                                NOT FOR PUBLICATION WITHOUT THE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-5626-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DANIEL R. ZIOLKOWSKI,

     Defendant-Appellant.
______________________________

                    Submitted February 5, 2019 – Decided February 26, 2019

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Sussex County, Indictment No. 15-05-0241.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael J. Confusione, Designated Counsel,
                    on the brief).

                    Francis A. Koch, Sussex County Prosecutor, attorney
                    for respondent (Shaina Brenner, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Daniel R. Ziolkowski appeals from several trial court rulings

and his convictions and sentences for harassment, possession of a weapon for

an unlawful purpose, unlawful possession of a weapon, and criminal mischief

arising out of a road rage incident. We affirm.

                                       I.

      The incident occurred during the evening of December 24, 2014, while

defendant and his passenger were in a car followed by a vehicle occupied by

Laura Counterman and her two passengers in Layton. The witnesses presented

diverging accounts of what led up to and occurred during the incident.

      A grand jury indicted defendant for two counts of third-degree terroristic

threats, N.J.S.A. 2C:12-3(b) (counts one and two); third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-

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

third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count five). The case

proceeded to a jury trial. The following testimony was adduced at trial .

      Counterman was driving home to Pennsylvania from Christmas Eve

church services in Netcong with her son, Anthony Autore and his girlfriend,

Jocelyn Struble, seated in the rear. As she drove toward Dingmans Bridge,

Counterman observed a car travelling in front of her abruptly brake.


                                                                            A-5626-16T4
                                       2
Counterman estimated she was about two car lengths behind the braking vehicle

because she had ample time to stop.         The vehicle in front of her quickly

accelerated around a bend before abruptly stopping again. In turn, Counterman

braked again, stopping about a car length short of impact with the other vehicle.

      After the cars resumed driving, Counterman claimed she kept a further

distance because she did not know why the car in front was stopping. The

vehicle stopped again abruptly and Counterman followed suit. At this point,

both cars were stopped on the roadway. The car in front then either reversed or

was put in park. The driver, later identified as defendant, exited the vehicle and

approached Counterman's car.

      Counterman sounded her horn, dialed 9-1-1, and provided the offending

vehicle's license plate number to dispatch. Counterman observed two occupants

in the car in front of her. When the driver exited his car, Counterman testified

he walked quickly toward her car as if "in a rage." The man was yelling, hitting

Counterman's car, and carrying a knife. Autore also observed the knife and

described it as a three-inch blade serrated toward the handle. The man stabbed

the windshield and front left tire, and punched the door. In the midst of the

attacks, the man stated Counterman was drunk, should not be driving, and was

driving carelessly. Counterman identified defendant in court as the driver.


                                                                          A-5626-16T4
                                        3
Autore and Struble were unable to identify the driver in court; however,

defendant does not dispute he was involved in the incident.

         While defendant was outside Counterman's vehicle, she tried to open her

door because she thought if she pushed him off he would leave the car alone.

She was unable to do so because defendant was pressed against the door,

screaming and threatening her, and punching and kicking the door. Autore

testified he heard defendant scream at Counterman that she was drunk and that

she had followed him too closely; Autore also testified he heard defendant

threaten to stab Counterman and knock her out. Struble testified similarly.

         Counterman, Autore, and Struble observed defendant stab the window and

left front tire three times resulting in a loud popping sound. Defendant then

returned to his vehicle and quickly drove away as Struble observed his license

plate.

         Meanwhile, Counterman remained on the phone with a 9-1-1 operator.

The 9-1-1 operator testified she remained on the phone with Counterman until

she was able to confirm her location and ensure she was not physically hurt.

The operator then transferred the call to the New Jersey State Police.

         After defendant drove away, a woman from the car behind Counterman's

vehicle approached and tried to calm her down and direct traffic around her.


                                                                         A-5626-16T4
                                        4
Local residents exited their homes to assist Counterman and get her car off the

road so traffic could resume. Specifically, Cameron Tidaback observed the two

cars in the road from his bedroom window and heard a man yelling before

witnessing the man run back to his car and flee the scene. After Cameron told

his mother Maria what he saw, they both went outside to assist Counterman.

