STATE OF NEW JERSEY VS. HAKEEM S. GAMBLE (16-04-0294, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-5556-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKEEM S. GAMBLE,
a/k/a DAVID A. JOHNSON,
and MARK D. HARVEY,

Defendant-Appellant.
________________________

Argued September 13, 2021 – Decided September 23, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 16-04-
0294.

Morgan A. Birck, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Morgan A. Birck, of counsel
and on the brief).

Amanda G. Schwartz, Deputy Attorney General,
argued the cause for respondent (Andrew J. Bruck,
 Acting Attorney General, attorney; Amanda G.
Schwartz, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant appeals from his convictions for third-degree

possession of heroin, N.J.S.A. 2C:35-10(a)(1); and third-degree possession of

cocaine, N.J.S.A. 2C:35-10(a)(1).1

On appeal, defendant raises the following arguments for this court's

consideration:

POINT I

THE TRIAL [JUDGE] ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS BECAUSE
THE STOP WAS UNSUPPORTED BY
REASONABLE, ARTICULABLE SUSPICION, AND
THE SUBSEQUENT QUESTIONING, REQUEST
FOR CONSENT TO SEARCH, AND CANINE SNIFF
PROLONGED THE MOTOR VEHICLE STOP
WITHOUT REASONABLE SUSPICION. U.S.

1
A grand jury indicted and charged defendant with third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (Count Two); second-degree
possession with intent to distribute within 500 feet of a public park; N.J.S.A.
2C:35-5(a), N.J.S.A. 2C:35-7.1(a) (Count Three); third-degree possession of
cocaine, N.J.S.A. 2C:35-10(a)(1) (Count Four); third-degree possession with
intent to distribute cocaine, N.J.S.A. 2C:35-5(b)(3) (Count Five) ; and second-
degree possession with intent to distribute cocaine within 500 feet of a public
park, N.J.S.A. 2C:35-5(a), N.J.S.A. 2C:35-7.1(a) (Count Six). The judge
granted defendant's motion for acquittal on counts three and six, and the jury
was deadlocked on counts two and five.

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CONST. AMEND. IV; N.J. CONST. ART. I, ¶ 7.
(Raised below).

A. The [S]top [W]as [N]ot [S]upported [B]y
[R]easonable [S]uspicion [T]hat [A] [M]otor
[V]ehicle [O]ffense [W]as [B]eing
[C]ommitted. (Raised below).

1. The license plate did not violate
N.J.S.A. 39:3-33 and thus did not
provide reasonable suspicion to stop
defendant. (Raised below).

2. The license suspension did not provide
a sufficient alternate basis for the stop.
(Raised below).

B. Even [I]f [T]he [O]fficer [H]ad [R]easonable
[S]uspicion [F]or [T]he [I]nitial [S]top, [T]his
[C]ourt [S]hould [S]till [S]uppress [B]ecause
[T]he [O]fficer [P]rolonged [T]he [S]top
[W]ithout [T]he [R]equisite [R]easonable
[S]uspicion [T]o [D]o [S]o. (Raised below).

1. The officer extended the scope of the
stop beyond the time necessary to
address the traffic violations. (Raised
below).

2. The officer impermissibly extended the
scope of the stop without the requisite
reasonable suspicion to do so. (Raised
below).

C. Even [I]f [T]his [C]ourt [D]oes [N]ot
[S]uppress [T]he [D]rugs, [I]t [S]hould
[R]emand [F]or [A] [H]earing [A]nd

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 [D]ecision [U]nder the [C]orrect [L]egal
[S]tandard. (Raised below).

POINT II

THE TRIAL [JUDGE] ERRED BY NOT ISSUING A
CLAWANS [2] INSTRUCTION AFTER THE STATE
FAILED TO CALL OFFICER THOMAS MCWAIN
TO TESTIFY AT TRIAL REGARDING THE CHAIN
OF CUSTODY OF THE DRUGS. (Raised below).

POINT III

THE SENTENCE IS EXCESSIVE BECAUSE THE
TRIAL [JUDGE] ENGAGED IN DOUBLE
COUNTING AND IMPROPERLY FOUND
DEFENDANT'S DRUG ADDICTION AS AN
AGGRAVATING FACTOR. (Not raised below).

Based on recent case law, we disagree with defendant that the obstructed license

plate—on its own—was an insufficient basis to pull him over. But even if that

were the case, the officer had an unrelated independent basis to do so. We

further disagree with defendant's remaining contentions and affirm.

