                                NOT FOR PUBLICATION WITHOUT THE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-4210-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NADIR ROBERTS,

     Defendant-Appellant.
___________________________

                    Submitted November 8, 2018 – Decided November 28, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 15-03-0506,
                    15-07-1602, and 15-09-2215.

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

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

PER CURIAM
      Defendant Nadir Roberts appeals from an April 10, 2017 judgment of

conviction and sentence. We affirm in part, and reverse and remand in part

defendant's possession of a controlled dangerous substance (CDS) with intent to

distribute in a school zone convictions for further proceedings consistent with

this opinion.

      In March 2015, an Essex County grand jury charged defendant under

Indictment No. 15-03-0506 (indictment one), with: first-degree maintaining or

operating a CDS production facility, N.J.S.A. 2C:35-4; three counts of third-

degree possession of a CDS, N.J.S.A. 2C:35-10(a); three counts of third-degree

possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3);

four counts of third-degree possession of a CDS with intent to distribute in a

school zone, N.J.S.A. 2C:35-7(a).      Co-defendants Mark Carter, Sadiyyah

Roberts, Wali Williams, Matthew Policarepio, and Desmond Whitlock were also

charged with various counts on the indictment.

      In July 2015, defendant and co-defendant Davon Jackson were charged by

the grand jury under Indictment No. 15-07-1602 (indictment two), with: second-

degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A.

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

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

                                                                         A-4210-16T2
                                       2
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a).

        In September 2015, the grand jury charged defendant and co-defendants

Antwan Parker and Abrams Clifton under Indictment No. 15-09-2215

(indictment three), with: third-degree conspiracy to commit drug crimes,

N.J.S.A. 2C:5-2; three counts of third-degree possession of a CDS, N.J.S.A.

2C:35-10(a); two counts of third-degree possession of less than one-half ounce

of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3), and (b)(5);

two counts of third-degree possession of a CDS with the intent to distribute

within 1000 feet of a school, N.J.S.A. 2C:35-7.

        The charges from indictment one stemmed from events on the evening of

November 10, 2014, when Newark police officers arrived to execute a search

warrant at a residence located on North 11th Street. Detective David Martinez

obtained the warrant and supervised a large police caravan comprised of several

officers and police vehicles.

        Detective Thomas Del Mauro was assigned to watch the rear of the

residence during execution of the search warrant. As Del Mauro approached the

residence he noticed several individuals on the porch, including defendant and

Carter. Del Mauro went to the backyard of the residence, and saw Carter come


                                                                       A-4210-16T2
                                       3
out the rear of the residence and run into an adjacent yard. Del Mauro, along

with Detective Edward Santiago, pursued Carter, and eventually arrested him.

They recovered a nine millimeter handgun and a black plastic bag containing

thirty-one envelopes of heroin, twelve vials of cocaine, and eleven bags of

marijuana Carter had attempted to discard during the pursuit.

      Inside the residence, several individuals, including defendant, were

arrested for possession of a CDS. Sergeant Thomas Roe patted down defendant

and discovered a clear plastic bag containing ninety-eight glass vials of cocaine

in his shorts and another plastic bag containing 239 envelopes of heroin in his

waistband. Defendant told police the residence was his address.

      Police discovered materials used to weigh, manufacture, and distribute

drugs inside the residence. Specifically, police found: a ten gram sandwich-

sized bag of marijuana, nine small green baggies of marijuana, several empty

green baggies, two digital scales, a metal grinder, ninety-eight vials of cocaine,

five boxes of empty glass vials, and three bags of blue plastic glass vial tops.

      Defendant and Carter were tried on indictment one. The jury convicted

defendant of all charges. On December 9, 2016, defendant pled guilty to the

second-degree charge of unlawful possession of a weapon on indictment two,

and the two third-degree charges of possession of CDS with intent to distribute


                                                                           A-4210-16T2
                                        4
in a school zone on indictment three. In exchange for his plea, the State agreed

to seek a dismissal of all other charges on both indictments, and to have

defendant sentenced to five years in prison with a two-and-a-half-year period of

parole ineligibility on each count, all running concurrently with any sentence

imposed on the convictions of indictment one.

