STATE OF NEW JERSEY VS. STEVEN P. RINCK (13-02-0373, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3708-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN P. RINCK,

Defendant-Appellant.
_____________________________

Argued April 12, 2018 – Decided July 23, 2018

Before Judges Simonelli, Rothstadt and Gooden
Brown.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-02-0373.

Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Elizabeth C. Jarit, of counsel and on the
briefs).

Lisa Sarnoff Gochman, Assistant Prosecutor,
argued the cause for respondent (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Lisa Sarnoff Gochman, of counsel and
on the brief).

PER CURIAM
 A jury convicted defendant Steven Rinck, a former police

confidential informant (CI), of kidnapping, robbery and other

crimes he committed while posing as a law enforcement officer and

threatening two of his victims at gunpoint. The trial court

imposed an aggregate extended-term sentence of twenty years,

subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

eighty-five percent period of parole ineligibility.

On appeal from his conviction and sentence, defendant argues

that he was denied a fair trial due to the trial court's (1) denial

of his discovery motions; (2) violation of his right to a speedy

trial; (3) failure to give a limiting instruction about defendant's

prior involvement with guns; (4) failure to sever the trial of the

charges against him; and (5) errors in the court's jury

instructions relating to the kidnapping charges made against him.

He also argues that his sentence was excessive. For the reasons

that follow, we affirm.

I.

The salient facts established at defendant's trial are

summarized as follows. Prior to the day defendant committed the

subject crimes, he had been a CI for the New Jersey State Police

(NJSP), working with its weapons trafficking unit under the

direction of Sergeant Michael Gregory. When he became a CI in

2011, defendant signed an agreement stating, among other

2 A-3708-15T2
restrictions, that as a CI he could only work under the direct

supervision of an officer, could not represent himself as a police

officer to others, and could be charged with a crime if he posed

as a police officer or committed any other illegal offense.

Neither Gregory nor any other police officer were involved with

defendant's actions that led to the charges brought against him

in this case, nor were there any active investigations involving

defendant at the time.

On or before October 21, 2012, defendant spoke with Bhadresh

Patel, the owner of a car wash that defendant frequented.

Defendant had represented to Patel that he was a retired police

officer, which Patel believed as he had seen defendant wearing a

badge. Defendant asked Patel if he could use his car, as

defendant's car was not working, and he needed a car to drive to

a wedding. Because Patel trusted defendant as a police officer,

he gave him his car.

On October 21, 2012, defendant was driving Patel's vehicle

when he claimed he saw twenty-two-year-old Aaron Waldron selling

marijuana from his home. Defendant parked the car and knocked on

Waldron's apartment door. Waldron believed his friend Thomas

Pastor was at the door. However, when he opened the door, he

found defendant, wearing a black leather jacket, a green shirt

with "Sheriff" written across the front, a five-point star badge

3 A-3708-15T2
hanging around his neck and a gun in his belt. While holding a

white piece of paper with a purple stripe on it, defendant told

Waldron that he worked for the Monmouth County Sheriff's

Department, and that he had a warrant to search the apartment.

As defendant entered, he told Waldron that he had observed

someone purchasing drugs from the apartment and that Waldron could

be arrested for drug distribution, but could avoid arrest if he

"snitch[ed] on drug dealers and people who were selling guns[.]"

Defendant asked Waldron to turn over any drugs in his possession,

and Waldron gave him a few small bags of marijuana.

While defendant was confronting Waldron, Pastor knocked on

the door, which defendant answered by opening the door and pointing

his handgun at Pastor, telling him to "[c]ome in and shut [his]

mouth[.]" Defendant identified himself as "Officer Rinck[,]" and

told Pastor that he was "guilty by association." When Pastor

questioned why he was in trouble, defendant threatened to shoot

Pastor and Waldron as well for not "keep[ing Pastor] in line[.]"

Defendant told Pastor "[y]ou move one inch, I'll pop a cap in your

ass."

Defendant told Waldron and Pastor to empty their pockets, and

took their cell phones, $40 and a hunting knife from Waldron, as

well as $480 from Pastor. Defendant told the two men "to set up

one of [their] friends so [that] he can get a larger score on the

4 A-3708-15T2
night[,]" because he did not want to waste the taxpayers' money.

He gave back to Waldron his cell phone so that he could call a

drug dealer.

Waldron began to suspect that defendant was not a real police

officer. When defendant gave him his cell phone, Waldron did not

call a drug dealer, but instead called his friend Renee Paglia in

an effort to tip her off that something was wrong. Paglia found

the call "unusual" because Waldron was talking about selling drugs

and she was not a dealer. She told Waldron to call a mutual friend

that he knew sold marijuana.

Defendant brought Waldron and Pastor outside and directed

them into Patel's car. Although the vehicle was obviously not a

police car, and despite not wanting to get into the car, Waldron

and Pastor cooperated because defendant had a gun that he used to

threaten Pastor if he did not get into the car.

Defendant drove toward Paglia's house. Pastor started

"freaking out because [he] knew something wasn't right" and asked

defendant to take him to the local police station because he would

"rather just get charged." Defendant instead dropped Pastor off

at the corner of the street, leaving him without his cell phone

because Pastor "was going to interrupt [the] investigation[.]"

Defendant and Waldron continued driving to Paglia's house.

5 A-3708-15T2
 When the two men arrived, Paglia's adult daughter let them

into the apartment. Defendant walked directly to Paglia's bedroom,

still wearing, according to Paglia, "a badge around his neck [that

looked like a s]ilver star like an officer would wear" and "a

gun . . . on his waist [that h]e had . . . sticking out [of] his

pants [to make] sure that [she] knew that he had one." Defendant

told Paglia that he was a police officer, and asked her where the

drugs were located. Paglia stated that defendant was antsy and

"just couldn't stand still," which made her suspect that he was

not a real police officer. She told defendant that she did not

have any drugs, but knew someone she could call to get some.

Paglia called her boyfriend to "waste some time[,]" and then told

defendant she could not get the drugs. Defendant asked Paglia,

"Why [she had] waste[d his] time . . . ?" He threatened to call

more police officers to search her house and child welfare

authorities because there were children in the home. Defendant

and Waldron then left together.

