STATE OF NEW JERSEY VS. CHELSEY G. WHITE(13-11-1472, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0718-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHELSEY G. WHITE, a/k/a

CHESLSEY G. WHITE,

CHELSEY WHITE,

Defendant-Appellant.

____________________________________

Submitted September 12, 2017 – Decided September 27, 2017

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

13-11-1472.

Joseph E. Krakora, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, on the brief).

Christopher S. Porrino, Attorney General,

attorney for respondent (Sarah C. Hunt, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant Chelsey White was tried before a jury and found

guilty of third-degree possession of a controlled dangerous

substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count two);

and fourth-degree unlawful possession of hollow-nosed bullets,

N.J.S.A. 2C:39-3f (count three). Defendant later pled guilty to

fourth-degree certain persons not to possess weapons, N.J.S.A.

2C:39-7a (count four). Defendant appeals from the judgment of

conviction dated September 2, 2015, and challenges his convictions

and the sentences imposed.

I.

Following his indictment, defendant filed a motion to

suppress the evidence obtained by the police incident to his

arrest. At the suppression hearing, the State presented testimony

from Sergeant Brian Suschke and Detective Joseph D'Ambrosio of the

Trenton Police Department (TPD). Defendant did not present any

witnesses.

Suschke testified that on June 15, 2013, at approximately

11:00 p.m., he received a tip from a "citizen contact" who told

him "there was a black male wearing a white t-shirt holding a

black jacket in his hand" who was standing in front of a housing

project at an address on Oakland Street. The citizen contact stated

that the person was in possession of a handgun. Suschke said

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citizen contacts are individuals with whom he has established

working relationships and who have voluntarily approached him to

assist the police.

Suschke testified that citizen contacts are not confidential

informants, since there is no quid pro quo exchange for their

information, and these contacts are neither registered nor

documented. Suschke stated that he provides his phone number to

these individuals. Suschke said these contacts are the TPD's eyes

and ears "out there in the streets."

Suschke further testified that he knew the contact who

provided the tip in this matter. He said the contact had provided

information to him on four or five prior occasions, and the

information had always been reliable. Suschke stated that when he

receives such information, it must be acted upon quickly, since

he does not know how long the suspect will remain at a particular

location.

After he received the tip, Suschke called Detectives

D'Ambrosio and Stuart Owens of the TPD's Crime Suppression Unit

and passed the tip along to them. He felt these officers "could

go out there and . . . corroborate the information." Suschke also

said that working with citizen contacts and calling upon an officer

to investigate a tip is a common practice.

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D'Ambrosio testified that on June 15, 2013, at around 11:00

p.m., Suschke called him on his cell phone and relayed the tip.

D'Ambrosio was familiar with the housing project on Oakland Street,

which was in a high crime area in West Trenton. He testified that

based on his experience, housing projects present many "avenues

of escape." He contacted two other officers in the Crime

Suppression Unit to help investigate the tip.

D'Ambrosio and Owens drove past the location. They saw the

person who matched the description that had been provided to them.

The officers later identified defendant as the person they

observed. The officers parked about twenty feet away. The area was

well lit. They could see defendant standing in the open door to

the building.

D'Ambrosio and Owens approached the door. Defendant turned

around quickly, entered the building, and proceeded to walk up a

staircase. The officers followed defendant into the building and

up the stairs. They remained several feet behind defendant, and

defendant walked quickly up the stairs.

Because the stairs wrapped around, the officers lost sight

of defendant for a second as they ascended to the first floor and

defendant was walking up to the second floor. Defendant stopped

when he reached the second-floor landing because his path was

blocked by persons who were sitting on the steps to the third

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floor. When the officers reached the second-floor landing, which

was well lit by a ceiling light, defendant turned to face them.

D'Ambrosio saw a bulge in defendant's front waistband, which

he described as a "large object protruding out from . . .

[defendant's] belt line." Defendant's white t-shirt covered the

bulge. D'Ambrosio "strongly believed" the bulge was a firearm

because it was "consistent with the handle of a weapon." He

testified that he had seen guns in waistbands before, and he had

been on numerous gun-possession assignments.