      Defendant filed a motion for a new trial and acquittal of the jury trial

convictions. The sentencing judge denied the motion and sentenced defendant

on those convictions. Following a merger, defendant was sentenced to twelve

years with a six-year period of parole ineligibility on the first-degree

maintaining or operating a CDS production facility charge. Defendant received

concurrent sentences of five years, each with a three-year period of parole

ineligibility, on the three school zone counts. Regarding the charges to which

defendant had entered a guilty plea, he received a five-year sentence with a

forty-two month period of parole ineligibility for the weapon possession count,

and a five-year sentence with a two-and-a-half-year period of parole ineligibility

for the two counts of CDS possession. This appeal followed.

      Defendant raises the following arguments on appeal:

            POINT I - THE LAW REQUIRES DISMISSAL OF
            COUNT SIX, MAINTAINING A NARCOTICS
            FACILITY, BECAUSE THE VERDICT WAS
            AGAINST THE WEIGHT OF THE EVIDENCE.

                                                                          A-4210-16T2
                                        5
POINT II - THE TRIAL COURT ERRONEOUSLY
ADMITTED HIGHLY PREJUDICIAL HEARSAY
EVIDENCE SHOWING THAT THE POLICE HAD A
SEARCH WARRANT FOR THE PREMISES WHERE
THE POLICE ALLEGED THAT THE DEFENDANT
MAINTAINED A NARCOTICS FACILITY.

    A.   The Evidence was Immaterial and Unduly
         Prejudicial.

    B.   The Evidence that the Police had a Search
         Warrant Violated the Hearsay Rules and
         Defendant's Right to Confront Witnesses.

POINT III - THE DRUG ZONE CONVICTIONS
MUST BE VACATED BECAUSE THE DRUG ZONE
MAP IS NOT A SELF-AUTHENTICATING
DOCUMENT,     WHICH    WAS   THE CITED
JUSTIFICATION FOR ITS ADMISSION.

POINT IV - THE DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART. I, PAR. 1 OF
THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY ERRONEOUS, DEFICIENT, AND
PREJUDICIAL JURY INSTRUCTIONS. (Partially
Raised Below).

    A.   The Trial Court Erroneously and
         Prejudicially Instructed Jurors on the Law
         of Maintaining a Narcotics Facility.

    B.   The Trial Court Omitted a Vital instruction
         on the Law of Oral Admissions to Police,
         Resulting in Substantial Prejudice. (Not
         Raised Below).


                                                       A-4210-16T2
                       6
                   C.    The Instructions Improperly Shifted the
                         Burden of Proof. (Not Raised Below).

                   D.    The Trial Court Instructed Jurors They
                         Could Find the Defendant Guilty Based on
                         an Intent to Attempt Distribution without
                         Instructing Them on the Law of Attempted
                         Distribution. (Not Raised Below).

            POINT V - THE SENTENCE IS EXCESSIVE
            BECAUSE THE TRIAL COURT IMPROPERLY
            BALANCED     THE    AGGRAVATING AND
            MITIGATING FACTORS.

                                        I.

      On a motion for an acquittal notwithstanding the verdict, the standard of

review is

            "whether, viewing the State's evidence in its entirety,
            be that evidence direct or circumstantial, and giving the
            State the benefit of all its favorable testimony as well
            as all of the favorable inferences which reasonably
            could be drawn therefrom, a reasonable jury could find"
            beyond a reasonable doubt that the crime occurred
            within the State.

            [State v. Denofa, 187 N.J. 24, 44 (2006) (quoting State
            v. Reyes, 50 N.J. 454, 458-59 (1967)).]

      "On such a motion the trial judge is not concerned with the worth, nature

or extent (beyond a scintilla) of the evidence, but only with its existence, viewed

most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App.

