                        NOT FOR PUBLICATION WITHOUT THE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-0772-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KAZMECK HOLLINGSWORTH,
a/k/a DARNELL DRAYTON, KAZ
HOLLINGSWORTH, DARNEL DRAYTON,
MARCUS N. FISHER, KAZMACK
HOLLINGSWORTH, KAZMECK
HOLLINSWORTH, KWAZEEK
FISHER, KWA-ZZEK FISHER,
and BIZZ,

        Defendant-Appellant.

________________________________________________________________

              Submitted February 7, 2017 – Decided August 18, 2017

              Before Judges Espinosa and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              10-02-0648.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Gilbert G. Miller, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Jason   Magid,
              Assistant Prosecutor, of counsel and on the
              brief).
PER CURIAM

       In    his   appeal,    defendant        argues   his    convictions      for

aggravated assault and weapons offenses should be reversed because

the trial judge erred in failing to grant a motion for a mistrial

and because prosecutorial misconduct deprived him of a fair trial.

He also argues the sentence imposed was manifestly excessive.                    We

affirm.

                                      I.

       The    evidence    relevant   to       defendant's     arguments   can    be

summarized as follows.

       The victim, R.D., was shot several times at approximately

2:30 a.m. on June 28, 2009.           Responding to a 911 call, Camden

Police Officer Craig Milbury found R.D. lying on the steps outside

an apartment, bleeding.        R.D. told Officer Milbury he was in pain

and had been shot, but when asked, did not identify who had shot

him.        He was transported to the hospital where he underwent

surgery.      He later made a full recovery.

       D.M., the victim's aunt, lived on the second floor of one of

the apartments.       She told Officer Milbury she did not see what

happened to R.D.         D.M. later gave a taped statement in which she

stated she did not see what happened to R.D., but that he yelled

out to her that he had been shot by defendant and M.H.


                                          2                               A-0772-14T2
     In statements to the police, D.M.'s daughter, Da.M., and

M.M., a friend of the victim, said they saw defendant had a gun

before   R.D.   was   shot.   They   also   both   reported   that     M.H.,

defendant's cousin and the father of Da.M.'s child, was also

present at the time of the shooting.        Da.M. told police she saw

defendant shoot R.D.      However, she later wrote a letter to the

trial court recanting that statement, insisting she "really didn't

see everything that happened to [R.D.]."

     R.D. gave a taped statement to defense investigator Eric

Johnson in which he denied being shot by defendant.

     The investigation of the crime scene revealed two shell

casings near the curb of the street, blood on the sidewalk, and

two bloody t-shirts on the steps where R.D. was found.        No gun was

recovered.

     At trial, D.M. testified she was inside her apartment when

she heard gunshots outside her open window.          She looked out the

window and saw R.D. collapse on the steps outside her apartment,

bleeding and screaming to her that defendant and M.H. shot him.

She also saw defendant and M.H. walking away from R.D. after he

was shot.

     M.M. testified she was sitting on the stoop with R.D., Da.M.

and another friend when defendant, M.H. and a third unidentified

person approached.      She was then asked to identify defendant in

                                     3                               A-0772-14T2
the court room:

                 Q.    Okay.   So    let's   start    with
                       [defendant], do you see him sitting
                       here in the courtroom today?

                 A.    Yeah.

                 Q.    Okay. Could you describe what he's
                       wearing?

                 A.    The khaki inmate suit.

      Defendant was not wearing an "inmate suit."         He was wearing

a khaki-colored shirt and jeans.

      Defense counsel requested a sidebar conference and moved for

a mistrial.    The trial judge did not explicitly deny the motion

but   stated   that,   because   defendant   was   "not   wearing    inmate

garments," the proper response would be

           to indicate to the witness that, given how
           she's described his shirt it appears to me
           she's described the defendant. I'm going to
           have him stand up and ask if that's who she's
           referring to. And the jury will see and I'll
           indicate on the record that he's not – we'll
           indicate what he's wearing.

