovered business cards
from a surgical center that had recently been burglarized.
As noted, defendant moved to suppress the physical evidence from his
backpack and laptop bag, which the court denied in a May 22, 2019 order and
accompanying six-page written opinion. In its opinion, the court framed the
issue as "whether [Patrolman] Deveney, in the first instance, had reasonable
articulable suspicion to detain the defendant." The court noted that it excluded
certain evidence from its consideration, including the description of the suspect's
hat, because "defendant was wearing a different hat at the time he was stopped
and detained." Nor did the court consider defendant's race or the officers' prior
contact with him, characterizing those proofs as a "hunch." Finally, the court
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excluded from its consideration the fact that defendant was in possession of a
laptop, later discovered to be stolen, "because it was never a part of the broadcast
description."
Even without this evidence, however, the court concluded the State had
established a reasonable and articulable suspicion to conduct a Terry1 stop based
on the following factual findings:
1. The defendant's possession of a black backpack with
two distinctive florescent stripes, one on each side - an
identifying bullseye . . .
2. Defendant's clothing - a black jacket covering a
hoodie jacket;
3. Defendant's proximity in time (about 40 minutes) and
place (two blocks) from the scene of the burglary;
4. The time of day and the weather conditions, it being
a cold night with no other pedestrians in the area as
indicated by the officers' body-worn camera videos.
The court also held that the officers' forty-five-minute detention of
defendant was not unreasonable and "was made in compliance with the dictates
of Terry." The court further concluded that the police took defendant into
custody and "the ensuing pat-down and search of the defendant" was justified
based on the officers' right to protect their own safety and obligation to preserve
1
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
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evidence. Finally, the court held that the subsequent search warrant, that was
later issued to search defendant's home, was based on probable cause and the
evidence seized did not constitute "fruit of the poisonous tree."
At his plea hearing, defendant admitted to having entered into Robin's
Nest on February 9, 2018 without permission and with the intent to steal money
and a bottle of alcohol. In exchange, the State agreed to dismiss the remaining
counts of the indictment, as well as a separate burglary charge in a related
indictment. The State's plea agreement required defendant to serve a custodial
term of eight years with a four-year period of parole ineligibility.
The third-degree crime to which defendant pled guilty carries an ordinary
term of three to five years. See N.J.S.A. 2C:43-6(a)(3). As defendant had been
previously convicted of various crimes, he was eligible for an extended term of
imprisonment, see N.J.S.A. 2C:44-3(a), which increased his sentencing
exposure from three to five years as a third-degree crime to five to ten years as
a second-degree crime. After the prosecutor explained the consequences of an
extended term sentence, defendant agreed that he was so eligible, and the State
accordingly requested that the court impose an eight-year term that would run
concurrently to a separate Camden County matter.
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The court sentenced defendant in accordance with the plea agreement and
imposed applicable fines and penalties. In doing so, the court applied
aggravating factors three, six and nine, N.J.S.A. 2C:44-1(3), (6), (9), based on
defendant's "prior contact with the criminal justice system" and his criminal
history, which "start[ed] in 1984 and continue[d] up until this present matter,
which was in 2018." The court also reasoned that "[t]here is always a need, of
course, to deter the general public and a specific need to deter," and found a
need to deter defendant specifically because he had previously been sentenced
"to fines and jail as well as state prison but that didn't fully deter him from his
conduct." This appeal followed.
II.
In defendant's first point, he argues the trial court erred in denying his
motion to suppress and limiting the issue before it to whether the police had
reasonable and articulable suspicion under Terry. Specifically, defendant
maintains the court failed to make any findings as to probable cause or determine
whether the search was incident to any arrest. He further contends police lacked
probable cause to arrest him, and thus, the subsequent warrantless search was
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unconstitutional as it did not satisfy the aforementioned exception to the warrant
requirement.2
While we agree with defendant that the court did not analyze the point at
which defendant was effectively under arrest and instead appears to have
primarily analyzed the issue as whether the police officers' investigatory stop
satisfied the requirements of Terry, we conclude that the search was appropriate
as incident to an arrest. We reject defendant's arguments to the contrary.