I.

On review of a motion to suppress evidence, we "defer[] to the trial

[judge's] factual findings, upholding them 'so long as sufficient credible

evidence in the record supports those findings.'" In Interest of J.A., 233 N.J.

2
State v. Clawans, 38 N.J. 162 (1962).
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4
432, 445 (2018) (quoting State v. Gonzales, 227 N.J. 77, 101 (2016)). We afford

deference because the judge's factual determinations "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 [judge] cannot enjoy." State v. Elders,

192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Reversal is warranted only when the judge's determination is "so clearly

mistaken 'that the interests of justice demand intervention and correction.'" Ibid.

(quoting Johnson, 42 N.J. at 162). A "trial [judge's] interpretation of the law

and the legal consequences that flow from established facts are not entitled to

any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)

(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).

The Fourth Amendment of the Federal Constitution and Article I,

Paragraph 7 of the New Jersey Constitution guarantee the right to be free from

unreasonable searches and seizures. State v. Nelson, 237 N.J. 540, 552 (2019)

(citing U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7). "Those provisions impose

a standard of reasonableness on the exercise of discretion by government

officials to protect persons against arbitrary invasions." Ibid. (quoting State v.

Maristany, 133 N.J. 299, 304 (1993)).

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 "Motor vehicle stops are seizures for Fourth Amendment purposes." State

v. Atwood, 232 N.J. 433, 444 (2018). "An officer does not need a warrant to

make [an investigatory] stop if it is based on 'specific and articulable facts

which, taken together with rational inferences from those facts,' give rise to a

reasonable suspicion of criminal activity." State v. Birkenmeier, 185 N.J. 552,

561-62 (2006) (alteration in original) (quoting State v. Rodriguez, 172 N.J. 117,

126-27 (2002)). "It is firmly established that a police officer is justified in

stopping a motor vehicle when he has an articulable and reasonable suspicion

that the driver has committed a motor vehicle offense." State v. Locurto, 157

N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App.

Div. 1997)). The State bears the burden of demonstrating by a preponderance

of the evidence that it possessed sufficient information giving rise to the required

level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004).

A.

Officer Steven Flannery noticed defendant, who he knew, driving in West

Deptford Township. Flannery had known him because a few months prior,

defendant was a target of a separate investigation that Flannery was involved in,

involving a tip that defendant was delivering narcotics. As part of defendant's

motion to suppress, Flannery indicated he was "familiar with [defendant]

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through prior police contacts" and was "aware that [defendant's] New Jersey

driver's license was suspended." Specifically, two weeks earlier, Woodbury

City Police had stopped defendant, wrote him a ticket for driving with a

suspended license, and informed Flannery of the stop. At that time, Flannery

learned that defendant's license had been suspended, and observed his driver's

license photo.

For the stop in question, Flannery followed defendant and, using his

mobile data terminal (MDT), checked if defendant's driver's license was still

suspended. Flannery observed a rear license plate bracket covering the words

"Garden State" on the license plate. Based on his knowledge of the suspended

license and the license plate covering, Flannery pulled him over.

Flannery asked defendant for his license, registration, and insurance.

Defendant stated that he did not have his license on him and he admitted that it

had been suspended, but provided Flannery with the vehicle's registration and

insurance cards. While speaking to him, defendant appeared "to be extremely

nervous by avoiding eye contact, fumbling his documents in his hands, and he

began to breathe rapidly in an apparent change of breathing pattern." Defendant

also began to reach into the center console several times "as if he was attempting

to conceal a weapon or contraband."

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 During this time, K-9 Sergeant Franks arrived on the scene. Flannery

went back to his vehicle to check for active warrants, during which time he

learned that defendant had no active warrants, confirmed that defendant's

driver's license was suspended, and discovered that defendant had an "extensive

history of narcotics arrests."

Flannery returned to the vehicle and requested defendant exit so he could

speak to him further. As defendant exited, Flannery observed a white pill bottle

in the driver's side door pocket. Because of defendant's "nervous indicators, his

own acknowledgment of prior drug arrests, and an unknown prescription bottle

in the vehicle," Flannery asked defendant for written consent to search his

vehicle. Flannery read defendant the consent form, and defendant refused to

consent. Flannery advised defendant that Sergeant Franks would have his K -9

partner conduct a free air sniff. Then, the free air sniff revealed that drugs were

in the vehicle. As a result, Flannery requested a tow to impound the vehicle and

applied for a search warrant.