Div. 1974). In reviewing the denial of a motion for judgment of acquittal, we

                                                                           A-4210-16T2
                                        7
apply the same standard and independently review the evidence against the

defendant. Reyes, 50 N.J. at 459.

      Defendant argues the sentencing judge should have granted the motion for

acquittal regarding the guilty verdict for maintaining a narcotics facility because

the jury's fact finding was against the weight of evidence presented by the State.

Primarily relying on the dissent in State v. Kittrell, 145 N.J. 112, 135-43 (1996),

defendant asserts the State's evidence was insufficient to "support a finding that

the defendant maintained the premises on a continuing basis" because "[t]here

must be continuity of use of the facility to qualify under the statute."        We

disagree.

      N.J.S.A. 2C:35-4 provides:

            [A]ny person who knowingly maintains or operates any
            premises, place or facility used for the manufacture of
            . . . any substance listed in Schedule I or II, or the
            analog of any such substance, or any person who
            knowingly aids, promotes, finances or otherwise
            participates in the maintenance or operations of such
            premises, place or facility, is guilty of a crime of the
            first degree[.]

"Manufacture" is defined in N.J.S.A. 2C:35-2 as:

            [T]he     production,   preparation,    propagation,
            compounding, conversion, or processing of a [CDS] or
            controlled substance analog, either directly or by
            extraction from substances of natural origin, or
            independently by means of chemical synthesis, or by a

                                                                           A-4210-16T2
                                        8
            combination of extraction and chemical synthesis, and
            includes any packaging or repackaging of the substance
            or labeling or relabeling of its container[.]

            [(emphasis added).]

      In Kittrell, the Supreme Court interpreted the language of N.J.S.A. 2C:35-

4 and N.J.S.A. 2C:35-2, specifically the definition of the word "maintain" in the

former statute.   145 N.J. at 121-23.       The Court concluded the Webster's

Dictionary definition of maintain, "to preserve in[;] carry on[;] keep up[;]

continue," reflected the legislative intent for its use of the term in the statute.

Id. at 122 (quoting Webster's Third New International Dictionary 1362 (3d ed.

1976)).

      The defendant in Kittrell was charged under N.J.S.A. 2C:35-4, when

police executed a search warrant at a co-defendant's apartment and discovered

twenty-two vials of cocaine, sixteen small yellow plastic bags and fifty blue

bags containing cocaine, and a bag of marijuana. Id. at 123. Kittrell's co-

defendant admitted the drugs belonged to Kittrell, who used the co-defendant's

apartment to "cut-up," package, and repackage cocaine. Ibid. Based on the

evidence recovered and the co-defendant's statement, the Court held a

reasonable inference could be drawn by a factfinder that Kittrell maintained the

co-defendant's apartment as a narcotics packaging or repackaging facility


                                                                           A-4210-16T2
                                        9
pursuant to N.J.S.A. 2C:35-4. Ibid.; see also State v. Miles, 231 N.J. Super. 27

(App. Div. 1989) (finding "[thirty-five] tinfoil packets of cocaine with a total

weight of 3.12 grams, two plastic bags containing cocaine with a total weight of

5.47 grams, seven vials of crack with a total weight of .487 grams, [twenty-six]

glassine envelopes bearing the logo 'over the top' and containing a total of 1.35

grams of heroin, five plastic bags containing a total of 5.2 grams of marijuana,

a scale, cutting agents and $599 in cash" sufficient evidence to reverse an order

dismissing a count charging a defendant under N.J.S.A. 2C:35-4).

      The Court explained:

            [F]or Kittrell to be convicted under N.J.S.A. 2C:35–4,
            he must "maintain" a facility that "manufactures" a
            [CDS]. To establish such "maintenance" there must be
            some evidence of continuity in his use of [the]
            apartment to manufacture crack. Such evidence may be
            as here, that he used the apartment on more than one
            occasion as a manufacturing facility. We recognize that
            there may be a few cases where a person will be
            apprehended the first time that he operates a
            manufacturing facility. To sustain a conviction under
            those circumstances, there must be some evidence that
            the defendant intended to operate the manufacturing
            facility on more than one occasion.

