                                NOT FOR PUBLICATION WITHOUT THE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-5665-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KALIL J. GRIFFIN, a/k/a
DARNELL WILLIAMS,
KAHLIL GRIFFIN, and
KAHALIL GRIFFIN,

     Defendant-Appellant.
___________________________

                    Submitted November 6, 2019 – Decided December 17, 2019

                    Before Judges Accurso, Gilson, and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 12-05-
                    0857.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John A. Albright, Designated Counsel, on
                    the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Maura Kathryn
            Tully, Assistant Prosecutor, of counsel and on the
            brief).

PER CURIAM

      R.C. was shot twice in the head and left dead in his apartment. 1 Defendant

Kalil Griffin was indicted for four crimes related to the murder of R.C. A jury

convicted defendant of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-

degree armed robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of

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

an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an

aggregate prison term of fifty years, with a period of parole ineligibility as

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

Defendant appeals from his convictions and sentence. We affirm.

                                       I.

      On February 21, 2011, the victim, R.C., was found dead in his apartment

in Asbury Park. A doctor with the County Medical Examiner's Office later

performed an autopsy and recovered two .38 caliber bullets lodged inside R.C.'s

head and neck. The medical examiner opined that R.C. died as a result of

wounds from two gunshots fired at R.C.'s head at close range. The medical


1
   We use initials for the victim and certain witnesses to protect their privacy
interests.
                                                                         A-5665-16T4
                                       2
examiner also opined that R.C. had died sometime between the evening of

Friday, February 18, 2011, and the early morning of Saturday , February 19,

2011.

        On February 18, 2011, defendant and co-defendant Joshua Simmons were

seen by defendant's former girlfriend and her husband leaving R.C.'s apartment

building at approximately 11:15 p.m. Defendant and Simmons had a garbage

can with them. Law enforcement personnel later found the garbage can by a

dumpster in a lot adjacent to R.C.'s apartment building. The can contained a

computer and an examination of the computer showed that it had been subject

to a "hard shut down," consistent with being unplugged, at approximately 10:36

p.m. on February 18, 2011.

        Approximately a week after the murder, defendant and Simmons were

arrested. Simmons and defendant both agreed to waive their Miranda2 rights

and be interviewed by law enforcement personnel.

        Simmons provided two statements to law enforcement personnel, which

were video recorded.     In his first statement, given on February 24, 2011,

Simmons initially denied being in Asbury Park on the night of the murder.




2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-5665-16T4
                                       3
Simmons, thereafter, admitted to being at R.C.'s apartment building and sitting

on the stairs while defendant went into R.C.'s apartment to buy marijuana.

      In his second statement, given the following day, Simmons made

additional admissions. Simmons explained that he initially stayed outside the

apartment as the "look out guy" while defendant went into the apartment.

Thereafter, Simmons heard two "pops" and he entered R.C.'s apartment, saw that

R.C. had been shot and was lying on the floor, and he and defendant searched

for money and drugs.

      Simmons also told detectives that he had seen defendant with a gun

approximately one day before they went to R.C.'s apartment. He explained that

defendant had shown both him and a neighbor, D.C., a gun in the hallway of the

apartment where Simmons and D.C. lived. Simmons went on to state that

defendant had pulled that gun out of a book bag or backpack and that when they

went to R.C.'s apartment, defendant had that bag with him.

      Defendant gave a statement to the police on February 25, 2011. He

admitted going to R.C.'s apartment with Simmons on February 18, 2011, to buy

marijuana from R.C. Defendant denied shooting R.C. He also stated that he

and R.C. had "wrestled around a little bit." Further, he contended that R.C. had

asked him to take his computer out to the trash because it was broken.


                                                                         A-5665-16T4
                                       4
      In May 2012, a grand jury indicted defendant and Simmons for four

crimes related to the murder of R.C. As noted earlier, they were charged with

felony murder, armed robbery, and two weapons offenses.

      Before the return of the indictment, defendant filed a motion seeking to

dismiss all charges against him, contending that his right to a speedy trial had

been violated. On June 8, 2012, the trial court denied that motion.

      Thereafter, the case went through extensive pretrial proceedings. During

that time, defendant filed a number of pretrial motions, including a motion to

suppress evidence seized from the crime scene and his home. Defendant also

moved to suppress the statements he had made to law enforcement personnel.