A judge authorized the warrant, and officers searched the car. They found

three sandwich bags containing narcotics in the gas cap: one containing fifty-

eight bags of heroin, a second containing four bags of heroin, and a third

containing thirty-six bags of crack cocaine. At this point, Patrolman Thomas

A-5556-18
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McWain transported the drug evidence to the lab, where it was logged and

processed.

On defendant's motion to suppress, he argued there was no justification

for the motor vehicle stop, that it was unconstitutional for Flannery to order

defendant out of the vehicle, that the length and duration of the stop were

unreasonable, and that there was no probable cause to issue a search warrant.

The judge denied defendant's motion finding Flannery's knowledge of

defendant's license suspension and defendant's partial license plate covering

provided reasonable articulable suspicion for the stop; that defendant's nervous

appearance and Flannery's observation of a prescription pill bottle in the vehicle

furnished reasonable suspicion to extend the stop; and that defendant made no

showing of falsity or reckless disregard for the truth to warrant a Franks3

hearing. Defendant filed a motion for reconsideration and a motion to recuse

the judge. The judge denied both motions, entered orders, and rendered written

decisions.

Following the Supreme Court's decision in State v. Atwood, 232 N.J. 433

(2018), defendant filed a second motion for reconsideration. Based on Atwood,

the judge granted the motion for reconsideration and scheduled an N.J.R.E. 104

3
Franks v. Delaware, 438 U.S. 154 (1978).
A-5556-18
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hearing before opening arguments to determine the validity of the motor vehicle

stop. The judge found Flannery to be credible. As to the second reconsideration

motion, the judge issued a written decision, again denying defendant's motion

to suppress, and held that Flannery's prior knowledge of defendant's suspended

license and defendant's partially covered license plate were individually

sufficient to justify the stop. The judge, once again, found reasonable suspicion

to extend the stop beyond its initial scope.

B.

We reject defendant's argument that his partially covered license plate did

not solely provide Flannery reasonable suspicion that he was committing a

traffic offense under, N.J.S.A. 39:3-33, which provides in part as follows: "No

person shall drive a motor vehicle which has a license plate frame or

identification marker holder that conceals or otherwise obscures any part of any

marking imprinted upon the vehicle's registration plate[.]"

In State v. Roman-Rosado, police pulled over the defendant's vehicle for

violating N.J.S.A. 39:3-33 because the license plate frame on the rear of the car

touched the bottom ten to fifteen percent of the words "Garden State" on the

license plate. 462 N.J. Super 183, 190-91 (App. Div. 2020). When it was

revealed that there were outstanding warrants for his arrest, the officer searched

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the car and found an unlicensed firearm. Id. at 191-92. The defendant moved

to suppress the evidence, and the judge denied the motion. Id. at 192. The judge

acknowledged that there were minimal obstructions to the plate but found that

the statute barred the obstruction of any marking on the plate. Ibid. This court

reversed, finding that the plate's markings were not concealed or obscured

within the meaning of the statute. Id. at 190. This court found there was no

reasonable basis for the police to stop defendant's car, that the subsequent search

of the car was unconstitutional, and that the judge should have suppressed the

firearm. Id. at 199-200.

After briefing concluded in this appeal, the Court handed down its opinion

in State v. Roman-Rosado, ___ N.J. ___ (2021). 4 The Supreme Court upheld

this court's decision, interpreted the statute narrowly, and held that N.J.S.A.

39:3-33 requires that "all markings on a license plate be legible or identifiable."

Id. at ___ (slip op. at 4). The Court explained that:

if a frame conceals or obscures a marking in a way that
it cannot reasonably be identified or discerned, the
driver would be in violation of the law. In practice, if
a registration letter or number is not legible, the statute
would apply; but if a phrase like "Garden State" is

4
The case involved the consolidated appeals of Roman-Rosado and State v.
Carter, ___ N.J. ___ (2021), both of which involved a defendant stopped for
alleged license plate statute violations.
A-5556-18
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 partly covered but still recognizable, there would be no
violation.

[Id. at __ (slip op. at 4-5).]

In Roman-Rosado's case, the frame did not cover "Garden State" but only

partially encumbered on ten to fifteen percent of the slogan. Id. at ___ (slip op.

at 5). The Court, therefore, found the stop unlawful. Ibid. The Court then

contrasted this with Carter's case, where the Court found a violation of the traffic

statute where the license plate frame covered the phrase "Garden State" entirely.

