STATE OF NEW JERSEY VS. QUDDIS WIDENER (16-09-2544, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4140-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUDDIS WIDENER,

Defendant-Appellant.
_________________________

Submitted October 2, 2019 – Decided January 15, 2020

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-09-2544.

Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel Vincent Gautieri, Assistant Deputy
Public Defender, of counsel and on the brief).

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Quddis Widener appeals from a April 27, 2018 judgment of

conviction and sentence that were entered after a jury found him guilty of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and acquitted him of

second-degree weapons charges. The charges arose from defendant's altercation

with the victim after defendant mistreated the victim's girlfriend, which resulted

in the victim being shot. On appeal, defendant argues that the trial judge erred

when he failed to conduct a Wade 1 hearing or instruct the jury with lesser-

included offenses, and by improperly denying defendant's motion for an

acquittal after finding that the conviction was not against the weight of the

evidence. As to his sentence, defendant argues the judge improperly relied on

inconsistent facts when sentencing him. For the reasons that follow, we affirm.

I.

We summarize the facts developed at defendant's trial. The events giving

rise to defendant's arrest and conviction occurred on July 4, 2016, when the

victim, his girlfriend, and the girlfriend's sister, stopped at a neighborhood store

where defendant and his friend were inside. While the victim sat in his vehicle,

the sister went inside the store, and she was soon followed by the girlfriend.

1
United States v. Wade, 388 U.S. 218, 241-42 (1967).
A-4140-17T4
2
 Once inside the store, defendant, who the sister had seen before, started

to verbally abuse the two women by making inappropriate sexual comments.

According to the girlfriend, defendant appeared to be intoxicated as he was

slurring his words. After asking defendant to stop, the girlfriend left the store

and went to the car, where she explained to the victim what had just occurred.

A few minutes later, the sister left the store and went to the victim's vehicle's

passenger window to make sure her sister was okay. Before she was able to

return to the backseat of the car, defendant appeared, leaned into the vehicle's

passenger window, and apologized to the victim. Since it was the 4th of July,

the victim wanted to get on his way to the barbeque he and the women were

supposed to attend, so he told defendant to go ahead as he did not want any

issues to arise.

Without explanation, the victim's statement to defendant caused him to

begin screaming at the victim. Defendant's friend attempted to get him under

control, however, defendant took off his shirt, began to bang on the hood of the

victim's car, and walked around to the driver's side of the car in preparation for

a fight. When the victim stepped out of his car, defendant swung at him but

missed and fell to the ground. After getting up, they then began to fight, with

A-4140-17T4
3
defendant never landing a blow to the victim. The fight ended after the victim

knocked defendant to the ground several times.

After lingering for a short time, defendant left the scene and the victim

and his girlfriend took a short walk to a nearby street corner so he could calm

down. Defendant suddenly reappeared after five minutes, began screaming at

the victim, and, according to the victim and the two women, he reached into his

pocket and pulled out a gun.

After seeing the gun, the sister ran into the store and locked herself in the

store's bathroom. After hearing three to four gunshots, she called the police.

Meanwhile, the victim and his girlfriend started running and eventually stopped

in a driveway where they hid behind a van until the police arrived.

Once the police responded, the victim discovered he had been shot in the

buttocks. After being treated by an emergency medical technician (EMT), the

victim and his girlfriend were transported to the hospital. After leaving the

hospital, the two reported to the police station where the victim gave a statement.

Meanwhile, after calling the police, the sister left the store and ran into

the street looking for the victim and her sister. After seeing them while the

victim was being checked by the EMT, Police Detective Tyrone Grundy

A-4140-17T4
4
approached the sister, spoke to her, and then took the sister in his car so she

could show him where defendant lived.

While outside defendant's house, the sister saw someone walking away

from her and Grundy. Once the individual was under the light, she identified

the individual as defendant, even though he was wearing a different shirt. To

get a better look at the individual, Grundy drove around the block with the sister

and when she was closer to the person, she confirmed that the individual was

defendant. After Grundy called for backup, defendant was arrested, and Grundy

took the sister to the police station where she gave a statement about what

happened that night. In their ensuing investigation, the police were never able

to locate a weapon associated with the crime.

