                                 NOT FOR PUBLICATION WITHOUT THE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-1527-15T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

CHARLES T. LEDBETTER, a/k/a
CHARLES T. LEADBETTER,

           Defendant-Appellant.


                    Submitted October 17, 2018 – Decided January 29, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 14-09-0508.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David M. Galemba, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Tried by a jury, defendant Charles Ledbetter was convicted of second,

third, and fourth-degree aggravated assault (counts two, three, and four of the

indictment), N.J.S.A. 2C:12-1(b)(1)-(3); third-degree endangering an impaired

or helpless person (count five), N.J.S.A. 2C:12-1.2(a); and third-degree

possession of a weapon for an unlawful purpose (count seven), N.J.S.A.

2C:39-4. Defendant was sentenced October 30, 2015, as a persistent offender,

to fourteen years subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, and a consecutive term of five years, two years without parole, on

the endangering count. Thus defendant's aggregate sentence was nineteen years

imprisonment, with a fourteen-year parole disqualifier. We affirm.

      The victim, M.W., was acquainted with defendant from the neighborhood.

She was friendly with defendant's girlfriend, Natonya Lusby, and had previously

seen defendant, both day and night, over a dozen times. The evening the incident

occurred, M.W. had been drinking and smoking marijuana with friends in the

neighborhood, including Timothy Taylor.       Despite her intoxication, M.W.

testified that she was "fine" and "coherent." At around 11:00 p.m., when M.W.

heard "a commotion," she went outside and saw Taylor arguing with defendant

and others. M.W. told the men to take it elsewhere. A few minutes later, when

M.W. walked outside, she saw Taylor on the ground while defendant and two


                                                                        A-1527-15T4
                                       2
others stood over him. M.W. attempted to intercede, and during the ensuing five

to ten-minute altercation, M.W. was "face to face" with defendant. Eventually,

defendant and his friends walked away. M.W. and Taylor went back inside her

home.

        After midnight, Lusby and one of her friends encountered defendant on

the street. He told Lusby, as she recounted during trial, that he had just had a

fight with Taylor and M.W., and that M.W. had hit and grabbed him, and pulled

his hair. He told Lusby to "handle that." Defendant and his companions walked

down the street.

        M.W. was seated outside of a duplex where Lusby's mother lived, waiting

for the delivery of cigarettes she had paid for when she suddenly felt a punch to

the back of her head. When she turned around, she saw Lusby, and the two

women fell to the ground. Lusby's friend started kicking both women. As she

tried to get up, M.W. said Lusby also started kicking her, as were two others.

She noticed defendant walking quickly towards her around the side of the house

with a gray pitbull by his side. He had the leash wrapped around his hand to the

collar.

        Defendant held the pitbull to M.W.'s face, repeatedly punching her and

the dog until finally the dog began to bite her. The dog locked onto the left side


                                                                          A-1527-15T4
                                        3
of her face, and M.W. said despite the attack, she was still being kicked. When

M.W. turned her face, the dog then locked onto the other side. Police were

called, and the attack ended abruptly. M.W. was immediately taken to the

emergency room. One of the officers who arrived could see M.W.'s teeth and

jawbone through a sizable hole in her face. Although she could not speak, when

the officer asked her if she knew who had done this to her, she nodded.

      M.W.'s injuries were extensive, disfiguring, and resulted in the paralysis

of one side of her face and multiple reconstructive surgeries, with more to come.

The following morning, an investigator arrived who had known M.W. for

twenty-three years. She was lethargic and in obvious pain. Because she did not

want to become the subject of retaliation, she initially told the officer she did

not know the identity of her attacker. Eventually, however, M.W. admitted that

"Cheddar," defendant's nickname, was the person who forced the dog on her.

The officer, who had known defendant for over a decade, immediately connected

the nickname to defendant, who lived one street over from the location of the

incident. The following day, the officer returned to the hospital with another

investigator.

      Although heavily medicated and still in much pain, M.W. again identified

"Cheddar" as the attacker, and described his physical appearance and attire that


                                                                          A-1527-15T4
                                       4
night. The following day, approximately three days after the assault, the officer

showed M.W. a photograph of defendant with his identifiers folded underneath

and asked if she knew who he was. She responded that it was Cheddar, "that's

him."    The officer testified at the Wade1 hearing that no photo array was

presented because M.W. knew the suspect.          Defendant and Lusby were

eventually arrested. When asked about the dog, Lusby said to ask defendant

because she had nothing to do with it. She later entered into a plea agreement,

and then said that defendant had a black pitbull on a leash, and was hitting it

while it bit M.W. At trial, Lusby modified her account. She then said defendant

was punching the dog in order to stop him from biting M.W.