When reviewing a decision on a motion to suppress evidence, appellate
courts defer to the judge's factual findings "unless they [are] 'clearly mistaken'
or 'so wide of the mark' that the interests of justice require[] appellate
intervention." State v. Elders, 192 N.J. 224, 245 (2007). This deference is
particularly appropriate when the court's factual findings are "substantially
influenced by [its] opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
2
We also note that defendant contends the warrantless search does not satisfy
the protective search exception to the warrant requirement because there was no
basis to believe defendant was armed or dangerous. Terry, 392 U.S. at 26-27;
see also State v. Gamble, 218 N.J. 412, 430 (2014). We need not address this
issue because the State does not attempt to justify the search as a protective
search for weapons. Further, as noted, we find the warrantless search was proper
as a search incident to arrest. See, infra, at pp. 17-18.
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However, the motion judge's "legal conclusions reached from the established
facts" are reviewed de novo, as the court's "application of the law is subject to
plenary review on appeal." State v. Jefferson, 413 N.J. Super. 344, 352 (App.
Div. 2010).
We agree with defendant that the issue before the court was not the
propriety of the initial Terry stop, which defendant does not contest, but rather
whether the police had probable cause to arrest him, thereby permitting a search
of his backpack and laptop bag as a search incident to that arrest. To resolve the
issue, we discuss well-settled constitutional principles.
The Fourth Amendment to the United States Constitution and Article I of
the New Jersey State Constitution protect people from "unreasonable searches."
U.S. Const. amend. IV; N.J. Const. art. I, § 7. The hallmark of these
constitutional provisions is reasonableness. State v. Bruzzese, 94 N.J. 210, 217
(1983). A warrantless search is presumed to be unreasonable, and therefore
invalid; "[h]ence, the State must prove the overall reasonableness and validity
of [a warrantless] search." State v. Valencia, 93 N.J. 126, 133 (1983). A
warrantless search may be found reasonable if the State proves, by a
preponderance of the evidence, that the search falls within one of the "well-
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delineated exceptions to the warrant requirement." Elders, 192 N.J. at 246
(quoting State v. Pineiro, 181 N.J. 13, 19 (2004)).
One of these exceptions is the "search incident to arrest" exception. State
v. Hill, 115 N.J. 169, 173 (1989) (citing Chimel v. California, 395 U.S. 752
(1969)). "Under the search incident to arrest exception, the legal seizure of the
arrestee automatically justifies the warrantless search of his [or her] person and
the area within his [or her] immediate grasp." State v. Pena-Flores, 198 N.J. 6,
19 (2008), overruled on other grounds, State v. Witt, 223 N.J. 409, 450 (2015)
(quoting Chimel, 395 U.S. at 762–63). "The purpose of such a search is (1) to
protect the arresting officer[s] from any potential danger and (2) to prevent the
destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446,
461 (2002). "[T]he ensuing search is valid even if there is no particular reason
to believe that it will reveal evidence, contraband, or weapons." Pena-Flores,
198 N.J. at 19 (citing New York v. Belton, 453 U.S. 454, 461 (1990)).
Police may search a person incident to a lawful arrest grounded upon
probable cause. "The probable-cause requirement is the constitutionally-
prescribed standard for distinguishing unreasonable searches from those that can
be tolerated in a free society." State v. Novembrino, 105 N.J. 95, 106 (1987).
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The standards for determining probable cause to arrest and probable cause to
search are identical. State v. Smith, 155 N.J. 83, 92 (1998).
Our Supreme Court has stated that the probable cause standard "is not
susceptible of precise definition." State v. Moore, 181 N.J. 40, 45 (2004) (citing
State v. Wilson, 178 N.J. 7, 13 (2003)). Nevertheless, the Court has consistently
held that probable cause means "less than legal evidence necessary to convict
though more than mere naked suspicion [and it] exists if at the time of the police
action there is a well[-]grounded suspicion that a crime has been or is being
committed." Wilson, 178 N.J. at 13 (quoting State v. Sullivan, 169 N.J. 204,
210 (2001)).
