STATE OF NEW JERSEY VS. JEROME D. JENNINGS (16-07-0654, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0203-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME D. JENNINGS,
a/k/a DARVIS J. JENNINGS,
NAQUAN WILKERSON,
and MAQUAN WILKERSON,

Defendant-Appellant.
___________________________

Submitted May 18, 2020 – Decided July 30, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No. 16-07-
0654.

Joseph E. Krakora, Public Defender, attorney for
appellant (Courtney A. Johnson, Designated Counsel,
on the brief).
 Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Alicia Christine Gres, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jerome Jennings appeals from a judgment of conviction that

imposed a ten-year sentence with a five-year period of parole ineligibility,

which was entered after a jury convicted him of committing second-degree

certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On appeal,

defendant argues that his motion to suppress the weapon, a handgun, was

wrongfully denied because he was unlawfully seized prior to dropping the

handgun as observed by the arresting officer, and he never abandoned the

handgun, as found by the motion judge. Additionally, he argues that his

conviction was the result of unfair jury bias and his extended-term sentence

was wrongfully imposed because the trial judge failed to consider two

mitigating factors. We find no merit to these contentions and affirm.

I.

The facts relating to defendant's arrest were developed at defendant's

suppression hearing and are summarized as follows. According to Detective

Jonathan Cincilla, the only witness at the suppression hearing, he and

Detective Miguel Acosta were patrolling the area near Walnut Avenue and

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Monmouth Street in Trenton on the evening of June 18, 2016. Detective

Cincilla testified that this area was known for "open air drug[] sales and for

shootings." As the two detectives were driving, they saw defendant standing

on the curb, looking at his cell phone. As they drove by him, defendant

"looked up and saw [them]," and turned to walk in the opposite direction the

officers were driving. According to the detective, defendant appeared to act

"unnatural" and his behavior seemed "like it was an immediate reaction to [the

detectives'] presence."

While defendant was walking away, he met up with another man, later

identified as Joey Thomas. Cincilla knew Thomas from prior narcotics-related

arrests with which he was involved.

Upon reaching the intersection of Walnut and Monmouth, the detectives

executed a U-turn. As they completed that maneuver, Cincilla noticed

defendant reach toward his right side, pull out a handgun, and then toss it onto

the ground. After noticing defendant drop the gun, the detectives decided to

stop the two men. As Acosta and two other officers who had arrived on the

scene detained the two, Cincilla walked back and recovered the handgun.

Defendant was taken into custody, while Thomas was sent on his way.

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 On July 28, 2016, a Mercer County Grand Jury returned an indictment

that charged defendant with second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b), which the State later dismissed, and the second-degree

certain persons charge. Thereafter, defendant filed his motion to suppress,

which the motion judge denied on April 11, 2017, after considering the

evidence adduced at an April 6, 2017 suppression hearing. The judge's order

was accompanied by a written statement of reasons.

In his comprehensive ten-page statement of reasons, the judge found that

defendant's abandoning the handgun was not the result of an illegal seizure.

Rather,

[t]he police, while patrolling, made a [U]-turn to
investigate two men they found suspicious. While that
[U]-turn did take steps towards a seizure, it [was]
insufficient, by itself, to give a reasonable person the
impression they [were] not free to leave. As such,
[d]efendant was not forced to abandon the gun due to
an illegal seizure. After seeing the abandonment, the
officers had reasonable suspicion that crime was afoot,
and legally stopped [d]efendant and recovered the
abandoned gun.

Defendant's jury trial began on June 13, 2018 before another judge and

continued for eight days before the jury convicted defendant of the secon d-

degree certain persons offense as charged in the indictment. Prior to

sentencing, the State filed a motion for the judge to sentence defendant in the

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extended term as a "persistent offender" under N.J.S.A. 2C:44-3(a), which the

court granted before sentencing defendant on August 10, 2018 to ten years

imprisonment, subject to a five-year parole ineligibility period. This appeal

followed.

