                        NOT FOR PUBLICATION WITHOUT THE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-2573-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RICKY BOOKER,

     Defendant-Appellant.
_______________________________

              Submitted May 10, 2017 – Decided August 3, 2017

              Before Judges Lihotz and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 12-
              10-0744.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John Douard, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Milton S. Leibowitz,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

                                           I.

        Defendant Ricky Booker appeals from a November 10, 2014

conviction,       following     a   jury    trial,   for   first-degree      armed
robbery, N.J.S.A. 2C:15-1(a)(1). The jury acquitted defendant on

charges of third-degree possession of a weapon for an unlawful

purpose,    N.J.S.A.    2C:39-4(d),          and    fourth-degree         unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d).1                      Defendant was

sentenced to eighteen years, subject to the 85% period of parole

ineligibility    required    by   the       No   Early   Release    Act    (NERA).

N.J.S.A. 2C:43-7.2.

     On appeal, defendant seeks a new trial, arguing the trial

judge erred by failing to instruct the jury regarding the admission

of a purported prior inconsistent statement by an eyewitness.

Additionally, defendant suggests the verdict sheet erroneously

caused     the   jury   to    return         inconsistent      verdicts;        or,

alternatively,    the   sentence   imposed         was   manifestly    excessive

because aggravating factors were improperly applied.                       We are

unpersuaded and affirm.

                                    II.

     In the early hours of April 19, 2012, Christopher Ruiz was

walking down Second Street toward Grant Avenue in Plainfield, on

his way to a park when a blue car pulled to the side of the road

approximately thirty feet in front of him.               When he was within ten



1
     Defendant was also indicted on other charges relating to a
separate incident, which included two counts of murder.   These
charges were severed and tried separately.

                                        2                                  A-2573-14T3
feet of the vehicle, a man brandishing a large knife exited the

passenger-side door and ordered Ruiz to hand over his money.           The

attacker wore a hairnet, which had "big holes" and did not obscure

his face.    Ruiz turned to flee, but tripped.      While lying on the

pavement, Ruiz assured his assailant the knife was unnecessary and

he would hand over his cash without resistance.        The man put his

knee    on   Ruiz's   chest,   searched   his   pockets,    and   removed

approximately $300, then ran back to the car, which pulled away

toward Third Street.

       Ruiz did not initially report the incident to police because

he was afraid.    Then he noticed the man in his neighborhood.           In

the two-and-a-half weeks following the robbery, Ruiz, on eight

occasions, saw a man he believed was his attacker as well as the

car driven on the day of the incident, which he noted was a blue

Honda Civic.    At one point, he informed police of the robbery and

provided a physical description of his assailant, which included

his race, height, hairstyle, clothing, and identifying tattoos.

Further, Ruiz described the car as having a unique color, stating

it was a sky blue or purple Honda, with New Jersey plates, ending

in the letters "G" and "C."     After seeing his attacker in a coffee

shop, he stopped a patrol officer, who stated he should have

reported the robbery earlier.      Ruiz continued to see the man and

the Honda at various places in his neighborhood.           He was able to

                                    3                             A-2573-14T3
record the entire license plate.     Ruiz and a friend even followed

the man, noting he entered a home on Jones Street.

     On May 11, 2012, Ruiz saw a sign requesting information about

defendant.   Ruiz contacted the listed police officer, Plainfield

Police Department Officer Charles Martina.       Ruiz described his

assailant, the vehicle used in the robbery, the car's license

plate, and the home he saw the man enter.2 The police investigation

determined the residence belonged to defendant's aunt and the

vehicle was owned by defendant's girlfriend.

     On May 16, 2012, Ruiz returned to the police station where

he gave a formal statement to Officer Martina and identified

defendant in a photo array.   Accompanied by Officer Martina, Ruiz

identified the blue Honda Civic, as it was parked in the lot of

defendant's girlfriend's place of employment.    Martina obtained a

search warrant for the vehicle, which he executed.        Inside he

found defendant's birth certificate and a job application bearing

his name from the glove box, a white T-shirt and blue jeans from

the trunk, and a hairnet matching Ruiz's description of the face


2
     Defendant argued at trial and implicitly maintains, he was
identified as a suspect because he was already a suspect in an
unrelated crime.   In support, defendant offers the street sign
Ruiz used to contact Officer Martina was specifically seeking
information about defendant and may have impressed Ruiz with
confirmatory bias when it came time for him to make his
identification using the photo array. Mention of the other crime,
a murder, was excluded at trial as prejudicial.