Probable cause, however, "is not a stringent standard." State in Int. of
J.G., 151 N.J. 565, 591 (1997). It does not require the suspicion that a crime
has been or is being committed "be correct or more likely true than false." State
v. Johnson, 171 N.J. 192, 207 (2002) (internal citation omitted). Rather,
probable cause simply requires "a practical, common-sense decision whether,
given all the circumstances . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Id. at 214 (internal
quotation marks and citation omitted).
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More specifically, "[p]robable cause exists where 'the facts and
circumstances within [the officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that' an offense has been or is being
committed." State v. Harris, 384 N.J. Super. 29, 47 (App. Div. 2006) (quoting
Moore, 181 N.J. at 46). When conducting a probable cause analysis, "courts
must consider the totality of the circumstances, and they must deal with
probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000). "'[A]ll the
definitions of probable cause [include] a reasonable ground for belief of guilt.'"
Moore, 181 N.J. at 46 (2004) (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)).
At the moment probable cause ripens, an officer is authorized to make an
arrest and conduct a search of the defendant's person incident to that arrest.
Dangerfield, 171 N.J. at 455–56. As the Court held in State v. O'Neal, "[w]hen
the police search an individual before placing him [or her] under arrest 'as part
of a single uninterrupted transaction, it does not matter whether the arrest
precedes the search.'" 190 N.J. 601, 614 (2007) (quoting State v. Bell, 195 N.J.
Super. 49, 58 (1984)). For a search to be justified as incident to a valid arrest,
however, "there must have been an intention on the part of the officers to arrest
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on the information possessed by them prior to the search, without regard to what
the search might disclose." State v. Sims, 75 N.J. 337, 353 (1978).
Our Supreme Court has also explained that "'the proper inquiry for
determining the constitutionality of a search-and-seizure is whether the conduct
of the law enforcement officer who undertook the search was objectively
reasonable, without regard to his or her underlying motives or intent.'" O'Neal,
190 N.J. at 613-614 (2007) (quoting Bruzzese, 94 N.J. at 219). While "an officer
may testify to his or her subjective intent, the crucial inquiry is whether the
officer's conduct was objectively reasonable." Ibid. In addition, "a subjective
belief by the arresting officer cannot destroy probable cause where it exists."
United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991).
Defendant challenges Lieutenant Harper's search, arguing the police did
not have probable cause or the "intention to arrest" him at the time of the search,
and as such, the search of his backpack and laptop bag cannot be considered
lawful as incident to his arrest. In support, he argues Lieutenant Harper did not
in fact place him in handcuffs, or formally arrest him, until after he reviewed
additional video footage from Robin's Nest. Defendant also argues Lieutenant
Harper's comments provide further support that he believed he did not have
probable cause to arrest defendant. We disagree with these arguments.
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We review the search from an objective standpoint, O'Neal, 190 N.J. at
613-14, and consider the proofs known to Lieutenant Harper at the time he
arrived at the sidewalk. Police stopped defendant late at night, within a two-
block radius of the scene of the robbery, approximately thirty minutes after the
alarm sounding. In addition, as Lieutenant Harper testified at the suppression
hearing, defendant's height and weight matched that of the suspect on the
surveillance video. Admittedly, the hat defendant wore when police stopped
him was different than the hat seen in the video, but his general black coat and
hoodie matched the footage. Though not dispositive, as it was winter, defendant
was also wearing boots and gloves like the suspect in the video. Further, and
most importantly, Lieutenant Harper observed that defendant's backpack had the
distinctive reflective stripes that he had seen on the surveillance video.
