STATE OF NEW JERSEY VS. CARL L. DIXON (14-10-0915, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5546-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL L. DIXON, a/k/a
SHAWN HARTWELL,
CARLE JR L. DIXON,
CARLE DIXON, SHAWN
HARTWELL JR, SHAWN NJ,
MARCUS KING, CARL
DIXON, LAXIR DIXON,
and JOSHUA DURHAM,

Defendant-Appellant.
_____________________________

Submitted September 13, 2018 – Decided March 7, 2019

Before Judges Koblitz, Ostrer and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-10-0915.

Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Deputy Public Defender II, of
counsel and on the brief).
 Gurbir S. Grewal, Attorney General, attorney for
respondent (Arielle E. Katz, Deputy Attorney General,
of counsel and on the brief).

PER CURIAM

A jury convicted defendant Carl L. Dixon of second-degree robbery, as a

lesser-included offense of first-degree robbery, and simple assault, as a lesser-

included offense of aggravated assault, and acquitted him of related weapons

offenses. After merger, the court imposed a nine-year term of imprisonment,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Appealing his

conviction, defendant contends, as plain error: the court failed to bar questioning

about his pre-arrest silence; the court allowed the State to introduce into

evidence defendant's prior recorded statement which contained prejudicial

information; and the court delivered a confusing and prejudicial jury charge. He

also contends his sentence was excessive. Having considered these arguments

in light of the record and applicable principles of law, we affirm.

I.

At around 6:30 p.m. on a Friday in late July, Joseph Tawiah was robbed

as he returned to his post as a security guard of an auto-part shipping business

in Elizabeth. Several minutes before, Tawiah had cashed his paycheck at a

check casher. A man named Billie Jett had driven him and other coworkers

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there. Upon returning, Tawiah walked to a corner store and bought some food

and groceries. As he walked back to his workplace, a man behind him called

out and ran to catch up with him. Tawiah said he thought the man needed help .

He led the man into his booth at the entrance to the auto yard. Once inside, the

man brandished a knife and demanded money; he punched Tawiah in the face,

splitting open his cheek, as he grabbed him around the neck. He then took

Tawiah's money and fled. Tawiah later identified defendant without reservation

from a photo array and in court. Tawiah said he got a good look at defendant

when he approached him that night and while in the booth.

Jett testified that he and a friend sat outside the auto yard entrance in his

car after shuttling the workers to the check casher. He saw a person matching

defendant's physical description – tall, light-skinned African American, with

dreadlocks – standing near the auto yard, laughing with a second, shorter man

with a darker complexion. The two then fled the scene. Fifteen to twenty

minutes later, Tawiah emerged from the booth with a bloody face.

A female friend of defendant from the neighborhood testified that she

provided a false alibi for defendant at his behest. In her statement to police, she

falsely claimed she spent most of the day and night with defendant and was with

him at the time the robbery took place.

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 Defendant testified in his own defense. He said he saw Tawiah in the

corner store, where defendant had gone with his female friend after spending

time with her at a local park. Defendant noticed that Tawiah had a lot of cash

when he paid for his items. Defendant claimed Tawiah asked him for drugs, and

that Tawiah had purchased drugs in the past from a male friend whom defendant

had often accompanied. Defendant told Tawiah he had none, and suggested he

talk to a group of young men standing outside the store, a short distance away.

As defendant left the store, he saw Tawiah and two young men – one of whom

was tall, light-skinned, and had dreadlocks, much like defendant – walk up the

hill toward Tawiah's workplace; the other man was shorter and darker. Alone,

defendant walked to two liquor stores, then returned to his female friend's house

to chat on her porch.

Defendant's credibility was challenged on several grounds. He had an

extensive criminal record that was elicited on direct examination in sanitized

form. During post-arrest questioning eight days after the robbery, defendant

admitted that he heard about the robbery shortly after it occurred from his drug-

dealer-friend, and that Tawiah had identified him. The State elicited on cross-

examination that defendant did not voluntarily go to the police to exonerate

himself and point the blame at the other two young men. Defendant claimed he

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was afraid to inculpate another; so, during his custodial interview, he asked to

speak to the officers outside the view of the interrogation room's video cameras.

