                                NOT FOR PUBLICATION WITHOUT THE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-2950-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FENTON J. CARSTARPHEN, a/k/a
FENTON JU CARSTARPHEN,
GERALD CARSTARPHEN,
MICHAEL WATERS, MIKE FINNEY,
FENNY HOLLINGSWORTH, and
FINNY HOLLINGSWORTH,

     Defendant-Appellant.
_____________________________

                    Submitted February 11, 2019 – Decided March 11, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 16-04-1087.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David A. Gies, Designated Counsel, on the
                    briefs).
            Mary Eva Colalillo, Camden County Prosecutor,
            attorney for respondent (Kevin J. Hein, Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      After being found guilty by a jury, defendant appeals from his convictions

for second-degree burglary, N.J.S.A. 2C:18-2 (Count One); first-degree

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Two); second-

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

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

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count

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

(Count Six). We affirm.

                                       I.

      Defendant brutally attacked his estranged wife (the victim) almost killing

her. Shortly after the indictment, the State moved to admit evidence of "other

acts of domestic violence committed by . . . defendant against the victim

pursuant to N.J.R.E. 404(b)." The judge allowed the State to admit into evidence

a sanitized statement defendant made to an officer, and permitted testimony

regarding the victim's tumultuous relationship with defendant as intrinsic

evidence. But the judge found statements made by defendant to a different


                                                                        A-2950-16T4
                                       2
officer and testimony regarding defendant's prior physical assault of the victim

inadmissible under N.J.R.E. 404(b).

      Moments before jury selection, defendant advised the judge – for the first

time – that he wanted to represent himself. Up to this point, a public defender

represented defendant.      The State objected specifically to defendant cross-

examining the victim himself due to an active final restraining order (FRO). But

the State had no objection to defendant proceeding pro se, so long as his public

defender cross-examined the victim (using questions proposed by defendant if

need be).

      After making the proper inquiries, the judge allowed defendant to

represent himself, but in a hybrid fashion. He could represent himself in all

aspects of the trial, except the cross-examination of the victim. On that point,

the judge determined that defendant's public defender would cross-examine the

victim. The judge allowed defendant to retain private counsel, if he could afford

to do so, but otherwise, the judge stated that his public defender would act as

standby counsel. Unhappy with the judge's decision to keep the public defender

as standby counsel, defendant then left the courtroom, refused to participate in

the trial, and returned to the jail.




                                                                         A-2950-16T4
                                        3
      After jury selection and opening statements, the public defender moved

for a mistrial, arguing that the judge denied defendant's constitutional right to

represent himself. The judge denied the motion and concluded that defendant

was "attempting to exploit the system." The judge said he refused to allow

defendant to "dictate by gamesmanship" how the trial was going to proceed. The

trial occurred in defendant's absence.

                                     II.

      We discern the following facts from the evidence adduced at the trial,

which demonstrate overwhelming proof of guilt. On the morning of December

11, 2014, the victim opened the door to the mudroom attached to her house when

she unexpectedly saw defendant standing there with a meat cleaver in his hand.

He said to her, "[o]h, so you want a divorce?" The victim attempted to go to the

back door, but she felt "heavy blows" to the back of her head, and fell to the

ground. She was able to get outside to the backyard where she screamed for

help. As the attack continued outside, defendant put the meat clever in his

pocket and took out a folding knife and cut the victim's thigh and attempted to

cut her calf. Defendant told the victim they had to go back inside the house; the

victim said she could not move, and as defendant went toward her, pretending




                                                                         A-2950-16T4
                                           4
to help her, he reached down and slit her throat and continued up her face,

cutting her lip, nose, and across her left eye.

      The victim's neighbor heard the screams, saw the attack, and called 9-1-

1. Police arrived and found defendant standing over the victim, who was yelling

for help with her hands up and blood coming down her face. The police detained

defendant and found the meat cleaver and folding knife. They found a glove

and wet pajamas near where the victim was on the ground; the wet pajamas had

the odor of lighter fluid. When the police entered the victim's house, they

detected the odor of flammable gas, and they noticed it was most potent in the

mudroom.