Ibid. The Court noted, "if 'Garden State,' 'New Jersey,' or some other phrase is

covered to the point that the phrase cannot be identified, the law would likewise

apply." Id. at ___ (slip op. at 29).

Here, the judge found Flannery credible and found that a partial covering

was a sufficient basis to stop defendant. Flannery stated that as he pulled behind

defendant, he noticed the words "Garden State" on defendant's license plate were

partially covered. 5 He again noted that defendant's "rear license plate bracket

was covering the license plate partially."

Under Roman-Rosado, a partial covering may not be a sufficient basis to

stop defendant if the partially covered marking is still legible, however, the

5
A redacted photo of the license plate and frame appear at Appendix A.
A-5556-18
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defendant's license plate here is closer to Carter than Roman-Rosado. The State

provided a picture of the defendant's license plate, which shows the bottom of

the license plate frame covers nearly the entire "Garden State" marking. The

covering makes the marking illegible. Under Carter, the defendant's near-total

obstruction of the marking "Garden State" is a violation of N.J.S.A. 39:3-33 and

provided Flannery with a sufficient basis for the motor vehicle stop.

C.

In the alternative, we also reject defendant's argument that Flannery's

knowledge of defendant's license suspension did not provide an independent

sufficient alternate basis for the motor vehicle stop.

Flannery testified that as he was driving behind defendant, he remembered

the fourteen-digit number on defendant's license and typed it into his MDT to

confirm that defendant's license was suspended. Defendant concedes that the

information from the MDT would likely provide reasonable suspicion for the

stop but maintains that "Flannery's assertion that he typed in [defendant's] letter-

plus-fourteen-digit driver's license number from memory was patently

incredible." Defendant contends that there was no lawful basis on the record to

stop defendant as "the only information Flannery had about [defendant's] license

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suspension was at least two weeks old and from second-hand knowledge of a

stop a month prior."

This court has "determined that license plate checks followed by motor

vehicle stops based on reasonable suspicion that the driver's license is suspended

are constitutionally permissible in light of the interests at stake." State v.

Pitcher, 379 N.J. Super. 308, 314 (App. Div. 2005). The only question we must

address is "whether the officer's suspicion was reasonable. Specifically, [we]

must consider whether the facts available to the officer 'at the moment of

seizure,' were sufficient to cause a person of reasonable caution to believe that

defendant was driving without a license." Id. at 315 (citing Pineiro, 181 N.J. at

21).

The judge found Flannery credible and that his testimony established he

had reasonable suspicion to pull defendant over for driving with a suspended

license. The facts in the record support the judge's conclusion. Flannery had

previous knowledge that, as of two weeks prior, defendant's license was

suspended. Moreover, the officer used his MDT to confirm that defendant's

license was suspended before executing the stop. Even if, as defendant

contends, the entry was not plausible and Flannery could not confirm the

suspension in this manner, we conclude that his previous knowledge that

A-5556-18
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defendant's license was suspended provided ample reasonable suspicion for the

stop. The stop was, therefore, also lawful on this alternate basis.

D.

We reject defendant's contention that the judge erred in failing to find that

the scope of the stop had been extended without the requisite reasonable

suspicion.

During a lawful traffic stop, a police officer can "inquire 'into matters

unrelated to the justification for the traffic stop,'" State v. Dunbar, 229 N.J. 521,

533 (2017) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)), and "may

make 'ordinary inquiries incident to [the traffic] stop,'" ibid. (alteration in

original) (quoting Rodriguez v. United States, 575 U.S. 348, 355 (2015)). "If,

during the course of the stop or as a result of the reasonable inquiries initiated

by the officer, the circumstances 'give rise to suspicions unrelated to the traffic

offense, an officer may broaden [the] inquiry and satisfy those suspicions.'"

State v. Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original) (quoting

United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir. 1995)).

"[A] canine sniff is sui generis and does not transform an otherwise lawful

seizure into a search that triggers constitutional protections." Nelson, 237 N.J.

at 553 (alteration in original) (quoting Dunbar, 229 N.J. at 538). Therefore, "an

A-5556-18
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officer does not need reasonable suspicion independent from the justification for

a traffic stop . . . to conduct a canine sniff." Ibid. (quoting Dunbar, 229 N.J. at

540). "However, 'an officer may not conduct a canine sniff in a manner that

prolongs a traffic stop beyond the time required to complete the stop's mission,

unless he possesses reasonable and articulable suspicion to do so.'" Ibid.