Defendant drove Waldron back to his apartment, and told him

that if he helped him set up "a gun or heavier drug bust that"

Waldron would not be in trouble. He gave Waldron his cell phone

number, stated his name was "Steve[,]" and told Waldron to call

him in the morning. Before leaving, defendant returned Waldron's

6 A-3708-15T2
and Pastor's cell phones, but kept the cash, hunting knife, and

small bags of marijuana.

Waldron went to Pastor's home and returned Pastor’s cell

phone to Pastor's mother, Dawn Pastor. According to Dawn,1 after

hearing Waldron and her son's account of what happened, she

realized that defendant was not a police officer. She called the

number that defendant had provided to Waldron and asked defendant

for her son's money back. Defendant refused and said Pastor was

"guilty by association and he's not getting his money back."

After dropping Waldron off, defendant texted Gregory.

According to Gregory, at 9:50 p.m., defendant texted him that

"[w]e got something big time [and c]all me tomorrow." In response

to Gregory's text inquiring what defendant was talking about,

defendant told Gregory to call him. Gregory called defendant, who

excitedly told him, "Yo, I ran up in this f'rs house. We got

something. He brought me to a gun connect." When Gregory again

asked defendant what he was talking about, defendant told him that

he was "just messing around [and to g]ive [him] a call tomorrow."

The next morning, Waldron and Pastor went to the local police

department and gave formal statements to Detective Bryan King and

Officer Justin Cocuzza. Cocuzza called the number defendant had

1
We refer to her by her first name to avoid any confusion.

7 A-3708-15T2
given to Waldron and, while the call was being recorded, questioned

defendant about the events that took place the night before.

During the call with Cocuzza, defendant told a different version

of the night's events than the statements given by Waldron and

Pastor.

Defendant stated:

I had my daughter and I saw the whole thing
go down. I saw the guy come out of the car
and go into this guy -- this big guy’s house.
Two big guys. And they were outside and they
were selling drugs. They were selling weed.
So I said "What the fuck’s going on?" . . . .

They said "Oh no, no, nothing, nothing,
nothing." So I kind of scared them a little
bit, because I -- I’m -- you know, I’m a scary
-- you know, I’m not -- not a tough guy, but
I said "What’s going on? What do you got?"

So, of course, they threw it all out.
They -- they showed me what they had. They
had bags of weed and everything. I told them
"Fucking get rid of it." I said "What the
fuck’s going on?" I said "Who are you?" They
gave me their -- you know, they told me who
they were. They were real scared, because
they got busted. And then I -- I said "You
know, you’re in a school zone." I said "You
know, you" -- I said, you know, "What the
fuck’s going on?"

After the phone call, defendant texted Gregory at 10:42 a.m.,

that "this kid from last night will work for you. . . . He's

gonna set up the gun buys[.]" Two minutes later, defendant texted

again stating, "Do you want to give . . . Det. King -- the drugs?"

8 A-3708-15T2
Eleven minutes later, Gregory received another text from

defendant, which stated:

These two kids were selling dope. I called
over and they rang. They rang like birds. I
made them get rid of their shit. They thought
I was DT. They thought I was a detective. I
didn't -- anything. The one guy told me all
about the guns and he wants to work. You need
to come up with me later.

Gregory did not respond to any of these messages.2 Prior to

receiving defendant's text messages he spoke with King who asked

if Gregory knew defendant. Gregory told King that defendant was

a CI. However, Gregory maintained that he had not given defendant

any authority to do what he had done the night prior.

Later that afternoon, King went to defendant's home to speak

to defendant. Defendant's girlfriend answered the door and told

him that defendant was at work. At King's request, defendant's

girlfriend called defendant and handed the phone to King. King

requested that defendant meet with him at the police headquarters

after work, and defendant obliged.

2
According to Gregory, the text messages were not preserved and
could not be obtained from his phone because "they automatically
delete." However, on January 9, 2014, Kaitlin Mantle, an expert
in cell phone forensic analysis, examined defendant's phone, and
was able to retrieve the incoming and outgoing calls, incoming
text messages, outgoing text messages, SMS messages, and draft
messages from defendant's phone.

9 A-3708-15T2
 At headquarters, the detective administered Miranda3 warnings

to defendant. In response, defendant indicated that he understood

his rights, and signed a waiver that stated he was willing to

waive his rights and speak to police.

In his statement to police,4 defendant reiterated the same

story he told to Cocuzza on the phone, and stated that he believed

he was allowed to work undercover as a CI when he saw someone

dealing drugs. He denied taking the marijuana, cash, or the knife,

and claimed that he "made them flush" the drugs down the toilet.

He also denied identifying himself as a police officer, wearing a

Sheriff's shirt with a badge, carrying a gun, threatening to shoot

anyone, or forcing anyone to get into his car. Defendant stated

that he was texting Gregory as the events unfolded that night and

that he was "recruiting[,]" and believed "that's what [he's]

supposed to do is recruit." However, he conceded that he

"overstepped [his] bounds[, that he] should have called the

police[, and he] should have [done] the right thing[.] "During

his interrogation, defendant gave his written consent for the

police to search the car he used, and claimed that the car belonged

to his boss. He also consented to the officers searching his

3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
A redacted recording of King's interrogation of defendant was
played to the jury at trial.

10 A-3708-15T2
residence. Neither search resulted in discovery of a gun, the

shirt that said "Sheriff" on it, badge, knife, or cash.

After speaking with defendant, King went to Paglia's house

and asked her and her daughter, to speak to him at police

headquarters. At headquarters, both women told him that defendant

had a silver badge, and was carrying a gun.

Defendant was arrested that night, and signed a consent form

for the police to search his cell phone.

On February 25, 2013, a Monmouth County Grand Jury returned

indictment number 13-02-0373, charging defendant with four counts

of fourth-degree impersonating a law enforcement officer, N.J.S.A.

2C:28-8(b) (counts one, two, thirteen and fourteen); two counts

of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts three and

four); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful

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

of fourth-degree aggravated assault by pointing a firearm,

N.J.S.A. 2C:12-1(b)(4) (counts seven and eight); two counts of

third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (counts nine

and ten); two counts of first-degree kidnapping, N.J.S.A. 2C:13-

1(b) (counts eleven and twelve); and second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count fifteen).