In November 2013, the trial court entered orders denying defendant's motion to

suppress evidence and granting the State the right to use defendant's recorded

statement at trial.

      The State also engaged in extensive plea negotiations with Simmons. In

September 2013, Simmons agreed to plead guilty to certain crimes and to

provide testimony against defendant. Later, however, Simmons successfully

moved to withdraw his guilty pleas.

      In 2014, defendant again moved to dismiss the charges against him on

speedy trial grounds. On August 14, 2014, the trial court denied that motion.


                                                                        A-5665-16T4
                                       5
       In January and February of 2015, Simmons was tried on charges related

to the murder of R.C. A jury acquitted Simmons of felony murder and the

weapons offenses, but convicted him of the lesser-included offense of theft.

Subsequently, Simmons pled guilty to several unrelated crimes, and agreed to

testify against defendant.

       In October 2015, defendant was tried on charges related to the murder of

R.C.   At trial, the State presented testimony from a number of witnesses,

including Simmons and D.C. The State also played portions of the recorded

statements of defendant and Simmons.

       Simmons testified that on February 18, 2011, he and defendant went to

R.C.'s apartment so that defendant could purchase marijuana. After entering the

apartment building, Simmons stayed outside the apartment, sitting on the stairs

as a look out, while defendant went into R.C.'s apartment. While waiting on the

stairs, Simmons heard "two pops." Defendant then came out of R.C.'s apartment

and signaled Simmons to come inside. When Simmons got into the apartment,

he saw R.C. lying on the floor with a bullet hole in his head. Defendant told

Simmons that R.C. had "made him mad" so defendant had shot R.C twice.

       Thereafter, defendant and Simmons searched R.C.'s apartment looking for

money and marijuana. Defendant also suggested that they take R.C.'s computer


                                                                        A-5665-16T4
                                       6
out of the apartment in a trash can to make it look as though they were taking

out the trash.

      Consistent with the testimony by Simmons, D.C. testified that defendant

had shown him and Simmons a revolver. D.C. explained that defendant had

pulled the gun out of a bag. The State also presented evidence that they had

found a backpack at defendant's apartment.

      The State never found the murder weapon. At trial, a ballistics expert

testified that the two bullets recovered from R.C.'s body were both fired from

the same gun. The State argued that because police did not recover shell casings

at the murder scene, the murder weapon was more likely to be a revolver rather

than a semi-automatic handgun.

      After hearing all the evidence, the jury convicted defendant on all four

charges.   Shortly after trial, an alternate juror contacted defense counsel

claiming that during trial, several jurors had met to discuss the case. Defense

counsel moved for a hearing on the alleged juror misconduct. The trial court

determined that it would interview two of the alternate jurors. We, however,

granted the State's emergent application for leave to appeal and held that there

was no good cause for the court to interview those alternate jurors. State v.

Griffin, 449 N.J. Super. 13, 19 (App. Div. 2017).


                                                                        A-5665-16T4
                                       7
      At the August 2017 sentencing, the court granted the State's motion for an

extended term and, on the conviction of felony murder, sentenced defendant to

fifty years in prison, during which defendant would be ineligible for parole for

eighty-five percent of that time as prescribed by NERA. The court merged the

weapons convictions into the robbery conviction, and sentenced defendant to a

concurrent prison term of twenty years, subject to NERA.

                                      II.

      On this appeal, defendant challenges his convictions and sentence on six

grounds. Specifically, defendant articulates his arguments as follows:

            POINT I – "OTHER CRIMES" EVIDENCE THAT,
            BEFORE AND AFTER THE SHOOTING IN
            QUESTION, DEFENDANT POSSESSED WHAT
            MIGHT HAVE BEEN A REVOLVER SHOULD
            HAVE BEEN EXCLUDED UNDER N.J.R.E. 404(B);
            THE STATE DID NOT RECOVER A GUN, THERE
            WERE NO EYEWITNESSES TO THE SHOOTING
            TO IDENTIFY THE GUN, AND ITS EXPERT
            COULD NOT ESTABLISH THE TYPE OF
            HANDGUN USED IN THE SHOOTING, WHICH
            NECESSARILY SHOULD HAVE EXCLUDED IT
            FROM THE JURY'S CONSIDERATION ON THE
            ISSUE OF IDENTITY OF THE SHOOTER.

