State of New Jersey v. Ralph G. Bouzy

NOT FOR PUBLICATION WITHOUT THE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-3335-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH G. BOUZY,

Defendant-Appellant.

_______________________

Argued April 29, 2026 – Decided June 24, 2026

Before Judges Mayer, Gummer, and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Union County, Indictment No. 22-07-0590.

Michael J. Kenney, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Michael J. Kenney, of

counsel and on the briefs).

Meredith L. Balo, Assistant Prosecutor, argued the

cause for respondent (William A. Daniel, Union County

Prosecutor, attorney; Michele C. Buckley, Assistant

Prosecutor, of counsel and on the brief).

Appellant filed a self-represented supplemental brief.

PER CURIAM

Defendant Ralph G. Bouzy appeals his convictions and sentence for

weapons offenses, terroristic threats, and aggravated assault. We affirm

defendant's convictions but remand to amend the judgment of conviction (JOC)

for the sentence imposed on merged counts.

I.

On the afternoon of January 24, 2022, Jefferson Servil was in his attic

apartment in Linden, where he lived with his then-girlfriend, Jemma George. At

approximately 5:00 p.m., he heard a knock at the door. When he opened it, he

was confronted by defendant, who pointed a gun at his face and grabbed his

neck. Defendant said, "I heard you was looking for me." Servil replied, "My

jacket." Defendant held the gun to Servil's face, placing his other hand on

Servil's neck. Servil tried to grab the gun, leading to a struggle. Servil yelled

to George to call the police.

During the altercation, defendant pressed a button on the gun, releasing

the gun's ammunition magazine. Servil bent down, picked up the magazine, and

threw it to George, who, at this point, was half-way down the steps leading from

the apartment. George put the magazine in her pocket. Defendant broke free

and fled. When the police arrived on scene, they found Servil and George.

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George gave police the loaded magazine. Officer Nicholas Scanlon secured the

magazine in an evidence bag. Police then transported Servil and George to

headquarters where they provided statements.

In his statement, Servil said he knew defendant from elementary school

and they were close at one time. He explained they were no longer close because

approximately three to four years before the incident, he had loaned defendant

a jacket that defendant refused to return. On another occasion afterward, Servil

purchased from defendant a pair of sneakers for $500, later learning they were

counterfeit. These incidents angered Servil, and he told defendant that when he

saw him, "It'll be a problem"; in other words, they would fight.

Another witness to the incident, Holroyd Ffife, lived in the downstairs

apartment. In his statement, Ffife stated he had heard loud banging outside his

door. As he approached the door, he heard someone yell, "You come to fight

me." At first, Ffife did not open the door, but he banged on the door and yelled,

"Get away from the door." He then opened the door slightly and saw his upstairs

neighbor, Servil, holding another man in a headlock. He heard Servil shouting

for his girlfriend to call the police. Believing he saw a gun, Ffife went back

inside his apartment.

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On January 24, 2022, a Union County grand jury returned an indictment

charging defendant with: second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b)(1) (count one); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); third-degree

terroristic threats, N.J.S.A. 2C:12-3(a), (b) (count three); and fourth-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count 4).

At trial, Servil testified defendant had pointed a gun at him, choked him,

and fled after a struggle. On cross-examination, defense counsel attempted to

question Servil about threats he had made against defendant. Servil responded

by stating defendant had told him that he would retaliate against him "after he

got out of jail." The court sustained defendant's objection to this testimony but

denied defendant's motion for a mistrial, finding that remedy was not warranted.

Instead, the court instructed the jury to disregard Servil's "last statement,"

encompassing the reference to defendant's incarceration.

Defendant also maintained testimony that Servil's allegations about

defendant having stolen his jacket and selling counterfeit shoes constituted

"other-crimes" evidence and moved to disallow their mention. The court

allowed the testimony but gave a limiting instruction that those allegations not

be considered as a propensity by defendant to break the law:

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The State has introduced evidence that the

defendant had allegedly taken a jacket from . . . Servil

and not returned it, and had allegedly sold Jefferson

Servil counterfeit sneakers.

....