11 A-3708-15T2
 Defendant filed a motion seeking to compel the State to

produce, among other items, all police reports involving

investigations in which defendant was utilized as a CI by the NJSP

or any other law enforcement agency. The court denied defendant's

motion on July 21, 2014. On July 28, 2015, defendant filed a

motion to dismiss the indictment based on speedy trial grounds,

which the trial court denied on November 9, 2015.

Defendant's trial began on December 9, 2015,5 and on December

24, 2015, defendant was convicted of all counts.6 At sentencing,

the court granted the State's motion to sentence defendant to a

discretionary extended term as a persistent offender under

N.J.S.A. 2C:44-3(a). The court merged counts five, seven, eight,

nine and ten into counts three and four. On count three, the

court sentenced defendant to twenty years in state prison subject

to a NERA parole ineligibility period. The remaining custodial

5
On the first day of trial, defendant renewed his motion to
compel discovery of the police reports, which the trial court
again denied.
6
A bifurcated trial was held that day for the certain persons
not to have weapons charge (count fifteen), and defendant was also
convicted of that count.

12 A-3708-15T2
sentences were imposed concurrent to count three.7 This appeal

followed.

On appeal, defendant specifically argues the following:

POINT I

THE PROSECUTOR'S WITHHOLDING OF
RELEVANT DISCOVERY AND THE JUDGES'
DENIALS OF RINCK'S DISCOVERY
MOTIONS VIOLATED THE RULES OF
EVIDENCE AND DEPRIVED RINCK OF DUE
PROCESS, A FAIR TRIAL, THE
OPPORTUNITY TO PRESENT A COMPLETE
DEFENSE, AND THE RIGHT TO CONFRONT
THE WITNESSES AGAINST HIM.

A. THE PROSECUTOR WAS REQUIRED TO
DISCLOSE THE POLICE REPORTS
PURSUANT TO RULE 3:13-3, BRADY8, AND
IN ORDER TO GUARANTEE RINCK HIS
CONSTITUTIONAL RIGHTS.

B. THE COURT ERRED IN CONCLUDING
THAT THE POLICE REPORTS WERE
PRIVILEGED UNDER [N.J.R.E.] 515 AND
516.

i. THE STATE FAILED TO
DEMONSTRATE THE DOCUMENTS WERE
PRIVILEGED UNDER [N.J.R.E.] 515.

7
On counts one, two, thirteen and fourteen, defendant was
sentenced to one year; on count four, defendant was sentenced to
fifteen years subject to a NERA parole ineligibility period; on
counts six, eleven and twelve, defendant was sentenced to seven
years subject to a NERA parole ineligibility period; on count
fifteen, defendant was sentenced to seven years with a five-year
parole ineligibility period.
8
Brady v. Maryland, 373 U.S. 83, 87 (1963).

13 A-3708-15T2
 ii. [N.J.R.E.] 516 DOES NOT
APPLY WHERE THE CI'S IDENTITY HAS
ALREADY BEEN DISCLOSED.

C. ASSUMING ARGUENDO THAT THE
POLICE REPORTS WERE PRIVILEGED, THE
COURT WAS REQUIRED TO REVIEW THE
DOCUMENTS [IN CAMERA] TO BALANCE THE
NEED FOR CONFIDENTIALITY AGAINST
RINCK'S CONSTITUTIONAL RIGHTS.

POINT II

THE [1144]-DAY DELAY IN BRINGING
RINCK'S CASE TO TRIAL DENIED HIM OF
THE CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A SPEEDY TRIAL.

A. THE MORE THAN THREE-YEAR DELAY
WAS EXTRAORDINARY.

B. NEARLY ALL OF THE DELAY WAS
ATTRIBUTABLE TO THE STATE.

C. RINCK ASSERTED HIS RIGHT
MONTHS BEFORE TRIAL.

D. RINCK SUFFERED SEVERE
PREJUDICE FROM HIS PRETRIAL
INCARCERATION, INCLUDING
HOSPITALIZATION FROM HAVING BEEN
BEATEN BECAUSE OF HIS STATUS AS A
CI.

POINT III

FAILURE TO PROVIDE A LIMITING
INSTRUCTION CONCERNING TESTIMONY
THAT RINCK KNEW GUN TRAFFICKERS
MEANT THAT THE JURY WAS PERMITTED TO
RELY ON THIS TESTIMONY AS PROPENSITY
EVIDENCE WHEN DETERMINING WHETHER
RINCK POSSESSED A WEAPON. (Not
raised below).

14 A-3708-15T2
 POINT IV

BECAUSE THE INDICTMENT CHARGED TWO
SEPARATE AND UNRELATED CRIMINAL
EPISODES, THE TRIAL COURT ERRED IN
FAILING TO SEVER THE CHARGES. (Not
Raised Below).

POINT V

BECAUSE THE JURY INSTRUCTIONS ON
KIDNAPPING ALLOWED FOR A NON-
UNANIMOUS VERDICT, THESE
CONVICTIONS MUST BE REVERSED. (Not
Raised Below).

POINT VI

THE CUMULATIVE IMPACT OF THE ERRORS
DENIED RINCK DUE PROCESS AND A FAIR
TRIAL. (Not Raised Below).

POINT VII

THE 20-YEAR SENTENCE WAS MANIFESTLY
EXCESSIVE, REQUIRING A REMAND FOR
RESENTENCING.

II.

We begin with defendant's contention that the trial court

erred by denying his motions to compel the State to turn over

copies of police reports from investigations in earlier, unrelated

matters in which he allegedly participated as a CI. 9 In his

pretrial motion, defendant argued that he needed the police reports

9
During the motion hearing, the State expressed its concern
that providing defendant with the discovery he sought could
compromise the ongoing investigations in the cases that defendant
was involved with as a CI.

15 A-3708-15T2
because he "think[s]" he could use them to impeach Gregory's

testimony at trial that the officer did not authorize defendant's

actions on the night of October 21, 2012. Defendant did not file

any certification or affidavit from himself or anyone else that

indicated that Gregory or any other law enforcement officer

authorized his actions either directly or indirectly. He conceded

that his request "ha[d] no p[ara]meters, both as to time, location

and the participants[,]" with its only limitation being cases that

involved defendant as a CI, with "any . . . law enforcement

agency[.]" Defense counsel argued that he wanted the reports to

only look "for clues as to what [defendant] was doing, whether

what he was doing reflected in those reports is consistent with

the guidelines, the rules of engagement, or whether it's

inconsistent[.]"