D'Ambrosio said he was familiar with weapons and the waistband

was "a common spot for a weapon to be." D'Ambrosio repeatedly

ordered defendant to show his hands to ensure that his hands were

away from the suspected weapon. Defendant did not obey. Defendant

dropped the black jacket, placed his right hand on the bulge, and

took a step back.

Defendant turned his back to the officers. D'Ambrosio ran

towards defendant, placed him in a "bear hug," and seized what he

felt was the butt of a gun. D'Ambrosio yelled "gun" to Owens, who

moved defendant's hand away from the gun. The officers arrested

defendant, and defendant was found in possession of crack cocaine

and the gun, which was loaded with hollow-nose ammunition.

The judge placed an oral decision on the record. The judge

found that Suschke and D'Ambrosio were credible witnesses. The

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judge rejected defendant's claim that the officers did not have

reasonable and articulable suspicion to stop him in the stairwell

or even to approach him outside the building. Defendant argued

that the information provided by Suschke's contact lacked the

required specificity and corroboration to justify the stop.

The judge found, however, that the officers had reasonable

and articulable suspicion that defendant was engaged in, or about

to engage in, criminal activity. The judge determined that the

officers had reasonable suspicion that defendant was in possession

of a weapon, which posed a threat to the officers.

The judge determined that the officers' stop and frisk of

defendant, discovery of the gun, and defendant's arrest were valid.

The judge also found that the officers properly seized the CDS in

defendant's pocket after conducting a lawful search incident to

defendant's arrest.

At the trial, the State presented testimony from D'Ambrosio

and Investigator Randolph Toth, a firearms examiner with the New

Jersey State Police. D'Ambrosio essentially testified to the same

facts he had recounted at the suppression hearing. D'Ambrosio

noted that while he, Owens, and Officer Charles Steever were

struggling with defendant, Officer Samuel Johnson detained Rahkeem

Ortiz, who was on the second-floor landing in the stairwell, but

closer to the stairs leading to the third floor of the building.

6 A-0718-15T4

D'Ambrosio explained that because his observations and

encounter with defendant led to defendant's arrest and the seizure

of the weapon, he saw no reason to question Ortiz or other persons

who were on the landing at the time, or submit the gun and

ammunition for DNA or fingerprint tests. Ortiz was not brought to

the police station, and D'Ambrosio did not know if he was arrested.

Defendant testified that on June 15, 2013, he arrived at the

Oakland Street housing project at 7:00 p.m. to visit a friend who

resided on the second floor. He was speaking with Ortiz on the

second-floor landing when the police came up the stairs. Defendant

said the officers drew their weapons and ordered him and Ortiz to

put up their hands and place them against the wall.

Defendant said he and Ortiz complied and the officers searched

them, but found nothing. The officers then picked up a jacket from

the stairwell and said, "gun." According to defendant, the officers

asked him and Ortiz whose gun it was. Defendant claimed he told

the officers it was not his gun, but Ortiz nodded in his direction.

The officers then arrested him. Defendant denied that he was

outside the building at any time between 7:00 p.m. and his arrest.

He also denied that the officer recovered the gun from his

waistband.

The State called Owens as a rebuttal witness. He said there

was no way defendant and Ortiz could have been mistaken for each

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other because defendant is a black male with a bald head, and

Ortiz is a very light-skinned black male with shoulder-length

braids. Owens stated that he had been involved in about 100 gun

arrests, including arrests where several individuals had been

found in the area where the gun was found.

The assistant prosecutor asked Owens whom he would charge in

a situation where a gun is found on the ground in close proximity

to two individuals. The judge overruled defense counsel's

objection to the question, and Owens testified that he would charge

both individuals because he did not know whose gun it is.

The jury found defendant guilty on counts one (possession of

CDS), two (possession of the handgun), and three (possession of

hollow-nose ammunition). Thereafter defendant pled guilty to count

four (certain persons not to possess weapons).

When he entered his plea, defendant admitted that on June 15,

2013, he was in possession of a handgun, which was in his

waistband. He also admitted that he knew he was prohibited from

doing so, as a result of a conviction in 2004 for possession of

CDS.