II.

On appeal, defendant argues the following points:

POINT I

THE GUN THE POLICE RECOVERED SHOULD
HAVE BEEN SUPPRESSED BECAUSE THE
POLICE SEIZED DEFENDANT WITHOUT
ARTICULABLE SUSPICION; THUS, THE
SEIZURE AND SUBSEQUENT SEARCH WERE
UNCONSTITUTIONAL. (RAISED BELOW).

A. THE POLICE SEIZED [DEFENDANT].

B. THE POLICE SEIZED [DEFENDANT]
WITHOUT REASONABLE SUSPICION;
THEREFORE THE SEIZURE VIOLATED THE
FOURTH AMENDMENT.

C. THE [MOTION JUDGE] ERRED IN
[HIS] ANALYSIS OF DEFENDANT'S MOTION TO
SUPPRESS BECAUSE [HE] FAILED TO
CONSIDER THE TOTALITY OF THE
CIRCUMSTANCES.

D. THE [MOTION JUDGE]
INCORRECTLY FOUND THAT [DEFENDANT]
ABANDONED THE HANDGUN.

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 POINT II

DEFENDANT'S CONVICTION MUST BE
VACATED BECAUSE IT IS THE PRODUCT OF AN
UNFAIR TRIAL DUE TO JURY BIAS. (NOT
RAISED BELOW).

POINT III

THE TRIAL [JUDGE'S] IMPOSITION OF AN
EXTENDED TERM SHOULD BE REVERSED.
(NOT RAISED BELOW).

We are unpersuaded by these contentions.

In our review of the grant or denial of a motion to suppress, we "must

defer" to the motion judge's factual findings, "so long as those findings are

supported by sufficient evidence in the record." State v. Dunbar, 229 N.J. 521,

538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). We defer to

those findings because they "are substantially influenced by [the judge's]

opportunity to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy." State v. Lamb, 218 N.J. 300, 313

(2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We will disregard

those findings only when a trial court's findings of fact are clearly mistaken

and "the interests of justice demand intervention and correction." State v.

Hagans, 233 N.J. 30, 37-38 (2018) (quoting State v. Gamble, 218 N.J. 412, 425

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(2014)). However, we review a motion judge's legal conclusions de novo.

Dunbar, 229 N.J. at 538; see also State v. Gandhi, 201 N.J. 161, 176 (2010).

III.

Guided by those principles, we begin our review by addressing

defendant's argument that the detectives unlawfully seized him because they

stopped him without having a reasonable suspicion of any criminal activity.

According to defendant, his seizure began when the detectives made the U-turn

to conduct further observations of defendant. We disagree.

Both the federal and State constitutions protect citizens against

unreasonable searches and seizures. See U.S. Const. amend. IV; see also N.J.

Const. art. I, ¶ 7; State v. Terry, 232 N.J. 218, 231 (2018). "The test of

reasonableness cannot be fixed by per se rules; each case must be decided on

its own facts." Terry, 232 N.J. at 231 (quoting South Dakota v. Opperman,

428 U.S. 364, 372-73 (1976)).

There are three types of interactions with law enforcement that involve

different constitutional implications depending on the event's impact on an

individual's freedom to leave the scene. First, a "field inquiry" is essentially "a

voluntary encounter between the police and a member of the public in which

the police ask questions and do not compel an individual to answer." State v.

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Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave and

therefore does not require a well-grounded suspicion of criminal activity

before its commencement. Ibid.; see also Elders, 192 N.J. at 246. Next, an

investigatory stop or detention, sometimes referred to as a Terry 1 stop,

involves a temporary seizure that restricts a person's movement and therefore

implicates constitutional requirements that require "specific and articulable

facts which, taken together with rational inferences from those facts" provide a

"reasonable suspicion of criminal activity." Elders, 192 N.J. at 247 (quoting

State v. Rodriguez, 172 N.J. 117, 126 (2002)); see also Rosario, 229 N.J. at

272. Last, arrests require "probable cause and generally [are] supported by an

arrest warrant or by demonstration of grounds that would have justified one."