Later, the police asked the victim to participate in a photo array, conducted

by Detective Willy Cox. After looking at several pictures, the victim selected a

photograph of defendant that he was confident depicted his assailant. The

A-4140-17T4
5
girlfriend was never questioned at the police station and was not asked to look

at a photo array. 2

An Essex County Grand Jury returned an indictment, charging defendant

with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ("(b)(1)"),

second-degree possession of a weapon, N.J.S.A. 2C: 39-5(b)(1), and second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4(a)(1).

Defendant's trial on those charges took place over the course of a week in

February 2018. At trial, the victim and the two women testified for the State, as

did Cox and another police officer who responded to the scene.

Defendant did not testify but raised an alibi defense in response to the

charges. In support of his alibi defense, he presented his girlfriend and his

cousin as witnesses. They testified that defendant was at home on the day of the

incident, except for the period between 7:00 p.m. to 7:30 p.m., and again until

he later left the house at 10:45 p.m. to 11:00 p.m. They also stated that they had

no knowledge about defendant having a gun.

In addition to the witnesses' testimony, the parties presented stipulations

that they reached before trial. In the stipulations, the parties agreed that

2
The girlfriend later found a picture of defendant on the internet while trying
to determine the charges brought against him. The girlfriend, however, never
testified at trial to her investigation or seeing the picture.
A-4140-17T4
6
defendant did not have a permit to own or carry a weapon and that the victim

was shot by a handgun on July 4, 2016.

Prior to charging the jury, the trial judge conducted a charge conference

to review the proposed instructions. Neither party raised any objections to the

charges nor requested any additional instructions as to lesser-included offenses.

During deliberations, the jury sent a note to the judge asking for clarification

about the aggravated assault instruction. After conferring with counsel, the

judge re-read the same charge he gave earlier and provided additional

clarification without any objection. The jury resumed its deliberations until it

later returned its verdict, convicting defendant of the assault charge.

Defendant filed a motion under Rule 3:18-2 for acquittal notwithstanding

the jury's verdict (JNOV), which the judge denied. At his sentencing, the judge

considered the statutory aggravating and mitigating factors before imposing a

six-year term, subject to a period of parole ineligibility under the No Early

Release Act, N.J.S.A. 2C:43-7.2. This appeal followed.

On appeal, defendant presents the following arguments:

POINT I

THE JUDGE COMMITTED PLAIN ERROR IN
FAILING TO CHARGE THE LESSER-INCLUDED
OFFENSES TO AGGRAVATED ASSAULT WHERE
THE EXTENT OF THE VICTIM'S INJURY WAS AT

A-4140-17T4
7
 ISSUE; AND THE JUDGE'S RESPONSE TO A JURY
QUESTION WAS INADEQUATE BECAUSE THE
QUESTION ALSO REVEALED THE NEED TO
INSTRUCT ON LESSER-INCLUDED OFFENSES.
(NOT RAISED BELOW).

A. BECAUSE THE NATURE OF THE
VICTIM'S INJURY WAS UNCLEAR, THE COURT
ERRED IN FAILING TO CHARGE THE LESSER-
INCLUDED OFFENSES TO AGGRAVATED
ASSAULT.

B. THE COURT'S ANSWER TO THE
JURY'S QUESTION REGARDING THE ASSAULT
WAS INADEQUATE, AS THE COURT SHOULD
HAVE INSTRUCTED JURORS REGARDING
LESSER-INCLUDED OFFENSES WHEN THEY
SUGGESTED THAT THEY VIEWED THE
ASSAULT AS INVOLVING MERELY A BODILY
INJURY WHICH MAY HAVE OCCURRED DURING
A FIGHT.

POINT II

IN IMPOSING SENTENCE, THE COURT ERRED
WHEN IT CONSIDERED FACTS THAT WERE
INCONSISTENT WITH THE JURY'S VERDICT IN
ORDER TO SEND A MESSAGE TO THE
DEFENDANT AND OTHERS.

In defendant's pro se supplemental brief, he provided these additional

points for our consideration:

POINT I

A-4140-17T4
8
 THE CONVICTION IS AGAINST THE WEIGHT OF
THE EVIDENCE AND THEREFORE REQUIRES
REVERSAL UNDER RULE 3:18-2.

A. THE EVIDENCE ADDUCED AT TRIAL
IS INSUFFICIENT TO SUSTAIN A FINDING OF
GUILT BEYOND A REASONABLE DOUBT AS TO
CHARGE OF AGGRAVATED ASSAULT IN THE
SECOND DEGREE CAUSING SERIOUS BODILY
INJURY.