The judge later granted the State's motion to sentence

defendant on count two to an extended term as a persistent offender

pursuant to N.J.S.A. 2C:44-3(a), and sentenced defendant on that

count to twelve years of incarceration with six years of parole

8 A-0718-15T4

ineligibility. The judge also imposed concurrent terms of four

years on count one, twelve months on count three, and eighteen

months on count four. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM

UNREASONABLE SEARCHES AND SEIZURES AS

GUARANTEED BY THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ART. I, PAR. 7

OF THE NEW JERSEY CONSTITUTION WAS VIOLATED

BY THE POLICE SEIZURE OF THE DEFENDANT WITHOUT

REASONABLE SUSPICION.

POINT II

THE DEFENDANT'S MOTION TO COMPEL DISCLOSURE

OF RELEVANT EVIDENCE SHOULD HAVE BEEN GRANTED

BECAUSE THE DEFENDANT HAS A RIGHT TO PRESENT

A COMPLETE DEFENSE.

POINT III

THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE

PROSECUTOR'S FAILURE TO ABIDE BY THE

REQUIREMENT THAT OPENING STATEMENTS BE

SUCCINCT.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ART. I,

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY IMPROPER ADMISSION OF EXPERT

WITNESS TESTIMONY BY A FACT WITNESS.

POINT V

THE DEFFENDANT'S SENTENCE IS EXCESSIVE:

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO

AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE

AGGRAVATING AND MITIGATING FACTORS.

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C. THE TRIAL COURT IMPROPERLY MADE FINDINGS

OF FACT TO ENHANCE THE SENTENCE.

II.

We first consider defendant's contention that the judge erred

by denying his motion to suppress. Defendant argues that the police

lacked reasonable and articulable suspicion sufficient to justify

stopping him. He contends the citizen contact's information lacked

specificity and corroboration of that information was required to

justify the police in stopping defendant in the stairwell, or even

to approach him outside the building.

"Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citations

omitted). "We defer to those findings of fact because they 'are

substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" Ibid. (alteration in original) (quoting

State v. Johnson, 42 N.J. 146, 161 (1964)).

We do not, however, defer to the trial court's legal

conclusions, which we review de novo. Id. at 263 (citation

omitted). Regarding "mixed questions of law and fact, we give

deference . . . to the supported factual findings of the trial

10 A-0718-15T4

court, but review de novo the lower court's application of any

legal rules to such factual findings." State v. Harris, 181 N.J.

391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185, 522

U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), cert. denied,

545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Here, the record shows that the police officers initially

made an investigatory, or so-called Terry stop of defendant. Such

a stop occurs when the police approach an individual, who does not

reasonably feel free to leave, even though the encounter does not

constitute a formal arrest. State v. Stovall, 170 N.J. 346, 355-

56 (2002). Under Terry, a law enforcement officer may detain an

individual without a warrant for a brief period, if the stop is

"based on 'specific and articulable facts which, taken together

with rational inferences from those facts,' give rise to a

reasonable suspicion of criminal activity." State v. Rodriguez,

172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21,

88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).

A Terry stop "is valid only if the officer has a

'particularized suspicion' based upon an objective observation

that the person stopped has been or is about to engage in criminal

wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). In

determining whether the officer had reasonable and articulable

11 A-0718-15T4

suspicion to make the stop, the court considers the totality of

circumstances. Stovall, supra, 170 N.J. at 370.

Here, there is sufficient evidence in the record to support

the judge's finding that the officers had reasonable and

articulable suspicion that defendant had engaged in, or was about

to engage in, criminal wrongdoing. As explained previously,

Suschke had received information from a citizen contact that a

person was in possession of a handgun.

The contact provided Suschke with a description of the

individual and gave him the location where he could be found.

Previously, the contact had provided Suschke with reliable

information. Suschke relayed the information to other officers,

for investigation. The officers found defendant, who matched the

description the contact had provided, outside a building in a

housing project on Oakland Street, which was located in a high-

crime area.

The officers observed defendant enter the building and

followed defendant up the stairs. They did not stop defendant

until D'Ambrosio observed a bulge in the waistband of defendant's

pants. D'Ambrosio knew, from his experience and training, that

weapons are often carried there.