Before you can give any weight to this evidence,

you must be satisfied that the defendant committed the

other crime. If you are not so satisfied, you may not

consider it for any purpose.

However, you may not use this evidence to

decide that the defendant has a tendency to commit

crimes or that he is a bad person. That is, you may not

decide that just because the defendant has committed

other crimes, wrongs or acts, he must be guilty of the

present crimes. I have admitted the evidence only to

help you decide the specific question of context of the

events and/or defendant's motive. You may not

consider it for any other purpose and may not find the

defendant guilty not simply because the State has

offered evidence that he committed other crimes,

wrongs or acts.

The defense theory was that neither George nor Ffife could identify

defendant as the assailant and there was no video or forensic evidence

corroborating Servil's account. Additionally, the defense suggested the gun

could have belonged to Servil, who had motive to blame defendant based on

their prior interactions. Toward this end, counsel elicited from Officer Scanlon

that he had not checked Servil for weapons at the scene. Counsel also elicited

testimony from Officer Scanlon that defendant's sister alleged Servil had

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threatened defendant and had said he wanted to "make [defendant]'s life

miserable."

The jury found defendant guilty on all counts. In May 2024, the court

imposed a sentence of six years' imprisonment with forty-two months' parole

ineligibility for count one. Sentences for the remaining counts were ordered to

run concurrently: six years with forty-two months parole ineligibility on count

two, three years on count three, and eighteen months with no parole eligibility

pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on count four.

Defendant appeals, raising the following arguments in a counseled brief:

POINT I

THE TRIAL COURT ERRED BY PROHIBITING

DEFENSE COUNSEL FROM CROSS EXAMINING

THE ALLEGED VICTIM ON THE KEY ISSUE OF

BIAS, DENYING [DEFENDANT] A FAIR TRIAL.

POINT II

THE TRIAL COURT ERRED BY ALLOWING THE

JURY TO HEAR UNNECESSARY AND

IRRELEVANT EVIDENCE OF OTHER BAD ACTS

AND FAILING TO PROPERLY INSTRUCT THE

JURY.

POINT III

THE TRIAL COURT ERRED BY DENYING THE

DEFENSE'S MOTION FOR A MISTRIAL AFTER

THE JURY HEARD [DEFENDANT] WAS

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PREVIOUSLY INCARCERATED.

ADDITIONALLY, THE COURT'S CURATIVE

INSTRUCTION WAS INADEQUATE TO REMEDY

SERVIL'S HIGHLY PREJUDICIAL STATEMENTS.

POINT IV

THE COURT IMPROPERLY ADMITTED EXPERT

TESTIMONY OF OFFICER SCANLON AS LAY

OPINION TESTIMONY.

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS

DENIED [DEFENDANT] A FAIR TRIAL.

POINT VI

[DEFENDANT]'S SENTENCE IS EXCESSIVE AND

A REMAND FOR RESENTENCING IS

NECESSARY. ALTERNATIVELY, AT A

MINIMUM, THE SENTENCES AND MONETARY

PENALTIES IMPOSED ON THE MERGED COUNTS

MUST BE VACATED.

Defendant filed a self-represented brief, raising the following arguments:

POINT I

THE TRIAL COURT COMMITTED ERROR

ALLOWING THE STATE TO INTRODUCE PRIOR

BAD ACT ALLEGATIONS THAT [DEFENDANT]

SOLD THE ALLEGED VICTIM FAKE SHOES,

VIOLATING THE CONFRONTATION CLAUSE.

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POINT II

THE TRIAL COURT ERRONEOUSLY RULED

EVIDENCE OF THE ALLEGED VICTIM'S MENTAL

HEALTH HISTORY INADMISSIBLE.

POINT III

THE TRIAL COURT ERRONEOUSLY EXCLUDED

IMPEACHMENT EVIDENCE OFFERED UNDER

RULE 607, TO CONTRADICT THE ALLEGED

VICTIM'S STATEMENT THAT HE WAS EVICTED

DUE TO THE ALLEGED INCIDENT.

POINT IV

THE TRIAL COURT ERRONEOUSLY RULED

HEARSAY EVIDENCE ADMISSIBLE.