      The victim testified at trial.         She testified that defendant was

argumentative, and when she previously had asked him to leave her home, he

told her, "If I'm not living . . . here . . . I'll burn this mother[*****] down." She

said that she broke off the relationship and he moved out. She testified that she

then filed for divorce, but that he continued to call her and would "pop up" at

her work.

      A trauma surgeon, who treated the victim for the injuries she sustained in

the attack, testified that she had "multiple lacerations of her face, neck, arm, one

on her abdomen, several on her thigh, several on her head, left arm . . . [and] a


                                                                             A-2950-16T4
                                         5
fracture . . . in her left arm . . . [and] amputation of part of her finger on her left

hand." The victim stayed at the hospital for four days, during which she required

staples to the injuries on her head, two surgeries, and several blood transfusions.

      A forensic scientist from the New Jersey State Police Office of Forensic

Science also testified. He examined DNA found on various items recovered

from the victim's home and backyard. He found defendant's DNA on a glove

found at the scene, and on the knife blade and handle.

      The jury found defendant guilty of all counts. 1 After the appropriate

mergers, the judge sentenced defendant to an aggregate prison term of fifty

years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.2 He

did so after finding that defendant was a persistent offender under N.J.S.A.

2C:44-3(a).

                                        III.

      On appeal, defendant argues:




1
   The State had previously dismissed a charge of fourth-degree contempt,
N.J.S.A. 2C:29-9(b).
2
  The judge merged Count One, Count Three, Count Four, and Court Five into
Count Two, first-degree attempted murder, for which the judge imposed a fifty-
year extended prison term in accordance with N.J.S.A. 2C:44-1, with forty-two
years of parole ineligibility.
                                                                               A-2950-16T4
                                           6
            POINT I

            THE TRIAL [JUDGE] ERRED WHERE [HE]
            DETERMINED THAT DEFENDANT'S RIGHT TO
            SELF-REPRESENTATION SHOULD BE HONORED
            EXCEPT DURING CROSS-EXAMINATION OF HIS
            ACCUSER WHO HAD A RESTRAINING ORDER
            AGAINST HIM.

            POINT II

            THE TRIAL [JUDGE] ERRED WHERE [HE]
            DETERMINED AS A MATTER OF LAW THAT THE
            SPECIFIC THREATS MADE BY DEFENDANT AND
            DIRECTED TOWARD [THE VICTIM] PRIOR TO
            THE CHARGED CRIMES WERE INTRINSIC
            EVIDENCE.

            POINT III

            THE TRIAL [JUDGE] ERRED WHERE [HE]
            ADMITTED DEFENDANT'S PRIOR THREATS TO
            SHOW MOTIVE, PARTICULARLY WHERE [HE]
            FAILED TO PROVIDE TO THE JURY A LIMITING
            INSTRUCTION AS TO THE PROPER USE.

            POINT IV

            THE TRIAL [JUDGE] FAILED TO AFFORD THE
            PROPER WEIGHT TO THE AGGRAVATING
            FACTORS WHERE [HE] DID NOT CONSIDER
            NERA'S REAL-TIME CONSEQUENCES.

                                      IV.

      Defendant argues that the judge erred by not allowing him to cross-

examine the victim, and instead ordering that defendant's standby counsel voice

                                                                       A-2950-16T4
                                      7
defendant's questions.

       The Sixth Amendment gives a criminal defendant the right to represent

himself in a criminal trial, when he "voluntarily and intelligently" elects to do

so. State v. DuBois, 189 N.J. 454, 465 (2007) (citing Faretta v. California, 422

U.S. 806, 816 (1975)). When a criminal defendant requests to proceed pro se,

the judge must "engage in a searching inquiry" with him to determine whether

he understands the implications of the waiver. State v. Crisafi, 128 N.J. 499,

510 (1992).    "The defendant 'should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open.'" Ibid. (quoting

Faretta, 422 U.S. at 835).

      However, the right to self-representation is not absolute. State v. Buhl,

269 N.J. Super. 344, 362-63 (App. Div. 1994). For example, "a defendant

cannot manipulate the system by wavering between assigned counsel and self-

representation." Id. at 362. "Moreover, like any other request for substitution

of an attorney, a defendant's decision to dismiss his lawyer and represent himself

must be exercised in a timely fashion. The right of self-representation is not a

license to disrupt the criminal calendar, or a trial in progress." Ibid.