Based on these facts, the motion judge correctly found that

the officers validly made a Terry stop. Contrary to defendant's

12 A-0718-15T4

contention, the information the citizen contact provided to

Suschke was not the sole basis for the stop. The judge noted that

the officers did not stop defendant until D'Ambrosio observed the

bulge in defendant's waistband, and found that D'Ambrosio

reasonably believed defendant was in possession of a weapon. The

record supports the judge's determination that the officers were

justified in stopping defendant to investigate.

Moreover, the record supports the judge's finding that the

officers properly frisked defendant after the stop because the

officers reasonably believed their safety was at risk. See State

v. Smith, 134 N.J. 599, 621 (1994) (noting that a bulge is

sufficient to "validate a protective pat-down"); State v. Wanczyk,

201 N.J. Super. 258, 264 (App. Div. 1985) (holding that the

officers had the right to frisk the defendant after observing a

bulge in his jacket).

We conclude that the investigatory stop, the ensuing pat-

down, and defendant's arrest were lawful. Therefore, the judge did

not err by denying defendant's motion to suppress the evidence

seized incident to his arrest.

III.

Defendant argues that the judge erred by denying his motion

to compel the State to disclose the identity of the citizen

contact. Defendant asserts that a citizen contact is not a

13 A-0718-15T4

confidential informant and, therefore, is not entitled to the

protections afforded by court rule and statute. Defendant further

argues that examination of the citizen contact was essential to

his defense because the police allegedly relied solely on the

contact's tip to establish probable cause. Defendant therefore

argues the citizen contact had more than a marginal role in the

incident that led to his conviction.

Because informants can serve an indispensable role in law

enforcement, their continued cooperation should be encouraged.

State v. Milligan, 71 N.J. 373, 381 (1976). "For this reason, the

so-called 'informer's privilege' has long been considered

essential to effective enforcement of the criminal code." Ibid.

(internal citations omitted). The privilege to withhold the

identity of an informer is not, however, absolute. Id. at 383.

New Jersey recognizes the need to protect the identity of

informants in N.J.R.E. 516, which tracks the language of N.J.S.A.

2A:84A-28. The rule and statute provide that:

[a] witness has a privilege to refuse to

disclose the identity of a person who has

furnished information purporting to disclose

a violation of a provision of the laws of this

State or of the United States to a

representative of the State or the United

States or a governmental division thereof,

charged with the duty of enforcing that

provision, and evidence thereof is

inadmissible, unless the judge finds that (a)

the identity of the person furnishing the

14 A-0718-15T4

information has already been otherwise

disclosed or (b) disclosure of his identity

is essential to assure a fair determination

of the issues.

[N.J.R.E. 516; N.J.S.A. 2A:84A-28.]

The privilege applies to all persons who give information to

the police regarding a violation of the law, not simply those "who

do so on a regular basis or pursuant to a mutually beneficial

arrangement with the police." State v. Adim, 410 N.J. Super. 410,

433 (App. Div. 2009) (quoting N.J.R.E. 516). As the Court pointed

out in State v. Oliver, 50 N.J. 39, 42 (1967), whether paid or

not, an informer is subject to the risk of retaliation and "comes

within the protection of the privilege."

In determining whether to order the disclosure of an

informant's identity, courts use a balancing test to weigh "the

public interest in protecting the flow of information against the

individual's right to prepare his defense." Milligan, supra, 71

N.J. at 384 (quoting Roviaro v. United States, 353 U.S. 53, 62,

77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)). In determining

whether to order disclosure of an informant's identity, the court

must consider factors such as the crime involved, the accused's

possible defenses, and the potential significance of the

informer's testimony. Ibid.

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Generally, a court will deny a motion to compel disclosure

of an informant's identity unless the defendant presents a strong

showing of need for disclosure. Id. at 387-89. Moreover, a court

will deny a motion to compel disclosure where the informer has

played only a marginal role in the events leading up to the arrest,

"such as providing information or 'tips' to the police or

participating in the preliminary stage of a criminal

investigation." Ibid. When reviewing the denial of a motion to

compel disclosure of an informant's identity, we consider whether

the trial court considered the relevant factors in the balancing

test, and whether the court's decision represents an abuse of

discretion. Id. at 384-85.

