STATE OF NEW JERSEY VS. RASU LEE (15-06-0545, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-4920-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASU LEE, a/k/a
RASHAN H. LEE, RASU H.
LEE, RESU H. LEE, LEE
RASU, and RASA LEE,

Defendant-Appellant.
__________________________

Submitted March 26, 2019 – Decided April 26, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 15-06-0545.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

Defendant Rasu Lee was tried before a jury and found guilty of second-

degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).

Defendant appeals from the judgment of conviction (JOC) signed by the trial

court on May 31, 2017. We affirm.

I.

We briefly summarize the relevant facts, drawn from the evidence

presented at trial. On July 30, 2014, at approximately 3:30 a.m., officers Ralph

Merced and Alba Fernandez of the City of Passaic Police Department (PPD)

were on patrol in a marked police vehicle. The officers had been dispatched to

the area of Passaic Avenue and 5th Street to respond to a disorderly-persons

report. After dispersing the individuals, the officers were traveling north on 5th

Street, when they observed a black Toyota Camry, which was parked on the

opposite side of the street.

As the officers drove closer to the Toyota, it suddenly made a sharp U-

turn, and almost struck the officers' patrol car. Merced testified that he had to

apply his "brakes and wait for the car to clear the U[-]turn." The officers began

to follow the Toyota and they notified the dispatcher so that he could "run the

plate." Merced noticed that there were three persons in the Toyota: the driver

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and two passengers, one in the front and one in the rear. According to Merced,

the rear passenger repeatedly looked back at the officers' vehicle as they

followed the Toyota.

At the intersection of Mercer Street and 4th Street, the driver made a left

turn onto Mercer, but failed to come to a complete stop at the stop sign. The

Toyota turned right onto 3rd Street and the officers followed. They activated

the lights and sirens on the police vehicle, and the Toyota immediately pulled

over to the curb.

Merced illuminated the interior of the Toyota with his spotlight. He

observed the front passenger lean forward and make what he described as

"furtive movements." It appeared to Mercer as if the front passenger was trying

to conceal something beneath his seat. The other individuals were just sitting in

the car waiting for the officers to approach.

The officers exited their patrol vehicle. Merced approached the Toyota

on the driver's side, and Fernandez approached the car on the passenger side.

Merced attempted to speak with the driver. As he was doing so, the front

passenger, who was later identified as defendant, asked repeatedly why they

were being stopped.

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 Merced asked the driver to step out of the vehicle. She did so willingly.

Merced and the driver walked to the rear of the Toyota. Defendant asked why

the driver had to exit the car, since she had only run a stop sign. The driver was

charged with careless driving and failing to stop at a stop sign.

Meanwhile, Fernandez remained by the passenger side of the Toyota,

where she shined her flashlight into the car. Fernandez testified that she

observed "defendant kicking a white plastic bag that was located near his feet,

trying to get it out of [her] view." At around that time, officers Ronnie

Villalobos, Francisco Urena, and Roberto Oquendo of the PPD arrived as

backup.

Villalobos stood in front of the Toyota to watch the passengers inside,

using his flashlight. He noted that defendant appeared nervous and fidgety, and

he was moving his feet in a backwards direction. Villalobos also observed a

white plastic bag behind defendant's heels. Villalobos testified that when

Merced had the driver exit the car, defendant screamed, "shut the fuck up, shut

up, you don't have to say anything."

After Merced spoke with the driver, he returned to speak with the rear

passenger, who was later identified as the driver's daughter. She provided the

officer with a false name. She was later arrested and charged with several

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offenses. At that point, Villalobos heard defendant scream again: "shut the fuck

up, you don't have to tell them anything, they don't have a – they don't have a

warrant."

Merced obtained identifying information from defendant and checked

with the dispatcher to determine if defendant had any active warrants. After

dispatch informed Merced defendant had no such warrants, Merced told

defendant he could leave. As defendant was exiting the Toyota, Merced was

standing near the front passenger door with his flashlight. Near the front

passenger seat, Merced observed a white bag with the barrel of a handgun

extending from it. Merced called out, "gun, gun."

Villalobos ran to the passenger side of the Toyota and restrained

defendant. Merced retrieved the weapon, removed the bullets, and placed

defendant under arrest. The gun was a Glock 17 nine-millimeter handgun with

thirteen rounds of ammunition in the magazine and one in the chamber.

A grand jury later charged defendant with second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); third-degree receiving

stolen property, N.J.S.A. 2C:20-7 and -2(b)(2)(b) (count two); fourth-degree

possession of a prohibited device, N.J.S.A. 2C:39-3(f) (count three); and

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second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count

four).