        On January 16, 2015, in response to defendant's motion, Judge Timothy

G. Farrell conducted a hearing to suppress the out-of-court identification. He

concluded that showing M.W. one photograph was impermissibly suggestive

within the meaning of State v. Henderson, 208 N.J. 208 (2011). At the close of

the hearing, at which the police officers who interviewed M.W. and Lusby

testified, the judge concluded that because M.W. was socially acquainted with

defendant prior to the incident, the manner in which she was shown his

photograph "would not likely lead to a mistaken identification." Judge Farrell


1
    U.S. v. Wade, 388 U.S. 218 (1967).
                                                                         A-1527-15T4
                                         5
analyzed each prong of Henderson as it applied to the evidence, including the

neutral fashion in which the officers presented the photograph to M.W. and the

fact all of M.W.'s interviews were tape recorded while she was hospitalized.

Judge Farrell stated that not only had defendant failed to establish a likelihood

of irreparable misidentification, the identification by the victim was

"sufficiently reliable to be admissible at trial; and, would [warrant] both th e out-

of-court identification and if appropriate, an in-court identification[,] to be

admitted."

      The last day of trial, Judge Benjamin C. Telsey advised counsel that draft

charges would be provided for their review before closing arguments. Only the

prosecutor requested a special charge, that being a tailored aggravated assault

instruction. When trial resumed, the court provided a second set of the jury

instructions as modified after the charge conference.         Defendant made no

requests.

      The following day, after closing arguments, Judge Telsey advised that he

would be issuing in-court and out-of-court identification instructions, although

not requested by the attorneys. Defendant approved the draft of the instruction.

The court therefore delivered a ten-page identification charge substantially

conforming to the model jury charge for in-court and out-of-court identification


                                                                             A-1527-15T4
                                         6
drafted post-Henderson. See Model Jury Charges (Criminal), "Identification:

In-Court And Out-Of-Court Identifications" (Rev. July 19, 2012).

      When defendant was sentenced, the court granted the State's persistent

offender extended-term application pursuant to N.J.S.A. 2C:44-3. Defendant

had an extensive juvenile history beginning in 1996, and at least six prior

indictable convictions as an adult. The judge therefore found that defendant met

the baseline qualifications under the statute. In sentencing, Judge Telsey found

aggravating factor one, the nature and circumstances of the offense, N.J.S.A.

2C:44-1(a)(1); three, the risk that defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record and

the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and nine, the need to

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

      Judge Telsey also found in mitigation factor four, that substantial grounds

tending to excuse or justify defendant's conduct existed based on defendant's

unspecified mental health issues. See N.J.S.A. 2C:44-1(b)(4). Those mental

health issues established defendant's eligibility for Social Security disability

benefits. The judge also found factor six in mitigation, that defendant would

compensate the victim, N.J.S.A. 2C:44-1(b)(6).      Because he concluded the

aggravating factors substantially outweighed the mitigating, Judge Telsey


                                                                         A-1527-15T4
                                       7
sentenced defendant to a NERA fourteen years, in the mid-range of first-degree

offenses. As required by the mandatory provisions of N.J.S.A. 2C:12-1.2(d), he

sentenced defendant to a consecutive mandatory five-year term subject to two

years of parole ineligibility.

      On appeal, defendant raises the following points:

             POINT I

             THE COURT ALLOWED THE JURY TO CONSIDER
             AN        UNRELIABLE              OUT-OF-COURT
             IDENTIFICATION, DESPITE THERE BEING A
             SUBSTANTIAL            LIKELIHOOD           OF
             MISIDENTIFICATION, AND COMPOUNDED THE
             PROBLEM BY FAILING TO PROVIDE THE FACT
             FINDERS       WITH     APPROPRIATE        JURY
             INSTRUCTIONS ON HOW TO CONSIDER THE
             EVIDENCE. (U.S. CONST. AMENDS. V, VI, XIV;
             N.J. CONST. (1947) ART. I, ¶¶ 9, 10)

             A. Admission of an Unreliable Identification.

             B. Failure to Provide Appropriate Jury Instructions.

             POINT II

             THE FAILURE OF THE TRIAL COURT TO
             PROVIDE THE JURY WITH AN INSTRUCTION ON
             HOW TO CONSIDER WHAT WEIGHT, IF ANY, TO
             ATTRIBUTE TO [DEFENDANT]'S ALLEGED
             STATEMENT THAT HE TOLD HIS CO-
             DEFENDANT THAT [M.W.] HAD ACCOSTED HIM
             AND THEN ASKED THE CO-DEFENDANT TO
             "HANDLE" MS. M.W., DENIED [DEFENDANT] A
             FAIR TRIAL AND DUE PROCESS. (U.S. CONST.