            [Kittrell, 145 N.J. at 122 (emphasis added).]

      Here, the evidence recovered by the police pursuant to the search warrant

was sufficient for a reasonable juror to find defendant guilty of an offense under


                                                                          A-4210-16T2
                                       10
N.J.S.A. 2C:35-4. The police recovered a greater amount of drugs than the

defendants in either Kittrell or Miles. Furthermore, the State offered an expert

witness who explained the evidence recovered at the residence, namely, the

baggies, vials, grinders, and scales, were materials commonly used to cut-up,

weigh, package, and distribute narcotics.

      When the evidence of this case is viewed in a light favorable to the State,

and construing N.J.S.A. 2C:35-4, a reasonable jury could find the intent of

continuity required by Kittrell. 145 N.J. at 121. Even if this were the first time

defendant had operated the residence as a narcotics facility, the abundance of

drugs and paraphernalia could lead a reasonable juror to find defendant intended

to continue using the residence as a location to package drugs for distribution

on more than one occasion. For these reasons, we decline to disturb the jury's

verdict finding defendant guilty of maintaining or operating a CDS production

facility under N.J.S.A. 2C:35-4.

                                       II.

      We next address defendant's assertion the trial judge committed reversible

error by permitting the prosecutor to reference the search warrant in his opening

and during his questioning of Martinez. Generally, when error is not brought to

the attention of the trial court, we will not reverse unless the appellant shows


                                                                          A-4210-16T2
                                       11
the error was "clearly capable of producing an unjust result." R. 2:10-2. If the

error was objected to, or otherwise brought to the attention of the trial court, the

same standard ultimately applies notwithstanding the assertion it was "harmful

error."   See State v. Weston, 222 N.J. 277, 289 (2015).          This is because

reversible error must be clearly capable of producing an unjust result. State v.

Castagna, 187 N.J. 293, 312 (2006) (internal citations and quotations omitted).

If the error is harmless, it will be disregarded by the court. State v. Macon, 57

N.J. 325, 333 (1971).

      The prospect of an unjust result must be "sufficient to raise a reasonable

doubt as to whether the error led the jury to a result it otherwise might not have

reached." Id. at 336. Even an error of constitutional dimension will not be

considered harmful unless it contributed to the verdict. State v. Gillespie, 208

N.J. 59, 93-94 (2011); State v. Slobodian, 57 N.J. 18, 23 (1970). The burden is

on the State to prove the error did not contribute to the verdict. State v. Cabbell,

207 N.J. 311, 338-39 (2011).

      Defendant argues it was error for the trial judge to allow the prosecution's

mention of the police having a search warrant for the premises because it was

immaterial to the trial and prejudicial to defendant. Specifically, the prosecutor

said the following in the opening statement:


                                                                            A-4210-16T2
                                        12
            Now, you are going to hear from several detectives with
            the Newark Police Department who were involved in
            this investigation. You're going to hear from . . .
            Martinez. He was the lead detective in this case and
            he's going to explain to you that he was conducting this
            investigation at . . . [the residence].

            He will tell you that he went to a judge and he got a
            search warrant to be able to give him permission, him
            and other Newark police, permission to enter that
            [residence]. . . . That was [defendant's] apartment.

            Now, you're going to hear that on November 10, 2014,
            Martinez and several other detectives from the Newark
            Police Department went to that location and executed
            that warrant.

      Defense counsel requested a sidebar and moved for a mistrial after the

prosecutor's mention of the search warrant. The prosecutor, relying upon State

v. Cain, 224 N.J. 410 (2016), responded that one reference was permissible. The

prosecutor also argued that the parties had addressed the issue in an earlier

motion in limine, and that he had instructed the State's witnesses to "stay away"

from the topic of search warrants. The trial judge denied defendant's motion.