Defendant filed a motion to suppress the evidence obtained in the search

of the vehicle. The judge conducted an evidentiary hearing on the motion. The

judge determined that the officers had lawfully seized the weapon and denied

the motion. The trial in the matter commenced on March 21, 2017. After the

jury was selected, the State decided to proceed only on count four of the

indictment, charging defendant with certain persons not to have weapons, in

violation of N.J.S.A. 2C:39-7(b).

During the evidentiary portion of the trial, the State presented testimony

from Merced, Fernandez, Villalobos, Detective David Ware of the Passaic

County Prosecutor's Office, and Antonio Pereira, a ballistics expert from the

Newark Police Department. After the State rested, defendant moved for a

judgment of acquittal. The trial judge denied the motion.

The jury found defendant guilty of the certain persons offense. The judge

thereafter granted the State's motion for imposition of a discretionary extended

term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The judge

sentenced defendant to a fourteen-year term of incarceration, with a seven-year

period of parole ineligibility. This appeal followed.

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 On appeal, defendant argues:

POINT I
LATE DISCLOSURE OF PERTINENT DISCOVERY
INFORMATION DENIED [DEFENDANT] A FAIR
TRIAL.

POINT II
THE WARRANTLESS STOP AND SEARCH OF THE
MOTOR VEHICLE VIOLATED DEFENDANT'S
RIGHT TO BE FREE FROM UNLAWFUL SEARCH
AND SEIZURE GUARANTEED BY THE NEW
JERSEY AND THE UNITED STATES
CONSTITUTIONS.

POINT III
COMMENTS BY THE PROSECUTOR ON FACTS
NOT IN EVIDENCE DEPRIVED DEFENDANT OF A
FAIR TRIAL.

POINT IV
THE CHARGE TO THE JURY ON CERTAIN
PERSONS NOT TO HAVE WEAPONS WITHOUT
SANITIZATION OF THE PREDICATE
CONVICTION WAS ERROR.

POINT V
THE EXTENDED TERM SENTENCE IMPOSED BY
THE COURT OF FOURTEEN (14) YEARS WITH
SEVEN (7) YEARS OF PAROLE INELIGIBLITY
WAS EXCESSIVE AND SHOULD BE REDUCED.

II.

Defendant first argues that he was denied a fair trial due to the State's late

disclosure of certain information. We disagree.

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 The record shows that jury selection began on March 21, 2017. On March

23, 2017, during a pretrial interview, Villalobos told the assistant prosecutor that

during the motor vehicle stop on July 30, 2014, defendant screamed, "what the

fuck," and told the driver that she did not have to let the police look in the car

without a warrant. Villalobos also told the assistant prosecutor that defendant

stated that he was not trying to move his feet to hide the white bag. The assistant

prosecutor then disclosed this information to defense counsel, who asserted that

the State had violated the discovery rules by failing to disclose these statements

earlier.

On March 27, 2017, as jury selection was continuing, defense counsel

sought to bar Villalobos from testifying about the statements. The judge denied

the application and ruled that the State could present the evidence at trial. The

judge stated that since jury selection was still continuing, the defense had

sufficient time to address this new evidence.

Jury selection was completed on March 28, 2017. On that date, defense

counsel advised the judge that the assistant prosecutor had disclosed additional

information she obtained during a pretrial interview with Merced. The assistant

prosecutor reported that when Merced approached the Toyota, defendant said,

"come on, you know who I am." The next day, before the jury was sworn, the

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assistant prosecutor also stated that Fernandez had informed her that she saw

defendant get into the Toyota carrying a white bag. The State did not, however,

present this evidence at trial.

On appeal, defendant argues that the State violated the discovery rules,

and the trial judge erred by failing to take appropriate action to address the

violation. Defendant asserts that he was prejudiced by the State's failure to

disclose the statements he allegedly made to Villalobos during the motor vehicle

stop in a timely manner. He also contends that in her summation, the assistant

prosecutor relied heavily on the statements Villalobos attributed to defendant .

He claims he did not have sufficient time to prepare his defense. He argues that

because of the late discovery, he rejected the State's plea offer.

The court rules require the State to make discovery available to defense

counsel "upon the return or unsealing of the indictment." R. 3:13-3(b)(1).

"Discovery . . . includes exculpatory information or material," R. 3:13-

3(b)(1)(A), and includes "any admissions or declarations against penal interest

made by the defendant that are known to the prosecution but not recorded." R.

3:13-3(b)(1)(B).