Ms. Tidaback observed Counterman was emotional and shaking and, therefore,

took the phone from her to complete the 9-1-1 call.

      Dispatch ran the license plate number through several law enforcement

databases and determined the vehicle was a 2012 Jeep SUV registered to

defendant, who resided in Dingman's Ferry, Pennsylvania.          Troopers were

dispatched to the scene and arrived within twenty minutes.

      Upon exiting her vehicle, Counterman observed dents on the left front

door and slashes in the left front tire and windshield. Local residents offered to

follow Counterman home because she was still so upset and worried.

      After Counterman testified, defense counsel made a discovery request for

her driver's abstract but the request was initially denied by the State, claiming

the abstract was not relevant and therefore not discoverable.          After oral

argument, the prosecutor agreed to provide Counterman's driver's abstract.




                                                                          A-5626-16T4
                                        5
      Sergeant Gregory Redden then contacted Pennsylvania authorities to

obtain information and have them speak to the registered owner at his

Pennsylvania address. Pennsylvania State Trooper Joseph Wasylyck testified

he made contact with defendant on December 24, 2014, to determine if he had

been in Layton that evening. Trooper Wasylyck observed a Jeep Liberty in

defendant's driveway when he arrived at defendant's address. Defendant said he

was in Layton earlier that day. Defendant relayed he was being tailgated so he

brake-checked the car and then pulled over. Further, he stated the other vehicle

pulled over behind him, so he got out and made contact with her; she tried to

open her door but he pushed it shut and left. Defendant denied having a knife

during the incident and denied slashing Counterman's tire.

      Counterman incurred expenses in replacing her slashed tire. She obtained

an estimate from an auto body shop that it would cost $201.05 to replace the

windshield and $270.69 to repair the front door of her vehicle. A representative

from the shop testified the damage to Counterman's vehicle included ding marks

on the driver's side, soft dents in the left fender, and soft dents throughout the

entire left door panel. The representative testified the total cost of repairs to the

windshield and body panels would actually be $1075.00.




                                                                             A-5626-16T4
                                         6
      At the conclusion of the State's case, defendant moved for a judgment of

acquittal, claiming the State failed to prove its case. Defendant argued the State

failed to show: a threat to kill, a threat to commit a crime of violence, evidence

defendant had a knife in his possession, and pecuniary loss in excess of $500.

The trial court denied the motion.

      Defendant did not testify.     However, defendant's girlfriend, Barbara

Braden, with whom he lived, and who was with him at the time of the incident,

testified on his behalf. She gave the following version of the incident during

her testimony. A car behind them was driving aggressively, swerving all over

the road, and getting right behind them. Defendant brake-checked his vehicle

one time and then pulled over. The vehicle pulled behind them so defendant

stepped out of his car and approached the vehicle. Braden testified she heard a

woman screaming, her door "came flying out," and defendant put his hand above

her window, pushed the door shut, laughed, told her to call 9-1-1, and asked her

if she were drunk. Defendant returned to the car and they left the area. Braden

testified defendant did not have a knife that evening and he was calm throughout

the incident.

      After defendant rested he renewed his motion for judgment of acquittal.

The trial court again denied the motion.


                                                                          A-5626-16T4
                                        7
        The State requested a jury charge on flight. Defense counsel objected,

arguing the charge prejudicially implied a criminal act occurred in fact, when

such a determination was simultaneously before the jury.           The trial judge

overruled the objection but modified the model jury charge in light of

defendant's concerns. The trial court gave the following flight charge to the

jury:

                    There is -- there has been some testimony in the
             case from which you may infer that the defendant fled
             shortly after the incident. The defendant denies any
             flight and defendant denies that the acts he engaged in
             constituted flight, and the defendant denies committing
             all criminal acts.