      Defense counsel argued this response "just highlights the

problem," and asked that the trial move on without any curative

charge to the jury because it would be "ineffective."          The trial

judge honored the request, and stated,

           I'll just make sure to let the record reflect
           the fact that the defendant is not wearing a
           khaki inmate suit, he's wearing blue pants.
           Some of the jurors can see his pants, some

                                    4                               A-0772-14T2
            probably can't. They're blue. He has on a
            tan colored shirt, which is not a Camden
            County issue shirt.

     After   the   sidebar   conference    concluded,    the    trial   judge

stated to the jury, "the witness has indicated the person wearing

the khaki colored shirt which is the defendant."

     When M.M.'s testimony resumed, she recalled R.D. and M.H. had

an argument, during which defendant "told [M.H.] to step back" and

then "lift[ed] up his shirt showing . . . the gun."            After she saw

the gun, M.M. ran inside and heard gunshots go off, but did not

see who shot R.D.      She also could not recall if defendant had

pointed the gun at R.D.

     Da.M. testified there was no third unidentified person, that

only M.H. and defendant approached the stoop.           She confirmed M.H.

and R.D. had an argument and defendant told M.H. "to move, get out

the way."    She recalled seeing defendant point the gun at R.D.'s

head before shooting him, but explained the gun did not go off and

instead made a clicking sound when defendant pulled the trigger.

Then, "everybody took off running" into the apartment.                    She

remained, however, and saw defendant shoot R.D.

     Da.M. denied seeing M.H., or anyone other than defendant,

have a gun in their possession.         Da.M. was also questioned about

her retraction letter.       She admitted to writing the letter, but

testified she did see who shot R.D., despite the contents of the

                                    5                                A-0772-14T2
letter.

     R.D. testified he and defendant were on good terms, and denied

ever having any problems with him.    He knew defendant for about

twenty years and said they were "childhood buddies." He considered

defendant's two sons to be his "little cousins" and defendant to

be "like family."   When asked about the prospect of "snitching on

a family member," R.D. stated, "I wouldn't do it if my heart

depended on it . . . [e]ven if it was the truth" because "family

[comes] before anything else."

     R.D. admitted defendant was present when he was shot, but

denied defendant was the one who shot him.    Instead, he described

the shooter as a dark-skinned male whom he did not know.           He

explained that, before he was shot, M.H., defendant, and another

male named Tyheem first approached him.      They were later joined

by

          some fourth person . . . . And when I turned
          around the guy had a gun on me.     My first
          reaction was to grab the gun. I didn't care
          who he was, what he was about, he had a gun.
          I grabbed the gun, we tussled, the gun went
          off, hit me twice.

     R.D. also stated the shooter put the gun to his head and

threatened to kill him, but when he pulled the trigger he realized

he ran out of bullets and took off running.       He ran after the

shooter, but only made it to the sidewalk curb before retreating


                                 6                          A-0772-14T2
back to the steps.    He denied ever telling D.M. that defendant or

M.H. shot him.

    Sometime     after   the      shooting,    R.D.   had    a   telephone

conversation   with   defendant    and   his   son.   He    described   the

telephone conversation in his testimony:

                 Q.   And at that point did the defendant
                      tell you that, quote, [M.H.] got me
                      in trouble?

                 A.   Yeah, he told me that everybody told
                      on him, accused him as the shooter.

                 Q.   Okay. And did he ask you to give a
                      taped statement to a defense
                      investigator for him?

                 A.   No, he didn't ask me. What he asked
                      me   was, he asked me how can I
                      help.
                           I said well, you got to tell me
                      who your lawyer is and I'll go to
                      your      lawyer and talk to your
                      lawyer.
                           He didn't – he said that he was
                      waiting   for his mom to get the
                      lawyer and     everything.       And
                      that's when his mom came and seen
                      me and we went and seen the
                      investigator Eric Johnson.

                      . . .

                 Q.   When you had this phone
                      conversation with the defendant did
                      you tell the defendant that you
                      would do whatever you could to
                      help him out and    make this case
                      go away?