            POINT II – THE TRIAL COURT'S ERROR IN
            FAILING TO APPLY N.J.R.E. 404(B) TO THE
            VARIOUS     WITNESS    ACCOUNTS      OF
            DEFENDANT'S POSSESSION OF A GUN
            RESULTED IN GROSSLY INADEQUATE JURY


                                                                         A-5665-16T4
                                       8
            INSTRUCTIONS WHICH DEPRIVED DEFENDANT
            OF A FAIR TRIAL.

            POINT III – SIMMONS' STATEMENTS VARIED
            WILDLY FROM HIS INITIAL ASSERTIONS OF NO
            INVOLVEMENT WHATSOEVER TO THAT HE
            WAS ACTING AS A LOOKOUT WHILE
            DEFENDANT COMMITTED THE OFFENSES; THE
            TRIAL COURT'S FAILURE TO INSTRUCT THE
            JURY ON THE PERMISSIBLE USE OF SIMMONS'
            PRIOR     CONTRADICTORY      STATEMENTS
            DEPRIVED DEFENDANT OF A FAIR TRIAL.

            POINT IV – DEFENDANT'S CONSITUTIONAL
            RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY
            A THREE-AND-A-HALF YEAR DELAY THAT
            WAS NOT ATTRIBUTABLE TO HIM, AFTER HE
            ASSERTED HIS RIGHTS ON MULTIPLE
            OCCASIONS, AND SUFFERED RESULTING
            PREJUDICE.

            POINT V – JUROR MISCONDUCT LIKELY
            PREJUDICED DEFENDANT'S RIGHT TO A FAIR
            TRIAL, AND GOOD CAUSE EXISTED TO
            INTERVIEW JURORS POST-VERDICT.

            POINT VI – THE FIFTY-YEAR DISCRETIONARY
            EXTENDED TERM SENTENCE IMPOSED WAS
            MANIFESTLY EXCESSIVE AND AN ABUSE OF
            THE LOWER COURT'S DISCRETION.

      Having considered each of these arguments in light of the law and record,

we reject defendant's contentions.    We will address defendant's first two

arguments together and then analyze the remaining arguments in the order th ey

were raised by defendant.

                                                                       A-5665-16T4
                                      9
      A.     Testimony Concerning the Gun

      Defendant argues that the trial court erred in allowing Simmons and D.C.

to testify that defendant showed them a revolver the day before the murder and

robbery. In that regard, defendant contends that the trial court failed to conduct

an analysis under Rule 404(b), that a proper analysis under that rule would have

excluded the testimony, and that the trial court compounded those errors by not

giving a limiting instruction. We disagree.

      "A trial court's ruling on the admissibility of evidence is reviewed on

appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). Unless

a trial court commits a "clear error of judgment" we will not reverse based on

such an evidentiary ruling. Id. at 158 (quoting State v. Barden, 195 N.J. 375,

391 (2008)).

      Our Supreme Court has established a distinction between intrinsic

evidence and evidence of other crimes, wrongs, or bad acts. Id. at 180. Evidence

is intrinsic if it (1) "directly proves the charged offense"; or (2) "facilitates the

commission of the charged crime" because it was performed contemporaneously

with the charged crime. Ibid. (quoting and citing United States v. Green, 617

F.3d 233, 248-49 (3d Cir. 2010)).




                                                                             A-5665-16T4
                                        10
      If evidence is intrinsic to the charged crime, there is no need to engage in

an analysis under Rule 404(b) because the evidence is not being admitted as

evidence of other crimes or bad acts; rather, it is being admitted to prove the

charged crime. Id. at 177-78. "Thus, evidence that is intrinsic to a charged

crime need only satisfy the evidence rules relating to relevancy, most

importantly the [Evidence] Rule 403 balancing test." Ibid.

      The trial court addressed this issue at a pretrial conference and ruled that

the testimony of Simmons and D.C. that defendant had shown them a gun was

intrinsic evidence. We discern no error or abuse of discretion in that evidentiary

ruling.3

      Simmons and D.C. testified that the day before the robbery and murder

defendant had shown them a gun, which they described as a revolver. Both

witnesses also testified that defendant had that gun in a book bag or backpack.