POINT V

THE TRIAL COURT FAILED TO TELL THE JURY

THAT [THE] VERDICT DOES NOT HAVE TO BE

UNANIMOUS.

II.

Cross-Examination

We review evidentiary decisions for abuse of discretion. State v. Prall,

231 N.J. 567, 580 (2018). An evidentiary ruling will be overturned only when

"a decision is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Masone v. Levine,

382 N.J. Super. 181, 193 (App. Div. 2005) (internal quotation marks omitted)

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(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

At trial, a party may introduce evidence of bias. State v. Gorrell, 297 N.J.

Super. 142, 149 (App. Div. 1996). Parties may demonstrate bias through

extrinsic evidence. N.J.R.E. 607.

N.J.R.E. 611(b) restricts cross-examination to "the subject matter of the

direct examination and matters affecting the witness'[s] credibility." The right

to cross-examine a witness "is not absolute, and may, in appropriate

circumstances, bow to competing interests." State v. Budis, 125 N.J. 519, 531

(1991) (citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). "The scope

of cross-examination . . . rests within the sound discretion of the

trial court." State v. Harvey, 151 N.J. 117, 188 (1997) (citing State v. Martini,

131 N.J. 176, 263 (1993)). "[C]ourts 'retain wide latitude . . . to impose

reasonable limits on . . . cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness' [s]

safety, or interrogation that is repetitive or only marginally relevant .'" Budis,

125 N.J. at 532 (omissions in original) (quoting Del. v. Vans Arsdall, 475 U.S.

673, 679 (1986)). "[A] decision to limit cross-examination will not be disturbed

on appeal 'unless clear error and prejudice are shown.'" Casino Reinvestment

Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div. 2000) (quoting

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Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.

1990)).

Based on our review of the record, we are satisfied the trial court ruled

within its discretion to limit defense counsel's cross-examination of Servil as

reflected in the following colloquy:

[DEFENSE COUNSEL]: Mr. Servil, you had made

threats to [defendant] prior to this incident, correct?

[PROSECUTION]: Objection, your Honor.

[SERVIL]: What about the threat he made to me after

he got out of jail?

THE COURT: Hold on. Mr. Servil, wait.

[DEFENSE COUNSEL]: We need an instruction,

Judge.

THE COURT: I didn't hear what he said.

[DEFENSE COUNSEL]: Sidebar, please.

....

[Sidebar conference]

THE COURT: What did he say?

[DEFENSE COUNSEL]: Twice, "What about the way

he treated me after he got out of jail?"

THE COURT: Okay.

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[DEFENSE COUNSEL]: I'd ask for a mistrial.

THE COURT: No, I can give a curative instruction to

that because what happened after he got out of jail is

irrelevant in this court; we're here for before.

[DEFENSE COUNSEL]: Well, the issue is that it's the

-- what comes up in jurors' minds knowing that

someone has been incarcerated. That's what the

problem is.

THE COURT: Well, there was no mention of

incarceration.

[DEFENSE COUNSEL]: "When he got out of jail"

advises he was incarcerated prior to getting out of jail.

THE COURT: I am going to give a curative instruction

that's not something that's grounds for a mistrial.

Anything else?

[PROSECUTION]: Yes, your Honor. I objected to the

question regarding victim threatening defendant. I

would say that's prior bad acts that are not convictions

can't be used for propensity --

THE COURT: It also sounds like we're talking about

things that happened post incident.

[DEFENSE COUNSEL]: No, no, my question was

before and then he said what about after he was released

from jail; that was his response.

THE COURT: Did he say he was released from jail?

[DEFENSE COUNSEL]: When [defendant] was.

THE COURT: What's the basis of the objection?

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[PROSECUTION]: Essentially inadmissible reversible

for being prior bad acts when there's no self-defense

claim here. The fact that he threatened him cannot be

used to somehow essentially --

THE COURT: Well, we already know there were

threats going back and forth.

[PROSECUTION]: Yeah, those are outside the scope

of direct. They haven't come out at all.

[DEFENSE COUNSEL]: Well, okay. I mean, do you

want me to call him as a witness and I'll ask him on

direct?

THE COURT: Call who as a witness?