                 A.   I told him I'd do whatever it is to

                                     7                             A-0772-14T2
                         help him get out of trouble, yeah,
                         because he in trouble for nothing.

                   Q.    Did you also tell him that you
                         didn't want to testify though?

                   A.    No, I didn't tell him – I never told
                         him that until like 2011 . . . .

     R.D. testified he went with defendant's mother to meet with

defendant's    private     investigator       so     he    could     give    a     taped

statement. He also admitted receiving $900 from defendant's family

after he was shot.

     Defendant did not testify at trial.

     Defendant was acquitted of first-degree attempted murder,

N.J.S.A.   2C:5-1,      2C:11-3(a)(1)       (count   one),     and    convicted         of

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

two);    third-degree     aggravated    assault,          N.J.S.A.   2C:12-1(b)(2)

(count   three);    second-degree      possession         of   a   handgun       for    an

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

unlawful   possession     of   a   handgun,     N.J.S.A.       2C:39-5(b)         (count

five); and second-degree possession of a handgun for an unlawful

purpose by a certain person not to have weapons, N.J.S.A. 2C:39-

7(b) (count six).

     Defendant was sentenced to twenty-six years, which included

two eighteen-year concurrent sentences for counts two and five

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


                                        8                                        A-0772-14T2
and an eight-year consecutive sentence for count six subject to a

five-year parole disqualifier.    Counts three and four merged with

count two for sentencing.

     Defendant presents the following arguments in his appeal:

               POINT I

               THE TRIAL COURT ERRONEOUSLY DENIED
               DEFENDANT'S   APPLICATION   FOR   A
               MISTRIAL WHEN [M.M.] IDENTIFIED AND
               DESCRIBED HIM IN COURT AS WEARING
               PRISON GARB AND COMPOUNDED THE
               PREJUDICE TO DEFENDANT ARISING FROM
               THE REMARK BY REPEATING [M.M.]'S
               IDENTIFICATION.

               POINT II

               THE PROSECUTOR ENGAGED IN MULTIPLE
               INSTANCES    OF    MISCONDUCT   ON
               SUMMATION   WHICH  SINGULARLY  AND
               CUMULATIVELY DEPRIVED DEFENDANT OF
               A FAIR TRIAL.

               POINT III

               DEFENDANT'S SENTENCE WAS MANIFESTLY
               EXCESSIVE.

                                 II.

     Defendant argues he suffered irreparable damage as the result

of M.M.'s description of him as wearing an "inmate suit" and that

the trial judge compounded the prejudice to him "by affirming

[M.M.]'s identification and description of his attire to the jury."

This argument merits only limited comment.    R. 2:11-3(e)(2).

     In State v. Artwell, the Supreme Court described distinctive

                                  9                         A-0772-14T2
prison garb as "clothing that allows the jury to 'visibly identify'

the wearer as a prisoner, such as a one-piece jumpsuit, 'detention

greens,'    or    any   clothing    with     markings   identifying     it    as   a

correctional uniform."         177 N.J. 526, 534 n.1 (2003) (citations

omitted).        It   is   undisputed   that    defendant   was   not    wearing

distinctive prison garb.           Therefore, this is not a case in which

the defendant was denied his right to a fair trial because he was

required to "appear at trial in distinctive prison garb."                    Id. at

534-35 (citing State v. Carrion-Collazo, 221 N.J. Super.                103, 112

(App. Div. 1987), certif. denied, 110 N.J. 171 (1988)).                       What

occurred here is that a witness made a factual error in her

testimony that, if accepted by the jury, could inure to defendant's

detriment.       The trial judge endeavored to correct that error and

defense counsel did not consent to the use of curative action

rather than a mistrial.

     "A mistrial is an extraordinary remedy," State v. Goodman,

415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 205

N.J. 78 (2011), that should only be granted "to prevent an obvious

failure of justice," State v. Harvey, 151 N.J. 117, 205 (1997),

cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683

(2000).    Because the trial court "has the feel of the case and is

best equipped to gauge the effect of a prejudicial comment on the

jury in the overall setting," State v. Winter, 96 N.J. 640, 647

                                        10                               A-0772-14T2
(1984), "[a]n appellate court should defer to the decision of the

trial court . . . [and] will not disturb a trial court's ruling

on a motion for a mistrial, absent an abuse of discretion that

results in a manifest injustice," Harvey, supra, 151 N.J. at 205

(citation omitted); see also State v. Jackson, 211 N.J. 394, 407

(2012).