                   The question of whether a defendant fled after the
             commission of a crime is another question of fact for
             your determination. Mere departure from a place where
             a crime has been committed does not constitute flight.
             If you find that the defendant, fearing that an accusation
             or arrest would be made against him on these charges
             involved in the indictment, took refuge in flight for the
             purpose of evading the accusation or arrest on the
             charges, then you may consider such flight in
             connection with all the other evidence in the case as an
             indication or proof of consciousness of guilt.

                    Flight may only be considered as evidence of
             consciousness of guilt if you should determine that the
             defendant's purpose in leaving was to evade accusation
             or arrest for the offenses charged in the indictment. If,
             after your consideration of all the evidence, if you find
             defendant, fearing an accusation or arrest would be
             made against him on the charges involved in the

                                                                           A-5626-16T4
                                         8
            indictment, took refuge in flight for the purpose of
            evading the accusation or arrest, then you may consider
            such flight in connection with all the other evidence as
            an indication or proof of a consciousness of flight -- a
            consciousness of guilt. . . .

                   It is for you, as judges of the facts, to decide
            whether or not the evidence of flight shows a
            consciousness of guilt and the weight to be given to
            such evidence in light of all the other relevant evidence
            in the case.

            [(Emphasis added).])

      During summation, the assistant prosecutor suggested the defense witness

Braden rehearsed her testimony with defendant prior to trial, stating:

                   Unlike a lot of cases, I suggest to you that the
            proof in this case has revealed that there are disputed
            facts, but there are a whole lot of undisputed facts. And
            that is thanks to the defendant's statement that he
            provided to Pennsylvania State Trooper Joseph
            Wasylyck and to what I would suggest was the
            rehearsed testimony of his girlfriend Ms. Braden.

The prosecutor further stated:

                  I submit to you, ladies and gentlemen, that
            everyone who testified here as a witness for the State
            was subpoenaed here and told the truth just like they
            remembered it, and that's why the inconsistencies
            happen. The people who have a reason to lie are the
            defense witnesses.

                   Why do I say that? I think you know. Everything
            that the defense is placing before you is, oh, I guess I
            admitted everything I did, I admitted everything I did,

                                                                         A-5626-16T4
                                       9
            I admitted everything I did except that which would get
            me into trouble, and so I'll come – I will tell the State
            Police my version of the facts and I'll get my girlfriend
            to go along with it when we get to the court. Mind you,
            this is the girlfriend who possessed all of these facts
            that . . . would have exonerated her boyfriend.

                   But she did not think it was important to share
            that information. Why? Nobody asked me. Does that
            make sense? I suggest to you that it does not.

                   You really have to judge what people have to
            gain and what people have to lose. And the State's
            witnesses to a person has absolutely nothing to gain, or
            for that fact, to lose by coming in here and telling you
            the truth.

                  If you apply the same standard to the defendant
            and his girlfriend, it doesn't wash. He has, as [defense
            counsel] calls it, his liberty to lose, and I think it's self-
            explanatory what his girlfriend would lose.

Defense counsel objected on the basis the assistant prosecutor implied defense

counsel rehearsed her witnesses or colluded with the witness. The prosecutor

denied he implied counsel engaged in such behavior, stating: "I explicitly said,

. . . to compare the statement provided by the defendant to Trooper Wasylyck

with the testimony of Ms. Braden. There was nothing about counsel." The trial

judge noted defense counsel's objection but denied relief, stating, "according to

my recollection, I do not believe that the jury can intimate that there was

collusion involving you."


                                                                             A-5626-16T4
                                        10
      The jury found defendant guilty of the lesser included offense of

harassment, N.J.S.A. 2C:33-4(c), on counts one and two, and the remaining

counts as charged.    Prior to sentencing, defendant moved for judgment of

acquittal or a new trial. Defendant alleged the State failed to turn over discovery

to the defense regarding Braden's back injury and disability status, previous

prescription for morphine, and her use of methadone. The State had access to

this information from a prior case against Braden that was resolved through her

admission into pre-trial intervention (PTI), which was defended by the Public

Defender's office.   Defense counsel claimed she was blindsided when this

information came out on cross-examination and that it tarnished Braden's

credibility. The trial court denied the motion, emphasizing that Braden was a

defense witness and was previously represented by the Office of the Public

Defender thereby giving defendant access to the discovery. The trial court

reasoned Braden could have been interviewed to "find out all the details about

her background, if there's anything in her background that might – might be of

impeachable quality in terms of her testimony." The trial court also found there

was no prejudice because defense counsel was able to elicit from Braden that

her methadone medication did not affect her recollection of the events or her

testimony.