[DEFENSE COUNSEL]: Mr. Servil.

THE COURT: This isn't going to come in and we're

going to give a curative instruction to the jury and I'm

going to instruct them to disregard everything he said

regarding Mr. Servil's last statement. The objection is

going to be sustained and we're going to move on.

From this colloquy, we discern the court determined the alleged threats

Servil had made prior to the incident were beyond the scope of direct

examination of defendant and, thus, the court imposed a reasonable limit on

evidence of marginal relevance. Budis, 125 N.J. at 532. Additionally, the court

accurately recalled the jury had already heard testimony from Servil about

threats he had made toward defendant:

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[DEFENSE COUNSEL:] . . . And . . . I think you said

you were not looking for [defendant] after you saw him

in the jacket at your place of employment, correct?

[SERVIL:] No, I told him to come over to bring me my

jacket, he said no.

[DEFENSE COUNSEL:] And then what did you say?

[SERVIL:] I told him if you want to fight about it, we

can fight about it.

[DEFENSE COUNSEL:] And you told other people

that you wanted to fight about it, right?

[SERVIL:] Yes, I did.

[DEFENSE COUNSEL:] You were telling people all

around town that --

[SERVIL:] No, I wasn't telling people around town, I

was telling my friends. John; that's about it.

[DEFENSE COUNSEL:] That you wanted to fight

[defendant]?

[SERVIL:] Yeah, because that was my jacket, that was

my property. I also told him I wanted to fight him.

[DEFENSE COUNSEL:] You told [defendant]?

[SERVIL:] Yes.

[DEFENSE COUNSEL:] That you wanted to fight

[defendant]?

[SERVIL:] Yes.

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Officer Scanlon also testified about Servil's threats against defendant:

[DEFENSE COUNSEL:] And so you received

information that [Servil] had said that he wanted to

make [defendant]'s life miserable?

[OFFICER SCANLON:] Correct.

....

[DEFENSE COUNSEL:] You did not speak with

[Servil] about these allegations of him making threats

towards [defendant], correct?

[OFFICER SCANLON:] Correct, I did not.

[DEFENSE COUNSEL:] You did not address [Servil]

about him allegedly saying he wanted to make

[defendant]'s life miserable?

[OFFICER SCANLON:] Correct, I did not.

On consideration of the record, we conclude the trial court's decision to

limit Servil's cross-examination did not demonstrate "clear error and prejudice."

Lustgarten, 332 N.J. Super. at 492. Moreover, under the circumstances, any

perceived error was harmless. See R. 2:10-2 ("[a]ny 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"). Additional presentation of bias

evidence would have been cumulative. See N.J.R.E. 403 ("[t]he court may

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exclude relevant evidence if its probative value is substantially outweighed

by . . . needlessly presenting cumulative evidence.").

Relatedly, there was no need for the court to grant a mistrial. We review

a trial court's denial of a motion for mistrial for abuse of discretion. State v.

Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). "The grant of a mistrial is

an extraordinary remedy to be exercised only when necessary 'to prevent an

obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting

Harvey, 151 N.J. at 205). "For that reason, an appellate court should not reverse

a trial court's denial of a mistrial motion absent a 'clear showing' that 'the

defendant suffered actual harm' or that the court otherwise 'abused its

discretion.'" Ibid. (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)).

Mr. Servil said some things that are not part of this case

and should not be part of your consideration in terms of

rendering a verdict in evaluating the evidence in this

case, and I'm telling you to disregard the last things that

Mr. Servil said, as they are not relevant to these

proceedings.

Defendant argues this instruction was insufficient. We disagree. Here,

the trial court, in its discretion, instructed the jurors to disregard "the last things

Mr. Servil said" without repeating the testimony verbatim. This course,

although oblique, reflects a conscious choice by the court to avoid reiterating—

and thereby reinforcing—the prejudicial testimony of the witness. In this

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manner the court reasonably achieved the end of instructing the jury to disregard

potentially prejudicial testimony.