The next day, the judge expanded on her decision:

            Yesterday at sidebar, I did indicate that the prosecutor
            would be allowed to make mention of the fact that there
            was a search warrant and that the search of the subject
            premises was pursuant to a search warrant. And today
            I am going to set limitations. [The prosecutor]
            indicated he would mention it in the opening. He would
            mention it in direct and summation, and this Court finds

                                                                         A-4210-16T2
                                      13
            that it is appropriate, and I'm going to ask the State to
            limit the question to the fact that the search of the
            premises was pursuant to a search warrant that was
            obtained on X date. I don't believe there's any need to
            go into the fact that it was issued by a Superior Court
            Judge, so I would ask that you stay away from that; and
            most certainly, I would explicitly instruct you to stay
            away from anything pertaining to the investigation that
            led up to the issuance of that search warrant. Okay?
            And that goes to all the parties.

      The Supreme Court has stated:

            A search warrant can be referenced to show that the
            police had lawful authority in carrying out a search to
            dispel any preconceived notion that the police acted
            arbitrarily. A prosecutor, however, may not repeatedly
            mention that a search warrant was issued by a judge if
            doing so creates the likelihood that a jury may draw an
            impermissible inference of guilt.

            [Cain, 224 N.J. at 435.]

"Surely, the prosecutor should not in any way imply that because a Superior

Court judge issued a warrant based on evidence supplied by law enforcement

authorities, the same evidence presented at trial has received a judicial

endorsement." Id. at 433-34.

      In Cain, "the prosecutor mentioned the existence of a search warrant no

less than fifteen times in the opening statement, summation, and during

questioning of witnesses" and "those references specifically informed the jury

that a Superior Court judge issued the warrant." Id. at 435. The Court noted

                                                                        A-4210-16T2
                                       14
these references "went well beyond what was necessary to inform the jury that

the officers were acting with lawful authority." Id. at 436.

      In State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), we encountered

similar circumstances to the ones presented here. In Milton, the State argued

"that the jury should be informed that the officers had proceeded to the house to

execute valid search warrants to refute any suggestion that the officers had acted

arbitrarily." Id. at 520. We stated "this alleged purpose in mentioning the

presence of a search warrant could have been fully accomplished by the

prosecutor's reference only to the existence of a search warrant for the premises

that were invaded." Ibid. (citing State v. Bankston, 63 N.J. 263, 268 (1973)).

      Here, there was no violation of the holdings in Cain and Milton. When

the judge established the conditions and parameters of the State's ability to

reference the search warrant, the prosecutor complied and limited his

questioning about the search warrant to the facts necessary to establish the police

had lawful authority to enter the residence.       Furthermore, considering the

overwhelming weight of the evidence seized by police from defendant's person

and the residence, we do not find the isolated references to the existence of a

search warrant prejudicial such that they were capable of an unjust result

constituting reversible error.    Because the reference to a search warrant


                                                                           A-4210-16T2
                                       15
complied with Cain and Milton, we reject defendant's argument the mention of

the search warrant was inadmissible on hearsay grounds.

                                       III.

      Defendant argues the school-zone offense convictions must be reversed

and remanded because the State improperly authenticated the government map

establishing the boundaries of school zones. The State concedes the map was

improperly authenticated and the matter should be remanded. We agree.

      In State v. Wilson, 227 N.J. 534 (2017), the defendant was charged

pursuant to N.J.S.A. 2C:35-7.1(a), which states:

            Any person . . . distributing, dispensing or possessing
            with intent to distribute a [CDS] or controlled substance
            analog while in, on or within 500 feet of the real
            property comprising a public housing facility, a public
            park, or a public building is guilty of a crime of the
            second degree.