                                                                           A-5626-16T4
                                       11
      At sentencing, the trial court noted defendant's record included a prior

1997 conviction for simple assault and a 1990 successfully completed PTI

diversion of aggravated assault and unlawful possession of weapon charges.

The presentence report also revealed numerous arrests for other charges that did

not result in convictions.

      With regard to the need for deterrence, the trial court stated:

            unfortunately the privilege to operate a motor vehicle is
            abused all too frequently on the roadways of this [S]tate
            by people who drive in an erratic manner and affect
            adversely the interests of other operators who are on the
            roadway as well. So general deterrence clearly has to
            be addressed by the Court in the sentence the Court
            imposes.

The court also considered the need for specific deterrence because of the nature

of defendant's prior record and his conduct during the incident in this case.

Accordingly, the trial court applied aggravating factor nine (need for deterring

defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9).

      The trial court applied mitigating factors six (defendant will compensate

the victim for the damage she sustained), N.J.S.A. 2C:44-1(b)(6); and ten

(defendant is particularly likely to respond to probationary treatment), N.J.S.A.

2C:44-1(b)(10).




                                                                         A-5626-16T4
                                       12
      Defendant was sentenced as follows. On count one, a concurrent thirty-

day jail term and a three-month suspension of driving privileges pursuant to

N.J.S.A. 2C:43-2(c), with the suspension to run consecutively to any term of

incarceration imposed. On counts three and five, defendant was sentenced to

concurrent three-year terms of supervised probation conditioned upon

concurrent 210-day jail terms. Defendant was also ordered to attend an anger

management class and to have no contact with Counterman, Autore, and Struble.

Appropriate fees and assessments were also imposed. Count two was merged

into count one and count four was merged into count three for sentencing

purposes. Defendant's motion for a stay of sentence pending appeal was denied.

This appeal followed.

                                        II.

      Defendant raises the following issues:

            POINT 1
            THE TRIAL COURT SHOULD HAVE GRANTED
            DEFENDANT'S MOTION FOR ACQUITTAL,
            JUDGMENT NOTWITHSTANDING THE VERDICT,
            OR, AT LEAST, A NEW TRIAL.[1]



1
  A motion for judgment notwithstanding the verdict (JNOV) is appropriate in
civil jury trials under Rule 4:40-2(b). The proper motion in criminal trials is for
judgment of acquittal under Rule 3:18-2.


                                                                           A-5626-16T4
                                       13
            POINT 2
            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR DISCOVERY THAT
            THE     STATE FAILED    TO   PRODUCE,
            WARRANTING A NEW TRIAL.

            POINT 3
            THE TRIAL COURT ERRED IN CHARGING
            FLIGHT TO THE JURY.

            POINT 4
            THE PROSECUTOR EXCEEDED FAIR COMMENT
            ON THE EVIDENCE.

            POINT 5
            DEFENDANT'S SENTENCE IS IMPROPER AND
            EXCESSIVE.
                             A.

      Defendant argues the trial court erred by denying his several motions for

judgment of acquittal, and for a new trial. Defendant claims the State produced

insufficient evidence to support a conviction as charged. He further contends

the State failed to prove he threatened to kill, threatened to commit a crime of

violence, was in possession of a knife, and a pecuniary loss in excess of $500.

We find no merit in these arguments.