B. BECAUSE THIS CASE INVOLVED THE
IDENTIFICATION PROCESS, A WADE HEARING
SHOULD HAVE BEEN HELD TO CHALLENGE
THE ENTIRE IDENTIFICATION PROCESS.

POINT II

THE INTERNALLY INCONSISTENT VERDICT IS
IMPERMISSIBLE AS IT WAS CAUSED BY THIS
COURT'S INCOMPLETE INSTRUCTION TO THE
JURY.

POINT III

IN THE ALTERNATIVE, THIS COURT SHOULD
GRANT A NEW TRIAL PER RULE 3:20-1.

We are not persuaded by any of defendant's arguments.

II.

A.

We first consider defendant's contention that based upon a lack of medical

evidence as to the extent of the victim's injury, the trial judge should have sua

A-4140-17T4
9
sponte instructed the jury about lesser-included offenses. During the judge's

charge, after reading the first count of the indictment charging second-degree

aggravated assault under (b)(1), and reading that section of the statute, the judge

read the Model Jury Charge associated with aggravated assault. See Model Jury

Charges (Criminal), "Aggravated Assault – Serious Bodily Injury (N.J.S.A.

2C:12-1(b)(1))" (rev. Jan. 9, 2012).

On appeal, defendant argues that the judge's failure to have instructed

jurors to consider lesser-included offenses under N.J.S.A. 2C:12-13 "deprived

[him] of due process and the right to jury trial." He argues that the charges on

the lesser-included offenses were warranted because the victim did not

immediately know he was shot, and there was no evidence provided by the State

about the extent of the victim's injuries. Defendant also states his intoxication

may have made him "unable to accurately aim the weapon at an intended target,"

3
Specifically, defendant argues the jury should have been allowed to consider
third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(2) (addressing
"bodily injury with a deadly weapon" (emphasis added)); third-degree
aggravated assault under N.J.S.A. 2C:12-1(b)(7) (addressing attempts to cause
"significant bodily injury" (emphasis added)); fourth-degree assault under
N.J.S.A. 2C:12-l(b)(3) (addressing "[r]ecklessly caus[ing] bodily injury to
another with a deadly weapon" (emphasis added)); and simple assault under
N.J.S.A. 2C:12-1(a) (addressing "[a]ttempts to cause . . . bodily injury,"
"[n]egligently caus[ing] bodily injury to another with a deadly weapon," and
"[a]ttempts by physical menace to put another in fear of imminent serious bodily
injury" (emphasis added)).
A-4140-17T4
10
and that it is unclear whether he intentionally shot the victim or meant to cause

a serious bodily injury. We disagree.

At the outset, we observe that "[w]hen a defendant fails to object to an

error or omission [about a jury charge] at trial, we review for plain error. Under

that standard, we disregard any alleged error 'unless it is of such a nature as to

have been clearly capable of producing an unjust result.'" State v. Funderburg,

225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Reversal is warranted only where

an error raises "a reasonable doubt . . . as to whether the error led the jury to a

result it otherwise might not have reached." Ibid. (alteration in original)

(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). "The mere possibility of

an unjust result is not enough." Ibid. In our review of a trial judge's instructions,

if a defendant does not object to an instruction at trial, we presume "that the

instructions were adequate." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.

2010) (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003)).

In its jury charges, a "trial [judge] 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.'" State v. Baum, 224 N.J.

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

Accordingly, "the [judg]e has an 'independent duty . . . to ensure that the jurors

A-4140-17T4
11
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 State v. Reddish, 181 N.J. 553, 613

(2004)).

"[I]f the parties do not request a lesser-included offense charge, reviewing

courts 'apply a higher standard, requiring the unrequested charge to be "clearly

indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting

State v. Alexander, 233 N.J. 132, 143 (2018)). Further, there must be a rational

basis "to acquit defendant of the greater [-included] offense," before a court is

required to deliver the lesser charge. N.J.S.A. 2C:1-8(e); see also State v.

Denofa, 187 N.J. 24, 41-42 (2006). As such,

[t]he "clearly indicated" standard does not require trial
[judges] either to "scour the statutes to determine if
there are some uncharged offenses of which the
defendant may be guilty," or "'to meticulously sift
through the entire record . . . to see if some combination
of facts and inferences might rationally sustain' a lesser
charge." Instead, the evidence supporting a lesser-
included charge must "jump[] off the page" to trigger a
trial [judge's] duty to sua sponte instruct a jury on that
charge.