                                                                           A-2950-16T4
                                         8
      In granting a defendant the right to represent himself, the trial judge "may

appoint standby counsel to assist the pro se defendant." DuBois, 189 N.J. at

466; see also, Faretta, 422 U.S. at 834 n.46 (stating that a State may appoint

standby counsel "even over objection by the accused"). Standby counsel acts as

a "safety net" to make sure a defendant receives a fair hearing and to allow trial

to proceed without undue delays. State v. Ortisi, 308 N.J. Super. 573, 591 (App.

Div. 1998). The United States Supreme Court noted that standby counsel may

"steer a defendant through the basic procedures of trial . . . even in the unlikely

event that it somewhat undermines the pro se defendant's appearance of control

over his own defense." DuBois, 189 N.J. at 466 (alteration in original) (quoting

McKaskle v. Wiggins, 465 U.S. 168, 184 (1984)).

      Furthermore, "hybrid representation" may be granted when a defendant

requests to represent himself in only part of the trial, not the trial as a whole.

State v. Figueroa, 186 N.J. 589, 594 (2006).         Although hybrid or partial

representation is ordinarily discouraged, it may be granted in the trial judge's

discretion. Ibid. "[W]hether to grant a defendant the opportunity to represent

himself in part and be represented by counsel in part rests in the sound discretion

of the trial court." Id. at 595. Generally, such representation is granted when

the trial judge determines that the trial will not proceed in an orderly manner.


                                                                           A-2950-16T4
                                        9
"The subject is one relating to the function of the trial judge to conduct an

orderly trial – a matter traditionally left to his discretionary judgment." Id. at

594 (quoting State v. Long, 216 N.J. Super. 269, 275 (App. Div. 1987)).

      The Confrontation Clause of the Sixth Amendment provides that, "[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause

provides two types of protections for a criminal defendant: the right to

physically face those who testify against him or her, and the right to have his

accusers cross-examined before the trier of fact. Pennsylvania v. Ritchie, 480

U.S. 39, 51 (1987). The Confrontation Clause's central purpose is to ensure the

reliability of evidence brought against a defendant by testing it under the rubric

of four elements: physical presence, oath, cross-examination, and observation

of demeanor. Maryland v. Craig, 497 U.S. 836, 845-46 (1990). This right is

satisfied when a defendant is able to face his accusers in court and the defense

can test the witness's credibility through cross-examination. Id. at 846.

      We conclude that the trial judge did not abuse his discretion by allowing

defendant to represent himself with the caveat that his public defender cross-

examine the victim. First, the judge could have outright denied defendant's

request to proceed pro se. As we have previously stated, a defendant's right to


                                                                            A-2950-16T4
                                        10
represent himself is not absolute. Buhl, 269 N.J. Super. at 362-63. Defendant

made the request on the first day of trial, moments before jury selection began.

Earlier in the litigation, defendant had complained that he did not want his first

public defender. The Public Defender's Office provided defendant with a new

public defender, the one who was prepared to begin the trial on the day defendant

decided he wanted to represent himself. As we noted in Buhl, a request to

proceed pro se must be timely, and it cannot be used as a stalling tactic. Id. at

362.

       Nevertheless, the judge granted defendant's request to represent himself .

He simply ordered that defendant's public defender act as the "conduit" for

defendant during the cross-examination of the victim. The judge cited Figueroa,

186 N.J. at 594, which grants trial courts the discretion to order hybrid

representation. The judge acknowledged that the facts were somewhat different

– here defendant did not request hybrid representation, but in Figueroa, the

defendant did. But the judge concluded that this difference did not undermine

his discretion to order such representation.

       We see no abuse of discretion by ordering this "hybrid" representation.

Defendant would have been able to represent himself in all aspects of the trial,

and he would have had his questions asked of the victim, but standby counsel


                                                                          A-2950-16T4
                                       11
would have voiced those questions. The judge explained that because of the

FRO and the circumstances surrounding the attack, he would not allow

defendant to directly question the victim. Indeed, the judge instructed defendant

that he could direct the cross-examination, and that standby counsel would only

speak to and approach the victim while on the witness stand.      Defendant did

not object to having his cross-examination of the victim conducted by standby

counsel; he objected to having his public defender as his standby counsel. See

Faretta, 422 U.S. at 834 n.46 (stating that a State may appoint standby counsel

"even over objection by the accused"); see also Crisafi, 128 N.J. at 517 ("A

defendant does not enjoy an unencumbered right to counsel of his or her

choice.").