Further, we note that in context, Servil was referring to defendant's arrest

in this case, not an unrelated arrest. It would come as no surprise to jurors that

defendant was arrested and in jail for the charges concerned, as the context here

suggested. Of heightened concern would have been mention of defendant's

incarceration for other offenses. The trial court correctly found mention of

defendant's incarceration was not grounds for mistrial. Stated otherwise, there

was no "'clear showing' that ' . . . defendant suffered actual harm' or that the

court otherwise 'abused its discretion,'" such that a mistrial was necessary.

Yough, 208 N.J. at 397. See Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App.

Div. 2009) ("Fleeting comments, even if improper, may not warrant a new trial,

particularly when the verdict is fair.").

Prior Bad Acts

N.J.R.E. 404(b) provides:

(b) Other Crimes, Wrongs or Acts.

(1) Prohibited Uses. Except as otherwise

provided by Rule 608(b), evidence of other

crimes, wrongs, or acts is not admissible to

prove a person's disposition in order to

show that on a particular occasion the

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person acted in conformity with such

disposition.

(2) Permitted Uses. This evidence may be

admitted for other purposes, such as proof

of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of

mistake or accident when such matters are

relevant to a material issue in dispute.

"[T]o avoid the over-use of extrinsic evidence of other crimes or wrongs:"

1. The evidence of the other crime must be admissible

as relevant to a material issue;

2. It must be similar in kind and reasonably close in

time to the offense charged;

3. The evidence of the other crime must be clear and

convincing; and

4. The probative value of the evidence must not be

outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting

Abraham P. Ordover, Balancing The Presumptions Of

Guilt And Innocence: Rules 404(b), 608(b),

And 609(a), 38 Emory L.J. 135, 160 (1989) (footnote

omitted)).]

"In addition to being relevant to an issue genuinely in dispute, the other-

crime evidence must 'be necessary for [the disputed issue's] proof.'" State v.

Marrero, 148 N.J. 469, 482 (1997) (alteration in original) (quoting State v.

Stevens, 115 N.J. 289, 301 (1989)). "Because of its damaging nature, in

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determining the probative worth of other-crime evidence, 'a court should

consider . . . whether its proffered use in the case can adequately be served by

other evidence.'" Ibid. (alteration and omission in original) (quoting Stevens,

115 N.J. at 303). "Once it is determined that the other-crime evidence is

material to a fact genuinely in issue and that the other-crime evidence is

necessary, 'the probative value of the proffered evidence [must] be carefully

balanced against the danger that it will create undue prejudice against the

defendant.'" Ibid. (alteration in original) (quoting Stevens, 115 N.J. at 302).

We reject defendant's contentions the trial court erred in permitting Servil

to testify that defendant previously sold him counterfeit sneakers and failed to

return a previously-loaned jacket. That testimony was admissible under

N.J.R.E. 404(b) to provide context why defendant and Servil were not on good

terms. Those incidents were material to defendant's motive and were "necessary

for [the disputed issue's] proof." Marrero, 148 N.J. at 482. Admission of Servil's

testimony, even if error, was not prejudicial as the court gave the jury the

following limiting instruction:

The State has introduced evidence that the

defendant had allegedly taken a jacket from . . . Servil

and not returned it, and had allegedly sold Jefferson

Servil counterfeit sneakers.

....

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Before you can give any weight to this evidence,

you must be satisfied that the defendant committed the

other crime. If you are not so satisfied, you may not

consider it for any purpose.

However, you may not use this evidence to

decide that the defendant has a tendency to commit

crimes or that he is a bad person. That is, you may not

decide that just because the defendant has committed

other crimes, wrongs or acts, he must be guilty of the

present crimes. I have admitted the evidence only to

help you decide the specific question of context of the

events and/or defendant's motive. You may not

consider it for any other purpose and may not find the

defendant guilty not simply because the State has

offered evidence that he committed other crimes,

wrongs or acts.