Rosario, 229 N.J. at 272.

When "determining whether a seizure occurred, a court must consider

whether 'in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he [or she] was not free to leave.'"

State v. Stovall, 170 N.J. 346, 355 (2002) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)); see also State v. Tucker, 136 N.J. 158,

164 (1994). We have previously held that a police officer does not illegally

1
Terry v. Ohio, 392 U.S. 1 (1968).
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seize an individual when an officer makes a U-turn to follow the individual,

where, as here, the officer does so without activating the vehicle's siren, or

otherwise asserting his or her authority, and then stops an individual only after

the individual discards an item they unlawfully possessed. See State v.

Hughes, 296 N.J. Super. 291, 296-97 (App. Div. 1997). For that reason, we

conclude that the motion judge here correctly concluded an unlawful seizure

did not take place when the detective decided to make the U-turn as argued by

defendant.

We are not persuaded to the contrary by defendant's reliance on Tucker,

136 N.J. at 158 or United States v. Crandell, 668 F. Supp. 2d 635 (D.N.J.

2009). Neither situation existed here.

In Tucker, the defendant was sitting on a curb when he saw the police and

fled. As the police pursued him, he discarded packets which contained

cocaine. The Court found there was no reasonable, articulable basis for the

police to stop the defendant merely because he fled when he saw the police.

Because the defendant had been unlawfully seized, the cocaine the police

recovered had to be suppressed. Tucker, 136 N.J. at 172. The Court stated,

"[t]he difficulty with this case is that the sole basis asserted for police action

was the youth’s flight." Id. at 168-69.

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 That was not the situation in this case. Here, there was no pursuit and the

police saw the gun after defendant chose to drop it, which supported their

stopping of defendant. Unlike the defendant in Tucker, it was the observation

of the item being discarded that provided Cincilla and Acosta with the required

justification to stop defendant.

The facts in Crandell are also clearly distinguished from those in this

matter. There, the trial court concluded from the totality of the circumstances

that the defendant was seized when officers, who were acting in response to a

tip they received, conducted a stop of the defendant by forming a semi-circle

around defendant, standing about two feet from him, and then during a pat

down, defendant ran and the weapon fell from his pants. The court held that "a

reasonable person, in [defendant's] circumstance, would not have felt that he or

she could terminate the encounter." Crandell, 668 F. Supp. 2d at 648. The

court stated that "[t]he submission, created by the compliance to the officer's

show of authority, established the point in time that a seizure occurred." Id. at

650.

Here, again, the police stopped defendant only after they witnessed his

disposal of the handgun, not while in pursuit after he had been stopped. At no

time prior to that stop did the police do anything to assert their authority over

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defendant. Under the circumstances of this case, we have no reason to disturb

the denial of defendant's suppression motion in this regard.

We also reject defendant's next contention that the motion judge failed to

consider the totality of the circumstances when determining defendant's

motion. Specifically, defendant argues the judge did not "consider whether the

detectives possessed any reasonable suspicion when they decided to maneuver

the vehicle and pursue [defendant] for an investigatory stop." We find no

merit to this contention.

In order to stop defendant, the State had the burden to prove the police

were aware of "specific and articulable facts which, taken together with

rational inferences from those facts, [gave] rise to a reasonable suspicion of

criminal activity." State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v.

Pineiro, 181 N.J. 13, 20 (2004)); see also Terry, 392 U.S. at 20. If there was

no reasonable suspicion, evidence discovered during a search conducted during

the detention is subject to exclusion. State v. Chisum, 236 N.J. 530, 546

(2019).