      The judge's ruling did not violate defendant's rights under the

Confrontation Clause of the Sixth Amendment. Defendant would have been

physically present in the courtroom, he would have cross-examined the victim

under oath through standby counsel, and the jury would have been able to

observe the victim’s demeanor. Therefore, he would have effectively cross-

examined her face-to-face.




                                                                         A-2950-16T4
                                      12
                                         V.

        Next, defendant argues that the trial judge erred by admitting prior threats

made by defendant to the victim as intrinsic evidence. Defendant asserts that

the prior threats were not intrinsic to the crime of attempted murder, and thus,

the judge should have undertaken a Cofield3 analysis and should have provided

a limited instruction.

        "A trial [judge]'s ruling on the admissibility of evidence is reviewed on

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

if the party appealing did not raise an objection to the admission of evidence to

the trial court, this court will review for plain error, "only reversing if the error

is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).

Here, defendant did not object to the admission of past threats, and therefore,

we review for plain error.

        When the admissibility of uncharged bad acts is implicated, the court must

engage in a Rule 404(b) analysis. Id. at 179. Rule 404(b) provides that

              evidence of other crimes, wrongs, or acts is not
              admissible to prove the disposition of a person in order
              to show that such person acted in conformity therewith.
              Such evidence may be admitted for other purposes,
              such as proof of motive, opportunity, intent,
              preparation, plan, knowledge, identity or absence of

3
    State v. Cofield, 127 N.J. 328 (1992).
                                                                             A-2950-16T4
                                        13
            mistake or accident when such matters are relevant to a
            material issue in dispute.

"The threshold determination under Rule 404(b) is whether the evidence relates

to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or

whether it is evidence intrinsic to the charged crime, and thus need only satisfy

the evidence rules relating to relevancy, most importantly Rule 403." Rose, 206

N.J. at 179. Evidence is intrinsic in two "narrow" categories: (1) "if it directly

proves the charged offense"; or (2) if the evidence of "uncharged acts performed

contemporaneously with the charged crime . . . if they facilitate the commission

of the charged crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233,

248-49 (3d Cir. 2010)).

      We may perform a Cofield analysis de novo. If a court does not properly

apply Rule 404(b), this court "may engage in its own 'plenary review'" to

determine the admissibility of evidence and "to assess whether admission of the

evidence was appropriate." Id. at 158; see also State v. Garrison, 228 N.J. 182,

194 (2017) (stating that the Court's review was de novo because the trial court

did not perform a Cofield analysis where it found the evidence of prior bad acts

to be intrinsic to the charged offense).

      "The seminal case in New Jersey on the proper application of Rule 404(b)

to evidence of uncharged misconduct is State v. Cofield." Rose, 206 N.J. at 159.

                                                                          A-2950-16T4
                                       14
In Cofield, the court established a four-prong test to determine the admissibility

of uncharged prior misconduct:

            (1) The evidence of the other crime must be admissible
            as relevant to a material issue;

            (2) It must be similar in kind and reasonably close in
            time to the offense charged;

            (3) The evidence of the other crime must be clear and
            convincing; and

            (4) The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [127 N.J. at 338.]

      The first prong under Cofield requires that the evidence be relevant – that

is, "the evidence must have 'a tendency in reason to prove or disprove any fact

of consequence to the determination of the action.'" Rose, 206 N.J. at 160

(quoting Rule 401). This standard is "generous" – the evidence will be admitted

if it "makes a desired inference more probable than it would be if the evidence

were not admitted." State v. Williams, 190 N.J. 114, 123 (2007). "The evidence

must also bear on a material issue in dispute, such as motive, intent, or an

element of the charged offense . . . ." Rose, 206 N.J. at 160. Motive is material

whenever the defendant asserts his innocence. State v. Castagna, 400 N.J.

Super. 164, 178 (App. Div. 2008).