                                                                      A-1527-15T4
                                        8
AMEND. V, VI AND XIV; N.J. CONST. (1947), ART.
I, ¶ 10)

POINT III

THE CUMULATIVE IMPACT OF THE ERRORS
DENIED DEFENDANT A FAIR TRIAL.

POINT IV

AN EXCESSIVE SENTENCE WAS IMPOSED
AFTER THE COURT FAILED TO CONSIDER
APPLICABLE MITIGATING FACTORS.

POINT V

THE TRIAL COURT'S ORDER TO PAY
RESTITUTION WITHOUT FIRST CONSIDERING
[DEFENDANT'S] ABILITY TO PAY AND THE
ORDER TO PAY OUT OF FUNDS DERIVED
WHOLLY FROM SOCIAL SECURITY DISABILITY
BENEFITS VIOLATED THE NEW JERSEY
CRIMINAL CODE AND THE FEDERAL ANTI-
ALIENATION    PROVISIONS     CONCERNING
SOCIAL SECURITY BENEFITS (U.S. Const. art. IV,
c1.2).

A. The Court Failed To Make A Determination Of
[Defendant's] Ability To Pay, As Required by N.J.S.A.
2C:44-2.

B. The Court's Imposition of Restitution from Income
De[riving] Wholly from Social Security Disability
Benefits Contravened Federal Law.




                                                        A-1527-15T4
                         9
                                              I.

      In order to demonstrate that he or she is entitled to a Wade hearing, a

defendant must offer some evidence of impermissible suggestiveness.

Henderson, 208 N.J. at 238. That evidence may be linked to system variables,

in other words, those factors within the control of the criminal justice system.

Id. at 247; 288-89. This is in contrast to estimator variables, which are factors

over which the legal system has no control. Id. at 247. In order to decide

whether a hearing is warranted, a court must first assess whether the

identification procedures may have resulted in a mistaken identification. Id. at

288. Once a judge decides to conduct a hearing, the issue becomes whether the

procedure   resulted   in       a    "very    substantial   likelihood   of   irreparable

misidentification." State v. Micelli, 215 N.J. 284, 287 (2013) (citation omitted).

      The burden shifts to the State to prove by "clear and convincing evidence

that the identification[] . . . had a source independent of the police-conducted

identification procedures." State v. Madison, 109 N.J. 223, 245 (1988) (citing

Wade, 388 U.S. at 240).             However, "the ultimate burden remains on the

defendant    to   prove     a       very     substantial    likelihood   of   irreparable

misidentification." Henderson, 208 N.J. at 289.




                                                                                 A-1527-15T4
                                             10
       In this case, the Wade hearing was necessary. Defendant demonstrated

some evidence of suggestiveness in that only one photograph was shown to

M.W.    Id. at 288.   But, once the court heard the officers' testimony, and

considered each and every Henderson factor, his conclusion that no possibility

of irreparable misidentification existed was unassailable.

       M.W.'s use of marijuana and alcohol on the night in question, did not,

according to her testimony, affect her ability to identify defendant. It is sheer

speculation to suggest that it would have led her to misidentify an acquaintance.

Furthermore, even the administration of powerful anti-pain killers subsequent to

the attack would not have caused such confusion.

       As the judge said, M.W. was acquainted with defendant, knew with whom

she was dealing, stated from the onset that she knew the person who forced the

dog to attack her even though she did not know his last name, and although she

was shown only one photograph, was shown that photograph in a neutral

manner. The issue is not whether defendant's picture should have been included

in a photo array. The issue is whether in the manner in which it was shown, any

possibility of misidentification arose. The court's findings, supported by the

record, should not be disturbed.     The interests of justice do not demand

intervention or correction.   See State v. Elders, 192 N.J. 224, 244 (2007)


                                                                         A-1527-15T4
                                      11
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). There is no merit to

defendant's contention that the court erred by admitting an unreliable

identification.