These observations, in addition to Lieutenant Harper's familiarity with
defendant as a suspect in nearby robberies, provided the objective "well-
grounded suspicion" that defendant had committed the Robin's Nest robbery,
Wilson, 178 N.J. at 13, justifying his arrest and a search incident to that arrest.
As stated in O'Neal, even though the search preceded defendant's formal arrest,
the "right to arrest pre-existed the search." 190 N.J. at 614.
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We also note Lieutenant Harper's apparent subjective belief on February
9, 2018 that he "did not have enough" to arrest defendant and that officers
needed to "get [defendant] on something" are not determinative to the analysis,
see id. at 613-614, rather, as noted, the standard is whether the conduct of the
police was objectively reasonable under the circumstances, and we conclude,
based on the record, that it was. Likewise, the statements of Officer Kline
expressing his subjective belief that defendant was the suspect, and thus
ostensibly supporting probable cause, are similarly not dispositive.
Accordingly, the search of defendant's bags was lawful.
III.
Defendant also argues his eight-year sentence with a four-year period of
parole ineligibility must be vacated because "[a] sentence of eight years for a
third-degree conviction is illegal." Relying upon State v. Smith, 372 N.J. Super.
539, 542 (App. Div. 2004), defendant further maintains that the fact that
defendant's sentence resulted from a negotiated plea agreement is irrelevant, as
parties cannot consent to an illegal sentence. Defendant also contends the court
did not sufficiently explain the reasons for imposing an extended term, nor did
it provide the basis for imposing a four-year period of parole ineligibility as
required under State v. Kruse, 105 N.J. 354, 360 (1987).
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A deferential standard applies when reviewing a trial court's sentencing
decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes, 217 N.J.
57, 70 (2014). We must affirm a sentence unless: 1) the trial court failed to
follow the sentencing guidelines; 2) the court's findings of aggravating and
mitigating factors were not based on competent and credible evidence in the
record; or 3) "the [court's] application of the guidelines to the facts of [the] case
makes the sentence clearly unreasonable so as to shock the judicial conscience."
Fuentes, 217 N.J. at 70 (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Moreover, the deferential standard of review only
applies "if the trial judge follows the Code and the basic precepts that channel
sentencing discretion." State v. Case, 220 N.J. 49, 65 (2014).
With respect to defendant's argument that his sentence is illegal, we find
no error in the court's decision to impose the discretionary extended term under
the plea agreement. N.J.S.A. 2C:44-3(a) permits a sentencing court to sentence
a defendant as a "persistent offender" to an extended term of imprisonment
"when the defendant was convicted of at least two separate prior crimes but only
if 'the latest' of those crimes was committed or the defendant’s 'last release from
confinement occurred' – 'whichever is later' – within ten years of the charged
crime." State v. Clarity, 454 N.J. Super. 603, 606 (2018) (quoting N.J.S.A.
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2C:44-3(a)). Under the statute, a defendant must have also been at least twenty-
one years old when he or she committed the crime to be sentenced and must
have been at least eighteen years old when he or she was convicted of the two
prior offenses. N.J.S.A. 2C:44-3(a).
The persistent offender statute "grants the sentencing court discretion to
impose an extended sentence when the statutory prerequisites for an extended-
term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006). A
defendant's prior convictions alone expose the defendant to the maximum
sentence within the extended term range, and a court may not engage in
additional fact finding in support of an extended sentence. Id. at 168.
After determining a defendant's eligibility for an extended term under the
statute, the court must next determine whether to impose an extended sentence.
Then, the court must "weigh the aggravating and mitigating circumstances to
determine the base term of the extended sentence." Id. at 164 (quoting State v.
Dunbar, 108 N.J. 80, 89 (1987)). The range of available sentences "starts at the
minimum of the ordinary-term range and ends at the maximum of the extended-
term range." Id. at 169. The decision to sentence a defendant within this range
lies within "the sound judgment of the court—subject to reasonableness and the
existence of credible evidence in the record to support the court's finding of
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aggravating and mitigating factors." Ibid. Finally, the court "must determine
whether to impose a period of parole ineligibility." Id. at 164.