      The statute also provides:

            In a prosecution under this section, a map produced or
            reproduced by any municipal or county engineer for the
            purpose of depicting the location and boundaries of the
            area on or within 500 feet of a public housing facility
            . . . , the area in or within 500 feet of a public park, or
            the area in or within 500 feet of a public building, or a
            true copy of such a map, shall, upon proper
            authentication, be admissible and shall constitute prima
            facie evidence of the location and boundaries of those
            areas, provided that the governing body of the
            municipality or county has adopted a resolution or

                                                                          A-4210-16T2
                                       16
            ordinance approving the map as official finding and
            record of the location and boundaries of the area or
            areas on or within 500 feet of a public housing facility,
            a public park, or a public building.

            [N.J.S.A. 2C:35-7.1(e).]

      "[The Supreme Court] held that such maps are not self-authenticating."

State v. Dorn, 233 N.J. 81, 91-92 (2018) (citing Wilson, 227 N.J. at 553).

Rather, the Wilson Court held the "[p]roper authentication of [such a] map

required a witness who could testify to its authenticity and be cross-examined

on the methodology of the map's creation and its margin of error." Wilson, 227

N.J. at 553 (citing State v. Simbara, 175 N.J. 37, 47-48 (2002)). The Court

remanded for further proceedings consistent with its holding. Id. at 554.

      Here, it is undisputed the trial judge erred when she admitted the

government map on grounds it was self-authenticating. It is also undisputed

defendant's counsel made a timely objection. For these reasons, pursuant to

Wilson, we reverse and remand defendant's school-zone convictions.

                                       IV.

      Defendant's raises several claims regarding the jury instructions, which

are unavailing. He argues the jury instructions failed to mention the State had

to prove he used the residence on multiple occasions and had the intent to

manufacture before the jury could convict him of the CDS facility charges.

                                                                        A-4210-16T2
                                       17
Defendant contends the trial judge should have instructed the jury on how to

assess the statements he made to police regarding his residence while in police

custody. Defendant claims after jurors deadlocked, the court shifted the burden

to him by instructing the jury it had to be convinced of defendant's innocence

rather than his guilt. Defendant argues the judge instructed the jury it could

convict defendant on attempted distribution without providing the jury the

instruction regarding attempt.

      "Correct jury charges are essential to a fair trial and failure to provide a

clear and correct charge may constitute plain error." State v. Holden, 364 N.J.

Super. 504, 514 (App. Div. 2003). Indeed, erroneous instructions on matters or

issues that are material to the jury's decision are presumed to be reversible error.

State v. Warren, 104 N.J. 571, 579 (1986). Moreover, if a jury instruction is

particularly "crucial to the jury's deliberations on the guilt of a criminal

defendant," then "'[e]rrors [having a direct impact] upon these sensitive areas of

a criminal trial are poor candidates for rehabilitation' under a plain error theory."

State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191,

206 (1979)).

      "[O]ur case law requires the jury to find all the elements of an offense

with specific reference to that offense." State v. Casilla, 362 N.J. Super. 554,


                                                                             A-4210-16T2
                                        18
567 (App. Div. 2003).      Accordingly, "[t]he trial court must give a clear

explanation of the applicable law to provide the jury with an adequate

understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66,

85 (2001) (citing State v. Burgess, 154 N.J. 181 (1988)).

      Here, the trial judge charged the jury regarding maintaining a CDS facility

charge as follows:

                   I have already stated cocaine and marijuana are
            dangerous substances prohibited by statute. Heroin is
            also a dangerous substance prohibited by statute. The
            statute read together with the indictment identifies the
            elements in which the State must prove beyond a
            reasonable doubt to establish [the maintaining CDS
            facility charge] of this indictment. They are as follows:
            Number 1, that the defendant . . . maintained or
            operated, aided or promoted, financed or otherwise
            participated in the maintenance or operation of a
            premises, place or facility. To maintain means to carry,
            to keep up, to continue.