      Because the witness's factual error was one that could easily

be   remedied,   it   was   well   within   the   trial   judge's   scope   of

discretion to suggest a course of action that corrected the factual

error without resorting to the nuclear option of declaring a

mistrial.    Moreover, the error was made in the course of the

witness identifying defendant.            There is no suggestion she was

otherwise unable to do so or relied upon her impression that he

was wearing an "inmate suit" in making the identification.                  We

discern no abuse of discretion in the trial judge's decision to

pursue corrective action rather than declare a mistrial.

                                     III.

      Defendant argues he should be granted a new trial because the

prosecutor's statements in summation constituted prosecutorial

misconduct sufficiently egregious to deprive him of a fair trial.

To support this argument he cites statements characterizing the

State as the "real victim" in the case, and arguing defendant and



                                     11                              A-0772-14T2
the victim conspired to fabricate the victim's testimony that

defendant did not shoot him.

       Defense counsel's summation relied heavily on the victim's

testimony as proof that defendant did not shoot him and advanced

the theory that the actual shooter was M.H.

       The State's summation first addressed the victim's testimony

that defendant was innocent with the assertion that

            this case is called the State of New Jersey
            versus Kazmeck Hollingsworth. It's not [the
            victim] versus Kazmeck Hollingsworth.    [The
            victim] in some sense was the victim in this
            case because he's the person that was shot
            that day. The real victim in this case is the
            State of New Jersey, the citizens of New
            Jersey.

Defense counsel objected to the characterization of the State as

the victim.   The trial judge overruled the objection, stating the

State was the plaintiff in this case and "crimes are considered

an offense generally against the citizens of the State."

       The prosecutor later argued R.D.'s testimony exonerating

defendant was a "lie" he crafted "around the truth" whereby "he

just switched who it was that he saw pulling the trigger at him."

She cited R.D.'s testimony that he considered defendant family and

"that snitching on a family member is the worst thing you could

do."    She also suggested R.D.'s testimony was the product of

fabrication    by   him   and   defendant,   noting   in   his   telephone


                                    12                             A-0772-14T2
conversation with defendant, R.D. stated "he would, quote, do what

he could to help him out and make this case go away."                The

prosecutor explained,

          [R.D.] says some, quote, mystery fourth person
          comes up [to them]. This is the shooter, the
          mystery fourth person.
               And then he says well, initially we were
          actually calling him the third person.     But
          since there was actually three of us already
          there, it was actually the fourth person.
          Yeah. Who are you talking about? Who was it
          that you were discussing who this mystery
          third person was? [R.D.] told you he talked
          to the defendant after the shooting. He was
          talking about the defendant, that's what they
          were putting together their story to say some
          mystery third person.

          [(Emphasis added).]

     Defense   counsel   objected,   arguing   the   contents   of   the

telephone conversation were not in the record, and requested a

jury charge that counsel's statements were not evidence.             The

trial judge overruled the objection because R.D. had testified

about the conversation and the prosecutor's comments about its

contents were reasonable inferences drawn from the evidence.           He

found the comment similar to defense counsel's own argument that

the shooter was M.H. rather than defendant, an inference suggested

as an alternative explanation of the record.

     Defense counsel also requested that the jury "be instructed

forcefully that [the] conversation is not in the record."            The


                                13                              A-0772-14T2
trial judge agreed to instruct the jury once again that it can

rely only on its own recollection of the evidence and cannot

consider counsels' statements evidence, and did so during the

final jury charge.

     When "a claim [is made] of prosecutorial misconduct with

respect to remarks in summation, the issue presented is one of

law" and, thus, reviewed de novo.           State v. Smith, 212 N.J. 365,

387 (2012), cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L.

