                                NOT FOR PUBLICATION WITHOUT THE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-5939-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AMEER A. HOLT,

     Defendant-Appellant.
_________________________

                   Submitted April 28, 2020 – Decided May 29, 2020

                   Before Judges Yannotti and Hoffman.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 16-10-2064.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Cody T. Mason, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Shiraz Deen, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant pled guilty to second-degree possession of a controlled

dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

35-5(b)(2), and other charges.     Defendant appeals from the judgment of

conviction dated August 10, 2018. He contends the trial court erred by denying

his motion to suppress and resentencing is required. We affirm.

                                       I.

      In October 2016, an Ocean County Grand Jury returned Indictment No.

16-10-2064, charging defendant with third-degree possession of a CDS

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

CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession

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

three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1)

(count four); second-degree possession of a firearm while engaging in drug

activity, N.J.S.A. 2C:39-4.1(a) (count five); and second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(b) (count six). Thereafter, defendant

filed a motion to suppress evidence and a judge conducted an evidentiary

hearing on the motion.

      At the hearing, Officer Theodore Maloney, of the Toms River Police

Department (TRPD), testified that on September 21, 2016, he was working at


                                                                        A-5939-17T4
                                       2
police headquarters when a detective informed him that an anonymous person

had reported that an individual named "Ameer Holt" was distributing narcotics

out of a room at a certain motel in Toms River. The anonymous person also

reported that defendant was driving a red Mazda that might be registered to a

car dealership.

      Maloney and other TRPD officers obtained photographs of defendant’s

driver’s license and established surveillance at the motel. Maloney said that on

three separate occasions, he witnessed defendant walking down the motel's

staircase towards a silver Buick LeSabre. He said defendant entered the vehicle

and "fumble[d] around with some things," before he met another person in the

parking lot.

      According to Maloney, defendant and the other individual engaged in a

"brief conversation" and "appeared to exchange items[,]" before going their

separate ways. Maloney testified that, based on his training and experience, he

believed defendant’s activity was consistent with the distribution of narcotics.

      Maloney further testified that later, defendant entered the vehicle and

drove to another location. Maloney said that, at that location, he observed

defendant engage in what he "believed to be a drug deal" in his vehicle. Police

officers then stopped defendant. He consented to a search of the vehicle and,


                                                                          A-5939-17T4
                                        3
according to Maloney, he was "more than" cooperative. The police did not find

drugs, firearms, or any other incriminating evidence in the car.

      The following day, Jeanine Reiser contacted Maloney.           Reiser told

Maloney she was defendant’s fiancée or girlfriend and that she saw the police

stop defendant the previous day. She said she was upset that defendant was

"involved in narcotic activity" and noted that she had reported the Buick stolen

after defendant failed to return the car to her.

      Reiser told Maloney that defendant was staying at the motel. He was

using the Buick as a "stash location" for drugs and had a handgun. Reiser

informed Maloney defendant had picked up drugs from an associate in Newark,

and he was driving to the motel in a red Mazda.

      The police officers again conducted surveillance of the motel.         They

observed a red Mazda enter the motel's parking lot. Defendant was in the

passenger seat and an unknown person was driving the vehicle. The officers

were not wearing their police uniforms, but they were wearing tactical vests with

their badges displayed. The officers approached the Mazda with their guns

drawn and removed defendant from the vehicle.

      Officer Andrew Chencharik of the TRPD patted defendant down for

possible weapons. He testified that he felt "a soft object[ or] small plastic bag"


                                                                          A-5939-17T4
                                         4
in defendant's pocket, which he "believed" was "consistent with the packaging"

of "some type of contraband CDS." According to Chencharik, defendant said

the "bulge" in his pocket "was marijuana and pills."

      Chencharik arrested defendant and placed him in the back of a patrol car.

From defendant's person, the officers recovered ten Oxycodone pills, which

were "[b]undled up along with a quantity of a marijuana . . . ." The driver of the

red Mazda consented to a search of the vehicle. The officers searched the

vehicle but found no additional evidence. They released the driver of the Mazda

and he left the area.