In a comprehensive eight-page written decision, the trial

court denied defendant's motion. As a threshold matter, the court

16 A-3708-15T2
found that pursuant to N.J.R.E. 51510 and N.J.R.E. 516,11

"[i]nformation in the possession of law enforcement officials

concerning the existence or occurrence of alleged criminal

activities is privileged." However, recognizing that "these

privileges are not absolute[,]" it applied the proper analysis and

determined that defendant failed "to justify [even] an [in camera]

review of the reports [because h]e has proffered no evidence

10
N.J.R.E. 515 provides:

No person shall disclose official information
of this State or of the United States (a) if
disclosure is forbidden by or pursuant to any
Act of Congress or of this State, or (b) if
the judge finds that disclosure of the
information in the action will be harmful to
the interests of the public.
11
N.J.R.E. 516 provides:

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
information has already been otherwise
disclosed or (b) disclosure of his identity
is essential to assure a fair determination
of the issues.

17 A-3708-15T2
'tending to show the existence of the essential elements' of the

defense of entrapment by estoppel." Citing Rule 1:6-6,12 the court

explained "[t]here is no . . . evidence . . . in the form of

affidavit or certifications from defendant or anyone else, that

any government official – whether Sergeant Gregory or someone else

– actually authorized or condoned defendant engaging in the type

of criminal conduct he is accused of committing." It further

stated "[t]here is also no competent evidence before [the c]ourt

'that the documents in the government's possession would indeed

be probative' of an entrapment by estoppel defense." The trial

court also expressed its belief that the more appropriate course

of action was for defendant to elicit on cross-examination

testimony from Gregory concerning the possibility that he

authorized defendant's actions.

12
Rule 1:6-6 provides:

If a motion is based on facts not appearing
of record or not judicially noticeable, the
court may hear it on affidavits made on
personal knowledge, setting forth only facts
which are admissible in evidence to which the
affiant is competent to testify and which may
have annexed thereto certified copies of all
papers or parts thereof referred to therein.
The court may direct the affiant to submit to
cross-examination, or hear the matter wholly
or partly on oral testimony or depositions.

18 A-3708-15T2
 When defendant renewed his motion after Gregory's testimony

was taken, the court again denied the motion, noting that "nothing

was said in testimony that would show that . . . Gregory

. . . encouraged the defendant . . . to obtain information outside

the rules, or that . . . Gregory had authorized the defendant to

act beyond the rules of engagement." Reiterating its prior

decision, the court observed that nothing in "the record made

requires in fairness a different decision now."

On appeal, defendant maintains that the information was

necessary so he could "present his defense [of entrapment] that

he was acting based on directions from Gregory [and in order] to

cross-examine Gregory on his assertion that he never encouraged

this type of behavior." He argues that the State "was required

to disclose the police reports pursuant to Rule 3:13-3, Brady, and

in order to guarantee [his] constitutional rights." He further

contends "[t]he court erred in concluding that the police reports

were privileged under [N.J.R.E.] 515 and 516.[13]" Even if the

reports were privileged, defendant asserts "the court was required

to review the documents [in camera] to balance the need for

13
We agree with defendant that the police reports were not
privileged under N.J.R.E. 516 as defendant was the CI and his
identity was already disclosed.

19 A-3708-15T2
confidentiality against [defendant's] constitutional rights." We

disagree.

In our review of a trial court's resolution of a discovery

issue, we afford the court substantial deference and will not

overturn its decision "absent an abuse of discretion[,]" State v.

Stein, 225 N.J. 582, 593 (2016) (citing State v. Hernandez, 225

N.J. 451, 461 (2016)), meaning that the decision is "well 'wide

of the mark,' or 'based on a mistaken understanding of the

applicable law[.]'" Hernandez, 225 N.J. at 461 (citations

omitted). However, "[o]ur review of the meaning or scope of a

court rule is de novo; we [will] not defer to the interpretations

of the trial court . . . unless we are persuaded by [the trial

court's] reasoning." State v. Tier, 228 N.J. 555, 561 (2017)

(citing Hernandez, 225 N.J. at 461).

Applying that standard, we conclude the trial court properly

denied defendant's motion as he made no showing that the

information he sought was relevant or that an in camera review of

the police reports was warranted. Defendant never certified that

Gregory authorized or lured him into committing any of the subject

offenses. He also did not establish that information contained

in the police reports relative to his earlier participation in

prior unrelated criminal investigations could somehow prove that

20 A-3708-15T2
he was entrapped14 or that it exculpated him from a charged offense

in this case. Thus, his reliance on Rule 3:13-3(b)15 is inapposite.

In order to be entitled to discovery, a defendant must

"articulate[] how the disclosure of documents in the unrelated

investigations will lead to relevant or admissible evidence."

Hernandez, 225 N.J. at 466 (citing State v. Ballard, 331 N.J.

Super. 529, 538 (App. Div. 2000)). Defendants cannot "undertake

a speculative venture, hoping to snare some morsel of information

that may be helpful to the defense." Ibid.

We also agree with the trial court's conclusion that, absent

any showing by defendant that the documents would support his

contention that he was entrapped, the requested documents remained

privileged under N.J.R.E. 515 to the extent they related to any

ongoing investigations. In order to have a court consider piercing

a privilege, a defendant "must advance 'some factual predicate

14
Entrapment exists when the criminal design originates
with the police officials, and they implant in the mind
of an innocent person the disposition to commit the
offense and they induce its commission in order that
they may prosecute. It occurs only when the criminal
conduct was the product of the creative activity of law
enforcement officials.

[State v. Dolce, 41 N.J. 422, 430 (1964) (citations
omitted).]
15
Rule 3:13-3(b) provides that "[d]iscovery shall include
exculpatory information or material [as well as] relevant
material[.]"

21 A-3708-15T2
which would make it reasonably likely that the file will bear such

fruit and that the quest for its contents is not merely a desperate

grasping at a straw.'" State v. Harris, 316 N.J. Super. 384, 398

(App. Div. 1998) (citation omitted) (referring to police reports).