                                                                          A-2950-16T4
                                       15
      Here, the past threats were clearly relevant. Defendant threatened to

assault the victim and burn down her house if she did not allow him to live there

with her. The evidence provided "background" and helped to "complete[] the

story" between the victim and defendant. See Rose, 206 N.J. 180 (quoting

Green, 617 F.3d at 248-49) (concluding that these are other proper purposes for

admitting evidence of other prior bad acts under Rule 404(b)). Defendant's

threat to burn the house down was especially relevant in light of the lighter fluid -

doused pajamas that defendant threw on the victim and the odor of lighter fluid

in the house noted by the police officers. Moreover, these threats help prove

defendant's motive and intent in attempting to murder the victim. According to

defendant's merits brief, "defendant's argument was not that he did not attack

[the victim]; instead, his argument was that he did not attempt to kill her." Thus,

motive was material because defendant asserted his innocence as to the

attempted murder charge. See Castagna, 400 N.J. Super. at 178.

      The second prong – that "other acts" be similar in kind and occur close in

time – "need not receive universal application in Rule 404(b) disputes."

Williams, 190 N.J. at 131. This prong "was pertinent to the facts presented in

[Cofield]" and can be limited to facts similar to that case. Ibid. Therefore, this

prong need not be addressed here.


                                                                             A-2950-16T4
                                        16
         Under the third prong, the evidence of the other prior bad act must be clear

and convincing.       Here, the victim testified that defendant had previously

threatened to assault her and burn down her house if she did not allow him to

live with her. The jury would be free to determine whether her testimony was

credible or not. Although the judge did not fully engage in a Cofield analysis

as to the past threats, he did note that as to this prong, the victim's

               testimony will be before the court and is going to be
               determined by the jury. I don't have to make a
               determination as to that because the jury's going to
               determine as to whether her testimony regarding the
               relationship is, frankly, beyond a reasonable doubt,
               because that's the standard they're going to have to
               apply.

The jury found the victim credible. She testified extensively as to the details of

the attack. She also testified as to defendant's threats: that he threatened to burn

the house down if he was not living in it; that if she did not marry him he would

assault her; and that he would kick her down a flight of steps. The victim's

testimony regarding the threats to burn down the house were also cor roborated

by the police officers who entered the house, as they noted that they smelt lighter

fluid.

         The fourth prong under the Cofield test is whether the probative value of

the evidence is outweighed by undue prejudice. 127 N.J. at 338. Under this


                                                                             A-2950-16T4
                                         17
prong, "[s]ome types of evidence, . . . 'require a very strong showing of prejudice

to justify exclusion. One example is evidence of motive or intent.'" Garrison,

228 N.J. at 197 (quoting State v. Skinner, 218 N.J. 496, 516 (2014)). Here, the

probative value of the evidence of past threats was high because it put the entire

attack in context – it helped to explain the past ongoing relationship between the

victim and defendant and helped to prove that the attack was not an aberrant

occurrence, but that defendant had the intent to attempt to commit murder. It

also provided motive – defendant threatened that if he could not live in the

house, than he would burn it down. The day before the attack, the victim made

it clear that she would not be getting back together with defendant. The next

morning he attacked her and threw lighter fluid-doused pajamas on her. The

testimony of the past threats was "not so prejudicial that it had 'a probable

capacity to divert the minds of the jurors from a reasonable and fair evaluation

of the issues in the case.'" Id. at 198 (quoting State v. Long, 173 N.J. 138, 163-

64 (2002)).

      The judge did not give a limiting instruction to inform the jury on the

proper use of Rule 404(b) evidence. "[L]imiting instructions must be pr ovided

to inform the jury of the purposes for which it may, and for which it may not,

consider the evidence of defendant's uncharged misconduct, both when the


                                                                           A-2950-16T4
                                       18
evidence is first presented and again as part of the final jury charge." Rose, 206

N.J. at 161. But defense counsel did not object. Instead, defense counsel stated

that the judge was reaching a "reasonable balance" in determining which

evidence was admissible and which was inadmissible under Rule 404(b).

Indeed, defense counsel consented to the admissibility of the evidence of

previous threats.