      The officers then asked a K-9 team to report to the motel parking lot and

have the dog check the Buick for narcotics. The team brought the dog to the

motel. The dog examined the exterior of the car and gave two positive alerts

indicating the presence of narcotics at the front side door on the passenger side

and the rear door on the driver's side. The officers impounded the car and had

the car brought to police headquarters.

      Maloney confirmed that Reiser reported that the Buick had been stolen.

He called Reiser and told her that he would either seek a warrant to search the

vehicle or she could come to police headquarters and complete a consent-to-

search form.    Reiser went to police headquarters.      Maloney explained the


                                                                          A-5939-17T4
                                          5
consent-to-search form to her. He told her she could be present for the search

and she could stop the search at any time. Maloney gave her time to read the

form. She did not ask any questions or indicate she did not understand the form.

She signed the form.

       The officers searched the vehicle and found about seventeen grams of

cocaine in the driver’s side door, two digital scales with CDS residue, a box of

plastic sandwich bags, and drug paraphernalia. After the search, defendant

waived his Miranda rights1 and gave the police a recorded statement.          He

admitted that the cocaine and the scales found in the car belonged to him. The

police returned the vehicle to Reiser without further investigation.

       On September 23, 2016, Reiser called Maloney. She stated that after she

spoke with defendant in jail, she became suspicious about the contents of her

car. She checked certain panels on the vehicle’s doors. She observed a handgun

behind a panel of the passenger-side door.

       Chencharik and three other officers responded to Reiser’s apartment.

Chencharik advised Reiser of her rights and she consented to a second search of

her car. The officers searched the vehicle and removed a gun from behind a

panel on the passenger-side door.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-5939-17T4
                                        6
      At the suppression hearing, Reiser testified that defendant is her boyfriend

and he is the father of her two-year-old child. Reiser said she and defendant

were not living together in 2016, she did not know where he was living at that

time, and she had no knowledge of his alleged crimes. She denied contacting

the police on September 22 and 23, 2016. She said she never provided the police

with information about drugs or a firearm.

      Reiser claimed she only signed the first consent-to-search form because

the police had threatened to arrest her and have the Division of Child Protection

and Permanency contact her. Reiser further testified that a detective called her

and told her the police wanted to search the car a second time. According to

Reiser, the police kept mentioning drugs and guns.

      Reiser explained that the police presented her with another consent-to-

search form. She said she signed the form because she did not want any trouble.

She claimed she did not read either form in detail. She said the officers did not

read the form to her. She testified that she did not know she could refuse to sign

the form or that she could stop the search.

      On January 2, 2018, the judge filed an opinion and order denying

defendant's motion to suppress. Thereafter, defendant pled guilty to counts one,

two, three, four, and six of the indictment. In exchange for defendant's plea, the


                                                                          A-5939-17T4
                                        7
State agreed to recommend an aggregate sentence of twelve years of

incarceration with five years of parole ineligibility. The State also agreed to

dismiss count five and two disorderly persons offenses.

      On August 3, 2018, another judge sentenced defendant to an aggregate

sentence of twelve years of imprisonment with five years of parole ineligibility.

The judge also imposed various fines and penalties. This appeal followed.

      On appeal, defendant raises the following arguments:

            POINT I
            THE COURT ERRED IN DENYING THE MOTION
            TO    SUPPRESS  EVIDENCE BECAUSE IT
            WRONGLY      FOUND    DEFENDANT      WAS
            DETAINED RATHER THAN ARRESTED WHEN HE
            WAS FRISKED, CONCLUDED THAT THE FRISK
            WAS JUSTIFIED BASED ON A TIP OF UNPROVEN
            RELIABILITY, AND FOUND THE BUICK WAS
            LAWFULLY IMPOUNDED BASED UPON A DOG
            SNIFF    UNSUPPORTED    BY    PROOF   OF
            RELIABILITY.

            A.   Defendant Was Arrested When Three Officers
            Blocked In His Car, Approached With Guns Drawn,
            Removed Him From The Car, And Patted Him Down.