Here, the judge determined that the informer's privilege

applied in this matter and disclosure of the citizen contact's

identity was not essential to ensure defendant had a fair trial.

As we have noted, the citizen contact reported an apparent

violation of the law to the police. Moreover, defendant failed to

present a strong showing of need for disclosure of the informant's

identity. The record supports the judge's findings on these issues.

The judge noted that the citizen contact had only provided

the police with a tip of illegal activity at a specific location

and the contact was not a participant in the charged offenses.

The contact's role was marginal. In addition, the police did not

16 A-0718-15T4

stop defendant based solely on the citizen contact's tip. The

police stopped defendant after they corroborated the information

provided by the citizen contact and D'Ambrosio also observed the

bulge in defendant's waistband, which he reasonably believed was

a handgun. Neither the content of the informant's tip, nor the

basis for the tip, were relevant to the defense because the State's

case was based upon the events that took place after the police

arrived at the Oakland Street building and the officers' personal

observations.

We reject defendant's contention that the contact's identity

was essential to a fair trial. Defendant contends that the informer

could have supported a defense of third-party guilt. However, even

if the informer would have testified that defendant was not the

person he saw outside the building on Oakland Street with a gun,

or stated that he was mistaken when he said he saw someone with a

gun at that location, the testimony would not have supported a

third-party-guilt defense or exonerated defendant.

At trial, the State presented testimony that defendant

matched the description provided by the informant and the officers

found defendant on the second-floor landing with a gun in his

waistband. Thus, the record shows that defendant failed to make a

showing of need for disclosure of the informer's identity. As the

17 A-0718-15T4

judge found, under the circumstances, the informer was entitled

to the protection of the privilege.

We conclude there is sufficient credible evidence in the

record to support the judge's decision that upon consideration of

the relevant factors the contact's identity should be protected.

The denial of defendant's motion to compel disclosure of the

identity of the citizen contact was not an abuse of discretion.

IV.

Defendant argues that the assistant prosecutor's opening

statement was improper and prejudicial. He contends the prosecutor

provided a "very detailed and wholly unnecessary factual

recitation" of the facts of the State's case. He asserts that the

prosecutor's opening statement was overly repetitive. Defendant

also argues that he was prejudiced when the trial judge overruled

his objection to the prosecutor's opening statement in front of

the jury.

"Prosecutors 'are afforded considerable leeway in making

opening statements and summations.'" State v. Echols, 199 N.J.

344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447

(1988)). Within these bounds, prosecutors must always "act in

accordance with certain fundamental principles of fairness," and

"should limit comments in the opening to the 'facts [they] intend[]

in good faith to prove by competent evidence.'" Id. (alterations

18 A-0718-15T4

in original) (first quoting State v. Wakefield, 190 N.J. 397, 436

(2007), cert. denied, 552 U.S. 1146 (2008); then quoting State v.

Hipplewith, 33 N.J. 300, 309 (1960)). Therefore, for a prosecutor's

opening statement to warrant reversal, the comments must be

"clearly and unmistakably improper" and the misconduct "so

egregious that it deprived the defendant of a fair trial."

Wakefield, supra, 190 N.J. at 438 (first quoting State v.

Papasavvas, 163 N.J. 565, 625 (2000); then quoting State v. Smith,

167 N.J. 158, 181 (2001)).

Here, the prosecutor's opening statement was not improper

because, as defense counsel acknowledged in the trial court, the

prosecutor presented an accurate presentation of the facts that

the State intended to prove. The prosecutor did not discuss facts

that the State did not later support with evidence. In addition,

the judge had instructed the jury that the attorneys' opening

statements are not evidence, and the prosecutor reminded the jury

that the State's case would be based on the evidence. The

prosecutor's presentation of the facts was not improperly

repetitive.