However, an officer testified that during the break, defendant did not address

the robbery at all. Only after they reconvened before the video camera did

defendant point the finger at the two men. The State played the video-recording

of the interrogation at trial.

Defendant also admitted that a year after his arrest, he drafted a letter for

his female friend to submit to the State, falsely claiming that she left the corner

store with defendant, accompanied him to a single liquor store, then returned

with him to her house, where he stayed the rest of the night. The friend agreed

and composed a letter following his draft with minor stylistic changes.

However, after she sent it, she regretted doing so, and admitted that defendant

had left her company for as much as a half-hour after saying he was going to the

liquor store. That period coincided with the time of the robbery. Defendant said

he asked the young woman to lie for him because he was afraid no one would

believe his story.

On the other hand, the young woman insisted she truthfully reported that

she observed a man approach defendant in the store and ask for drugs, and

defendant directed him to the young men standing outside. The defense also

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highlighted that defendant's story was consistent with Jett's testimony, as he also

saw two men, not one, outside the auto yard gate, who matched the defendant's

description of the two men. Notably, Tawiah mentioned only one assailant.

The defense also highlighted an inconsistency between Jett's and Tawiah's

testimony. While Jett testified that Tawiah approached him with a bloody face

and said he fell down the stairs, Tawiah insisted that he told Jett and others that

he was robbed. The defense also stressed that Tawiah delayed reporting the

robbery because, he claimed, he was afraid of being fired. The day after the

robbery, Tawiah told his supervisor what happened, and the supervisor told him

to report it, which he did.

II.

Defendant raises the following points for our consideration:

POINT I

THE PROSECUTOR'S REPEATED QUESTIONING
OF DIXON ABOUT HIS FAILURE TO COME
FORWARD TO THE POLICE WITH
EXCULPATORY INFORMATION DEPRIVED HIM
OF A FAIR TRIAL. (Not Raised Below).

POINT II

THE COURT ERRED IN PERMITTING THE STATE
TO INTRODUCE DIXON'S ENTIRE UNREDACTED
TWO-PART STATEMENT ON REBUTTAL. (Not
Raised Below).

A-5546-15T3
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 POINT III

THE COURT'S JURY CHARGE REGARDING
DIXON'S TWO LETTERS TO [HIS FEMALE
FRIEND] WAS BOTH CONFUSING AND
PREJUDICIAL, AND WOULD NECESSARILY
HAVE TAINTED THE JURY'S DELIBERATIONS.
(Not Raised Below).

POINT IV

THE NINE-YEAR TERM IMPOSED PURSUANT TO
THE NO EARLY RELEASE ACT WAS
MANIFESTLY EXCESSIVE.

III.

Defendant did not object to the State's questioning about his silence; its

introduction of defendant's entire recorded custodial statement; or the court's

jury instruction. Therefore, we consider all three issues as asserted plain error,

that is, whether the error was "of such a nature as to have been clearly capable

of producing an unjust result." R. 2:10-2. In the context of jury instructions,

plain error is a "legal impropriety . . . prejudicially affecting the substantial

rights of the defendant and sufficiently grievous to . . . convince the court that

of itself the error possessed a clear capacity to bring about an unjust result."

State v. Hock, 54 N.J. 526, 538 (1969); accord State v. Montalvo, 229 N.J. 300,

320-21 (2017). Not any possibility of an unjust result will suffice as plain error,

only one "sufficient to raise a reasonable doubt as to whether the error led the

A-5546-15T3
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jury to a result it otherwise might not have reached." State v. Macon, 57 N.J.

325, 336 (1971).