Significantly, Simmons also testified that defendant had that bag with him when

he went to R.C.'s apartment on February 18, 2011.




3
  The State contends that defendant waived the argument as to Simmons. In
support of that position, the State relies on statements made by defense counsel.
We do not read those statements as limiting defendant's objection to the
admissibility of the evidence concerning the gun. Therefore, we reject th is
argument by the State.
                                                                          A-5665-16T4
                                       11
      Consequently, the testimony concerning the gun was intrinsic to both the

murder and robbery charges. That defendant possessed a gun the day before the

murder was directly relevant to whether he had a gun when he was in R.C.'s

apartment the next day. Moreover, applying the balancing test called for under

Rule 403, such testimony was relevant to both the crime of murder and robbery

and was not substantially more prejudicial than probative. "The mere possibility

that evidence could be prejudicial does not justify its exclusion" under Rule 403.

State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State

v. Long, 173 N.J. 138, 164 (2002)).         Instead, the probative value of the

challenged evidence must be "so significantly outweighed by its inherently

inflammatory potential as to have a probable capacity to divert the minds of the

jurors from a reasonable and fair evaluation of the issues in the case." State v.

Wakefield, 190 N.J. 397, 429 (2007) (quoting State v. Koskovich, 168 N.J. 448,

486 (2001)).

      As defendant notes, the murder weapon was not recovered by law

enforcement personnel. Consequently, the State argued that it was significant

that both Simmons and D.C. described the gun in defendant's possession as a

revolver. No shell casings were recovered from the scene of the murder at R.C.'s

apartment.     The State's ballistics expert explained that shots fired from a


                                                                          A-5665-16T4
                                       12
revolver do not discharge shell casings. In contrast, shots fired from a semi-

automatic handgun would discharge shell casings.          That testimony further

illustrates that the testimony that defendant possessed a revolver was intrinsic

to the crimes of murder and robbery.

      Given our agreement with the trial court that the testimony was

admissible, the trial court did not err in not conducting a balancing analysis

under Rule 404(b). See State v. Cofield, 127 N.J. 328, 338 (1992) (setting forth

a four-part test to determine if evidence of other crimes, wrongs, or bad acts is

admissible). Nor did the trial court err in not giving a limiting instruction

concerning the use of the evidence.

      B.    Simmons' Statements

      Defendant argues that the trial court erred when it did not instruct the jury

that prior statements made by Simmons could be used as substantive evidence.

Specifically, defendant contends that Simmons' statements to law enforcement

officers at the time of his arrest were contrary to the testimony he gave at trial

and, therefore, were relevant to both his credibility and disputed issues of

material fact. In that regard, Simmons initially told the police he was not

involved and, thereafter, his statements evolved in the details he recalled.




                                                                           A-5665-16T4
                                       13
      At trial, defendant did not request the model instruction on a prior

contradictory statement by a witness. Accordingly, we review this issue for

plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). Plain error in a jury

charge occurs when the substantive rights of a defendant are prejudiced and the

violation is sufficiently grievous to convince us that the error itself possessed a

clear capacity to bring about an unjust result. State v. Camacho, 218 N.J. 533,

554 (2014).

      In reviewing a claim of error relating to a jury charge, "[t]he charge must

be read as a whole in determining whether there was any error." State v. Torres,

183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In

addition, the error "must be evaluated in light 'of the overall strength of the

State's case.'"   State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).

      The model jury charge concerning a prior contradictory statement made

by a witness instructs the jury that it may consider a witness' prior inconsistent

statement both "in judging a witness' credibility" and "as proof of the truth of

what [was] stated in the prior contradictory statement." Model Jury Charges

(Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)"

(rev. May 5, 1994). While the trial court here did not give that charge, the court


                                                                           A-5665-16T4
                                       14
did instruct the jury on how to evaluate all witnesses' credibility, including the

evaluation of inconsistencies.     In that regard, the trial judge specifically

instructed the jurors that they were the judges of credibility and in evaluating

credibility, they should consider "whether the witness made any inconsistent or

contradictory statements . . . ." Consequently, a review of the entire jury charge

establishes that the trial court did not commit plain error in not giving the

specific charge concerning a prior contradictory statement by Simmons. See

State v. Hammond, 338 N.J. Super. 330, 342 (App. Div. 2001) (explaining that

a general credibility instruction was adequate where a witness against defendant

had given a prior out-of-court inconsistent statement).