      Motions for judgments of acquittal before a verdict are governed by Rule

3:18-1, which provides:

            At the close of the State's case or after the evidence of
            all parties has been closed, the court shall, on
            defendant's motion or its own initiative, order the entry

                                                                        A-5626-16T4
                                       14
            of a judgment of acquittal of one or more offenses
            charged in the indictment or accusation if the evidence
            is insufficient to warrant a conviction. A defendant
            may offer evidence after denial of a motion for
            judgment of acquittal made at the close of the State's
            case without having reserved the right.

      Post-verdict motions for acquittal are governed by Rule 3:18-2, which

provides:

            If the jury returns a verdict of guilty or is discharged
            without having returned a verdict, a motion for
            judgment of acquittal may be made, even if not earlier
            made pursuant to R. 3:18-1 or it may be renewed within
            10 days after the jury is discharged or within such
            further time as the court fixes during the 10-day period.
            The court on such motion may set aside a verdict of
            guilty and order the entry of a judgment of acquittal and
            may so order if no verdict has been returned.

      "The standard for resolving a motion brought under either rule is the

same." State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011). "In

assessing the sufficiency of the evidence on an acquittal motion, we apply a de

novo standard of review." State v. Williams, 218 N.J. 576, 593-94 (2014). "We

must determine whether, based on the entirety of the evidence and after giving

the State the benefit of all its favorable testimony and all the favorable

inferences drawn from that testimony, a reasonable jury could find guilt beyond

a reasonable doubt." Id. at 594 (citing State v. Reyes, 50 N.J. 454, 458-59

(1967)).

                                                                        A-5626-16T4
                                      15
      Under the Reyes standard, a review of whether to grant a judgment of

acquittal after a verdict is returned is confined to the State's evidence. State v.

Sugar, 240 N.J. Super. 148, 152-53 (App. Div. 1990) (citing State v. Kluber,

130 N.J. Super. 336, 341-42 (App. Div. 1974)). But where, as here, a defendant

is convicted of a lesser-included offense, the court should assess if the

conviction of the lesser included offense is sustainable based on the entire

record, including the evidence adduced by the defense. Id. at 153.

      Motions for a new trial based on a verdict against the weight of the

evidence are governed by Rule 3:20-1, which states:

            The trial judge on defendant's motion may grant the
            defendant a new trial if required in the interest of
            justice. . . . The trial judge shall not, however, set aside
            the verdict of the jury as against the weight of the
            evidence unless, having given due regard to the
            opportunity of the jury to pass upon the credibility of
            the witnesses, it clearly and convincingly appears that
            there was a manifest denial of justice under the law.

      "[A] motion for a new trial is addressed to the sound discretion of the trial

judge, and the exercise of that discretion will not be interfered with on appeal

unless a clear abuse has been shown." State v. Armour, 446 N.J. Super. 295,

306 (App. Div. 2016) (alteration in original) (quoting State v. Russo, 333 N.J.

Super. 119, 137 (App. Div. 2000)).



                                                                           A-5626-16T4
                                       16
      The court found the evidence presented was sufficient for a jury to return

a verdict of guilty. We agree. Counterman and Autore testified that defendant

approached their vehicle brandishing a knife. Counterman, Autore, and Struble

each testified to threats of violence, and specifically that defendant threatened

to kill Counterman, stab her, and knock her out. They also testified defendant

stabbed Counterman's windshield, punched her car, kneed her car, pressed

against her car, stabbed her tire, and then quickly drove away.

      Autore and Struble both testified to the hysterical reaction this incident

caused in Counterman. Their testimony was corroborated by the testimony of

Cameron and Maria Tidaback, the recorded 9-1-1 call, and the visible damage

caused to the vehicle. Furthermore, defendant admitted to Trooper Wasylyck

he was at the scene the evening the incident occurred.

      Defendant asserts his acquittal on the terroristic threat charges requires

vacating the possession of a weapon for an unlawful purpose conviction because

the "unlawful purpose" the jury was told to consider under count three was the

same "threat to kill" the jury found defendant not guilty of under counts one and

two. In fact, the trial judge instructed the jury the unlawful purpose alleged in

this case was to threaten to kill or assault Counterman, or to kill or assault her,

or to damage her vehicle. Based on the testimony and photographic evidence,


                                                                           A-5626-16T4
                                       17
the jury could have found defendant possessed a weapon for the unlawful

purpose of damaging Counterman's car.