                                 4                           A-2573-14T3
covering worn by his assailant on the passenger's seat.            Police

arrested defendant.

     During the August 2014 trial, Ruiz identified defendant in

court. He detailed the events of the robbery, defendant's physical

actions of pinning him down and searching his pockets, and the use

of the blue Honda.    Ruiz also described each instance when he saw

defendant following the robbery.        In addition to Ruiz's statements

about seeing defendant in or near the vehicle several times

following the robbery and his observations of the license plate,

the jury heard defendant's birth certificate was found in the

vehicle along with the hairnet allegedly used in the crime.              No

weapon was located or presented at trial.

     The   jury   returned   a   conviction   for   armed   robbery,   but

acquitted defendant of the weapons charges.          On August 6, 2014,

Judge Joseph P. Donohue applied aggravating factors (3), (6), and

(9) and found no mitigating factors.        He imposed an eighteen-year

sentence, subject to NERA.

     On appeal, defendant argues:

           POINT I

           THE TRIAL COURT ERRED BY FAILING TO INSTRUCT
           THE JURY THAT RUIZ'S PRIOR INCONSISTENT
           STATEMENTS IN POLICE WITNESSES' REPORTS WERE
           ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not
           Raised Below).



                                    5                             A-2573-14T3
          POINT II

          BECAUSE THE VERDICT SHEET FAILED TO SPECIFY
          THE DEADLY WEAPON ALLEGEDLY USED IN THE
          ROBBERY, AND THE JURY ACQUITTED MR. BOOKER OF
          THE ONLY CHARGES OF WEAPONS POSSESSION, THE
          "DEADLY WEAPON" ELEMENT OF THE FIRST-DEGREE
          ROBBERY, THERE WAS INSUFFICIENT EVIDENCE FOR
          THE ROBBERY CONVICTION.

          POINT III

          DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
          AND UNDULY PUNITIVE BECAUSE IT IS GROUNDED ON
          IMPROPER   FINDINGS   REGARDING   AGGRAVATING
          FACTORS.

We address each argument.

                                 III.

     For the first time on appeal, defendant suggests the jury

charge was deficient.     We find the argument unavailing.

     A defendant is required to challenge jury instructions at the

time of trial.   Failure to do so is considered a waiver of the

right to contest the instructions on appeal.    See State v. Adams,

194 N.J. 186, 206-07 (2008); see also R. 1:7-2 (requiring jury

instructions to be challenged at trial).      Therefore, we reverse

only in the presence of plain error, that is, error "clearly

capable of producing an unjust result."      Adams, supra, 194 N.J.

at 207; see R. 2:10-2 (stating absent objection, reversal is

warranted when the error shown to be "clearly capable of producing

an unjust result").     More specifically,


                                  6                          A-2573-14T3
           not "any" possibility can be enough for a
           rerun of the trial. The possibility must be
           real, one sufficient to raise a reasonable
           doubt as to whether the error led the jury to
           a result it otherwise might not have reached.

           [State v. Macon, 57 N.J. 325, 336 (1971).]

     "In the context of a jury charge, plain error requires

demonstration   of   a   '[l]egal   impropriety   .   .   .   prejudicially

affecting the substantial rights of the defendant sufficiently

grievous to justify notice by the reviewing court and to convince

the court that of itself the error possessed a clear capacity to

bring about an unjust result.'"      State v. Burns, 192 N.J. 312, 341

(2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).                 The

allegation of error must be assessed in light of "the totality of

the entire charge, not in isolation."        State v. Chapland, 187 N.J.

275, 289 (2006).     While an erroneous jury charge may be a "'poor

candidate[] for rehabilitation' under the plain error theory,"

Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J.

191, 206 (1979)), we nonetheless consider the effect of any error

in light "of the overall strength of the State's case," Chapland,

supra, 187 N.J. at 289.       Moreover, the failure to "interpose a

timely   objection   constitutes    strong    evidence    that   the     error

belatedly raised [] was actually of no moment."           State v. White,

326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163

N.J. 397 (2000); see also State v. Morais, 359 N.J. Super. 123,

                                     7                                 A-2573-14T3
134-35 (App. Div. 2003) ("Where there is a failure to object, it

may be presumed that the instructions were adequate.").

      Defendant states Officer Martina's report, prepared when he

first interviewed Ruiz, omitted any mention the attacker's face

was covered.     Defendant therefore argues Ruiz's trial testimony

asserting his attacker wore a mask was inconsistent with his

initial    police     statement.       However,   during   cross-examination

Officer Martina recalled Ruiz had described his attacker as wearing

a   mask   at   the    time   during    his    initial   statement,       and    he

acknowledged the omission was his in the police report.