Furthermore, the record does not support defendant's

contention that he was prejudiced when the judge informed the jury

that he had overruled defendant's objection to the State's opening

statement. Defense counsel had objected to the State's opening in

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the presence of the jury, rather than raising his objection at

sidebar. The judge properly advised the jury of his ruling on the

objection so that the jury would not believe that some part of the

State's opening was improper. The judge advised the jury that he

is obligated to rule on objections raised by the parties and

instructed the jurors "not [to] conclude that because [he] rule[s]

one way or another, that [he has] any feelings about the outcome

of this case."

Moreover, the judge did not disparage defense counsel in any

way, or make "remarks that might prejudice a party or which [were]

calculated to influence the minds of the jury." State v. Belliard,

415 N.J. Super. 51, 84 (App. Div. 2010) (quoting D.G. ex. rel.

J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 25 (App.

Div.), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085,

129 S. Ct. 776, 172 L. Ed. 2d 756 (2008)), certif. denied, 205

N.J. 81 (2011). The judge's remarks regarding his ruling were

proper.

We therefore reject defendant's contention that the judge

erred by informing the jury that he had overruled defendant's

objection to the prosecutor's opening statement.

V.

As noted previously, during his rebuttal testimony, the

assistant prosecutor asked Owens whom he would charge if he

20 A-0718-15T4

recovered a gun that was found on the ground in proximity to two

individuals. Defense counsel objected to the question, arguing

that it was an "open-ended question" and the response would address

the ultimate issue in the case, specifically, whether defendant

committed the charged offenses.

The judge overruled the objection, finding that the question

was proper. The judge found that Owens's response intended to

respond to defendant's version of the events, and it would not

address the ultimate issue in the case. The judge permitted the

prosecutor to pose the question, but required that he lay a proper

foundation for it.

Owens then testified that he had participated in about one

hundred gun arrests and that he had "been involved in cases where

multiple individuals [were] found to have been in an area where a

gun is found." The prosecutor again posed the hypothetical. Owens

testified that he "would charge both individuals . . . because I

don't know whose [gun] it is," meaning that the gun "could be

either individuals."

On appeal, defendant argues that Owens's response was

improper lay witness testimony. We disagree. Owens was testifying

as a fact witness. However, under N.J.R.E. 701, a lay witness can

give "testimony in the form of opinions or inferences" if the

testimony is "(a) rationally based on perception of the witness

21 A-0718-15T4

and (b) will assist in understanding the witness' testimony or in

determining a fact in issue."

Owens's testimony was based on his perceptions, which were

rationally drawn from his personal experiences as a police officer.

His testimony also was relevant to rebut the credibility of

defendant's testimony. D'Ambrosio found the gun lying on the ground

between defendant and Ortiz but arrested only defendant. Thus,

Owens's testimony would assist the jury in determining a fact in

issue, specifically whether D'Ambrosio recovered the gun from

defendant's waistband, as D'Ambrosio testified. We conclude the

judge did not err by allowing Owens to respond to the hypothetical

question. His testimony was properly lay opinion testimony

pursuant to N.J.R.E. 701.

We also reject defendant's contention, raised for the first

time on appeal, that the judge should have excluded the evidence

under N.J.R.E. 403. The rule provides that "relevant evidence may

be excluded if its probative value is substantially outweighed by

the risk of . . . undue prejudice, confusion of issue, or

misleading the jury." Ibid. As we have explained, Owens's response

to the hypothetical was relevant to the credibility of defendant's

testimony. Defendant has not shown that the admission of this

testimony resulted in undue prejudice.

22 A-0718-15T4

VI.

Defendant argues that the judge erred by imposing an extended-

term sentence of twelve years of incarceration, with six years of

parole ineligibility, on count two (unlawful possession of a

handgun). Defendant contends the judge improperly balanced the

aggravating and mitigating factors and the judge erred by imposing

a sentence that exceeded five years. He further argues that the

judge improperly made findings of fact to enhance the sentence.

An appellate court's review of the trial court's "sentencing

decisions is relatively narrow and is governed by an abuse of

discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).

We consider "whether the trial court has made findings of fact

that are grounded in competent, reasonably credible evidence and

whether the 'factfinder [has] appl[ied] correct legal principles

in exercising its discretion.'" Ibid. (alterations in original)

(quoting State v. Roth, 95 N.J. 334, 363 (1984)).