[Alexander, 233 N.J. at 143 (second and third
alterations in original) (citations omitted).]

A-4140-17T4
12
 Here, we conclude that the evidence did not clearly indicate that the lesser-

included offenses should have been charged. The indictment charged defendant

under (b)(1) with "[a]ttempt[ing] to cause serious bodily injury to another, or

caus[ing] injury purposely or knowingly or under circumstances manifesting

extreme indifference to the value of human life recklessly caus[ing] such

injury." The parties stipulated that the victim was shot by a handgun. Witnesses

testified about defendant firing a weapon numerous times at the victim.

The fact that the victim did not suffer a more serious injury than being

shot in the buttocks "did not warrant the judge charging sua sponte any of the

unrequested suggested lesser-included offenses." State v. Mingo, 263 N.J.

Super. 296, 305 (App. Div. 1992) (D'Annunzio, J. dissenting), rev'd on dissent,

132 N.J. 75 (1993). An attempt under (b)(1) does not "require[] that defendant

actually cause injury." Ibid. "Thus, defendant was guilty of the [(b)(1)] offense

if he had attempted to cause serious bodily injury, even if his purposeful or

knowing behavior resulted in only bodily injury." Ibid.

We are not persuaded to the contrary by defendant's reliance upon the

holding in State v. Sloane, 111 N.J. 293 (1988). Unlike defendant, the defendant

in Sloane specifically asked for a charge on lesser-included offenses where he

had repeatedly stabbed his victim, and the question of the defendant's

A-4140-17T4
13
responsibility turned on the extent of the injury. See id. at. 298-300. Here, the

State's evidence did not support a claim that defendant caused a serious bodily

injury, but rather that by shooting at the victim numerous times, defendant

attempted to cause such injury. Defendant's reliance on Sloane is inapposite.

Even if we were to conclude the judge erred by not including instructions

on lesser offenses, the omission was not plain error. The Court has said that:

In the context of a jury charge, plain error requires
demonstration of "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an
unjust result."

[State v. Burns, 192 N.J. 312, 341 (2007) (second
alteration in original) (quoting State v. Jordan, 147 N.J.
409, 422 (1997)).].

The allegation of error must be assessed in light of "the totality of the

entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006)

(citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). Here, the jury was free to

find that defendant did not cause any serious bodily injury and did not attempt

to do so, if the State failed to prove either. In light of the fact that there was no

evidence about the seriousness of the victim's injuries, the jury followed the trial

judge's charge about attempting to cause serious bodily injury and found that the

A-4140-17T4
14
State proved beyond a reasonable doubt that defendant was guilty under (b)(1)

of an attempt. Under the totality of the circumstances, we discern no plain error

in the judge omitting charges on the lesser-included offenses of aggravated

assault.

B.

We are not persuaded to the contrary by defendant's argument that the

jury's note somehow triggered an obligation to charge the unrequested lesser-

included offenses. The note stated the following: "We would like to clarify

aggravated assault – causing bodily injury – attempting to cause bodily injury.

The charge states aggravated assault serious bodily injury. If this was an attempt

(say fight) does this qualify for aggravated assault? The document does not

clarify this well enough for us." (Emphasis added). During the judge's

conference about the note with counsel, the prosecutor stated he believed the

note related to the jury "trying to figure out how . . . attempting falls into . . .

agg[ravated] assault." Defendant's attorney agreed that re-reading the jury

charge was the only way to respond, but he mentioned "we don't know if they're

thinking is a fight enough for a serious bodily injury."

A-4140-17T4
15
 After considering counsels' comments, the judge re-read the original

charge and further reinstructed the jury, without any objection by defendant, as

follows:

All right, so with aggravated assault here, it's serious
bodily injury, sort of a two branch statute, all right. So
you have causing serious bodily injury or attempting to
cause serious bodily injury, but on the causing serious
bodily injury branch of it you need -- you need a finding
of serious bodily injury, that's the first element, right,
that I read to you, but you also have to find that the
defendant acted purposely or knowingly or acted
recklessly under circumstances manifesting extreme
difference to the value of human life. That's causing
serious bodily injury, that branch.