      Generally,      N.J.R.E.     803(a)(1)    allows   the   use   of     prior

inconsistent statements as substantive evidence, if the statement

would have been admissible.         State v. Cabbell, 207 N.J. 311, 336-

37 (2011)

            The prior-inconsistent-statement exception to
            the hearsay rule allows the jury to determine
            whether to believe the testimony given on the
            stand or the diametrically different version
            given earlier to the police. To satisfy
            constitutional     confrontation    guarantees,
            however, "[t]he jury . . . must observe the
            witness and make a decision about which
            account is true." Likewise, the admission of
            a witness's prior statement describing events,
            when the witness feigns a loss of memory on
            the stand, does not violate a defendant's
            federal or state right of confrontation.
            Although    "a   witness's  feigned    lack   of
            recollection may sharply limit or nullify the
            value    of    cross-examination,"    we    have
            "conclude[d] that those limitations do not

                                        8                                 A-2573-14T3
           rise to the level of [violating] a defendant's
           federal and state constitutional right to
           confront witnesses."

           [Ibid. (quoting State v. Brown, 138 N.J. 481,
           543 (1994), overruled on other grounds, State
           v. Cooper, 151 N.J. 326, 361-63 (1997))].

     In this matter, we reject the claim these facts demonstrate

Ruiz uttered inconsistent statements for which a charge should

issue.   There was no evidence Ruiz's trial testimony differed from

what he told police.    Officer Martina confirmed Ruiz stated the

assailant's face was covered by a mask.          Although defendant

correctly suggests, if Ruiz told police he saw a mask, the fact

should have been included in the police report; the lapse resulted

from Officer Martina's failure to record this detail in his report,

which cannot be attributed to Ruiz.

     Moreover, the jury was presented with this evidence and could

assess the credibility of Ruiz and Officer Martina.         No facts

support the jury ignored this evidence.      Rather, deliberations

show the jury carefully considered all evidence presented.     Based

on the verdict convicting defendant of armed robbery, we can only

conclude the jury favorably adjudged Ruiz and Officer Martina's

credibility.   See State v. Provet, 133 N.J. Super. 432, 438 (App.

Div.) ("If the credibility of the witness was impeached it would

have served the purpose of disproving [the] assertion."), certif.

denied 68 N.J. 174 (1975).   We find no error.

                                 9                           A-2573-14T3
     Next, defendant argues the verdicts were inconsistent.       He

maintains the acquittal of the weapons charges means he could not

be convicted of armed robbery.    We are not persuaded.

     The United States and the New Jersey Supreme Courts have held

repeatedly inconsistency in the jury's verdict on multiple counts

is not a ground to set aside a guilty verdict.   See, e.g., United

States v. Powell, 469 U.S. 57, 58-59, 105 S. Ct. 471, 477, 83 L.

Ed. 2d 461, 464 (1984); Dunn v. United States, 284 U.S. 390, 393,

52 S. Ct. 189, 190, 76 L. Ed. 356, 359 (1932); State v. Banko, 182

N.J. 44, 55 (2004); State v. Grey, 147 N.J. 4, 11 (1996).         In

Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at

468, the United States Supreme Court said:

          [E]ven verdicts that acquit on a predicate
          offense while convicting on the compound
          offense   —   should   not    necessarily   be
          interpreted as a windfall to the Government
          at the defendant's expense.     It is equally
          possible that the jury, convinced of guilt,
          properly reached its conclusion on the
          compound offense, and then through mistake,
          compromise,   or   lenity,   arrived   at   an
          inconsistent conclusion on the lesser offense.

     In Banko, supra, 182 N.J. at 54, our Court quoted Powell with

approval and held that "the Dunn/Powell rule controls inconsistent

verdicts in this State."   Further, the Court stated inconsistent

"verdicts are permitted . . . 'so long as the evidence was

sufficient to establish guilt on the substantive offense beyond a


                                 10                        A-2573-14T3
reasonable doubt.'"     Id. at 55 (quoting State v. Petties, 139 N.J.

310, 319 (1995)).     In the event the verdicts appear inconsistent,

this court "should not speculate as to whether the verdicts

resulted from jury lenity, compromise, or mistake not adversely

affecting the defendant." Grey, supra, 147 N.J. at 11. "We permit

inconsistent verdicts . . . because it is beyond our power to

prevent them."     Banko, supra, 182 N.J. at 54.