We will not set aside a trial court's sentence "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.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(alteration in original) (quoting Roth, supra, 95 N.J. at 364-65).

23 A-0718-15T4

Here, the judge noted that defendant had an extended criminal

history, which included four juvenile delinquency adjudications

and sixteen adult arrests. Defendant also has three convictions

for petty disorderly persons offenses or municipal ordinance

violations; four convictions of CDS-related disorderly persons

offenses; and three prior convictions for indictable offenses, two

for possession of CDS, and one for unlawful possession of a

handgun.

Based on this record, the judge found aggravating factor six,

N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record

and the seriousness of the offenses for which defendant has been

convicted); aggravating factor three, N.J.S.A. 2C:44-1a(3) (risk

that defendant will commit another offense); and aggravating

factor nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and

others from violating the law). The judge found mitigating factor

eleven, N.J.S.A. 2C:44-1b(11) (defendant's imprisonment will

entail excessive hardship to defendant or his dependents), and

gave it some weight. The judge determined that the three

aggravating factors substantially outweighed the one mitigating

factor.

The judge found that defendant qualified for an extended term

as a persistent offender pursuant to N.J.S.A. 2C:43-3a, since

defendant had two prior convictions for indictable offenses in

24 A-0718-15T4

February 2004 and September 2013, and defendant had committed both

offenses when he was at least eighteen years old. Moreover,

defendant was convicted of both offenses within ten years of the

current offense.

The judge then considered the expanded range of possible

sentences pursuant to State v. Pierce, 188 N.J. 155, 169 (2006).

The range "starts at the minimum of the ordinary-term range and

ends at the maximum of the extended-term range." Ibid. The judge

determined the sentence within that expanded range, in accordance

with his findings of aggravating and mitigating factors.

On appeal, defendant does not argue that he does not qualify

for an extended term under N.J.S.A. 2C:43-3a. He argues, however,

that the judge improperly enhanced the sentence based on his

findings of aggravating factors three and nine. He argues that the

judge lengthened the sentence based on a finding that an enhanced

sentence would have a deterrent effect and that defendant posed a

risk of reoffending. The record does not support these arguments.

The judge did not find that an enhanced sentence would have

a deterrent effect. The judge found that there was a risk that

defendant would reoffend, and that there was a need to deter

defendant and others from violating the law. These findings were

amply supported by defendant's extensive criminal record.

25 A-0718-15T4

Defendant further argues that the judge erred by considering

his criminal record as support for his findings of aggravating

factors three, six, and nine, because the judge allegedly had

considered his record as a basis for imposing an extended term.

Again, we disagree.

Here, the judge considered defendant's entire criminal record

at sentencing. The two convictions that formed the basis for the

imposition of the extended term were only a part of that record.

"[O]ther aspects of the defendant's record, which are not among

the minimal conditions for determining persistent offender status,

. . . will be relevant" in setting the sentence within the extended

range. State v. Dunbar, 108 N.J. 80, 92 (1987). Thus, the judge

properly considered the length and nature of defendant's criminal

record, which extended throughout his adult life. The judge also

properly considered that defendant had multiple convictions for

the same offenses.

Defendant also contends that the judge erred by failing to

find mitigating factor one, N.J.S.A. 2C:44-1b(1) (defendant's

conduct did not cause or threaten serious harm). However, the

record fully supports the judge's refusal to find this factor.

Defendant had been convicted of possessing a semi-automatic

handgun, which was loaded with hollow-nose bullets, as well as

26 A-0718-15T4

possession of CDS. The judge reasonably found that such conduct

threatened serious harm. The record supports that finding.

In addition, defendant maintains the judge should have found

mitigating factor two, N.J.S.A. 2C:44-1b(2) (defendant did not

contemplate that his conduct would cause or threaten serious harm).

Defendant did not raise this issue in the trial court. In any

event, there is nothing in the record that would have supported a

finding of this aggravating factor.

We therefore conclude that the judge followed the applicable

sentencing guidelines, the judge's findings of the aggravating and

mitigating factors are supported by sufficient evidence, and the

sentences imposed do not represent an abuse of discretion.

Affirmed.

27 A-0718-15T4