Ed. 2d 558 (2013).        The issue raised in claims of prosecutorial

misconduct      "is    two-fold:     whether   the     prosecutor     committed

misconduct,     and,     if   so,   'whether   the     prosecutor's    conduct

constitutes grounds for a new trial.'"               State v. Wakefield, 190

N.J. 397, 446 (2007) (quoting State v. Smith, 167 N.J. 158, 181

(2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.

2d 817 (2008).

     "[P]rosecutors are afforded considerable leeway" when they

address the jury, provided "their comments are reasonably related

to the scope of the evidence."         State v. Cole, ___ N.J. ___, ____

(2017) (slip op. at 32) (quoting State v. Frost, 158 N.J. 76, 82

(1999)).   "Prosecutors should not make inaccurate legal or factual

assertions during a trial.          They are duty-bound to confine their

comments   to    facts    revealed    during   the    trial   and   reasonable

inferences to be drawn from that evidence."               Frost, supra, 158

                                       14                               A-0772-14T2
N.J. at 85 (citation omitted).     In addition, a prosecutor may not

express a personal belief or opinion as to the truthfulness of a

witness's testimony.    State v. Marshall, 123 N.J. 1, 156 (1991),

cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694

(1993); State v. Staples, 263 N.J. Super. 602, 605 (App. Div.

1993).

     A prosecutor is, however, "entitled to argue the merits of

the State's case 'graphically and forcefully,' and is not required

to present those arguments as if he were addressing a lecture

hall."     Smith, supra, 212 N.J. at 403 (quoting State v. Feaster,

156 N.J. 1, 58 (1998), cert. denied, 532 U.S. 932, 121 S. Ct.

1380, 149 L. Ed. 2d 306 (2001)).        They "may strike hard blows

[but] not . . . foul ones."        Feaster, supra, 156 N.J. at 59

(quoting Bergee v. United States, 295 U.S. 78, 88, 55 S. Ct. 629,

633, 79 L. Ed. 2d 1314, 1321 (1935)).

     "Notwithstanding the high standard to which a prosecutor is

held as he or she gives an opening statement or summation, 'not

every    deviation    from   the    legal   prescriptions   governing

prosecutorial conduct' requires reversal."       Jackson, supra, 211

N.J. at 408-09 (quoting State v. Williams, 113 N.J. 393, 452

(1988)).     A prosecutor's improper "comments are deemed to have

violated the defendant's right to a fair trial when they 'so

infect[] the trial with unfairness as to make the resulting

                                   15                         A-0772-14T2
conviction a denial of due process.'"          Id. at 409 (alteration in

original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988),

cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803

(1989)).

       In our review of the prosecutor's comments, the factors to

be considered include: "whether 'timely and proper objections'

were   raised;   whether    the   offending    remarks   'were   withdrawn

promptly'; . . . whether the trial court struck the remarks and

provided   appropriate     instructions   to   the   jury   [;   and] . . .

whether the offending remarks were prompted by comments in the

summation of defense counsel."       Smith, supra, 212 N.J. at 403-04

(citations omitted).

       Defense counsel registered his objection to each of the

comments challenged on appeal.       The trial judge overruled each of

the objections but did give an additional instruction to the jury

regarding the fact that statements by counsel are not evidence,

as requested by defense counsel.

       It is a bit strained to contend that the State was the real

victim here, rather than R.D.      While it is true that, as a general

rule, it is the State that brings a criminal prosecution, R.D.'s

status as the person who was shot and left bleeding in the street

surely cements his role as victim.            To the extent this feeble

effort to diminish the weight of R.D.'s apparent lack of animosity

                                    16                              A-0772-14T2
toward defendant was error, it was harmless beyond a reasonable

doubt for it surely lacked the capacity to infect the trial with

any unfairness.     See State v. Ingram, 196 N.J. 23, 49 (2008)

(applying   "harmless   beyond      a    reasonable       doubt"   standard    to

constitutional errors (quoting State v. Castagna, 187 N.J. 293,

312 (2006))).