     Here,   we    conclude   the   jury    instructions      were   clear   and

correct.     See   Grey,   supra,   147    N.J.   at   14-16   (reversing      an

inconsistent verdict when "the jury undoubtedly relied on the

wrong   predicate     felony").           Further,     each    charge    stands

independently and the State's evidence supported each element of

the first-degree robbery offense.          Not only was the identification

evidence strong, but Ruiz's testimony included several statements

that defendant held a knife, he feared for his safety and defendant

forcibly took $300.

     Further, the inconsistency, which benefited defendant, does

not require a reversal of the robbery conviction.                See State v.

Burnett, 245 N.J. Super. 99, 113 (App. Div. 1990), certif. denied,

126 N.J. 340 (1991).       The law is clear, we will not speculate why

the jury acquitted on the weapons offenses.               Banko, supra, 182

N.J. at 54-55.     We reject as unavailing the suggestion the verdict

sheet was confusing.        The jury instructions clearly stated the

                                     11                                 A-2573-14T3
deadly weapon in question was a knife.             Defendant's speculation

of juror confusion lacks merit.          R. 2:11-3(e)(2).

     Finally,   defendant   challenges       the   imposed   sentence.     As

guided by our Supreme Court, we apply a deferential standard when

reviewing sentencing determinations and should not substitute our

judgment for the judgment of the sentencing court.             See State v.

Fuentes, 217 N.J. 57, 70 (2014).            We 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.    (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)).     Guided by this standard, we have no basis

to intervene. See State v. O'Donnell, 117 N.J. 210, 215–16 (1989).

     Here, the trial court found aggravating factors three (risk

of recidivism), six (criminal history), and nine (specific and

general   deterrence).      See   N.J.S.A.     2C:44-1(a)(3),    (6),    (9).

Defendant does not assert the factors do not apply; rather, he

only argues the judge recited insufficient reasons for their

application.    The transcript refutes this contention.

     Judge Donohue recited defendant's "long and significant"

criminal history, beginning with juvenile arrests in 2004 and

                                    12                              A-2573-14T3
numerous adjudications in between 2004 and 2006.               In addition to

this   conviction,   as   an   adult,      defendant   had   two   indictable

convictions for theft and others for receiving stolen property,

unlawful possession of a handgun, and drug possession.                    Also

recorded are various municipal and disorderly persons convictions,

violations   of   probation,    and     open   charges   for    murder.      At

sentencing, the judge recited the timeframes for crimes, noting

periods when defendant committed a new offense within weeks of a

prior conviction.    Also, he acknowledged past convictions, which

resulted in county jail and probation sentences, did not deter his

continued criminal conduct.

       Defendant's lengthy and substantial criminal history amply

supports a finding he is likely to commit a further offense.

"[R]ecidivism . . . is a traditional, if not the most traditional,

basis for a sentencing court's increasing an offender's sentence."

Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct.

1219, 1230, 140 L. Ed. 2d 350, 368 (1998).         His extensive juvenile

record also was properly considered to support application of

aggravating factor three.       See State v. Torres, 313 N.J. Super.

129, 162 (App. Div. 1998) (stating, for the purposes of balancing

aggravating and mitigating factors, "[a] sentencing court may

consider a juvenile record").



                                      13                              A-2573-14T3
     Finally, the judge identified the need to deter defendant

from the type of crime he committed.       "[T]he seriousness of a

criminal   record,   the   predictive   assessment   of   chances    of

recidivism, and the need to deter the defendant and others from

criminal activity, do all relate to recidivism" and "go beyond the

simple finding of a criminal history."    State v. Thomas, 188 N.J.

137, 153 (2006).     Defendant's history portrays an escalation of

violence and increased seriousness of committed crimes.      The need

to deter violent offenses, like the one for which defendant was

convicted, is appropriate.    See State v. Cancel, 256 N.J. Super.

430, 437 (App. Div. 1992) ("[T]he weight attributable to the

deterrence factor, cited by the judge, is obvious.").

     Finding the aggravating factors outweighed the mitigating

factors, the judge imposed an eighteen-year term of imprisonment.

"[W]hen the aggravating factors preponderate, sentences will tend

toward the higher end of the range" subject to the trial judge's

discretion. State v. Natale, 184 N.J. 458, 488 (2005). The length

of the sentence fell within the range designated for the offense,

and it does not shock our judicial conscience.

     Affirmed.




                                 14                           A-2573-14T3