To determine whether reasonable suspicion existed, a court must consider

the totality of the circumstances, viewing the "whole picture" rather than

taking each fact in isolation. State v. Nelson, 237 N.J. 540, 554 (2019)

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(quoting Stovall, 170 N.J. at 361). This analysis may also consider police

officers' "background and training," id. at 555, including their ability to "make

inferences from and deductions about the cumulative information available to

them that 'might well elude an untrained person,'" ibid. (quoting United States

v. Arvizu, 534 U.S. 266, 273 (2002)). "'Furtive' movements by [a] defendant,"

by themselves, "cannot provide reasonable and articulable suspicion to support

a detention in the first instance." Rosario, 229 N.J. at 277; see also State v.

Dunbar, 434 N.J. Super. 522, 527-28 (App. Div. 2014).

Investigative stops are justified, even absent probable cause, "if the

evidence, when interpreted in an objectively reasonable manner, shows that the

encounter was preceded by activity that would lead a reasonable police officer

to have an articulable suspicion that criminal activity had occurred or would

shortly occur." State v. Davis, 104 N.J. 490, 505 (1986).

Courts are to determine whether the totality of the circumstances gives

rise to an "articulable or particularized" suspicion of criminal activity, not by

use of a strict formula, but "through a sensitive appraisal of the circumstances

in each case." Ibid. Our Supreme Court recognized the two-step analysis set

forth in United States v. Cortez, 449 U.S. 411, 418 (1981),

for determining whether the totality of circumstances
creates a "particularized suspicion." A court must first

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 consider the officer's objective observations. The
evidence collected by the officer is "seen and weighed
not in terms of library analysis by scholars, but as
understood by those versed in the field of law
enforcement." "[A] trained police officer draws
inferences and makes deductions . . . that might well
elude an untrained person. The process does not deal
with hard certainties, but with probabilities." Second,
a court must determine whether the evidence "raise[s]
a suspicion that the particular individual being stopped
is engaged in wrongdoing."

[Id. at 501 (alterations in original) (citations omitted)
(quoting Cortez, 449 U.S. at 418).]

Here, we conclude the motion judge properly considered the totality of the

circumstances and correctly concluded that the detectives did not require a

"reasonable suspicion" to make a U-turn to further observe defendant, but

rather did need the required level of suspicion prior to stopping defendant and

that the State satisfied its burden by relying upon Cincilla's unrefuted

testimony that he observed defendant discard the handgun before stopping

defendant. Nothing more was required.

Defendant's argument to the contrary is belied by the record, as the judge

made findings about what happened prior to the U-turn, including that the

detectives did not determine to stop defendant on a "hunch." Rather, they did

so only when they witnessed defendant discarding the handgun. The judge's

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findings were supported by the unrefuted credible evidence adduced at the

suppression hearing. Again, we have no cause to disturb that result.

To the extent defendant also argues that without the detectives having

the articulable suspicion necessary to stop him, the seizure of the gun was

unlawful and the handgun should have been suppressed as fruit of the

poisonous tree, we disagree with his contention primarily based upon our

earlier conclusions. However, and also contrary to defendant's argument on

appeal, the seizure of the gun after defendant discarded it was not, in any

event, unlawful as he no longer had any privacy interest in the weapon after he

threw it away.

It is settled that a defendant has no expectation of privacy in property

that he or she has abandoned. State v. Burgos, 185 N.J. Super. 424, 428 (App.

Div. 1982). "For purposes of search-and-seizure analysis," a defendant who

abandons property "no longer retain[s] a reasonable expectation of privacy

with regard to it at the time of the search." State v. Carroll, 386 N.J. Super.

143, 160 (App. Div. 2006) (quoting State v. Farinich, 179 N.J. Super. 1, 6

(App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982)). "In the context of the Fourth

Amendment a defendant 'abandons' property when he voluntarily discards,

leaves behind or otherwise relinquishes his interest in the property in

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question . . . ." Farinich, 179 N.J. Super. at 6; see also Carroll, 386 N.J. Super.

at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999). Property is

not abandoned if a defendant discards an article in response to unlawful police

actions. See Tucker, 136 N.J. at 172.