Moreover, the State has "a continuing duty to provide discovery pursuant

to this rule." R. 3:13-3(f). Therefore,

A-4920-16T3
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 [i]f at any time during the course of the proceedings it
is brought to the attention of the court that a party has
failed to comply with this rule . . . it may order such
party to permit the discovery of materials not
previously disclosed, grant a continuance or delay
during trial, or prohibit the party from introducing in
evidence the material not disclosed, or it may enter such
other order as it deems appropriate.

[Ibid.]

"A court's failure to take appropriate action to remedy a discovery

violation can implicate the defendant's right to a fair trial." State v. Smith, 224

N.J. 36, 48 (2016) (citing State v. Clark, 347 N.J. Super. 497, 507, 510 (App.

Div. 2002)). That right includes "a meaningful opportunity to present a

complete defense." Ibid. (quoting State v. Garron, 177 N.J. 147, 168 (2003)).

Here, the record shows that the assistant prosecutor disclosed the

information learned from Villalobos shortly after she learned of this information

during her pretrial interview with him, which was six days before the trial

testimony began on March 29, 2017. Defendant has not established that the

statements attributed to him were unduly prejudicial. He also has not shown

that the State's failure to disclose this evidence earlier deprived him of the ability

to present a complete defense, or affected his ability to evaluate the State's plea

offer.

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 We note that Merced had testified at the pretrial suppression hearing about

the motor vehicle stop and the discovery of the weapon in the car. Therefore,

defendant was well aware of the substance of the evidence the State intended to

present at trial, which included the movements of the passengers in the car,

defendant's disruptive conduct, and the recovery of the loaded gun under

defendant's seat. The statements that Villalobos attributed to defendant were

not essential to the State's proofs.

We therefore reject defendant's contention that because the State delayed

in producing the statements in discovery, he was denied a fair trial or a fair

opportunity to evaluate the State's plea offer.

III.

Defendant next argues that the trial judge erred by denying his motion to

suppress the evidence seized in the Toyota. We disagree.

Where, as in this case, the trial court denies a defendant's motion to

suppress, we defer to the court's findings of fact "so long as those findings are

supported by sufficient credible evidence in the record." State v. Handy, 206

N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).

Deference is afforded "because the 'findings of the trial judge . . . are

substantially influenced by his [or her] opportunity to hear and see the witnesses

A-4920-16T3
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and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State

v. Reece, 222 N.J. 154, 166 (2015) (first alteration in original) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)).

"An appellate court should disregard those findings only when a trial

court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249,

262 (2015) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). The legal

conclusions of a trial court are, however, reviewed de novo. Id. at 263 (citing

State v. Gandhi, 201 N.J. 161, 176 (2010)).

The Fourth Amendment to the United States Constitution and Article 1,

paragraph 7 of the New Jersey Constitution protect persons from unreasonable

searches and seizures. Warrantless searches are presumed invalid, but the State

may overcome that presumption by showing that the search fell within one of

the recognized exceptions to the warrant requirement. See State v. Hill, 115

N.J. 169, 173-74 (1989) (citing State v. Patino, 83 N.J. 1, 7 (1980)).

On appeal, defendant argues that the officers did not have a reasonable,

articulable suspicion to undertake an investigative stop of the vehicle. However,

in this case, the officers did not make an investigatory stop. The officers stopped

the vehicle because they observed the driver of the Toyota violate the laws

governing the operation of motor vehicles in this State.

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 We note that "[a] motor vehicle violation, no matter how minor, justifies

a stop without any reasonable suspicion that the motorist has committed a crime

or other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div.

2011) (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). Here, it is

undisputed that the driver of the Toyota drove past the stop sign at 4th and

Mercer Streets without coming to a complete stop. Therefore, the officers were

justified in stopping the vehicle.

Defendant argues the police did not have probable cause to undertake a

warrantless search of the automobile. The record shows, however, that the

officers seized the weapon in the car pursuant to the plain view exception to the

warrant requirement.

That exception allows the police to seize contraband in plain view without

a warrant if three requirements are met: "(1) the officer must be lawfully in the

viewing area when making the observation; (2) 'the discovery of the

evidence . . . must be inadvertent,'" State v. Gonzales, 227 N.J. 77, 91 (2016)

(alteration in original) (citation omitted) (quoting Coolidge v. New Hampshire,

403 U.S. 443, 469 (1971) (plurality opinion)); and (3) the "police officer must

have 'probable cause to associate the property with criminal activity.'" State v.

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Bruzzese, 94 N.J. 210, 237 (1983) (quoting Texas v. Brown, 460 U.S. 730, 738

(1983)).1

Furthermore, an "observation into the interior of an automobile by a police

officer located outside the automobile is not a 'search' within the meaning of the

Fourth Amendment." State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.