      We also reject defendant's arguments that there were several errors in the

jury charges, and in aggregate, those errors warrant a reversal. Defendant's

argument relies on his contentions concerning the failure to give a limiting

instruction under Rule 404(b) and the failure to give a specific charge

concerning the use of inconsistent statements by Simmons. As we have rejected

both of those arguments on their merits, cumulatively they do not establish a

reversible error in the overall charge.




                                                                          A-5665-16T4
                                          15
      C.    Defendant's Right to a Speedy Trial

      Before his trial, defendant twice moved to dismiss the charges against

him, contending that his right to a speedy trial had been violated. The trial court

denied those motions. Before us, defendant argues that the trial court erred and

we should reverse the jury verdict based on a violation of his right to a speedy

trial. Having considered these arguments, we discern no error or abuse of

discretion in the trial court's reasoning for denying both motions.

      "The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and imposed on the states by the Due Process Clause

of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App.

Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)).

"The constitutional right . . . attaches upon defendant's arrest." Ibid. (alteration

in original) (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div.

2002)). The State has the duty to promptly bring a case to trial and it must avoid

excessive delays. Ibid.

      The defendant bears the burden of establishing a violation of his or her

speedy trial right. Id. at 9. In determining whether a defendant's speedy trial

right has been violated, a court must consider and balance (1) the length of delay;

(2) the reason for the delay; (3) defendant's assertion of his or her right to a


                                                                            A-5665-16T4
                                        16
speedy trial; and (4) prejudice to defendant. Barker v. Wingo, 407 U.S. 514,

530 (1972); accord State v. Szima, 70 N.J. 196, 200-01 (1976) (adopting the

Barker analysis). "No single factor is a necessary or sufficient condition to the

finding of a deprivation of the right to a speedy trial." Tsetsekas, 411 N.J. Super.

at 10 (citing Barker, 407 U.S. at 533). Accordingly, courts are required to

analyze each interrelated factor "in light of the relevant circumstances of each

particular case." Ibid. The remedy for violation of the right to a speedy trial is

dismissal of the indictment. Barker, 407 U.S. at 522.

      We review a trial court's factual findings concerning a speedy trial issue

under an abuse of discretion standard. See Fulford, 349 N.J. Super. at 195-96

(noting that this court "cannot conclude that [the trial judge] abused his

discretion in rejecting defendant's speedy trial contention" (alteration in

original)). In contrast, we review the trial court's legal analysis de novo. See

State v. Handy, 206 N.J. 39, 45 (2011).

      Here, it is undisputed that there was a substantial delay in bringing this

case to trial and that defendant twice asserted his right to a speedy trial. The

murder and robbery occurred on February 18, 2011. Defendant was arrest ed

approximately one week later on February 25, 2011.               He was indicted




                                                                            A-5665-16T4
                                        17
approximately a year later, on May 8, 2012, and tried approximately four years

later, in September and October 2015.

      Defendant first moved for dismissal of the charges in 2012, before he was

indicted. The court heard that motion and denied it on June 8, 2012. In making

that ruling, the court noted the complex nature of the murder charge.            In

particular, the court relied on the State's representation that some of the key

evidence required forensic analysis, which took time to conduct. The court also

observed that the defense was not impaired by the delay because the defendant

had the benefit of a pre-indictment probable cause hearing.

      We discern no abuse of discretion in the trial court's denial of the first

speedy trial motion. The evidence in the record supports the trial court's findings

concerning the reasons for the delay. We also see no error in the trial court's

legal analysis. See Handy, 206 N.J. at 45; Fulford, 349 N.J. Super. at 195-96.

      Defendant made his second speedy trial motion in 2014. The trial court

denied that motion after hearing oral argument on August 14, 2014. The trial

court acknowledged that there had been a substantial delay in bringing the case

to trial, but reasoned that a significant part of that delay was due to a change in

position by Simmons. In 2013, Simmons had pled guilty and agreed to testify

against defendant. Thereafter, however, Simmons withdrew his guilty plea and


                                                                           A-5665-16T4
                                       18
the State was delayed in bringing about the trial because of that withdrawal. The

trial court also found that some of the delay between 2012 and 2014 was

attributable to defendant.