            B.    The Officers' Conduct Was Unjustified Because
            It Was Based On A Tip Of Unknown Reliability.

            C.   The State Failed To Show That The Dog Sniff
            Was Reliable Such That The Impoundment And Search
            Of The Buick Were Illegal.



                                                                         A-5939-17T4
                                       8
            POINT II
            THE MATTER MUST BE REMANDED FOR
            RESENTENCING BECAUSE THE COURT FAILED
            TO ADEQUATELY EXPLAIN ITS AGGRAVATING
            FACTOR FINDINGS AND DID NOT ACCOUNT
            FOR DEFENDANT'S REMORSE.

                                       II.

      We turn first to defendant's contention that the judge erred by denying his

motion to suppress. The judge found that the officers had reasonable articulable

suspicion that defendant was engaged in, or about to engage in criminal activity,

and therefore lawfully detained and frisked defendant for investigation. The

judge also found that Reiser knowingly and voluntarily consented to the

searches of her vehicle.    The judge therefore determined that the officers

lawfully obtained the evidence during defendant's detention and the search of

the car.

      When reviewing the denial by the trial court of a motion to suppress

evidence, we will defer to the court's findings of fact "so long as those findings

are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.

249, 262 (2015). We may disregard those findings of fact only if they are

"clearly mistaken." Ibid. However, the trial court legal conclusions are not

entitled to any special deference and we review those conclusions de novo. Id.

at 263.

                                                                          A-5939-17T4
                                        9
      A. Investigative Stop or Arrest.

      Defendant argues that the motion judge erroneously found that the police

lawfully detained him for investigation and frisked him during that encounter .

Defendant contends that the officers transformed the encounter "from a

minimally invasive detention to a de facto arrest." We disagree.

      "Warrantless seizures and searches are presumptively invalid as contrary

to the United States and the New Jersey Constitutions." State v. Pineiro, 181

N.J. 13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)). "[S]uch seizures

or searches [must] be conducted pursuant to a warrant issued upon a showing of

probable cause." Ibid. (citing U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7).

"When no warrant is sought, the State has the burden to demonstrate that ‘[the

search] falls within one of the few well-delineated exceptions to the warrant

requirements.’" Ibid. (alteration in original) (quoting State v. Maryland, 167

N.J. 471, 482 (2001)).

      Generally, there are three "constitutionally permissible forms of police

encounters with citizens." Id. at 20-21. A "'field inquiry' is the least intrusive

encounter[] and occurs when a police officer approaches an individual and asks

'if [the person] is willing to answer some questions.'" Id. at 20 (second alteration

in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).


                                                                            A-5939-17T4
                                        10
      Next, "more intrusive than a field inquiry is . . . an investigative

detention[,]" also known as a Terry stop. Nishina, 175 N.J. at 510 (citing Terry

v. Ohio, 392 U.S. 1 (1968)). "An encounter escalates from an inquiry to a

detention 'when an objectively reasonable person feels that his or her right to

move has been restricted.'" Ibid. (quoting State v. Rodriguez, 172 N.J. 117, 126

(2002)).

       A Terry stop "is valid 'if it is based on specific and articulable facts which,

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

suspicion of criminal activity.'" Pineiro, 181 N.J. at 20 (quoting Nishina, 175

N.J. at 510-11). The police must "ha[ve] a 'particularized suspicion' based upon

an objective observation that the person stopped has been [engaged] or is about

to engage in criminal wrongdoing . . . based upon the . . . officer's assessment

of the totality of circumstances with which he is faced." State v. Davis, 104 N.J.

490, 504 (1986).

      Furthermore, "[t]he standard of reasonable suspicion required to uphold

an investigative detention is lower than the standard of probable cause necessary

to justify an arrest." Nishina, 175 N.J. at 511 (citing State v. Stovall, 170 N.J.

346, 356 (2002)). Application of the reasonable suspicion standard is "highly

fact sensitive and, therefore, not 'readily, or even usefully, reduced to a neat set


                                                                              A-5939-17T4
                                        11
of legal rules.'" Ibid. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

      "[A]n investigatory stop becomes a de facto arrest when 'the officers'

conduct is more intrusive than necessary for an investigatory stop.'" State v.

Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633,

636 (8th Cir. 1984)).    There is no "bright line" for determining when an

investigatory stop constitutes a de facto arrest. Id. at 479. In making that

decision, the court should consider several factors including: the length of the

detention; degree of fear and humiliation endured by the defendant;

transportation or isolation of the defendant; and whether the defendant was

handcuffed or confined to a police car. Ibid.

      Here, there is sufficient credible evidence in the record to support the

judge's finding that defendant was subjected to an investigative stop for

detention and the encounter was not a de facto arrest. The judge found that the

police had reasonable articulable suspicion that defendant was engaged in, or

about to engage in, criminal activity. Therefore, the officers lawfully stopped

and frisked defendant.

      As the judge pointed out in his opinion, on September 21, 2016, the TRPD

received an anonymous tip indicating that defendant was distributing drugs from

a room at a certain motel in Toms River and he was seen driving a red Mazda.


                                                                         A-5939-17T4
                                      12
The following day, Reiser told Maloney that defendant was distributing drugs

out of her Buick. She said he had picked up drugs in Newark, was on his way

back to the motel in a red Mazda, and had a gun.             Reiser corroborated

information provided in the anonymous tip.

      Moreover, officers from the TRPD conducted surveillance and observed

defendant arrive in the motel parking lot in a red Mazda.           Maloney and

Chencharik approached defendant, drew their weapons, and ordered him to exit

the car. Chencharik frisked defendant to determine if he was armed.

      Chencharik detected a bulge in defendant's pocket and defendant admitted

he was in possession of marijuana and pills. The judge found that the officers

had recovered the evidence during the detention and defendant had not been

subjected to a de facto arrest. Defendant was not arrested until after he admitted

he was in possession of a CDS.

      Defendant argues, however, that the officers "added to the intrusiveness

of the detention by approaching the car with their badges displayed and guns

drawn." He contends the "cumulative effect" of the officers’ actions made the

encounter more intrusive than a Terry stop. We are convinced, however, that

the record supports the judge's finding that defendant was detained for

investigation and the detention did not constitute a de facto arrest.


                                                                          A-5939-17T4
                                       13
      As the record shows, the detention was no longer than necessary. The

officer frisked defendant because the TRPD had been informed he had a gun.

The officers did not humiliate defendant and there is no indication he faced

extraordinary fear. During the detention, defendant was not handcuffed or

placed in a police vehicle. We conclude the evidence was obtained during an

investigative detention, not a de facto arrest.

      B. Reiser's Tip.

      Defendant argues that the judge erred by considering Reiser's tip to be the

tip of a "concerned citizen." He contends the State failed to establish Reiser’s

veracity and the basis of her knowledge for the information she provided to the

TRPD. He therefore argues that the police lacked reasonable suspicion to stop

and frisk him and that the trial court should have suppressed the evidence

recovered from him during the stop. Again, we disagree.

      "[A] descriptive tip by an informant may contribute to a reasonable

objective and particularized suspicion to serve as the basis for an investigatory

stop." State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) (quoting

State v. Caldwell, 158 N.J. 452, 467 (1999)). "[T]he reliability of an informant's

tip must be analyzed in light of the totality of the circumstances . . . ." State v.




                                                                            A-5939-17T4
                                        14
Williams, 364 N.J. Super. 23, 31-32 (2003) (citing Illinois v. Gates, 462 U.S.

213, 238 (1983); State v. Novembrino, 105 N.J. 95, 122 (1987)).

      "An informant's 'veracity' and 'basis of knowledge' are two highly relevant

factors under the totality of the circumstances." State v. Zutic, 155 N.J. 103,

110 (1998) (citing State v. Smith, 155 N.J. 83, 92 (1998)). However, "[a]

deficiency in one of those factors 'may be compensated for, in determining the

overall reliability of a tip, by a strong showing as to the other, or by some other

indicia of reliability.'" Id. at 111 (quoting Gates, 462 U.S. at 233).