The other branch of it is attempting to cause serious
bodily injury where, as I just read to you, there you have
to find beyond a reasonable doubt that . . . defendant
purposely attempted to cause serious bodily injury to
[the victim]. It does not matter whether such injury
actually resulted, all right. So, that's the difference
there.

[(Emphasis added).]

As noted, on appeal, defendant contends that the note revealed the jury

"viewed the assault as involving merely a bodily injury which may have

occurred during a fight." He argues that the judge's response to the jury was

inadequate as the judge should have given a tailored instruction that would have

A-4140-17T4
16
clarified whether the assault could have been based on the fight alone. We find

no merit to defendant's contentions.

We conclude that the trial judge's response to the jury's note properly

addressed and clarified the issue raised by the jury. "'[W]hen a jury requests a

clarification,' the trial [judge] 'is obligated to clear the confusion.'" State v.

Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super.

133, 157 (App. Div. 1984)). When a "note [is] ambiguous . . . the trial judge

should not . . . assume[] the meaning of the jury's questions, but [instead]

should . . . instruct[] the jury to clarify those questions," State v. Whittaker, 326

N.J. Super 252, 262-63 (1999), "so that the actual concern of the jury may be

appropriately addressed." Pressler & Verniero, Current N.J. Court Rules, cmt.

7 on R. 1:8-7 (2020). The trial judge must answer questions "clearly and

accurately and in a manner designed to clear its confusion, which ordinarily

requires explanation beyond rereading the original charge. The court's failure

to do so may require reversal." Ibid.

Here, the trial judge properly recognized that the jury's question related to

an attempt to cause serious bodily injury as provided under (b)(1). The note

itself acknowledged that the jury understood they were asked in the charge to

determine whether there was an attempt to cause serious bodily injury, and its

A-4140-17T4
17
question was focused on what circumstances supported a finding of an attempt.

The judge's explanation properly addressed that issue. The judge evidently

provided the explanation the jury was looking for as demonstrated by the lack

of any further questions before the jury returned its verdict.

We reject defendant's contention that the focus of the note was about the

fight that preceded the shooting. There was clearly no evidence in the record,

nor did the State ever argue, that defendant attempted to cause serious bodily

injury to the victim when he swung at but missed defendant or when they

subsequently struggled for a few moments before the fight ended. Contrary to

defendant's contentions, that insignificant "attempt," which did not and could

not have caused any bodily injury, 4 did not satisfy the requirements of any of

4
N.J.S.A. 2C:11-1 defines the various injuries required for a finding of assault.
It states in pertinent part:

a. "Bodily injury" means physical pain, illness or any
impairment of physical condition;

b. "Serious bodily injury" means bodily injury which
creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or
organ;

....

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the lesser-included offenses he argues should have been charged. Here again

we find no error.

III.

We turn next to defendant's contention that the evidence adduced at trial

was insufficient to sustain a conviction under (b)(1). Essentially, defendant

again argues that the lack of evidence about the extent of the victim's actual

injury should have resulted in an acquittal. For that reason, defendant argues

his Rule 3:18-2 motion for acquittal JNOV should have been granted. We

disagree.

In our review of a denial of a motion filed under Rule 3:18-2, we apply

the same standard as the trial judge. State v. Tindell, 417 N.J. Super. 530, 549

(App. Div. 2011) (citing State v. Moffa, 42 N.J. 258, 263 (1964)). We consider

whether the evidence viewed in its entirety, and giving
the State the benefit of all of its favorable testimony and
all of the favorable inferences which can reasonably be
drawn therefrom, is such that a jury could properly find
beyond a reasonable doubt that the defendant was guilty
of the crime charged.

[Ibid. (quoting State v. D.A., 191 N.J. 158, 163
(2007)).]

d. "Significant bodily injury" means bodily injury
which creates a temporary loss of the function of any
bodily member or organ or temporary loss of any one
of the five senses.
A-4140-17T4
19
 Applying that standard, we conclude that the trial judge properly denied

defendant's motion as there was sufficient evidence that defendant committed a

(b)(1) aggravated assault by shooting at the victim multiple times, as testified to

by the victim, his girlfriend, and her sister. We find defendant's arguments to

the contrary to be without sufficient merit to warrant further discussion in a

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

IV.