     The    other   comments    challenged         on     appeal   concern    the

prosecutor's    arguments    that   R.D.     was    not    being   truthful    in

asserting defendant did not shoot him and that he colluded with

defendant to fabricate his testimony that another, unidentified

person was the shooter.        We stress that these comments did not

include an expression of personal belief that R.D. was lying.

     The evidence in the case included R.D.'s aunt's testimony

that she heard him exclaim at the time he was shot that he had

been shot by defendant and M.H.              R.D.'s denial was reasonably

viewed within the context of his own testimony that he considered

defendant "family," that he wouldn't "snitch" on family "if [his]

heart depended on it . . . [e]ven if it was the truth," and his

own description of his conversation with defendant in which he

stated he told defendant he would "do whatever it is to help him

get out of trouble."        In addition, R.D. testified he went with

defendant's mother to meet with defendant's private investigator



                                        17                              A-0772-14T2
so he could give a taped statement. Finally, he admitted receiving

$900 from defendant's family after he was shot.

     Given this context, we conclude the prosecutor's comments

fell within the permissible range of reasonable inferences drawn

from the evidence and provide no grounds for reversal.

                                 IV.

     Finally, we turn to defendant's challenge to his sentence as

manifestly excessive.

     At sentencing, the trial judge found aggravating factor one,

N.J.S.A.   2C:44-1(a)(1),   applied    because   the   victim    was   shot

"multiple times" and was unarmed.         He also found aggravating

factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9),

and no mitigating factors.    He determined the aggravating factors

"substantially   and    convincingly"    outweighed     the     mitigating

factors.   The trial judge merged counts three and four with count

two, finding there to be "just one assault here that occurred,"

requiring only one conviction "as a matter of constitutional

fairness."

     Defendant, who was thirty-six years old at the time of the

shooting, has an extensive adult criminal record.             According to

his presentence report, this offense was his seventh indictable

conviction in New Jersey and he had one felony conviction in

federal court.   Four of the New Jersey convictions and the federal

                                 18                                A-0772-14T2
conviction were related to the illegal possession of firearms.               He

served six terms in New Jersey state prisons.             He also served two

federal sentences and was on supervised release at the time of

this offense. Defendant does not dispute the fact that a mandatory

extended term was required because his criminal history included

two predicate Graves Act offenses.           See N.J.S.A. 2C:43-6.

     The trial judge applied the Yarbough1 factors to determine

whether the sentence for the certain persons offense (count six)

should be consecutive or concurrent.            The trial judge recognized

the conduct charged in count six did not involve "a different time

and separate place" from the aggravated assault or "multiple

victims."     However, he observed the two counts charged were

"separate   offenses     with   distinct     elements . . .     intended     to

prohibit different conduct."            He also added that imposing a

concurrent sentence for count six would "bypass[] in substantial

measure" any "legislative intent to deter by way of the enactment

of the certain persons statute" because count six "would then be

essentially   subsumed     by   the   greater    second   degree   aggravated

assault   sentence   in"    count     two.      Defendant's   five   separate

convictions under counts two through six were characterized as

"somewhat numerous," even though some were merged.                 Based upon


1
   State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied,
475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

                                      19                              A-0772-14T2
this reasoning, the trial judge imposed concurrent eighteen-year

sentences on counts two and five, both subject to NERA, and a

consecutive eight-year sentence with a five-year period of parole

ineligibility on count six.

     "Appellate     review    of    sentencing    decisions   is   relatively

narrow and is governed by an abuse of discretion standard."             State

v. Blackmon, 202 N.J. 283, 297 (2010).            The Supreme Court directs

appellate courts to determine whether:

           (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."

           [State v. Fuentes, 217 N.J. 57, 70 (2014)
           (quoting State v. Roth, 95 N.J. 334, 364-65
           (1984)) (alteration in original).]