(quoting Dunbar, 229 N.J. at 540).

On defendant's first motion to suppress, the judge made the following

findings of fact:

Initially, when speaking with [d]efendant, Officer
Flannery indicated that [d]efendant appeared to be
extremely nervous by avoiding eye contact, fumbling
his documents in his hands, and he began to breathe
rapidly in an apparent change of breathing pattern.
Defendant also began to reach in the center console
several times after providing Officer Flannery with the
requested documents, as if he was attempting to conceal
a weapon or contraband. When [d]efendant was exiting
the vehicle as requested, Officer Flannery observed a
prescription pill bottle but did not see the name of who
it was prescribed to.

Based on these factual findings, the judge concluded that "under the totality of

the circumstances, [Flannery] provided reasonable suspicion to extend the stop

due to possible offenses unrelated to the initial stop." The judge further found

that "[b]ecause there was reasonable and articulable suspicion to extend the

inquiry of the motor vehicle stop, it can also be said that there was reasonable

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and articulable suspicion for Officer Flannery to request [d]efendant's consent

to search his vehicle and for him to request a canine to report to the scene."

The judge's finding that Flannery had reasonable suspicion to extend the

stop is supported by sufficient credible evidence in the record. Flannery knew

defendant was previously part of an investigation involving narcotics and

confirmed that defendant had an "extensive history of narcotics arrests." We

conclude that this information, coupled with defendant's visible nervousness, his

reaching into the center console, and the prescription pill bottle justified the

extension of the stop.

II.

We reject defendant's argument that the judge erred by not issuing a

Clawans instruction because McWain was a crucial link in the chain of custody

of the drugs recovered from defendant's car, and the failure to call him or provide

an adverse inference denied defendant a fair trial.

A Clawans charge, or adverse inference instruction, is grounded in the

principle that a "failure of a party to produce before a trial tribunal proof which,

it appears, would serve to elucidate the facts in issue, raises a natural inference

that the party so failing fears exposure of those facts would be unfavorable to

him [or her]." Clawans, 38 N.J. at 170. When deciding whether to give a

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Clawans charge, the trial judge must place on the record findings on each of the

following:

(1) that the uncalled witness is peculiarly within the
control or power of only the one party, or that there is
a special relationship between the party and the witness
or the party has superior knowledge of the identity of
the witness or of the testimony the witness might be
expected to give; (2) that the witness is available to that
party both practically and physically; (3) that the
testimony of the uncalled witness will elucidate
relevant and critical facts in issue [;] and (4) that such
testimony appears to be superior to that already utilized
in respect to the fact to be proven.

[State v. Hill, 199 N.J. 545, 561-62 (2009) (alteration
in original) (citing State v. Hickman, 204 N.J. Super.
409, 414 (App. Div. 1985)).]

Relevant to this appeal, "where a witness invokes his Fifth Amendment privilege

and refuses to testify, he is unavailable to both parties and no adverse inference

can fairly be drawn by virtue of his [or her] nonproduction." State v. Crews,

208 N.J. Super. 224, 230 (App. Div. 1986).

After defendant's vehicle was impounded, Flannery searched the car,

which revealed drugs in the vehicle's gas cap. After the drugs were found,

McWain delivered them from the police department to the New Jersey State

Police Laboratory. Karen Creel, a clerk typist and evidence handler at the drug

lab, testified about receiving the evidence from McWain. She testified that

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officers "pre-log their evidence into . . . the computer system," and when

evidence is brought to the lab, she opens their pre-log and "pull[s] up one case

at a time" and logs the evidence. From this, Creel generated an evidence receipt.

Mandelle Hunter, a forensic scientist at the Office of Forensic Sciences, attested

that once an evidence clerk brings up the information on the pre-log, she gives

the evidence a laboratory case number, ensures that the evidence matches the

log, and then seals and labels it.

Here, defendant requested a Clawans charge because McWain, who

brought the drug evidence to the lab, did not testify because he was under

indictment for official misconduct involving drug evidence tampering. The

judge denied the request, reasoning that McWain was equally not available to

both parties. The judge noted that McWain's "current status as a charged

defendant . . . makes him unavailable because he has the right to assert the Fifth."