Our Supreme Court has "insisted that, in opposing the admission of

evidence a litigant must 'make known his position to the end that the trial court

may consciously rule upon it.'" State v. Robinson, 200 N.J. 1, 19 (2009)

(quoting State v. Abbott, 36 N.J. 63, 76 (1961)). The time to object to a jury

instruction is before the jury deliberates. State v. Funderburg, 225 N.J. 66, 79

(2016). While we retain the "authority to 'notice plain error not brought to the

attention of the trial court[,]' provided it is 'in the interests of justice' to do so,"

that authority is "not intended to supplant the obvious need to create a complete

record and to preserve issues for appeal." Robinson, 200 N.J. at 20 (quoting R.

2:10-2). Otherwise, the standard of Rule 2:10-2 would "render as mere

surplusage the overarching requirement that matters be explored first and fully

before a trial court." Ibid.

Applying these principles, we conclude that none of the alleged errors

were clearly capable of producing an unjust result.

A.

We turn first to the prosecutor's questioning of defendant. As noted, on

cross-examination, the prosecutor elicited that defendant did not speak to the

A-5546-15T3
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police about the robbery until he was arrested, although he learned about it the

day after it occurred. After eliciting that defendant was "out and about" each

day between the robbery and his arrest eight days later, the prosecutor asked,

"And all along you knew who had committed this robbery, right?"

At that point defense counsel stated, "I'm going to object," but before the

court ruled, defendant answered the question, "Not exactly. I know that I was

--" Defense counsel then withdrew his objection, apparently satisfied with his

client's answer. The prosecutor then confirmed that defendant could describe,

even if he could not name, two men he believed committed the robbery, but he

did not disclose that to police until his questioning. The prosecutor also elicited

that although defendant asked his female friend to submit a written statement,

he never voluntarily provided one of his own.

We reject defendant's contention that the prosecution improperly elicited

defendant's pre-arrest silence to impeach him. Although a limiting instruction

was warranted, we discern no plain error in the court's failure to deliver one.

"[A] defendant has no right not to speak . . . [and] no duty to speak prior

to arrest." State v. Brown, 118 N.J. 595, 613 (1990). It does not violate the

right against self-incrimination to admit evidence of pre-arrest silence "if, when

viewed objectively and neutrally in light of all circumstances, it generates an

A-5546-15T3
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inference of consciousness of guilt that bears on the credibility of the defendant

when measured against the defendant's apparent exculpatory testimony." Id. at

615. The court must consider "the probative worth of pre-arrest silence as

bearing on credibility . . . in light of all the surrounding circumstances." Id. at

613.

The court may admit evidence of pre-arrest silence if "a reasonable person

situated as the defendant, prior to arrest, would naturally have come forward and

mentioned his or her involvement in the criminal episode, particularly when this

is assessed against the defendant's apparent exculpatory testimony." Ibid.; see

also State v. Taffaro, 195 N.J. 442, 455 (2008) (holding that the State may

impeach a defendant with his pre-arrest silence if it "'significantly' preceded the

arrest" outside "a custodial or interrogation setting" and "a jury could infer that

a reasonable person in the defendant's position would have come forward and

spoken") (quoting State v. Muhammad, 182 N.J. 551, 571-72 (2005)).

The State may not use pre-arrest silence in its case-in-chief; the State must

wait until a defendant testifies and has the chance to explain his silence. State

v. Brown, 190 N.J. 144, 159-60 (2007); State v. Marshall, 260 N.J. Super. 591,

597 (App. Div. 1992). Also, the State may not use pre-arrest silence "as

A-5546-15T3
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substantive evidence of a defendant's guilt." State v. Stas, 212 N.J. 37, 58

(2012).