Defendant's discarding of his weapon as observed by the detectives

constituted an abandonment, allowing for the detective's recovery of the

weapon. We agree with the motion judge, who correctly reasoned that the

police had ample reason to confiscate the revolver once it had been d iscarded

by defendant. The gun had been abandoned, as defendant had relinquished any

expectation of privacy in it. See Farinich, 179 N.J. Super. at 6 (finding

abandonment where a defendant, after being approached by the police in an

airport, dropped his suitcase and started to run away); see also Hughes, 296

N.J. Super. at 296 (holding that a defendant on a bicycle abandoned a

container filled with bags of cocaine, because he threw the container against a

curb when he noticed a police car approaching, and then continued to bicycle

another fifty feet away).

There is nothing in the record to support defendant's contention that

somehow the detectives forced him to discard the gun or that it was the result

of an unlawful stop or seizure. As the motion judge found, the detectives only

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decided to stop defendant after they saw defendant drop the gun to the ground.

There was no coercion or unlawful act arising from the detectives simply

driving by defendant.

IV.

Having determined that the suppression motion was properly denied, we

turn to defendant's argument that his "right to a fair trial and an impartial jury

was compromised by the intrusion of irregular influences inside the jury

room." Defendant cites to three instances involving jurors to support his

contention.

Defendant first argues that potential juror number two, J.H., was not

impartial because he held preconceived notions about the truthfulness of police

officer testimony. J.H. never sat as a juror as defendant exercised one of his

peremptory challenges to excuse the juror. Before being excused, J.H.

informed the judge that he had relatives and friends who were police and

corrections officers and that he would be "more likely [to] find that a police

officer would tell the truth than a witness who's not a police officer and give

greater weight [to the police officer's testimony]." In response to the trial

judge's inquiry about whether J.H. could still be impartial, J.H. stated that

although being a police officer was a difficult profession, there wer e police

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officers who were "bad apples," and that he would be able to follow judge's

instructions about determining credibility. Defendant thereafter asked that

J.H. be excused for cause, which the judge denied after concluding that

"basically the bottom line is [the juror] says [he] can be fair and impartial."

Afterward, defendant exercised one of his peremptory challenges and excused

the juror.

Defendant next argues that another potential juror, juror number seven,

P.W., who he also excused by exercising a peremptory challenge, was partial

because she exhibited preconceived biases in favor of law enforcement. When

questioned by the trial judge, P.W. stated that her brother was a member of law

enforcement, and generally she would find that a police officer was more

likely to tell the truth than a lay person. However, in response to the judge's

further inquiry, she stated she thought she could follow the judge's instructions

on credibility and stated that "I think everyone has inherent biases, whether

they know them or not. And I think I can – if I’m aware of that, I can

counteract that." Defendant did not ask to excuse the juror for cause, but

exercised another peremptory challenge to remove the juror.

Finally, defendant argues that juror fourteen, one of the seated jurors,

attended an event where a shooting occurred the night before trial, which

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created an impression that the juror could not be impartial. After the jury was

sworn in, and in response to defense counsel's request, the judge inquired of all

the jurors whether they had knowledge of the event and shooting that occurred

the evening before. Juror fourteen responded, and the judge called the juror to

sidebar, to determine whether she could remain impartial despite having gone

to the event during which the shooting took place. The juror told the judge

that she was at the event for two hours, but she left before the shooting

occurred and she had not read any newspaper articles regarding the shooting,

although her husband mentioned the shooting the next morning. She described

her experience at the event, as "perfectly fine" and "nice." She informed the

judge that her attendance at the event would not impact her ability to remain

impartial during trial.

At sidebar, the judge and counsel discussed the juror. Defense counsel

stated that he was not asking that the juror be excused "for cause because,

based on what she's told us, she was there prior to the event taking place and

hasn't impacted her in any way." He also confirmed that he was "satisfied"

with the way the judge "addressed the juror[s] about their knowledge, having

read anything, [or] heard about [the shooting]."