The judge found that McWain "would have a Fifth Amendment right, given the

circumstances, and is likely to take that or assert that right." The judge also

explained that the State would have had to disclose any known information that

would tie McWain's pending charge to the activity in this case because of the

State's Giglio6 obligation. The judge, therefore, found that the testimony of

6
Giglio v. United States, 405 U.S. 150 (1972).
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Creel, who testified that she received the evidence in an untampered condit ion,

consistent with the pre-log information, sufficiently established the chain of

custody and allowed the jury to assess the credibility of the evidence properly.

The judge pointed out that the lab received the evidence in an untampered

condition, which matched the evidence receipt. The judge properly noted that

if McWain were asked whether he tampered with evidence in this case, he would

more likely than not plead the Fifth, making him entirely unavailable to both

parties. Moreover, defendant made no showing that McWain's testimony would

have been superior to the testimony of Creel and Hunter or that tampering was

even at issue in the case. See Hickman, 204 N.J. Super. at 414. Because the

testimony of Creel and Hunter sufficiently established the chain of custody and

McWain was unavailable, the judge did not err in refusing to issue a Clawans

charge.

III.

We review sentencing determinations in accordance with a deferential

standard and "must not substitute [our] judgment for that of the sentencing

[judge]." State v. Fuentes, 217 N.J. 57, 70 (2014). We determine whether

"sentencing guidelines were violated"; whether "the aggravating and mitigating

factors found" were "based upon competent and credible evidence in the record";

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and whether "the application of the guidelines to the facts of [the] case make[]

the sentence clearly unreasonable so as to shock the judicial conscience." Ibid.

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

"Under N.J.S.A. 2C:44-3, the [judge] may, on application by the

prosecutor, sentence a first-, second-, or third-degree offender to an extended

term, but only if [the judge] finds that the defendant is either (1) a persistent

offender, (2) a professional criminal, or (3) a hired criminal." Dunbar, 108 N.J.

at 87-88. "The sentencing [judge] must first, on application for discretionary

enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine

whether a defendant's criminal record of convictions renders him or her

statutorily eligible." State v. Pierce, 188 N.J. 155, 168 (2006). If so, then "the

range of sentences, available for imposition, starts at the minimum of the

ordinary-term range and ends at the maximum of the extended-term range." Id.

at 169. "Thereafter, whether the [judge] chooses to use the full range of

sentences opened up to the [judge] is a function of the [judge's] assessment of

the aggravating and mitigating factors, including the consideration of the

deterrent need to protect the public." Id. at 168.

Where, within that range of sentences, the [judge]
chooses to sentence a defendant remains in the sound
judgment of the [judge]—subject to reasonableness and
the existence of credible evidence in the record to

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 support the [judge's] finding of aggravating and
mitigating factors and the [judge's] weighing and
balancing of those factors found.

[Id. at 169.]

Based on his age and criminal history, the judge found defendant met the

minimum statutory requirements as a persistent offender under N.J.S.A. 2C:44 -

3 and, therefore, eligible for an extended term.

The judge recounted that defendant was thirty-five years old when he

committed the offense. The judge reviewed defendant's criminal history, which

included: a third-degree theft offense conviction with a three-year prison term

when he was eighteen; a third-degree possession with the intent to distribute

offense with a three-year prison term with a one year period of parole

ineligibility when he was twenty; a third-degree possession of CDS conviction

with a five-year term of probation with 364 days in the county jail when he was

twenty-five; a fourth-degree resisting conviction with a five-year term of

probation with 364 days in the county jail when he was twenty-five; and a third-

degree resisting conviction with drug court special probation for five years

which he violated and received a five-year prison term with a one year period of

parole ineligibility when he was twenty-six. The judge stated, "a sentence with

an extended term is appropriate given . . . defendant's very, very lengthy criminal

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history." As a result, defendant's potential exposure was a minimum of three

years to a maximum of ten years of incarceration.

Ascribing substantial weight to the aggravating factors, the judge noted

that defendant's criminal history showed he was an adjudicated delinquent

fifteen times, had three temporary restraining orders filed against him, thirty-

two disorderly persons convictions, six felony convictions, and four probation

violations. The judge found and gave weight to the following factors: the risk

that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's

prior criminal record and the seriousness of the offenses of which he has been

convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-

1(a)(9). For aggravating factor three, the judge stated that defendant's "criminal

history and substance abuse history suggests recidivism is likely." For

aggravating factor six, he found that "[t]he seriousness of his criminal activity

will continue to match the seriousness of his substance abuse" and his criminal

history "reflects a defiant, anti-social behavior." The judge also gave significant

weight to aggravating factor nine.