Applying these principles, we discern no error, let alone plain error, in the

State's questioning to elicit defendant's pre-arrest silence. The silence

significantly preceded defendant's arrest. A fact-finder could infer that a

reasonable person in defendant's position, after learning that an acquaintance

mistakenly accused him of assault and robbery, would attempt to exonerate

himself rather than sit idly by until the police found him. While defendant's

silence may have had other reasonable explanations, that was a matter for the

jury to determine. See Brown, 118 N.J. at 615 (noting that whether defendant's

pre-arrest silence "entailed a consciousness of guilt, a desire not to become

involved, a feeling that it was simply unnecessary, or a belief that he had already

fulfilled whatever duty he had – was a matter, ultimately, for the jury in

assessing [the defendant]'s credibility").

We recognize that when evidence of pre-arrest silence is properly

admitted, "the trial court should instruct the jury that the evidence of defendant's

pre-arrest conduct or silence is admitted for the limited purpose of impeaching

defendant's credibility and that it cannot be used as evidence of defendant's

guilt." Brown, 190 N.J. at 159; see also Brown, 118 N.J. at 616 & n.3 (noting

A-5546-15T3
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that the court carefully instructed the jury that the pre-arrest silence was relevant

only to credibility and not probative of the defendant's guilt).

However, the failure to give a limiting instruction does not invariably

constitute plain error. The Court in the 2007 Brown case rejected a plain error

claim, concluding that "[t]he prosecutor's questions concerning defendant's pre-

arrest conduct or silence were intended to impeach defendant's story and assist

the jury in evaluating the credibility of defendant's . . . testimony." 190 N.J. at

160-61.

We reach the same conclusion here. The prosecutor's line of questioning

was evidently designed to cast doubt about the veracity of defendant's claims

that Tawiah mistook him for the robber because he knew defendant from prior

drug deals, and that defendant only learned about the robbery the following day

from a friend. Notably, the prosecutor did not highlight defendant's pre-arrest

silence in her summation, focusing instead on more powerful evidence that

challenged defendant's credibility and established guilt. The prosecutor noted

that defendant gave inconsistent statements; he admittedly asked his female

friend to lie for him; Tawiah unqualifiedly identified him; Jett saw a man

resembling defendant leave the scene; and defendant had an opportunity to

commit the crime, having left his female friend for as much as a half-hour after

A-5546-15T3
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seeing Tawiah display a large amount of cash in the store. In sum, the absence

of a limiting instruction was not plain error.

B.

We also discern no merit to defendant's argument that the court sua sponte

should have barred the prosecution from playing defendant's custodial

interview. Defendant contends the material exceeded the scope of rebuttal

evidence and contained prejudicial admissions about his prior criminal

activities. We are unpersuaded.

Consistent with its "control over the mode and order of interrogating

witnesses," N.J.R.E. 611(a), the trial court exercises "a wide range of discretion

regarding the admissibility of proffered rebuttal evidence." Weiss v. Goldfarb,

295 N.J. Super. 212, 225 (App. Div. 1996), rev'd in part on other grounds, 154

N.J. 468 (1998). Although rebuttal evidence "[o]rdinarily . . . is confined to the

contradiction of specific subjects introduced on direct or cross-examination of

defense witnesses," the court retains broad discretion to permit any "evidence

[that] would properly have been admissible in chief." State v. Provoid, 110 N.J.

Super. 547, 557 (App. Div. 1970). An appellate court shall intervene on ly in

the case of a gross abuse of discretion. Ibid.

A-5546-15T3
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 No abuse of discretion occurred here. On direct and cross-examination,

defendant presented his version of his whereabouts the day of the robbery. He

introduced his connection to a drug-dealer friend as the reason Tawiah

approached him for drugs. He addressed his attempt to procure a false alibi from

his female friend, and he disclosed his significant prior criminal record. 1

Defendant contended that he wanted to tell the truth but was reluctant to accuse

others while on video, so he asked for a break and told the officers off camera

about the young men he suspected may have committed the robbery. He also

admitted that he did not disclose to the police some of the details he discussed

on the witness stand.