      The judge specifically asked if the State or defense wanted to request

anything else or discuss any part of the final charge. The judge stated, "I gave

everyone the prospective charge. I think I've included everything, [defendant's

public defender], that you requested. . . .     Is there anything else that you

perceive? . . . Is there anything else with reference to the principle charge that

you can see, request, or want to discuss?" Defense counsel replied, "Not at this

time, Judge, no."

      Although the judge did not give a limiting instruction, the doctrine of

invited error bars any claim of prejudice. "Mistakes at trial are subject to the

invited-error doctrine." State v. A.R., 213 N.J. 542, 561 (2013). Under this

doctrine, "trial errors that 'were induced, encouraged or acquiesced in or

consented to by defense counsel ordinarily are not a basis for reversal on

appeal.'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting A.R., 213 N.J. at


                                                                          A-2950-16T4
                                       19
561). Our Supreme Court declared "[t]o justify reversal on the grounds of an

invited error, a defendant must show that the error was so egregious as to 'cut

mortally into his substantive rights.'" State v. Ramseur, 106 N.J. 123, 282

(1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974)).

Defendant cannot do that. Even if the past threats were not intrinsic, they would

have been admissible under a Cofield analysis, to which defense counsel

consented to their admissibility without the need for a limiting instruction.

      We therefore see no plain error. We reach that conclusion especially

because of the overwhelming evidence of guilt. See State v. Prall, 231 N.J. 567,

571-72 (2018) (holding that defendant's convictions would be affirmed despite

absence of limiting instruction, use of bad act evidence during summations, and

admission of hearsay because errors "were not capable of producing an unjust

result because of the overwhelming weight and quality of the evidence against

defendant").

                                       VI.

      Lastly, defendant contends that the judge failed to properly weigh the

aggravating factors because the judge did not consider NERA's "real-life

consequences."




                                                                          A-2950-16T4
                                       20
      Sentencing determinations are reviewed on appeal with a highly

deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). The appellate

court must not "substitute its judgment for that of the sentencing court." Ibid.

            The appellate 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)).]

      NERA mandates a minimum term of eighty-five percent parole

ineligibility on sentences for convictions of certain enumerated offenses,

including attempted murder. N.J.S.A. 2C:43-7.2(d)(1). The period of parole

ineligibility is "calculated based upon the sentence of incarceration actually

imposed." N.J.S.A. 2C:43-7.2(b). On an application of the State, the sentencing

court may sentence a defendant to an extended term of imprisonment if the court

finds the defendant is a persistent offender. N.J.S.A. 2C:44-3(a). For a first-

degree offense, the presumed extended term sentence is fifty years. N.J.S.A.

2C:44-1(f). But the sentencing court may impose a higher or lower sentence

based on the balance of aggravating and mitigating factors. Ibid. Moreover, the


                                                                          A-2950-16T4
                                       21
"sentencing and appellate courts must 'be mindful of the real-time consequences

of NERA and the role that it customarily plays in the fashioning of an

appropriate sentence[.]'" State v. Hernandez, 208 N.J. 24, 50 (2011) (quoting

State v. Marinez, 370 N.J. Super. 49, 58 (App. Div. 2004)).

      The judge found aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the

nature and circumstances of the offense); two, N.J.S.A. 2C:44-1(a)(2) (the

gravity and seriousness of harm inflicted); three, N.J.S.A. 2C:44-1(a)(3) (the

risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)

(the extent of defendant's prior criminal record); and nine, N.J.S.A. 2C:44 -

1(a)(9) (the need to deter defendant and others). The judge found no mitigating

factors. Despite defendant's contention, there is no reason to believe that the

judge "did not consider NERA's real-time consequences." Defendant contends

that the judge evaluated the aggravating factors without "articulating" that it was

mindful of NERA's real-time consequences.         But when the judge imposed

sentence, he explicitly stated that it was subject to NERA, and accordingly,

"[forty-two] years, six months would have to be served before . . . defendant

would be eligible for parole . . . ." The judge's findings as to the aggravating

factors are supported by credible evidence in the record. Thus, we see no abuse




                                                                           A-2950-16T4
                                       22
of discretion in the sentence imposed, and the sentence does not shock our

judicial conscience. Roth, 95 N.J. at 365.

      To the extent we have not addressed any of defendant's arguments, we

conclude they are without sufficient merit to warrant discussion in a written

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

      Affirmed.




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