                   [Number 2][,] [i]n order for the State to prove
            that [] defendant . . . maintained the premise, place or
            facility there must be evidence of the continuity in the
            use of [the residence] to manufacture a [CDS], that is
            cocaine, heroin and marijuana, the premises, place or
            facility — that the premises, place or facility was used
            for the manufacture of cocaine, heroin or marijuana.
            Manufacture means the production, preparation,
            propagation, compounding, conversion or processing
            of a [CDS] or controlled substance analogue either
            directly or by extraction from substances of natural
            origin or independently by means of chemical
            synthesis, and includes any packaging or repackaging

                                                                         A-4210-16T2
                                      19
             of the substances or labeling or relabeling of its
             container. Number 3, that the defendant . . . acted
             knowingly. I have already defined knowingly for you.

                     If you find the State has proven each of these
             elements beyond a reasonable doubt, then you must find
             . . . [defendant] guilty of [the maintaining CDS facility
             charge] of the indictment. If you find that the State has
             failed to prove any of the elements beyond a reasonable
             doubt, then you must find the defendant . . . not guilty[.]

      These instructions mirror the language of Kittrell and clearly set forth the

elements of the charge. The instructions defined "maintain" and "manufacture"

the same way the Kitrell Court interpreted the language of the relevant statutes.

Moreover, defendant did not object to the instructions regarding the maintaining

CDS facility charges. As we have stated, given the substantial evidence seized

by police, the trial judge's instructions were neither prejudicial nor capable of

an unjust result.

      Defendant contends the trial judge's omission of a vital instruction on his

oral admissions to police regarding his residence was prejudicial and contrary

to State v. Hampton, 61 N.J. 250 (1972). We disagree.

      In State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div. 1997), we

discussed the requirements of a charge pursuant to Hampton.                We noted

"Hampton requires a trial court to specifically instruct a jury to consider the

credibility of a defendant's statement only if it was elicited in the 'physical and

                                                                             A-4210-16T2
                                        20
psychological environment' of police interrogation." Ibid. "If, however, the

defendant's statement is unnecessary to prove defendant's guilt because there is

other evidence that clearly establishes guilt, or if the defendant has

acknowledged the truth of his statement, the failure to give a Hampton charge

would not be reversible error." Jordan, 147 N.J. at 425-26.

      At the outset, we note defendant never sought such a charge during the

trial. Regardless, the charge is inapplicable because defendant has not alleged

any facts to demonstrate his statement was elicited within a physical and

psychological environment of police interrogation, or was in any way

involuntary. Moreover, defendant acknowledged the truth of his statement when

he admitted his connection to the residence at trial by testifying the address of

the residence was the same as on his driver's license. Additionally, there was

substantial evidence presented at trial, which clearly established defendant's

guilt, namely, the discovery of drugs packaged for distribution on his person and

the materials to package and distribute drugs inside the house where defendant

was located. For these reasons, the failure to give the jury a charge pursuant to

Hampton was not reversible error.

      Defendant also contends the instructions provided by the trial judge

"shifted the burden of proof to the defendant." Specifically, he points to the


                                                                         A-4210-16T2
                                      21
following passage from the trial judge's charge: "[I]n the course of your

deliberations, do not hesitate to reexamine your [own] views and to change your

opinion if convinced it is erroneous[.]"

      Defendant's argument lacks merit. R. 2:11-3(e)(2). The language read by

the judge was from the model charge on deliberations, not the burden of proof.

See Model Jury Charges (Criminal), "Final Charge-Deliberations" (rev. May 12,

2014). Moreover, defendant did not object to the model charge. For these

reasons, we decline to conclude the charge was prejudicial or erroneous.

      Defendant argues the trial judge "improperly injected a theory of attempt

into the case." Specifically, he points to the model jury charge read by the trial

judge regarding CDS possession with intent to distribute. See Model Jury

Charges (Criminal), "Possession of a Controlled Dangerous Substance with

Intent to Distribute (N.J.S.A. 2C:35-5)" (rev. June 8, 2015).