      Furthermore, "‘[a] report by a concerned citizen’ or a known person is not

‘viewed with the same degree of suspicion that applies to a tip by a confidential

informant’ or an anonymous informant." State v. Amelio, 197 N.J. 207, 212

(2008) (alteration in original) (quoting Wildoner v. Borough of Ramsey, 162

N.J. 375, 390 (2000)). "When an informant is an ordinary citizen, New Jersey

courts assume that the informant has sufficient veracity and require no further

demonstration of reliability." Stovall, 170 N.J. at 362.

      We are convinced the record supports the judge's finding that Reiser's tip

consisted of information provided by an ordinary citizen. She identified herself

to the police and they reasonably assumed she was providing reliable

information.   Moreover, Maloney testified that Reiser was upset because


                                                                           A-5939-17T4
                                       15
defendant was using her car to engage in the distribution of narcotics, and her

goal was to stop him from continuing to do so.

      Defendant argues that Reiser had "suspect motives" to provide the police

with "highly damaging information" about him. He claims her goal was to retain

possession of the vehicle and that her relationship with defendant "had been

essentially nonexistent for months." He also claims she was motivated by a

belief he was cheating on her. These arguments are entirely without merit.

      The police had no reason to suspect that Reiser was providing the

information about defendant for some "suspect" reasons, nor were they required

to question her to determine her motives for informing the police that defendant

was engaged in criminal activity. She was an ordinary citizen who identified

herself.   Under the circumstances, the police reasonably assumed the

information she provided was credible.

      C. Impoundment of Vehicle.

      Defendant argues that the State failed to show that the police lawfully

impounded Reiser's car. He contends the State failed to provide sufficient detail

about the dog’s alerts when he examined the car. He also contends that the State

did not present sufficient information to show the dog had been properly trained




                                                                         A-5939-17T4
                                      16
and his alerts had been reliable. He therefore contends the State failed to

establish it had probable cause to impound the car. We disagree.

      Defendant argues that the State could only establish probable cause based

on the dog's alerts if it produced proof from "controlled settings" that the dog

had performed reliably in detecting the presence of narcotics. In support of that

argument, he relies upon Florida v. Harris, 568 U.S. 237, 248 (2013). In this

case, however, the State did not rely solely on the dog's alerts to establish

probable cause to seize the Buick.       The police had other information that

established probable cause to impound the vehicle.

      As noted, Reiser told the police that defendant had been using the Buick

for the distribution of CDS. The officers conducted surveillance and observed

defendant engaging in actions that were consistent with the distribution of CDS.

Moreover, the police stopped and frisked defendant, and found he was in

possession of a CDS. Reiser also reported that the Buick had been stolen. Thus,

wholly aside from the dog's alerts, the police had probable cause to seize the car.

      In addition, the police had independent justification to impound the car

under N.J.S.A. 39:5-47, which provides that the New Jersey Motor Vehicle

Commission:

            may authorize the seizure of a motor vehicle operated
            over the highways of this State when it has reason to

                                                                           A-5939-17T4
                                       17
             believe that the motor vehicle has been stolen or is
             otherwise     being    operated    under      suspicious
             circumstances and may retain it in the name of the
             commission until such time as the identity of ownership
             is established . . . .

             [Ibid.]

       The statute authorizes the police to impound a vehicle they reasonably

believe was stolen. State v. Terry, 232 N.J. 218, 234 (2018). Furthermore,

"[t]he Fourth Amendment . . . is not offended if an automobile is seized or its

operator temporarily detained when a law enforcement officer has a reasonable

and articulable suspicion that the vehicle is unregistered or stolen." Ibid. (citing

Delaware v. Prouse, 440 U.S. 648, 663 (1979)).

       Defendant argues that the statute does not apply because there is no

evidence the car was "operated over the highways" before the police impounded

it.   He asserts that before the officers seized the car, the officers did not

determine that the vehicle was reported stolen. Defendant also asserts he was

not afforded an opportunity to establish that he had lawful possession of the car.

Defendant's arguments are unavailing.