Here, defendant failed to come forward with any proof, supporting

his contention that his criminal behavior was authorized or

encouraged by anyone or legally justified in reliance upon a law

enforcement officer's conduct in the past. Under these

circumstances, defendant was not entitled to any discovery of the

unrelated police reports.

III.

Turning to defendant's speedy trial argument, he contends his

right to a speedy trial was violated when he was incarcerated for

1144 days before his trial began.16 Defendant asserted his right

to a speedy trial for the first time on July 25, 2015, when he

filed his pre-trial motion.

The trial court found that there were "extensive delays early

on in this matter" obtaining discovery, including "police reports

and court records from another county[,]" and securing "data

off . . . defendant's cell phone[.]" The court also explained

that much of the delay was caused by "[t]he harsh reality of" the

16
Defendant was arrested on October 22, 2012 and his trial began
on December 9, 2015.

22 A-3708-15T2
court's "very congested trial calendar" caused by the lengthy

trials over which it presided.

On appeal, defendant asserts that "the court failed to conduct

the required four-part balancing test articulated by Barker v.

Wingo, 407 [U.S.] 514 (1972) [and i]nstead, . . . simply

attributed the delay to the single motion for discovery and to the

congestion of the court's calendar." Relying on Doggett v. United

States, 505 U.S. 647, 652 n.1 (1992), although defendant does not

claim the State intentionally delayed his trial, he argues that

his "remain[ing] in jail for over three years awaiting his trial

is extraordinary" and that "[n]early all of the delay was

attributable to the State[,]" including the "justification of

court congestion[.]" Last, he argues that he "suffered severe

prejudice from his pretrial incarceration, including

hospitalization from having been beaten because of his status as

a CI." We are not persuaded by these arguments.

Our review of a trial court's speedy trial determination is

limited. We will not overturn a trial judge's decision as to

whether a defendant was deprived of due process on speedy-trial

grounds unless the judge's ruling was clearly erroneous. State

v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

23 A-3708-15T2
 Contrary to defendant's contentions, we conclude that the

trial court properly assessed defendant's arguments and there was

no error in its denial of his motion.

"The right to a speedy trial is guaranteed by the Sixth

Amendment to the United States Constitution and imposed on the

states by the Due Process Clause of the Fourteenth Amendment."

State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing

Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)). "The

constitutional right . . . attaches upon defendant's arrest."

Ibid. (alteration in original) (quoting State v. Fulford, 349 N.J.

Super. 183, 190 (App. Div. 2002)). Since it is the State's duty

to promptly bring a case to trial, "[a]s a matter of fundamental

fairness," the State must avoid "excessive delay in completing a

prosecution[,]" or risk violating "defendant's constitutional

right to a speedy trial." Ibid. (citing State v. Farrell, 320

N.J. Super. 425, 445-46 (App. Div. 1999)).

A defendant bears the burden of establishing a violation of

his speedy trial right. State v. Berezansky, 386 N.J. Super. 84,

99 (App. Div. 2006). When determining whether a violation of a

defendant's speedy-trial rights contravenes due process, "[c]ourts

must consider and balance the '[l]ength of delay, the reason for

the delay, the defendant's assertion of his right, and prejudice

to the defendant.'" Tsetsekas, 411 N.J. Super. at 8 (second

24 A-3708-15T2
alteration in original) (quoting Barker, 407 U.S. at 530); see

also State v. Szima, 70 N.J. 196, 200-01 (1976) (adopting the

Barker analysis). "No single factor is a necessary or sufficient

condition to the finding of a deprivation of the right to a speedy

trial." Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S.

at 533). Courts are required to analyze each interrelated factor

"in light of the relevant circumstances of each particular case."

Ibid. The remedy for violating the right to a speedy trial is

dismissal of the indictment. Barker, 407 U.S. at 522.

Addressing the length of the delay under the four-part test,

although "[t]here is no set length of time that fixes the point

at which delay is excessive[,]" Tsetsekas, 411 N.J. Super. at 11,

typically, once the delay exceeds one year, it is appropriate to

engage in the analysis of the remaining Barker factors. State v.

Cahill, 213 N.J. 253, 266 (2013). However, there is no bright-

line test requiring dismissal after a specified period of delay.

Id. at 270.

The "second prong examines the length of a delay in light of

the culpability of the parties." Tsetsekas, 411 N.J. Super. at

12 (citing Barker, 407 U.S. at 531). "[D]ifferent weights should

be assigned to different reasons" proffered to justify a delay.

Barker, 407 U.S. at 531. Purposeful delay tactics weigh heavily

against the State. Tsetsekas, 411 N.J. Super. at 12; Barker, 407

25 A-3708-15T2
U.S. at 531. "A more neutral reason[,] such as negligence or

overcrowded courts[,] should be weighted less heavily but

nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the

government rather than with the defendant." Barker, 407 U.S. at

531. "[A] valid reason, such as a missing witness, should serve

to justify appropriate delay." Ibid. And, "[d]elay caused or

requested by the defendant is not considered to weigh in favor of

finding a speedy trial violation." Farrell, 320 N.J. Super. at

446 (citations omitted).

The third prong addresses the defendant's action in seeking

a speedy trial. Although "[a] defendant does not have an

obligation to . . . bring himself to trial[,]" Cahill, 213 N.J.

at 266 (citing Barker, 407 U.S. at 527), a failure to timely assert

the right is a factor to be considered in the assessment of an

alleged speedy trial violation. Ibid.; see also Fulford, 349 N.J.

Super. at 193 (finding defendant waited twenty-eight months to

assert his right to a speedy trial).

Last, in addressing the fourth factor, prejudice to

defendant, Barker, 407 U.S. at 530, the following three interests

are considered: prevention of oppressive pretrial incarceration,

minimization of defendant's anxiety concerns and whether the

defense has been impaired by the delay. Id. at 532; Cahill, 213

26 A-3708-15T2
N.J. at 266. "Of these, impairment of the defense [is] considered

the most serious since it [goes] to the question of fundamental

fairness." Szima, 70 N.J. at 201.