In rebuttal, the State called one of the interrogating officers, who disputed

defendant's testimony. The officer said that during the break, defendant offered

information about unrelated crimes. The officers were not interested, and the

recorded interrogation resumed. The State also introduced into evidence the full

DVD of the two recorded segments, with certain redactions. Before doing so,

the court asked defense counsel if he objected; he said he did not. The State

then played the DVD for the jury, assisted by a transcript. The recording

1
He did so without identifying the nature of the crimes. The State had agreed
that defendant's convictions would be "sanitized" before defendant took the
stand.
A-5546-15T3
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revealed that during the interrogation, defendant provided a version of the day

of the robbery that differed, in some respects, from his trial testimony. When

the interrogation resumed after the requested break, defendant acknowledged on

the record that the hallway conversation did not pertain to the robbery. The

recorded interrogation also referenced, in passing, defendant's prior criminal

record, including identifying it as drug-related.

The admission of the recorded statement involved no error, let alone plain

error. The discussion of defendant's criminal record caused defendant no

significant prejudice, as he was not charged with a drug-related crime, and he

had already admitted that he had a criminal record and associated with a drug

dealer. See N.J.R.E. 609(a)(2) (permitting admission of unsanitized conviction

record to impeach a testifying criminal defendant, when the convictions are

dissimilar to the charged offense if the unsanitized record does not pose a risk

of undue prejudice, or the defendant waives objection to the unsanitized record).

The court also delivered the model charge on the proper use of prior convictions,

warning the jury against using defendant's prior convictions as evidence of guilt

in this case.

Furthermore, defense counsel referenced the recorded interview in

summation, demonstrating that the defense decision not to object was strategic.

A-5546-15T3
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In particular, defense counsel highlighted that defendant's description, in his

recorded interview, of the two young men who walked off with Tawiah matched

Jett's account, although defendant had no idea of Jett's statement. See State v.

Marshall, 123 N.J. 1, 93 (1991) (stating that "except in the most extreme cases,

strategic decisions made by defense counsel will not present grounds for reversal

on appeal").2

C.

Defendant also contends the court delivered an erroneous jury instruction

regarding evidence of defendant's effort to procure a false alibi through his

female friend. In particular, defendant contends the court erred by instructing

the jury that it could use that evidence to assess defendant's credibility.

Defendant argues this ran afoul of N.J.R.E. 608(a), which prohibits proof of "a

trait of character . . . by specific instances of conduct." He also contends the

court mischaracterized the draft letter as a prior inconsistent statement.

2
Defendant also contends that his attorney was ineffective in failing to object
to the introduction of the recorded interrogation. We shall not reach the issue ,
which defendant did not raise under a separate point heading, as Rule 2:6-2(a)(6)
requires. See Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J.
Super. 499, 508 (App. Div. 2011). In any event, as defendant challenges his
counsel's strategy, he should raise his claim in a petition for post-conviction
relief that would enable consideration of facts outside the trial record. See State
v. Castagna, 187 N.J. 293, 374 (2006).
A-5546-15T3
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 We reject defendant's arguments for two reasons. First, defense counsel

expressly invited the court to instruct the jury that the false alibi evidence r elated

to credibility. Second, defendant misplaces reliance on N.J.R.E. 608. The false

alibi letters were not introduced to demonstrate defendant's "character for . . .

untruthfulness." N.J.R.E. 608(a). Rather, they constitute prior inconsistent

statements that demonstrated his lack of credibility about this case.

The prosecutor stated in summation:

So why would an innocent person ask somebody
else to lie for them. [Defense counsel] says there is
plenty of reason. He was desperate. And you know
what, guilty people are desperate. Guilty people are
desperate. That's why he asked her to lie for him and
that's why he asked her to write that letter and say they
were together every single moment after 6:30.

....

Ladies and gentlemen, the defendant committed
this crime. He asked her to lie because he is guilty.

In response, defense counsel asked for a curative instruction.