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 We leave the selection and management of the jury to the sound

discretion of the trial judge. State v. Brown, 442 N.J. Super. 153, 182 (App.

Div. 2015) (quoting State v. R.D., 169 N.J. 551, 559 (2001)). "This standard

respects the trial [judge's] unique perspective and the traditional deference we

accord to [them] in 'exercising control over matters pertaining to the jury.'"

Ibid. (quoting R.D., 169 at 559-60).

Litigants are entitled to "an unbiased jury" and "a fair jury selection

process." Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009). Voir dire

determinations are traditionally within the broad discretionary powers vested

in the trial court and "its exercise of discretion will ordinarily not be disturbed

on appeal." State v. Murray, 240 N.J. Super. 378, 392 (App. Div. 1990)

(quoting R. 1:8-3(a)). Accordingly, we will not reverse a trial court's decision

regarding removal of a juror for cause unless the court has abused its

discretion. State v. DiFrisco, 137 N.J. 434, 459 (1994).

If a party does not move to excuse a juror for cause, we consider whether,

in the interests of justice, we should recognize plain error. R. 2:10-2. To find

plain error, the error must be "clearly capable of producing an unjust result."

Ibid. Defendant bears the burden of proving plain error. State v. Weston, 222

N.J. 277, 295 (2015).

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 In order for a forced expenditure of a peremptory challenge to constitute

reversible error, a defendant must demonstrate that a partial juror participated

in deliberations as a result of defendant's exhaustion of peremptories.

DiFrisco, 137 N.J. at 470. To prove that error, defendant must show

(1) that the trial court erred by failing to remove a
juror for cause; (2) that the juror in question was
eliminated by the exercise of defendant's peremptory
challenge and that defendant exhausted his remaining
challenges; and (3) that at least one of the remaining
jurors that sat on the jury was a partial juror.

[Id. at 471.]

In our review of decisions relating to the jury, we also are guided by the

principle that "[a] defendant's right to be tried before an impartial jury is one

of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187

(2007). "A trial is poisoned at its inception if the jurors deciding the case

cannot review the evidence dispassionately, through the light of reason." Ibid.

(quoting State v. Fortin, 178 N.J. 540, 575 (2004)).

In the selection of a jury, "trial courts must be allotted reasonable latitude

when conducting voir dire and, therefore, a reviewing court's examination

should focus only on determining whether 'the overall scope and quality of the

voir dire was sufficiently thorough and probing to assure the selection of an

impartial jury.'" State v. Winder, 200 N.J. 231, 252 (2009) (quoting State v.

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Biegenwald, 106 N.J. 13, 29 (1987)). The court is "not obliged to ask any

particular question or indulge the defendant's requests absolutely." State v.

Lumumba, 253 N.J. Super. 375, 394 (App. Div. 1992).

The decision to remove a juror for cause requires a showing that the

juror's views would "prevent or substantially impair the performance of that

juror's duties in accordance with the court's instructions and the juror's oath."

DiFrisco, 137 N.J. at 469. The goal is to seat a juror who, despite a disclosed

and acknowledged bias, commits himself or herself to being impartial and

following the judge's instructions. See Winder, 200 N.J. at 251-53; State v.

Fuller, 182 N.J. 174, 203-04 (2004); State v. Williams, 93 N.J. 39, 61 (1983);

Brown, 442 N.J. Super. at 182-84.

Applying these guiding principles here, we conclude that the trial judge

in all three instances properly exercised his discretion. There is no indication

from the record that J.H. or P.W. would not have been an impartial juror

warranting their removal for cause. Both confirmed that they could follow the

judge's instructions and would be impartial. And, defendant has not offered

any evidence that a seated juror was a partial. In any event, neither juror was

seated. State v. Gilmore, 103 N.J. 508, 530 (1986).