      Finally, defendant claims the proofs for the criminal mischief conviction

were insufficient because N.J.S.A. 2C:17-3(a)(1) requires a pecuniary loss in

excess of $500. The State produced testimony by an auto-body shop employee

who explained the total cost to repair the damage was actually $1075.

      While defendant emphasized inconsistencies in the testimony of the

State's witnesses and the contradicting testimony by Braden, the determination

of the credibility and weight to be given to the testimony was for the jury to

decide. Defendant has not demonstrated the verdict was against the weight of

the evidence. Nor has he clearly and convincingly shown there was a manifest

denial of justice. We therefore find the trial court did not abuse its discretion

by denying defendant's motion for judgment of acquittal or for a new trial.

                                        B.

      Defendant next argues the trial court erred by denying his motion for

discovery. After Counterman testified, defendant made a discovery request for

her driver's abstract. The State initially denied the request, claiming the driver's

abstract was not relevant and, therefore, not discoverable. Counterman was not

charged with any traffic violations arising from the incident.         Her driver's


                                                                            A-5626-16T4
                                        18
abstract was not exculpatory evidence.        The trial court denied defendant's

motion for turnover of the driver's abstract. Even so, the State later turned over

Counterman's driver's abstract to the defense. Aside from any concern regarding

the use of the driver's abstract regarding prior bad acts in the form of motor

vehicle violations on prior occasions, we discern no abuse of discretion by the

trial court or resulting unfair prejudice to the defense.

      Defendant further contends the trial court erred by denying a new trial

because the State failed to turn over discovery of information regarding Braden's

prior back injury and disability status, and prescribed medication for morphine

and use of methadone, which the State obtained during Braden's prior criminal

matter that was resolved through PTI. As noted by the trial court, defense

counsel was able to elicit from Braden that her methadone medication did not

affect her recollection of the events or her testimony. We find no discovery

violation by the State, much less unfair prejudice requiring a new trial.

                                        C.

      Defendant complains the trial court erred by charging flight to the jury.

We disagree.

      "For departure to take on the legal significance of flight, there must be

circumstances present and unexplained which, in conjunction with the leaving,


                                                                            A-5626-16T4
                                        19
reasonably justify an inference that it was done with a consciousness of gui lt

and pursuant to an effort to avoid an accusation based on that guilt." State v.

Ingram, 196 N.J. 23, 46 (2008) (quoting State v. Mann, 132 N.J. 410, 418-19

(1993)). The record includes testimony of four witnesses, including Cameron

Tidaback, that defendant ran back to his car and quickly drove away from the

scene of the crime. We conclude there was sufficient evidence to support a

flight instruction.

      Defense counsel objected to a flight charge, arguing the charge

prejudicially implied a criminal act had, in fact, occurred, when such a

determination was simultaneously before the jury. Rather than just charging

Model Jury Charge (Criminal), "Flight" (rev. May 10, 2010), the trial court

carefully tailored the model charge to the facts of the case, thereby addressing

the very concerns raised by defense counsel. Considering the charge as a whole,

the flight charge given by the trial court was not misleading or ambiguous.

                                      D.

      Defendant next contends the prosecutor exceeded fair comment on the

evidence during his closing argument. We are unpersuaded by this argument.

      New Jersey courts have repeatedly "held that prosecutorial misconduct

can be a ground for reversal where the prosecutor's misconduct was so egregious


                                                                        A-5626-16T4
                                      20
that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83

(1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)). "The standard for

reversal based upon prosecutorial misconduct 'requires an evaluation of the

severity of the misconduct and its prejudicial effect on the defendant's right to a

fair trial.'" State v. Rodriguez, 365 N.J. Super. 38, 47 (App. Div. 2003) (quoting

State v. Timmendequas, 161 N.J. 515, 575 (1999)).