      In State v. Belliard, a defendant argued the trial court's failure to instruct

the jury on the definition of "attempt" in an attempted robbery charge deprived

him of a fair trial. 415 N.J. Super. 51, 64-66 (App. Div. 2010). We noted the

"substantial step" element of attempt should have been explained in the jury

charge. Id. at 73-74. We concluded "while the judge's failure to charge the jury




                                                                            A-4210-16T2
                                       22
with attempt was in error, this error was not sufficient to lead the jury to a result

it would not have otherwise reached." Id. at 74 (citing R. 2:10-2).

      Here, again, defendant did not ask the judge to define attempt for the jury.

Regardless, the jury did not need the definition of the term in order to decide

whether defendant possessed drugs with the intent to distribute. As we noted,

the quantity and nature of the package drugs removed from defendant's person,

as well as the manufacturing and distribution paraphernalia seized inside the

residence, would not confuse an average juror assessing whether defendant

possessed CDS with intent to distribute.

                                         V.

      Finally, we reject defendant's challenges to the non-school-zone-related

sentences.    We review a "trial court's 'sentencing determination under a

deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J.

317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also

State v. Pierce, 188 N.J. 155, 169-70 (2006). We affirm a sentence if: (1) the

trial court followed the sentencing guidelines; (2) its findings of fact and

application of aggravating and mitigating factors were based on competent,

credible evidence in the record; and (3) the application of the law to the facts

does not "shock[ ] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228


                                                                             A-4210-16T2
                                        23
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a

trial court's sentencing decision, we will not "substitute [our] judgment for that

of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State

v. O'Donnell, 117 N.J. 210, 215 (1989)).

      Defendant claims his sentence was excessive and should not have

exceeded ten years. He argues the sentencing judge double counted his prior

criminal record and conviction to find aggravating factor three. Defendant

argues the judge should not have found a need to deter as an aggravating factor

because he claims this factor has lost its value over time. Defendant asserts the

judge should have found mitigating factors one and two because his conduct

neither caused nor threatened serious harm, and defendant did not contemplate

his conduct would cause or threaten serious harm.

      The sentencing judge found aggravating factor three, the risk that

defendant will reoffend. N.J.S.A. 2C:44-1(a)(3). This finding was evident from

defendant's criminal history, specifically, defendant's thirteen arrests, seven of

which were for CDS-related offenses. Defendant's criminal history also clearly

supported the judge's finding of aggravating factor six, the extent of the

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).     The judge also found


                                                                          A-4210-16T2
                                       24
aggravating factor nine, the need to deter defendant and others from violating

the law, again relying on defendant's criminal history. N.J.S.A. 2C:44-1(a)(9).

The sentencing judge did not find any mitigating factors.

      Defendant did not raise any of the mitigating factors he now argues at

sentencing.   Also, defendant's conduct was serious enough that mitigating

factors one and two do not apply to him. In State v. Tarver, 272 N.J. Super. 414

(App. Div. 1994), we addressed a similar argument. There, the defendant had

been convicted of a CDS distribution charge and raised a similar argument

regarding the mitigating factors. Id. at 414. We concluded: "[d]istribution of

cocaine can be readily perceived to constitute conduct which causes and

threatens serious harm. There was also reason to believe, in view of defendant's

history of drug involvement, that his violations of the law would continue." Id.

at 435.

      Here, defendant's circumstances are no different than in Tarver. The

sentencing judge followed the sentencing guidelines, and her findings regarding

the applicability of the aggravating factors were supported by the record,

namely, defendant's extensive criminal history.       The sentence defendant

received for the non-school zone related offenses neither shocks the judicial

conscience nor constitutes an abuse of discretion.


                                                                        A-4210-16T2
                                      25
      Affirmed in part, and reversed and remanded in part as to defendant's

conviction and sentence for four counts of third-degree possession of a CDS

with intent to distribute in a school zone in indictment one. We do not retain

jurisdiction.




                                                                       A-4210-16T2
                                     26