     Appellate courts are "bound to affirm a sentence, even if

[they] would have arrived at a different result, as long as the

trial   court    properly    identifies     and   balances   aggravating   and

mitigating      factors   that   are   supported    by   competent   credible

evidence in the record."           State v. O'Donnell, 117 N.J. 210, 215

(1989).   An appellate court should modify a sentence "only when

the trial court's determination was 'clearly mistaken.'"                State

v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114

                                       20                             A-0772-14T2
N.J. 394, 401 (1989)).

      Defendant contends the trial judge lacked a factual basis for

finding aggravating factor one and that this finding constituted

impermissible      double-counting.         Defendant    also   argues       the

imposition    of   consecutive   sentences    was   a   manifest   abuse       of

discretion.      He states the trial judge's finding that defendant

had   numerous offenses was erroneous because it was relying upon

two convictions that merged and it erred in considering the certain

persons offense as having a separate purpose under Yarbough.

Finally, he argues the sentence was improper because the trial

judge "did not consider the real-time consequences of NERA" in

imposing his sentence.

      After reviewing these arguments in light of the record and

applicable      legal   principles,    we    conclude    that   defendant's

arguments regarding the imposition of a consecutive sentence for

the   certain    persons   offense,   his   contention    the   trial     judge

committed reversible error in failing to consider the consequences

of NERA2 and his criticism of the judge's reference to his offenses


2
   The trial judge did observe the impact of NERA on the time
defendant would serve, identifying the aggregate amount of time
he would be ineligible for parole. Moreover, the trial judge had
no discretion to impose a lesser parole ineligibility term given
NERA's mandate of "a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole."
N.J.S.A. 2C:43-7.2(a). In addition, "the impact of the eighty-
five percent period of parole ineligibility on the time defendant

                                      21                                A-0772-14T2
as "numerous" lack sufficient merit to warrant discussion.                    R.

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

      We agree with defendant that the record of this case did not

support a finding of aggravating factor one.            That factor directs

the sentencing court to examine "[t]he nature and circumstances

of the offense, and the role of the actor therein, including

whether or not it was committed in an especially heinous, cruel,

or depraved manner."      N.J.S.A. 2C:44-1(a)(1).        The fact that R.D.

was   shot   multiple   times    while      unarmed   falls   short   of   "the

extraordinary brutality" contemplated in Fuentes, supra, 217 N.J.

at 75.     For this factor to apply, the cruelty must be such that

the infliction of pain is an end in itself.           O'Donnell, supra, 117

N.J. at 216.      There was no double-counting here, however, because

it is not an element of aggravated assault that the victim is

unarmed.     See State v. Lawless, 214 N.J. 594, 608 (2013); State

v. Pineda, 119 N.J. 621, 627 (1990).

      The trial judge stated he gave "substantial weight" to all

the aggravating factors he found and stated he gave factor one

"very heavy weight."           He noted further that in weighing the

factors,     he   considered    them   "on    a   qualitative   as    well    as



would spend in custody [is] not [a] statutory mitigating factor[]
and thus [does] not need to be addressed by [the judge] in
sentencing." State v. Bieniek, 200 N.J. 601, 610 n.1 (2010).

                                       22                              A-0772-14T2
quantitative     basis"    and       concluded    the   aggravating     factors

outweighed the non-existent mitigating factors "substantially and

convincingly."

     If aggravating factor one is removed from the equation, the

record   provides       ample    evidence    to    support    the     remaining

aggravating factors, none of which are disputed by defendant.                  He

also does not contend the trial judge erred in failing to find any

mitigating     factor     or    in    finding     the   aggravating     factors

preponderated "substantially and convincingly."

     Given the deference paid to a trial judge's discretion in

imposing sentence, "we will exercise that reserve of judicial

power to modify sentences when the application of the facts to the

law is such a clear error of judgment that it shocks the judicial

conscience," a power that is not to be invoked frequently.                Roth,

supra, 95 N.J. at 364.          Here, even though it was error to find

aggravating factor one, the sentence imposed is supported by the

remaining factors and the weight the trial judge accorded them.

We do not conclude the error amounted to a clear error in judgment

that shocks the judicial conscience but rather, we determine,

under the circumstances of this case and this defendant, such

error was harmless.

     Affirmed.



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