I'm also going to object to the . . . I wrote it down
so I could quote it. "Guilty people are desperate and
that's why he asked her to write that letter." That letter
is being used for credibility purposes only, not as
substantive . . . evidence in the case. That statement I
think clearly runs contrary to that instruction that you're
going to give.

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 The court then stated it would instruct the jury that "the letter was being

offered for credibility." Defense counsel expressed his satisfaction with the

court's ruling. The judge then stated, in advance of the full final instruction:

Now there is a letter that keeps coming back and
forth and being discussed here. That letter and
reference to desperate people are – are – are making
comments or guilty people are desperate, that should be
disregarded by you in terms of guilt or innocence in this
case. That letter is only being offered to credibility
purposes and I'm going to give you a charge on that
also. So you're not to consider it for substantive
purposes, but you're to consider it and I'll be more
specific when I give you the charge as to credibility.

In the course of the final instructions, the judge returned to the subject of

defendant's effort to procure a false alibi. The court reiterated that defendant's

letters affected his credibility and were not substantive evidence of guilt.

We have in this case written statements, S-18 and
[3]
S-20 in evidence, alleged to have been made by the
defendant. These statements have been introduced by
the prosecution not as evidence of defendant's guilt or
[sic] the crimes charged but to affect his credibility on
the condition that the jury first determine that the
statements were made.

3
S-20 was the letter defendant sent his female friend, asking her to submit a
statement in her name on his behalf; S-18 was the outline he provided to guide
her in drafting the statement.
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The judge then instructed that it was for the jury to determine, as a question of

fact, whether defendant wrote the letters and "whether he intended them to be

an effort to enlist someone to provide a statement on his behalf."

In the final paragraphs of this section of the jury charge, the judge

reiterated that the letters pertained to credibility; also, for the first time, he

introduced the concept of consciousness of guilt:

If you find the defendant wrote the letters and
intended them to be an effort to enlist someone to
provide a statement of his whereabouts then you may
consider them in connection with all the other evidence
in the case as an indication or proof of consciousness of
guilt on the part of the defendant.

If you find the statements were not made then you
must not consider them for any purpose. If you find
that only part of the statement was made then you may
only consider that part as it may affect defendant's
credibility. If you find the statements were made they
may be considered solely to determine the defendant's
credibility if you believe they do in fact affect such
credibility and not as evidence of his guilt.

In this regard in all fairness you will want to
consider all of the circumstances under which the
claimed prior inconsistent statements occurred, the
extent and importance or a lack of importance of the
inconsistency on the overall testimony of defendant as
bearing on his credibility including such factors as
where and when the prior statements occurred, and the
reasons if any therefor[ ].

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 The extent to which defendant's credibility is
affected by such inconsistencies if any is for you to
determine. Consider the materiality and relationship of
such contradictions to the entire testimony and all the
evidence in the case.

[(Emphasis added).]

Defendant does not challenge the use of the letters as evidence of

consciousness of guilt. 4 See State v. Carter, 91 N.J. 86, 119 (1982) (stating that

"consciousness of guilt was suggested by [the defendant's] solicitation of false

alibi testimony"). Nor does defendant complain that the judge, by stating the

letters could not be used as "evidence of guilt," undercut his instruction that the

letters could be used to find consciousness of guilt. Evidence of consciousness

of guilt is evidence of guilt, because "consciousness of guilt . . . [can] support

an inference that [is] inconsistent with innocence or could tend to establish the

defendant's intent." State v. Williams, 190 N.J. 114, 125 (2007).

"Our jurisprudence regarding consciousness-of-guilt evidence derives

from the principle that certain conduct may be 'intrinsically indicative of a

consciousness of guilt,' and may therefore be admitted as substantive proof of

the defendant's guilt." State v. Cole, 229 N.J. 430, 454 (2017) (quoting State v.