Defendant does not dispute his eligibility for extended term sentencing as

a persistent offender or that his sentence falls within the permissible range.

Instead, citing State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005),

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defendant essentially argues that using the same convictions as both a basis for

finding a defendant should be sentenced to an extended term, as well as a basis

for finding an aggravating factor to increase the length of a defendant's sentence,

is prohibited double counting. In Vasquez, this court determined the sentencing

judge erred in "rais[ing] the presumptive extended base term on account of

defendant's only prior conviction, the very conviction which both allowed and

required an extended term." Ibid. This court concluded "[t]o do so was a form

of 'double-counting.'" Ibid.

However, in State v. Tillery, 238 N.J. 293, 327 (2019), the Court found

"no error in the trial [judge's] reliance on defendant's criminal record both to

determine defendant's 'persistent offender' status under N.J.S.A. 2C:44-3(a) and

to support the [judge's] finding of aggravating factors three, six, and nine."

Indeed, the Tillery Court confirmed that "the defendant's criminal record may

be relevant in both stages of the sentencing determination" as "defendant's prior

record is central to aggravating factor six, N.J.S.A. 2C:44-1(a)(6), and may be

relevant to other aggravating and mitigating factors as well." Id. at 327-28.

Likewise, in State v. McDuffie, 450 N.J. Super. 554, 576 (App. Div. 2017), this

court rejected, "as lacking merit," a defendant's claim that "the court

impermissibly double-counted his criminal record, when granting the State's

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motion for a discretionary extended term, and again, when imposing aggravating

factor six." This court explained that defendant's "criminal history was not a

'fact' that was a necessary element of an offense for which he was being

sentenced." Id. at 576. The sentencing judge was not "required to ignore the

extent of his criminal history when considering applicable aggravating factors,"

particularly where it was undisputed that defendant "had more than the requisite

number of offenses to qualify for an extended term." Id. at 576-77.

Here, the record reflects the judge did not double-count the offense that

triggered the extended term as an aggravating factor but rather found the

aggravating factor based on competent credible evidence of defendant's criminal

history. The judge emphasized that nothing had deterred defendant's criminal

behavior in the past. Therefore, we conclude that the judge did not abuse his

discretion.

We also reject defendant's contention that the judge focused on

defendant's "criminal history alone," instead of "the offense itself" in violation

of Dunbar, 108 N.J. at 91-92. In Dunbar, the Court explained that "[o]nce the

decision to impose an extended term has been made, the [judge] should then

return its focus primarily to the offense." Id. at 91. However, "other aspects of

the defendant's record, which are not among the minimal conditions for

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determining persistent offender status, such as a juvenile record, parole or

probation records, and overall response to prior attempts at rehabilitation, will

be relevant factors in adjusting the base extended term." Id. at 92. Here, the

judge's consideration of other aspects of defendant's record belies defendant's

contention.

Defendant's contention that the judge improperly used defendant's drug

addiction as evidence of both aggravating factor three and aggravating factor six

is also without merit. Defendant cites to State v. Baylass, 114 N.J. 169 (1989),

to support his proposition that drug addiction cannot serve as a basis for

aggravating factors. Baylass is distinguishable, however, because the issue was

whether a violation of probation could constitute an aggravating factor. The

defendant in Baylass was sentenced to probation for forgery but had violated it

by continuing to use drugs and absconding. Id. at 171-72. During resentencing,

the trial judge focused on the defendant's drug use, but the Supreme Court held

that "a violation of probation relates to mitigating, not aggravating, factors as

identified at a defendant's original sentencing hearing." Id. at 170. Baylass is,

therefore, distinguishable, where defendant was not being sentenced on a

violation of probation and his drug addiction was relevant to his likelihood to

reoffend. There exists no error in the judge's acknowledgment that "the

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seriousness of [defendant's] criminal activity will continue to match the

seriousness of his substance abuse unless he seeks substantial and lasting

treatment." Therefore, the judge properly found defendant extended term

eligible as a persistent offender and considered and balanced the relevant

aggravating, mitigating factors.

To the extent that we have not addressed defendant's arguments, we

conclude that they lack sufficient merit to warrant discussion in a written

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

Affirmed.

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Appendix A

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