We are satisfied the court made the necessary findings and found the
extended term appropriate based upon defendant's extended criminal history.
Here, defendant satisfied all conditions precedent for an extended term under
N.J.S.A. 2C:44-3(a). From the age of forty-three, and beginning in 2010,
defendant had been convicted of four crimes, including fourth-degree theft,
second-degree burglary, fourth-degree criminal attempt to commit theft, and
third-degree receiving stolen property. At sentencing, defense counsel did not
challenge the prior convictions relied upon by the State and the court to establish
defendant's status as a persistent offender. Moreover, "[c]onsidering the relative
weight, severity, and similarity of the prior offenses," we find no fault with the
trial judge's decision to impose the sentence as a persistent offender, consistent
with the plea agreement. Dunbar, 108 N.J. at 96.
In addition, contrary to defendant's argument that the court did not
sufficiently explain its imposition of a sentence in the extended term range , the
record reveals the court reviewed the terms of the extended sentence with
defendant during the plea agreement. The State correctly and carefully
explained to defendant the implications of an extended term and why he was
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eligible. The court also questioned defendant extensively as to his
understanding of the extended sentence and defendant twice stated that he
understood.
We also disagree that the court committed any error in imposing a four-
year period of parole ineligibility and we are satisfied that the sentencing court
properly weighed the aggravating factors against the non-existent mitigating
factors. Under Kruse, 105 N.J. at 362, our Supreme Court emphasized that
where parole ineligibility is imposed, the trial court should "state the reasons for
the sentence, indicating why it is clearly convinced that the aggravating
substantially outweigh the mitigating factors," but "[w]ithout such a finding, a
court's calculation of parole eligibility should follow the statutory scheme."
In turn, parole ineligibility is addressed in N.J.S.A. 2C:43-6(b), which
provides that "the court may fix a minimum term not to exceed one-half of the
term set pursuant to subsection a., [providing maximum terms for first-, second-
and third-degree crimes] . . . during which the defendant shall not be eligible for
parole" where the court is "clearly convinced that the aggravating factors
substantially outweigh the mitigating factors." Our Supreme Court has held,
however, that "[p]eriods of parole ineligibility are the exception and not the rule
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[and] [t]hey are not to be treated as routine or commonplace." Kruse, 105 N.J.
at 359 (quoting State v. Martelli, 201 N.J. Super. 378, 382-83 (App. Div. 1985)).
At sentencing, the State argued for aggravating factors three, six, and nine.
The State emphasized that defendant posed an "extremely high" risk of
recidivism, and he had an extensive criminal record, "almost all for burglary."
The State also pointed out the need for deterrence, given defendant's "virtual
crime spree," which encompassed the numerous counts under the indictment.
Defense counsel did not argue for the application of any mitigating factors and
requested only that the court sentence defendant in accordance with the plea
agreement.
As noted, the court thoroughly expressed its reasons for applying
aggravating factors three, six, and nine, and stated that it found these factors to
outweigh any mitigating factors after considering them on a "qualitative as well
as a quantitative basis." The court noted that it had incorporated the arguments
of counsel and referred to the presentence report. The court also considered the
nature of the crime and found that the plea agreement was fair and in the interests
of justice.
We are therefore satisfied that the court has complied with the constraints
of Kruse, 105 N.J. at 362, and its analysis indicates it was "clearly convinced
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that the aggravating substantially outweigh[ed] the mitigating factors." We also
conclude that defendant's four-year period of parole ineligibility follows the
statutory requirements of N.J.S.A. 2C:43-6(b), as it does not exceed one-half the
full custodial term. The sentence imposed in this case—which is above the mid-
point of the second-degree sentencing range but below the upper limit of that
range—comports with the Code of Criminal Justice and does not "shock [our]
judicial conscience." See Roth, 95 N.J. at 364-65.
To the extent we have not specifically addressed any of defendant's
arguments, it is because we have considered those contentions of insufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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