Lay Testimony

N.J.R.E. 701 permits a lay witness's "testimony in the form of opinions or

inferences . . . if it is (a) rationally based on the perception of the witness and

(b) will assist in understanding the witness testimony or in determining a fact in

issue." "[T]he first prong . . . requires that a witness's 'testimony . . . be based

on the witness's perception, which rests on the acquisition of knowledge through

the use of one's sense of touch, taste, sight, smell or hearing.'" State v. Watson,

254 N.J. 558, 592 (2023) (second omission in original) (quoting State v. Higgs,

253 N.J. 333, 363 (2023)) (internal quotation marks omitted). "The second

prong . . . limits lay opinion testimony 'to testimony that will assist the trier of

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fact either by helping to explain the witness's testimony or by shedding light on

the determination of a disputed factual issue.'" Ibid. (quoting Higgs, 253 N.J. at

363).

Lay-opinion testimony "can only be admitted if it falls within the narrow

bounds of testimony that is based on the perception of the witness and that will

assist the jury in performing its function." State v. McLean, 205 N.J. 438, 456

(2011). "It is well-established that a lay witness may give his opinion in matters

of common knowledge and observation." LaBrutto, 114 N.J. at 197.

Before his testimony, the State indicated Officer Scanlon would testify

about his actions at the scene. He would explain that on his arrival, George

handed him a loaded magazine, which Officer Scanlon then secured. Officer

Scanlon would further describe the magazine, noting it contained ten rounds of

ammunition and explaining how such a magazine is inserted into a handgun.

Defense counsel objected to this testimony on the grounds Scanlon was not

qualified as a firearms expert and this testimony was outside the ken of the

average juror.

In allowing Officer Scanlon's proffered testimony, the court stated:

Right, but you're . . . saying it would be outside the ken

of the average juror. But we're talking about something

simplistic. We're not talking about something that is

difficult to understand. . . . [W]e're not talking about

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something that it's necessary for an expert to explain.

We are talking about a . . . magazine for a gun. And I

believe that it is well within. That expert testimony is

not something that is necessary in order to explain that

to a jury. As I said, the main focus really, I believe, is

the carrying mechanism for the bullets. The bullets

were in the magazine. That's the key. The key is that

there were bullets in it. And that just happens to be the

. . . storage device for the . . . for the bullets.

On review of the record, we agree the officer's testimony was within the

ken of the average juror and not unduly prejudicial. This was underscored by

defense counsel's effective cross-examination of Officer Scanlon. In particular,

counsel obtained an admission that, as is widely known, there are many types of

semi-automatic handguns, and contrary to Servil's claim that he released the

magazine by pressing a button, not all magazines use a button release

mechanism. Additionally, counsel emphasized the police had recovered only

the alleged magazine, not the firearm itself. In short, we perceive Officer

Scanlon's testimony as having satisfied the two prongs of N.J.R.E. 701 in that it

was "rationally based" on his perception of the magazine he had recovered from

the scene and had the capacity to "assist the jury" in determining whether the

magazine belonged to the gun in question. McLean, 205 N.J. at 456.

Sentencing

We defer to a sentencing court's determination and review for an abuse of

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discretion. State v. Bolvito, 217 N.J. 221, 228 (2014).

[We] must affirm the sentence of a trial court 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. (second alteration in original) (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984)).]

We do not substitute our judgment for that of the sentencing court. See State v.

Francisco, 471 N.J. Super. 386, 426 (App. Div. 2022) ("Generally, an appellate

court should defer to the sentencing court's factual findings and should not

'second-guess' them.") quoting State v. Case, 220 N.J. 49, 65 (2014))).

On review of the record, we are satisfied the court did not abuse its

discretion in sentencing defendant. The sentencing court properly considered

the sentencing guidelines and aggravating and mitigating factors. Although the

sentences imposed on counts one and two were slightly higher than the five-year

minimum prescribed by the Graves Act, they were not excessive. The sentence

does not "shock the judicial conscience" of the court.

As the parties agree, the trial court improperly imposed sentences on

counts three and four despite the court having merged them with count two.

See State v. Trotman, 366 N.J. Super. 226, 237 (App. Div. 2004) ("a separate

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sentence should not be imposed on the count which must merge with another

offense"). Thus, we remand for the narrow purpose of amending the JOC to

vacate the portion of it containing that error.

To the extent we have not addressed defendant's remaining arguments, we

deem them without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed in part and remanded in part for entry of an amended JOC

consistent with this opinion. We do not retain jurisdiction.

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