      We also discern no abuse of discretion in the trial court's reasoning for

denying defendant's second speedy trial motion. Significantly, the trial court

found that the State's delay did not impair defendant's ability to defend himself.

Consequently, the trial court held that defendant failed to meet his burden

concerning the prejudice prong of the Barker test. See Barker, 407 U.S. at 530.

Again, the record supports the trial court's factual findings concerning the

reasons for the delay, and its legal reasoning was sound. See State v. Townsend,

186 N.J. 473, 486-87 (2006) (holding that an unexplained twenty-two month

pre-indictment delay did not prejudice defendant); State v. Long, 119 N.J. 439,

471 (1990) (holding that a 971 day delay did not violate defendant's speedy trial

rights); State v. Douglas, 322 N.J. Super. 156, 171 (App. Div. 1999) (holding

that a three-year delay in a capital murder case did not prejudice defendant).

      Needless to say, a murder investigation often involves complex issues that

have to be carefully investigated, cross-checked, and analyzed. The record in

this case does not demonstrate that the State deliberately delayed bringing

defendant to trial. This case involved two co-defendants and the State spent


                                                                          A-5665-16T4
                                       19
considerable time trying to negotiate a plea agreement with Simmons so that he

could testify against defendant. There is no showing that the State was dilatory

in engaging in negotiations with Simmons. To the contrary, Simmons initially

pled guilty and then moved to withdraw that guilty plea. Those proceedings

took a good deal of time to resolve and explain a substantial portion of the delay

in bringing about defendant's trial. Critically, however, the delay was not

prejudicial to defendant. While defendant obviously did not want Simmons to

testify against him, a jury had the right to hear Simmons' testimony and evaluate

it in light of the serious charges against defendant.

      D. The Alleged Juror Misconduct.

      We have already addressed defendant's juror misconduct arguments at

length in a published opinion. Griffin, 449 N.J. Super. at 13. On this appeal,

defendant does not make any new arguments concerning this issue. Instead, he

raises this argument "for the sole purpose of preserving the issue in the event of

further review." We, therefore, reject defendant's arguments concerning alleged

juror misconduct for the reasons we have detailed in our earlier published

opinion. Whether defendant can still appeal on that ground, we leave to our

Supreme Court.




                                                                          A-5665-16T4
                                       20
      E. The Sentence.

      Finally, defendant contends that his fifty-year sentence, subject to NERA,

was manifestly excessive. He also argues that the sentencing court abused its

discretion in imposing an extended term. We disagree.

      We review sentencing decisions under an abuse of discretion standard.

State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J.

503, 512 (1979)).     We will affirm a trial court's sentence unless "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent and credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'"    Bolvito, 217 N.J. at 228 (alteration in original)

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

      The sentencing judge here properly determined that defendant was

eligible for an extended term. In that regard, there is no dispute that defendant's

prior convictions made him eligible for an extended term. The court reviewed

defendant's prior convictions and noted that, although his prior sentences were

probationary, there were a number of offenses.           We discern no abuse of

discretion in that analysis or the decision to impose a fifty-year prison term.




                                                                              A-5665-16T4
                                         21
      A review of the record establishes that the sentencing judge also assessed

the aggravating and mitigating factors and made findings, which are supported

by the record. In that regard, the sentencing judge determined there were no

applicable mitigating factors. N.J.S.A. 2C:44-1(b). The sentencing judge found

aggravating factors two, the gravity and seriousness of the harm inflicted on the

victim including whether defendant knew or should have known the victim was

particularly vulnerable, N.J.S.A. 2C:44-1(a)(2); three, the risk defendant will

commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of the

defendant's prior criminal record and the seriousness of those offenses, N.J.S.A.

2C:44-1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The

sentencing court provided an adequate explanation in support of its findings and

these findings were supported by evidence in the record. Consequently, we

discern no abuse of discretion in the sentence imposed.

      Affirmed.




                                                                         A-5665-16T4
                                      22