We turn our attention next to defendant's argument that his conviction

cannot be sustained because it was inconsistent with his acquittal on the weapons

possession charges. According to defendant, if the jury found he did not possess

a weapon, it could not have also found that he attempted to cause serious bodily

injury to the victim by shooting at him. We disagree.

Contrary to defendant's argument, and as held by the Supreme Court,

inconsistent verdicts are acceptable. As the Court explained in State v.

Muhammad, 182 N.J. 551, 578 (2005):

Consistency in the verdict is not necessary. Each count
in an indictment is regarded as if it was a separate
indictment. Our jurisprudence does not allow us to
conjecture regarding the nature of the deliberations in
the jury room. In reviewing a jury finding, we do not
attempt to reconcile the counts on which the jury
returned a verdict of guilty and not guilty. Instead, we
determine whether the evidence in the record was

A-4140-17T4
20
 sufficient to support a conviction on any count on
which the jury found the defendant guilty. We do not
speculate whether verdicts resulted from jury lenity,
mistake, or compromise.

[(Citations omitted).]

As we have already observed, here, there was sufficient evidence for the

jury to rely upon in finding defendant guilty of the (b)(1) aggravated assault.

We have no cause to speculate as to why the jury acquitted defendant on the

other charges.

V.

Next, we address defendant's contention that the trial judge should have

conducted a Wade hearing about the victim's and his girlfriend's identification

of defendant because the victim did not identify him and the girlfriend's out-of-

court identification was inadmissible.

We conclude defendant's argument is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, his

contentions are belied by the record as the victim did identify defendant through

a photo array, about which there was no evidence that the procedure used was

"the product of suggestive or coercive interview techniques," State v. Michaels,

136 N.J. 299, 320 (1994) (quoting Watkins v. Sowders, 449 U.S. 341, 350

(1981)); see State v. Henderson, 208 N.J. 208, 218 (2011), modified by State v.

A-4140-17T4
21
Anthony, 237 N.J. 213, 233-34 (2019); see also State v. Pressley, 232 N.J. 587,

596-97 (2018), and defendant's girlfriend never testified at trial about her out -

of-court identification of defendant using the internet.

VI.

Having determined that defendant's challenges to his conviction were

without merit, we now address his contentions about his sentence. At

defendant's sentencing, the trial judge considered the statutory criteria for
5
imposing sentences and found aggravating factors three, six, and nine

applicable given that defendant was previously convicted for an unlawful

possession of a weapon within the last four years. He also found mitigating

factor eleven6 applicable, as defendant provided financial support to his three

children, which "would entail [an] excessive hardship" to defendant and his

children if he were incarcerated. The judge then found that the aggravating

factors outweighed the mitigating factor and sentenced defendant to six years

5
See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another
offense"); (6) ("[t]he extent of the defendant’s prior criminal record and the
seriousness of the offenses of which he has been convicted"); and (9) ("[t]he
need for deterring the defendant and others from violating the law").
6
See N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant would
entail excessive hardship to himself or his dependents").
A-4140-17T4
22
subject to a period of parole ineligibility under the No Early Release Act under

N.J.S.A. 2C:43-7.2.

On appeal, defendant argues that the judge "imposed a sentence that was

inconsistent with the verdict." He contends that it was wrong for the judge to

rely on the victim being shot when sentencing defendant because he was

acquitted of the weapons charges. He also argues that he was prejudiced when

the judge imposed a sentence to "send a message to [him] and others." In support

of his contentions, defendant relies upon our holding in Tindell where a trial

judge imposed a maximum sentence against the defendant after he allowed his

personal views to cloud his judgment by making disparaging comments about

defendant, the jurors, and witnesses at sentencing. Tindell, 417 N.J. Super. at

572. We find no merit to these contentions.

We review a sentence imposed by the trial judge under an abuse of

discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we

consider whether: "(1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were . . . 'based upon competent credible

evidence in the record;' [and] (3) 'the application of the guidelines to the facts'

of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,

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228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

Applying this standard, we discern no abuse in the trial judge's discretion

nor did the sentence he imposed shock our judicial conscience. The judge

imposed a sentence in the lower range for a second-degree crime. The judge's

reliance upon the evidence in the record about defendant committing a (b)(1)

offense was permissible even though the jury acquitted defendant of the

weapons charges. Moreover, the judge properly considered and applied

aggravating factor nine as a legitimate consideration under the statute. We have

no cause to disturb defendant's sentence.

VII.

To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude that they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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