Here, there is no dispute that there was a delay in commencing

defendant's trial. Defendant does not contend, however, that the

State intentionally delayed his trial or that his defense was

impaired as a result of the delay. Moreover, defendant waited

over two years and nine months before he asserted his right. When

he did, the trial court properly recognized that some of the delay

was necessary for the parties to obtain needed discovery and the

trial was only otherwise delayed by the court's calendar. Finally,

defendant's claim that "he suffered particularly oppressive

incarceration due to [the] physical violence inflicted on him

[because he was a CI] in the jail, [which led] to his

hospitalization[,]" does not tilt the scales sufficiently to find

a speedy trial violation on the entire record. While unfortunate,

there is no proof that his treatment would have been different had

his time in jail pretrial been shorter. In any event, "where . . .

defendant has not pointed to any evidence of additional, specific

prejudice flowing from the delay, [a court should not] infer

prejudice based on incarceration that the defendant would

ultimately have had to serve[,]" especially where defendant

receives all of the jail credit to which he is entitled for the

27 A-3708-15T2
time spent awaiting trial.17 Hakeem v. Beyer, 990 F.2d 750, 762

(3d Cir. 1993).

The trial court correctly determined that despite the delay

in bringing defendant to trial, he failed to establish any

violation of his due process rights. We have no cause to disturb

his conviction.

IV.

In Point III of his brief, defendant argues for the first

time on appeal that the trial court erred by never instructing the

jury on the proper use of Gregory's and another police witness'

testimony that, prior to becoming a CI, defendant "was involved

with gun traffickers[.]" At trial, both Gregory and Detective

Craig Pokrywa of the NJSP testified about defendant's involvement

as a CI with gun traffickers initially in response to defense

counsel's cross-examination. For example, counsel specifically

asked Pokrywa whether "it [was] fair to say that drug dealers

oftentimes have information about weapons, securing handguns and

things like that[,]" and since CIs "were encouraged to infiltrate

criminal organizations[,]" whether their actions "might lead

[them] to information about people who are selling guns." On

redirect, when the prosecutor asked about the types of criminal

17
Defendant received jail credit totaling 1264 days.

28 A-3708-15T2
organizations a CI would be asked to infiltrate, the officer stated

that they were "not going to just send [CIs] out and [have them]

infiltrate something that they have no knowledge of[,]" and he

confirmed that "the organization that they would actually be

infiltrating is something that they already would know[.]"

Defense counsel asked Gregory similar questions on cross-

examination about defendant's activities as a CI. In response,

Gregory, too, initially confirmed that part of defendant's "duties

under [his] supervision was to infiltrate criminal

organizations[,]" and that defendant was involved in "gun

cases[,]" but he clarified that defendant "didn't infiltrate a

criminal organization. He had targets that were [their]

suspects[.]" When asked if defendant "gained the confidence of"

gun traffickers as part of his duties, Gregory assumed he did

because defendant "did deal with them," but Gregory could not

"testify if [defendant] gained their confidence." On redirect,

the prosecutor asked Gregory whether defendant "actually

infiltrated a criminal organization?" Gregory responded by

denying that defendant was involved with "a criminal

organization." He explained defendant dealt with "bad guys selling

guns[,]" whom defendant knew before "he actually began working

with" Gregory.

29 A-3708-15T2
 Defendant argues that because one of his defenses was that

he never possessed a weapon and that the police never found the

weapon he allegedly used to threaten Waldron and Pastor, the

officers' testimony "had the capacity to serve as propensity

evidence that [he] was likely to possess a weapon." For that

reason, "[a]dmission of this testimony without a limiting

instruction was reversible error because the question of whether

[he] possessed a weapon during the offense was one of the key

issues for the jury." We disagree.

Notably, defendant did not object or seek to strike any of

the challenged testimony, nor was his argument raised before the

trial court in any other fashion. We therefore consider his

argument under the "plain error" standard that is, whether

defendant proved that an error occurred that was "clearly capable

of producing an unjust result[.]" R. 2:10-2; State v. Prall, 231

N.J. 567, 581 (2018).

Applying that standard, we conclude there was no error

committed by the court when it allowed the challenged testimony

and did not sua sponte deliver a limiting instruction, especially

in the absence of any objection from defendant. Even if defendant

had objected or requested a limiting instruction, it is clear that

the challenged testimony was given only in response to defense

counsel's "opening the door" to a discussion about defendant's

30 A-3708-15T2
experience with guns during cross-examination. Defense counsel's

questions justified the prosecutor "elicit[ing] otherwise

inadmissible evidence [because] the opposing party has made unfair

prejudicial use of related evidence." Prall, 231 N.J. at 582-83

(quoting State v. James, 144 N.J. 538, 554 (1996)) (addressing the

doctrine of "opening the door" and defining it as "a rule of

expanded relevancy [that] authorizes admitting evidence which

otherwise would have been irrelevant or inadmissible in order to

respond to (1) admissible evidence that generates an issue, or (2)

inadmissible evidence admitted by the court over objection").

Moreover, even if it was an error to allow the testimony without

an instruction, we conclude it was harmless in light of the other

"overwhelming admissible evidence" of defendant's guilt. Id. at

589.

V.

We turn next to defendant's argument in Point IV of his brief,

also raised for the first time on appeal, regarding the court not

severing for trial, on its own motion, the counts in the indictment

relating to his impersonating a police officer while securing

Patel's car from the counts relating to the same crime being

committed during his interaction with Waldron and Pastor. He

argues that the "[f]ailure to sever the incidents -- which took

place on different days, at different locations, and with different

31 A-3708-15T2
victims -- allowed the State to bolster its cases by presenting

[the] narrative that [defendant] had the propensity of

impersonating a law enforcement officer." Defendant therefore

contends that "[b]ecause of this improper joinder, [defendant] was

denied due process and a fair trial[.]"

We conclude that defendant's argument is "without sufficient

merit to warrant discussion in a written opinion[.]" R. 2:11-

3(e)(2). We observe only that defendant never filed a pre-trial

motion to sever as required by court rule, see R. 3:15-2(c)

(requiring motions to sever to be made before trial), and failed

to meet his burden to make "a strong showing of probable

prejudice . . . to warrant a finding of 'plain error.'" State v.

Keely, 153 N.J. Super. 18, 23 (App. Div. 1977) (quoting State v.