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 As to the seated juror, she clarified the nature of her exposure to the

event the night before trial and confirmed that she too could be impartial.

Defendant did not object to the juror remaining a member of the panel and he

has failed to establish any error, let alone plain error, especially in light of the

overwhelming evidence of defendant's having committed the charged offense.

V.

As we have no reason to disturb defendant's conviction, we turn to his

contention that his sentence in the extended term should be vacated because

the trial judge rejected defendant's argument at sentencing that mitigating

factors one and two applied. We disagree.

At sentencing, in response to the State's motion and as set forth in the

judge's thorough oral decision, the trial judge determined that defendant met

the statutory criteria to be considered a persistent offender under N.J.S.A.

2C:44-3 and therefore he was eligible for sentencing in the extended term of

up to twenty years imprisonment subject to a ten-year period of parole

ineligibility. However, in reaching his decision that defendant should serve

ten years, with a five-year period of parole ineligibility, the judge weighed the

aggravating and mitigating factors. The judge applied aggravating factors

three, the risk that defendant would commit another offense, N.J.S.A. 2C:44 -

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1(a)(3), six, defendant's criminal history, N.J.S.A. 2C:44-1(a)(6), and nine, the

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

The judge also considered and applied mitigating factor eleven, that

imprisonment would cause excessive hardship, N.J.S.A. 2C:44-1(b)(11).

While he did not apply mitigating factors one and two, defendant's conduct

neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1), and

defendant did not think his conduct would threaten or cause serious harm,

N.J.S.A. 2C:44-1(b)(2), respectively, the judge considered them, and rejected

their application based upon defendant's prior convictions and corresponding

prison sentences related to being in possession of a weapon. The judge

specifically stated the following:

In terms of mitigating factors, I know the defense
counsel, urges in his sentencing memo to find support
for mitigating factors [one] and [two]. Defendant's
conduct neither caused nor threatened serious harm, as
well as mitigating factor number [two], the defendant
did not [contemplate] that his conduct would cause a
threat and serious harm. The [c]ourt cannot find
support. He was specifically told when he was
sentenced in 2007 . . . that the reason for the lengthy
prison term, the reason for the parole ineligibility was
to deter him from ever carrying a handgun, a weapon
again. Despite spending many years in prison, it
seems like within three weeks of getting out of State
Prison, he once again carried a handgun and while it's
certainly, the [c]ourt recognizes he's not charged with
shooting that firearm, it's clear that he should have

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 understood that type of conduct, carrying a handgun
cannot be tolerated and certainly the handgun is only
carried because it can cause or can threaten serious
harm.

We "review sentencing determinations in accordance with a deferential

standard. [In our review, we] must not substitute [our] judgment for that of the

sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We will affirm a

sentence unless:

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

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

"In exercising its authority to impose [a] sentence, the trial court must

identify and weigh all of the relevant aggravating factors that bear upon the

appropriate sentence as well as those mitigating factors that are 'fully

supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296 (2010)

(quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). Under the persistent

offender statute, N.J.S.A. 2C:44-3(a), a sentencing court has discretion "to

impose an extended sentence when the statutory prerequisites for an extended-

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term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006); see also

State v. Hudson, 209 N.J. 513, 526 (2012) (quoting N.J.S.A. 2C:44-3)

("Pursuant to the persistent offender statute, a court 'may, upon application of

the prosecuting attorney, sentence a person who has been convicted of a crime

of the first, second or third degree to an extended term of imprisonment' if the

individual is found to be a persistent offender.").

Here, the trial judge did not err by declining to apply mitigating factors

one and two. The judge considered the two factors but declined to apply them

because the evidence did not support their application. The judge noted how

defendant had been warned previously about the seriousness of possessing a

weapon and that the reason for his prior sentence was to deter him from

carrying a gun again, yet he was convicted again of possessing a weapon.

Affirmed.

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