4
He contends, "If [the letters] were admissible at all, it was only as potential
evidence of his consciousness of guilt."
A-5546-15T3
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Phillips, 166 N.J. Super. 153, 160 (App. Div. 1979)); see also Williams, 190

N.J. at 125 ("It is universally conceded today that the fact of an accused's flight,

escape from custody, resistance to arrest, concealment, assumption of a false

name, and related conduct, are admissible as evidence of consciousness of guilt,

and thus of guilt itself . . . .") (quoting 2 Wigmore on Evidence § 276 (Chadbourn

rev. 1979)). Thus, the judge's erroneous charge to disregard the letters as

substantive proof of guilt only favored defendant.

Rather, defendant challenges the use of the letters as evidence of

credibility. However, defendant may not complain about the instruction that

defense counsel expressly invited. The invited error doctrine disqualifies trial

errors that defense counsel "induced, encouraged or acquiesced in or consented

to" as grounds for reversal on appeal. State v. Munafo, 222 N.J. 480, 487 (2015)

(quoting State v. A.R., 213 N.J. 542, 561 (2013)). As the Supreme Court stated

in A.R., "This case is not one . . . in which defense counsel merely failed to

object to the course selected by the trial judge," as he, in fact, "actively

encouraged" that course. 213 N.J. at 561. The Court has applied the invited

error doctrine to a defendant's request for specific jury instructions, stating that

"[t]o justify reversal on the grounds of an invited error, a defendant must show

that the error was so egregious as to 'cut mortally into his substanti ve rights.'"

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State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J.

Super. 270, 277 (App. Div. 1974)). No such error was committed here.

Defendant also misplaces reliance on N.J.R.E. 608(a), which bars proof

of a trait of character, such as untruthfulness, by specific instances of conduct.

The judge did not instruct the jury that it could use the letters by which defendant

sought to procure a false alibi to find a general character trait of untruthfulness.

Nor did the State attempt to introduce evidence of prior false statements

pertaining to other cases, or efforts to procure false alibis in response to other

charges.

The false statement that defendant attempted to procure pertained to the

same subject about which he testified. The judge simply stated that the evidence

could affect defendant's credibility. This statement was correct, as the draft

letter defendant provided to his female friend was not only false, it was

inconsistent with defendant's statement to the police and his trial testimony. For

example, in the draft letter, defendant – through his friend – asserted he and his

friend went to one liquor store, and then returned to her house. In his custodial

statement, defendant made no mention of a liquor store at all. At trial, defendant

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stated he went to two stores. N.J.R.E. 608(a) does not bar the introduction of

prior inconsistent statements to challenge a witness's credibility. 5

In sum, the court's instruction does not constitute plain error.

D.

Finally, we shall not disturb the trial court's sentence. The court

appropriately identified and weighed the aggravating and mitigating factors,

imposed a sentence within the allowable range, and did not abuse its discretion.

See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Roth, 95 N.J. 334, 364-66

(1984). In imposing an aggregate nine-year NERA sentence, the court found

aggravating factor three, a risk of reoffending; factor six, the extent of

defendant's prior record; and factor nine, the need to deter. See N.J.S.A. 2C:44-

1(a)(3), (6), (9). The court's findings were appropriately grounded in the record.

Although only twenty-seven years old, defendant already had two prior criminal

convictions. After he violated probation, he was resentenced to a four-year

prison term. He robbed Tawiah less than a month after his release.

5
The trial court's instruction that the false alibi evidence was relevant both to
consciousness of guilt and credibility also comported with the Supreme Court's
holding in the 1990 Brown case that pre-arrest silence may be used for the same
two purposes.
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 Defendant contends that the court should have found and given weight to

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), which requires a finding that

incarceration would impose an "excessive hardship" upon the defendant or his

dependents. The court acknowledged that defendant had attempted to develop

a relationship with his son, but noted that he was not his son's primary caretaker.

The court concluded that while prison inevitably imposes a hardship, it did not

warrant application of factor eleven. We discern no basis to disturb that finding.

See State v. Dalziel, 182 N.J. 494, 505 (2005).

Affirmed.

A-5546-15T3
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