Baker, 49 N.J. 103, 105 (1967)). Such prejudice exists when

evidence admitted as proof of one charged crime would not be

admissible in the trial of another charge. State v. Blakney, 389

N.J. Super. 302, 327 (App. Div.), rev'd on other grounds, 189 N.J.

88 (2006).

Suffice it to say that evidence of defendant securing Patel's

vehicle by impersonating an officer was admissible as proof of

preparation and planning his kidnapping and robbery of Waldron and

Pastor while again impersonating an officer. See N.J.R.E. 404(b)

(providing that "evidence of other crimes, wrongs, or acts

32 A-3708-15T2
. . . may be admitted [to prove] motive, opportunity, intent

preparation, plan, knowledge, identity or absence of mistake or

accident when such matters are relevant to a material issue in

dispute." (emphasis added)). Because "the evidence establishe[d]

that [the] multiple offenses [were] linked as part of the same

transaction or series of transactions," there was no showing of

prejudice. State v. Moore, 113 N.J. 239, 273 (1988). The trial

court properly denied defendant's motion.

VI.

In Point V of his brief, defendant also raises for the first

time on appeal, a challenge to the trial court's jury instruction

on kidnapping. The court charged the jury as to kidnapping

essentially following the Model Jury Charges (Criminal),

"Kidnapping (N.J.S.A. 2C:13-1b(1) to (3))" (rev. Oct. 6, 2014).

As set forth in the model charge, the court instructed the jury

throughout the charge to determine whether a victim was

"'unlawfully removed' and/or 'unlawfully confined[.]'" It did not

give any instruction within that charge as to the need for

unanimity in the jury's verdict as to which type of kidnapping

they found, although the court did generally charge the jury that

"Your verdict, whatever it may be as to each crime charged, must

be unanimous. Each of the [twelve] members of the deliberating

jury must agree as to the verdict." The jury verdict sheet also

33 A-3708-15T2
did not segregate the theories of kidnapping that the jury could

find defendant guilty of committing.

Defendant argues that the trial court erred when it instructed

the jury that it must convict if the State proved beyond a

reasonable doubt either theory of kidnapping (asportation or

confinement), without "requir[ing] unanimity on which theory [the

jury] found . . . defendant guilty." We disagree.

We begin by acknowledging "[a]ppropriate and proper charges

are essential for a fair trial." State v. Baum, 224 N.J. 147,

158-59 (2016) (alteration in original) (quoting State v. Reddish,

181 N.J. 553, 613 (2004)). "The trial court must give 'a

comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts

that the jury may find.'" Id. at 159 (quoting State v. Green, 86

N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent

duty . . . to ensure that the jurors receive accurate instructions

on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either

party.'" Ibid. (alteration in original) (quoting Reddish, 181

N.J. at 613). "Because proper jury instructions are essential to

a fair trial, "erroneous instructions on material points are

presumed to" possess the capacity to unfairly prejudice the

34 A-3708-15T2
defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42

(2004)).

When a defendant fails to object to an error regarding jury

charges, we again review for plain error. State v. Funderburg,

225 N.J. 66, 79 (2016). We must be satisfied that there is more

than "[t]he mere possibility of an unjust result . . . . [t]o

warrant reversal . . ., an error . . . must be sufficient to raise

'a reasonable doubt . . . as to whether the error led the jury to

a result it otherwise might not have reached.'" Ibid. (sixth

alteration in original) (citations omitted). A jury "charge must

be read as a whole in determining whether there was any error."

State v. Torres, 183 N.J. 554, 564 (2005) (citing State v. Jordan,

147 N.J. 409, 422 (1997)). Moreover, the effect of any error must

be considered "in light 'of the overall strength of the State's

case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State

v. Chapland, 187 N.J. 275, 289 (2006)).

A jury must reach a unanimous verdict in a criminal case.

N.J. Const. art. I, ¶ 9; R. 1:8-9. "The notion of unanimity

requires 'jurors to be in substantial agreement as to just what a

defendant did' before determining his or her guilt or innocence."

State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States

v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).

35 A-3708-15T2
 Ordinarily, a general instruction on the
requirement of unanimity suffices to instruct
the jury that it must be unanimous on whatever
specifications it finds to be the predicate
of a guilty verdict. There may be
circumstances in which it appears that a
genuine possibility of jury confusion exists
or that a conviction may occur as a result of
different jurors concluding that a defendant
committed conceptually distinct acts.

[State v. Parker, 124 N.J. 628, 641 (1991).]

A general instruction may not be sufficient

where: (1) a single crime could be proven by
different theories supported by different
evidence, and there is a reasonable likelihood
that all jurors will not unanimously agree
that the defendant's guilt was proven by the
same theory; (2) the underlying facts are very
complex; (3) the allegations of one count are
either contradictory or marginally related to
each other; (4) the indictment and proof at
trial varies; or (5) there is strong evidence
of jury confusion.

[State v. Cagno, 211 N.J. 488, 517 (2012)
(citing Frisby, 174 N.J. at 597).]

"Although the need for juror unanimity is obvious, exactly

how it plays out in individual cases is more complicated." Frisby,

174 N.J. at 596. Thus, although an instruction regarding unanimity

as to a specific charge "should be granted on request, in the

absence of a specific request, the failure so to charge does not

necessarily constitute reversible error." Parker, 124 N.J. at

637.

36 A-3708-15T2
 We apply a two-prong test to determine whether a specific

unanimity instruction is required. Cagno, 211 N.J. at 517 (citing

Parker, 124 N.J. at 639). The first inquiry is "whether the

allegations in the . . . count were contradictory or only

marginally related to each other . . . ." Parker, 124 N.J. at

639. The second inquiry is "whether there was any tangible

indication of jury confusion." Ibid.

Applying the first inquiry, we find no basis for concluding

that a specific unanimity charge was warranted. In this case,

defendant never disputed the asportation or confinement of Waldron

or Pastor. Rather, he asserted at trial that their accompanying

him in Patel's vehicle was voluntary on their part in order to

avoid prosecution as drug dealers. The allegations are more than

"marginally related" and not in dispute.

Under the second inquiry, although the use of "and/or" is not

condoned in particular factual scenarios because the practice

invites the possibility of non-unanimous verdicts, see State v.