2013) (quoting State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987)).

When an officer seizes contraband in plain view from an automobile, "it [is] not

necessary for the State to establish exigent circumstances under the automobile

exception." Id. at 537 (citing State v. Pena-Flores, 198 N.J. 6, 32 (2009)).

In this case, the motion judge found that Merced was lawfully within the

viewing area because the motor vehicle stop was lawful, that Merced's discovery

of the gun was inadvertent, and that it was apparent the weapon was associated

with criminal activity. There is sufficient credible evidence in the record to

support the judge's determination that the plain view exception applied and the

officers lawfully seized the weapon.

1
In Gonzales, the Court eliminated the inadvertence prong of the plain view
exception. Gonzales, 227 N.J. at 99. However, the Court applied that new rule
of law prospectively as of the date of the opinion—November 15, 2016. Id. at
77, 101. The search at issue in this case took place on July 30, 2014. Therefore,
we analyze the officers' actions under the standard that applied before Gonzales
was decided.
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 IV.

Defendant argues that in summation, the assistant prosecutor made

comments about facts that were not in evidence. He contends the prosecutor's

remarks deprived him of a fair trial. Again, we disagree.

At summation, the assistant prosecutor discussed the second prong of the

certain persons offense: whether the defendant purchased, owned, possessed, or

controlled the firearm. The assistant prosecutor then made the following

comments:

For a minute, imagine you get – you get into a car.
Okay? You know that you have a bag, and you put the
bag underneath you. You don't want anybody else to
know what the bag is, because you know what is in that
bag is illegal. You're not allowed to have that bag.

After the assistant prosecutor completed her summation, defendant's

attorney objected and argued that the assistant prosecutor's remarks assumed

facts not in evidence, specifically, that defendant entered the Toyota with the

gun. The assistant prosecutor argued that she had used a hypothetical to make

her point, and this is permitted in a closing argument. The trial judge then

instructed the jury:

Okay. Members of the jury, let me just remind you this.
That I told you a few times that, and I'll reiterate again,
that anything either one of the lawyers says in
summation is not evidence, you know.

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 Number two, a lawyer's recollection, either side,
recollection of the facts if it does not comport with your
recollection it is your collective recollection that
counts.

And, number three, the prosecutor indicated in
her summation that imagine the – imagine you getting
into a car with a white bag and contraband in it or – or
a gun. I just want to remind you again that it's your
recollection of any facts that were testified to that
count.

So, . . . there is no testimony in this case that the
defendant was seen getting into the car with a white
bag. But if you heard that, that's your recollection. I
don't recall that, but in any event it's your recollection
that counts. Okay? All right.

On appeal, defendant argues that the prosecutor's comments deprived him

of a fair trial because her hypothetical was based on Fernandez's observations

of defendant getting into the Toyota, which the judge had excluded because of

its late disclosure. Defendant claims that the prosecutor's comments were an

improper attempt to bolster the State's case on the issue of possession of the

weapon.

"[P]rosecutors are permitted considerable leeway to make forceful,

vigorous arguments in summation." State v. Nelson, 173 N.J. 417, 472 (2002)

(citing State v. Chew, 150 N.J. 30, 84 (1997)). When reviewing a prosecutor's

comments, the court must assess the comments "in the context of the entire trial

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record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998)). Even if

the prosecutor's comments constitute misconduct, the misconduct will not be

grounds for "reversal unless it [was] 'so egregious that it deprived the defendant

of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.

Frost, 158 N.J. 76, 83 (1999)).

A prosecutor cannot make direct comments on facts not in evidence, nor

may the prosecutor draw unreasonable inferences from the evidence. See State

v. T.J.M., 220 N.J. 220, 236 (2015). In this case, the State presented evidence

showing the white bag with the weapon on the floor of the car where defendant

was sitting; however, the State did not present any direct evidence or testimony

establishing that defendant entered the car with the bag. Even so, based on all

the evidence, it would not have been unreasonable for the jury to infer that

defendant had entered the car with the bag.

In any event, even if the prosecutor erred by commenting about a person

entering a car with a bag, the comments were not clearly and unmistakably

improper. The prosecutor prefaced her comments by noting that she was using

a hypothetical to make her point. Moreover, the comment was made in the

context of a discussion of other evidence the State had presented showing

defendant's consciousness of guilt, which included his movements in the car and

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his disruptive behavior. Furthermore, the judge's instruction eliminated any

potential for prejudice from the prosecutor's comments. We therefore reject

defendant's contention that the prosecutor's remarks deprived him of a fair trial.

V.

Defendant further argues that the judge's instruction to the jury on the

certain persons charge was flawed because the judge did not sanitize the

evidence of the predicate offense.