       Before they impounded the vehicle, officers at the TRPD were aware the

vehicle had been reported stolen.       The police also had information which

suggested that it was being operated under "suspicious circumstances." As


                                                                            A-5939-17T4
                                        18
noted, Reiser told the police that defendant was using the car for the distribution

of drugs. In addition, the vehicle was at the motel's parking lot. Therefore, the

officers could reasonably assume it had been operated on the State's highways.

Therefore, N.J.S.A. 39:5-47 authorized the police to impound the vehicle.

                                       III.

      Defendant argues that resentencing is required.           He contends the

sentencing judge failed to explain the bases for his findings of aggravating

factors three and nine. He also contends the judge erred by failing to take into

account his expression of remorse and acceptance of responsibility.

      We apply a "deferential" standard in reviewing a lower court's sentencing

determination. State v. Fuentes, 217 N.J. 57, 70 (2014). This court:

            must affirm the sentence unless (1) the sentencing
            guidelines were violated; (2) the aggravating and
            mitigating factors found by the sentencing court were
            not based upon competent and credible evidence in the
            record; or (3) "the application of the guidelines to the
            facts of [the] case makes the sentence clearly
            unreasonable so as to shock the judicial conscience."

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

      Here, the sentencing judge found aggravating factors three (the risk that

defendant will commit another offense), six (the extent of defendant’s prior

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

                                                                           A-5939-17T4
                                       19
convicted), and nine (the need for deterring defendant and others from violating

the law). N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge stated there was a risk

defendant will commit another offense and he gave that factor "heavy weight"

based on defendant's criminal record.

      The judge noted that this was defendant's third conviction of certain

persons not to possess weapons, in violation of N.J.S.A. 2C:39-7(b). The judge

pointed out that the legislative policy underlying that statute is clear.     As

provided in the statute, certain persons, like defendant, are not to possess

weapons.

      The judge observed that in this matter, defendant was found guilty of

possessing a handgun, and he had a prior conviction for possession of a machine

gun. The judge emphasized that there was a need to deter defendant and others

from violating the law. Therefore, the judge gave "heavy weight" to aggravating

factor nine.

      The judge also found mitigating factor eleven (defendant’s imprisonment

would entail excessive hardship to himself or his dependents). N.J.S.A. 44-

1(b)(11). The judge noted that defendant has a two-year-old child, and although

he was not paying to support that child, the child would not have her father's




                                                                        A-5939-17T4
                                        20
companionship and love while he is incarcerated. The judge gave mitigating

factor eleven moderate weight.

      The judge found that the aggravating factors outweighed the mitigating

factor. As stated previously, the judge sentenced defendant to an aggregate term

of twelve years of incarceration, with five years of parole ineligibility.

      We reject defendant's contention that the judge failed to provide sufficient

reasons for his findings of aggravating factors three and nine.         The judge

explained that defendant has a juvenile record, with three violations of

probation. He also has eight municipal court convictions and six prior Superior

Court convictions, which include two prior convictions for certain persons not

to possess weapons. We are convinced that the sentencing judge provided a

sufficient explanation for his findings.

      Defendant contends the judge erred by failing to consider his remorse and

acceptance of responsibility. The judge noted, however, that defendant was

"honest and open and forthright and accepted responsibility for [his actions], but

he understands that he’s the architect of this situation and he stands here . . . as

a result of his own conduct." Thus, the judge considered defendant's remorse

and acceptance of responsibility.




                                                                             A-5939-17T4
                                        21
        Defendant also contends resentencing is required to ensure that the judge

did not consider a prior drug offense, which made him eligible for an extended

term under N.J.S.A. 2C:43-6(f), as a basis for his findings on aggravating factors

three and nine. However, as we have explained, defendant has an extensive

criminal record, which includes adjudications as a juvenile, municipal court

convictions, and six prior Superior Court convictions. Wholly aside from his

prior conviction for the drug offense, defendant's criminal record provides a

sufficient factual basis for the judge's findings of aggravating factors three and

nine.

        We therefore conclude that the judge complied with the sentencing

guidelines and defendant's sentence represents a reasonable exercise of the

court's sentencing discretion. We reject defendant's contention that resentencing

is required.

        Affirmed.




                                                                          A-5939-17T4
                                       22