Gonzalez, 444 N.J. Super. 62, 75-76 (App. Div. 2016)18 (overturning

a conviction because the improper use of the phrase "and/or" in a

jury instruction injected ambiguity into the charge in the discrete

18
Notably, the Supreme Court in denying certification in Gonzalez
commented that "[t]he criticism of the use of 'and/or' is limited
to the" specific facts of that case. State v. Gonzalez, 226 N.J.
209 (2016).

37 A-3708-15T2
factual context of that case), there was no risk in this case that

the jury was confused or misled by the court's instructions as

"the underlying facts [were not] very complex[.]" Cagno, 211 N.J.

at 517. The State's evidence demonstrated a continuous, unbroken

course of criminal conduct against the victims defendant was

accused of kidnapping. The circumstances did not present "a

reasonable possibility that a juror will find one theory proven

and the other not proven but that all of the jurors will not agree

on the same theory." Parker, 124 N.J. at 635 (citation omitted).

The jury also gave no indication that it was confused as to

unanimity. It did not ask questions suggesting an inability to

reach unanimity on any of the essential elements of the kidnapping

offense. See, e.g., State v. Gentry, 183 N.J. 30, 31-32 (2005).

Given the absence of any objection, and the fact that the

court followed the appropriate Model Jury Charge, its failure to

give a specific unanimity charge, instead of a general one, without

any request, did not "possess[] a clear capacity to bring about

an unjust result." State v. Adams, 194 N.J. 186, 207 (2008)

(quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

VII.

We conclude by addressing defendant's argument that his

sentence was excessive. At the time of his sentencing, defendant

had nine prior convictions, which include second-degree unlawful

38 A-3708-15T2
possession of a rifle, second-degree attempted escape, three

separate second-degree robberies, and second-degree eluding. As

noted earlier, the sentencing court granted the State's motion for

the court to exercise its discretion under N.J.S.A. 2C:44-3(a),

and sentence defendant in the extended term for a first-degree

crime. In doing so, the court recited in detail each of

defendant's prior convictions and sentences, and applied

appropriate aggravating factors as well as mitigating factors

based upon defendant's prior service as a CI and the hardship of

defendant being sent to prison.19 It carefully explained on the

record why it was not applying the additional mitigating factors

argued by defendant. The court concluded that the aggravating

factors outweighed the mitigating factors, but did so without

expressly providing the weight it assigned to each factor. It

ultimately imposed its aggregate twenty-year sentence, which was

also within the ordinary term for a first-degree offense, even

19
The court found three aggravating factors and two mitigating
factors: (1) aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the
risk existed that defendant will reoffend); (2) aggravating factor
six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior
criminal record and the seriousness of the offenses); (3)
aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter
defendant and others from violating the law); (4) mitigating factor
eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will
entail excessive hardship); and (5) mitigating factor twelve,
N.J.S.A. 2C:44-1(b)(12) (the willingness of defendant to cooperate
with law enforcement authorities).

39 A-3708-15T2
though defendant was facing up to life in prison within the

extended term. Moreover, even within the extended term, the

twenty-year sentence was the lowest possible sentence.

On appeal, defendant contends the sentencing court's

imposition of a "discretionary extended term of twenty-years[']

imprisonment with an [eighty-five percent] period of parole

ineligibility" was "manifestly excessive," although he does not

challenge the court's decision to grant the State's motion for

sentencing within the extended term. Rather, he argues, "[t]he

court . . . failed to provide a statement of reasons for

aggravating factor nine, improperly declined to find mitigating

factor eight, and conducted a quantitative, rather than

qualitative, analysis of the factors." He also contends that the

judge erred in rejecting mitigating factor eight and that the

sentencing court failed to state the weight it afforded to each

of the factors as required by State v. Case, 220 N.J. 49, 69

(2014). According to defendant, had the court engaged in this

qualitative analysis, it should have imposed a lesser sentence

because it should have assigned greater weight to mitigating

factors eleven and twelve. Defendant explains that his status as

a CI would subject him to even greater hardship in prison evidenced

by the fact that he was already physically assaulted. With respect

to mitigating factor twelve, defendant states that the judge should

40 A-3708-15T2
have assigned significant weight to that factor because he helped

the State secure multiple convictions of dangerous criminals.

Our review of sentencing determinations is limited and is

governed by the "clear abuse of discretion" standard. State v.

Roth, 95 N.J. 334, 363 (1984). That standard applies equally to

a court's decision to sentence an eligible defendant in the

extended term. See State v. Young, 379 N.J. Super. 498, 502 (App.

Div. 2005). We are bound to uphold the trial court's sentence,

even if we would have reached a different result, "unless (1) the

sentencing guidelines were violated; (2) the aggravating and

mitigating factors found . . . were not based upon competent and

credible evidence in the record; or (3) 'the application of the

guidelines to the facts . . . makes the sentence clearly

unreasonable so as to shock the judicial conscience.'" State v.

Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J. at 364-65).

Applying these controlling principles, we conclude that the

sentencing court properly applied the sentencing guidelines,

including a comprehensive analysis of defendant's eligibility for

sentencing as a persistent offender under N.J.S.A. 2C:44-3(a), see

State v. Hudson, 209 N.J. 513, 526-27 (2012); State v. Carey, 168

N.J. 413, 425-27 (2001), and considered each of the applicable

aggravating and mitigating sentencing factors. While we

acknowledge that the court did not expressly state the weight it

41 A-3708-15T2
placed on each of the factors, its decision to sentence defendant

to the lowest possible sentence within the extended term, see

N.J.S.A. 2C:43-7(a)(2), indicates that defendant received the full

benefit of the weighing process. Cf. State v. Kruse, 105 N.J. 354,

363 (1987) (stating that a qualitative analysis "is critical when

. . . the court deviates from the norm" in sentencing a defendant).

Moreover, the court's findings were supported by the record and

the sentence imposed did not "shock [our] judicial conscious."

Roth, 95 N.J. at 365.

To the extent that we have not specifically addressed any of

defendant's remaining contentions, we conclude they are without

sufficient merit to warrant discussion in a written opinion. R.

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

Affirmed.

42 A-3708-15T2