Here, defendant refused to stipulate to the predicate offense. During the

pretrial conference, the trial judge decided that he would include the statutory

citation of the predicate offense in the jury charge so that the State could meet

its burden of proving beyond a reasonable doubt that element of the certain-

persons charge.

At the trial, the State introduced a certified copy of a JOC, which stated

that defendant had been convicted on January 12, 2001, of knowingly possessing

a defaced firearm, in violation of N.J.S.A. 2C:39-3(d), a fourth-degree offense.

In summation, the assistant prosecutor noted that this evidence established a

predicate offense for the certain persons charge.

In his final instructions to the jury, the judge discussed the elements of the

certain persons charge, and referenced the unredacted predicate offense. The

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judge stated that in order for the jury to find defendant guilty, the State had to

prove all elements of the offense beyond a reasonable doubt. The judge said the

State had to prove that "Exhibit S-3 is a firearm[,]" and that "defendant

purchased, owned, possessed, or controlled the firearm on July 30th, 2014." The

judge also said that the State had to prove that "defendant is a person who has

been previously convicted of a crime of the fourth degree, specifically [N.J.S.A.]

2C:39-3[(d)]."

On appeal, defendant argues that the instruction was inconsistent with

State v. Brown, 180 N.J. 572, 585 (2004), where the Court held that "[i]f the

defendant does not stipulate [to the predicate offense], then the trial court should

sanitize the offense or offenses and limit the evidence to the date of the

judgment." However, in State v. Bailey, 231 N.J. 474, 490 (2018), the Court

overruled Brown and "h[e]ld that a certain persons conviction cannot stand

without proof that a defendant has been previously convicted of an offense

specifically enumerated in the certain persons statute." The Court determined

that if a defendant refused to stipulate to a predicate offense, the State must

produce the JOC, "with the unredacted nature of the offense, the degree of

offense, and the date of conviction." Id. at 490-91.

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 Defendant recognizes that Bailey overruled Brown, but argues that we

should nevertheless apply Brown because his trial took place before Bailey was

decided. We cannot agree. In Bailey, the Court found that the "over-

sanitization" required by the model jury charge adopted after Brown "prevents

a jury from finding beyond a reasonable doubt a required element of the certain

persons offense – a clear constitutional infirmity." Id. at 488-89.

In this case, the trial court followed the procedure that the Court in Bailey

found to be constitutionally required. We therefore reject defendant's contention

that we should vacate his conviction and remand for a new trial using the

framework expressly rejected in Bailey.

VI.

Defendant also challenges his sentence. Defendant does not dispute that

he met the criteria for imposition of a discretionary extended term as a persistent

offender, pursuant to N.J.S.A. 2C:44-3(a). He argues, however, that the

sentence imposed is excessive.

The scope of our 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) (citing State v. Jarbath, 114 N.J. 394, 401

(1989)). "The reviewing court must not substitute its judgment for that of the

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sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v.

O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm a sentence unless:

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

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

Where, as here, a defendant is eligible for an extended term under N.J.S.A.

2C:44-3(a), the court is authorized to impose a sentence that is within a range

that "reaches from the bottom of the original-term range to the top of the

extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The ordinary

term for the certain persons offense is between five years and ten years, N.J.S.A.

2C:43-6(a)(2); and the extended term for the offense is between ten and twenty

years. N.J.S.A. 2C:43-7(a)(3).

When sentencing defendant, the judge found aggravating factor three,

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six,

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

seriousness of the offenses for which he has been convicted); and nine, N.J.S.A.

2C:44-1(a)(9) (need to deter defendant and others from violating the law). The

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judge noted that defendant's prior criminal record, which includes six prior

indictable convictions, was "atrocious." The judge found no mitigating factors.

As stated previously, the judge sentenced defendant to fourteen years of

incarceration, with a seven-year period of parole ineligibility.

On appeal, defendant contends the State overreached in seeking an

extended term because the ordinary minimum for the certain persons offense is

five years of incarceration, with five years of parole ineligibility. He

acknowledges that he has prior convictions. He asserts, however, that except

for the predicate weapons offense, the prior convictions were for drug offenses.

He also asserts that he did not brandish the weapon. It was found during a motor

vehicle stop. He contends the judge should have imposed a five-year prison

term, with five years of parole ineligibility.

We are convinced, however, that the trial judge followed the sentencing

guidelines and the sentence imposed here does not represent an abuse of

discretion. As noted, defendant's criminal record included six prior indictable

convictions, including a prior weapons offense. We therefore reject defendant's

contention that his sentence is excessive.

Affirmed.

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