      "Prosecutors may not make inaccurate factual or legal assertions during

summation, and they must confine their remarks to evidence revealed during

trial, and reasonable inferences to be drawn from the evidence." Id. at 48 (citing

State v. Smith, 167 N.J. 158, 178 (2001)). In addition, "prosecutors are not

permitted to cast unjustified aspersions on the defense or defense counsel." Id.

at 50 (citing Frost, 158 N.J. at 86). "A prosecutor should not, without support

in the evidence, accuse defendant of conspiring with defense counsel to conceal

or distort the truth." State v. Munoz, 340 N.J. Super. 204, 218 (App. Div. 2001)

(citing State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988)).

Nevertheless, a prosecutor is permitted to comment on the credibility of a

defense witness. Ibid. (citing State v. Robinson, 157 N.J. Super. 118, 120 (App.

Div. 1978)).




                                                                           A-5626-16T4
                                       21
      The prosecutor invited the jury to compare the testimony adduced during

the State's case with the testimony provided by defendant's girlfriend. We do

not find the prosecutor exceeded fair comment on the evidence. The prosecutor

did not make an unfair attack on defense counsel. His comments regarding

witness bias and the presence or absence of a motive to lie were permissible.

The prosecutor's comments did not deprive defendant of a fair trial.

                                        E.

      Last, defendant argues his sentence is improper and excessive. We are

unpersuaded by these arguments.

      "Our review of a sentence imposed by the trial court is limited to

determining whether the court erred in the exercise of its discretionary authority

and its finding of the relevant aggravating and mitigating factors in N.J.S.A.

2C:44-1." Tindell, 417 N.J. Super. at 567 (citing State v. Pierce, 188 N.J. 155,

166, 169-70 (2006)). Reviewing courts must determine:

            first, whether the correct sentencing guidelines . . . have
            been followed; second, whether there is substantial
            evidence in the record to support the findings of fact
            upon which the sentencing court based the application
            of the guidelines; and third, whether in applying those
            guidelines to the relevant facts the trial court clearly
            erred by reaching a conclusion that could not have
            reasonably been made upon a weighing of the relevant
            factors.


                                                                          A-5626-16T4
                                       22
            [State v. Roth, 95 N.J. 334, 365-66 (1984).]

Accordingly, appellate courts are:

            bound to affirm a sentence, even if it 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. Assuming the trial
            court follows the sentencing guidelines, the one
            exception to that obligation occurs when a sentence
            shocks the judicial conscience.

            [State v. O'Donnell, 117 N.J. 210, 215-16 (1989)
            (citations omitted).]

      Defendant argues the court erred by applying aggravating factor nine and

as to the relative weight it was assigned. We disagree. The record amply

supports the trial court's finding of the need for deterring both defendant and the

public in general from engaging in the unacceptable, out-of-control conduct

displayed by defendant in his fit of road rage.

      Defendant also claims the trial court erred by not applying mitigating

factor nine (the character and attitude of defendant indicate he is unlikely to

reoffend), N.J.S.A. 2C:44-1(b)(9), because he has no prior criminal convictions.

We again disagree.     The trial court correctly observed that defendant had

previously been diverted into PTI on aggravated assault and weapon charges.

He had also been previously found guilty of simple assault, N.J.S.A. 2C:12-


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1(a)(1). That history, coupled with his seemingly uncontrolled anger during the

incident involved in this case, supports the trial court's decision not to apply

mitigating factor nine.

      Finally, defendant argues his sentence is excessive. We discern no abuse

of discretion in the trial court's application and weighing of the applicable

aggravating and mitigating factors. The sentencing judge properly considered

the property damage defendant caused and the threatening, offensive behavior

defendant engaged in while possessing a knife. Defendant was found guilty of

committing two third-degree offenses.      He was sentenced to a three-year

probationary term, subject to a 210-day jail term, with all counts running

concurrently. Having considered the record and arguments, we are satisfied that

the sentence is not manifestly excessive or unduly punitive and does not

constitute an abuse of discretion.

      Affirmed.




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