                                        II.

      If an error has not been brought to the trial court's attention, we will not

reverse unless the appellant shows plain error, or error "clearly capable of

producing an unjust result." R. 2:10-2. In relation to jury instructions, plain

error is "legal impropriety in the charge 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. Nero, 195 N.J. 397, 407 (2008) (quoting

State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526,

538 (1969))).

      It is beyond dispute that proper identification instructions are essential in

all cases, and particularly those upon which the prosecution is based on

identification evidence:

             [w]hen identification is a "key issue", the trial court
             must instruct the jury on identification, even if a
             defendant does not make that request. Identification
             becomes a key issue when "[i]t [is] the major . . . thrust
             of the defense," particularly in cases where the State
             relies on a single victim-eyewitness.

                                                                           A-1527-15T4
                                        12
            [State v. Cotto, 182 N.J. 316, 325-26 (2005) (citations
            omitted).]

Moreover, "[t]he charge to the jury must be read as a whole in determining

whether there was any error."      State v. Adams, 194 N.J. 186, 207 (2008).

Additionally, "[a]lthough arguments of counsel can by no means serve as a

substitute for instruction by the court, the prejudicial effect of an omitted

instruction must be evaluated in light of the totality of the circumstances —

including all the instructions to the jury, [and] the arguments of counsel." Ibid.

(alteration in original) (quoting State v. Marshall, 123 N.J. 1, 145 (1991)).

      Defendant argues that the "trial court compounded the problem of the

admission of the unreliable identification by giving inadequate jury instructions

on the issue of identification." Defendant contends that the model jury charge

for identification, which includes the "double-blind," "showup," and "fillers"

language, should have been presented to the jury. Defendant also maintains that

the "court never tailored the identification instruction about how the ingestion

of substances can affect reliability to include drugs, as footnote twelve in the

model instruction states the court may do."

      The trial court gave the jury comprehensive, relevant instructions on in-

court and out-of-court identifications, which were reviewed and approved by


                                                                          A-1527-15T4
                                       13
defendant. See State v. McGraw, 129 N.J. 68, 80 (1992) (finding that trial

counsel's acceptance of the charge drafted by the court indicates that counsel did

not view the alleged error on appeal as prejudicial to the defense).

        Further, as a plain reading of the "double-blind" and "fillers" charges

reveals, these charges are reserved for cases in which a lineup is used. They are

not intended for the identification procedure employed here, where M.W.

initially identified the suspect by nickname, and where the officer's act of

showing M.W. a photo of the person associated with that nickname was simply

a confirmation process.

        Defendant's claim that the court should have charged the jury on "showup"

is also unpersuasive. The process the officers followed here was not a showup

as relevant to the instruction. The showup instruction, which advises that "the

witness identified the defendant during a 'showup,'" would have been misleading

and prejudicial to the State. It would have suggested that M.W. could not

identify her assailant until his picture was shown to her, when the opposite was

true.    She supplied defendant's nickname, and the officers showed her a

photograph of that person for confirmation.

        In any event, in both his opening and closing statements, defendant

stressed the potential for a mistaken identification because the police only


                                                                          A-1527-15T4
                                       14
presented M.W. with a single photograph. A jury charge must be considered "in

light of the arguments made by trial counsel, as those arguments can mitigate

prejudice resulting from a less-than-perfect charge." State v. Robinson, 165 N.J.

32, 47 (2000) (citing State v. Morton, 155 N.J. 383, 423 (1998)). In arguing

"unreliable identification" in his opening statements, defendant maintained that

the State "implanted [defendant] in [M.W.'s] brain" by only showing one

photograph instead of an array. In closing, defendant emphasized the lack of a

photo array, the "power of suggestion" from showing a single photograph, the

"social" connection between M.W. and the officer who interviewed her, and

M.W.'s bias against defendant as a result of the fight with Taylor. Thus, any

possible prejudice from the omission of the above instructions was mitigated by

defendant's comments.

      Finally, defendant maintains that the court should have tailored the

identification instruction to M.W.'s alcohol and drug use. The court gave the

standard "intoxication" instruction, which states that

            [t]he influence of alcohol can affect the reliability of an
            identification. An identification made by a witness
            under the influence of a high level of alcohol at the time
            of the incident tends to be more unreliable than an
            identification by a witness who drank a small amount
            of alcohol.



                                                                          A-1527-15T4
                                       15
               [Model Jury Charges (Criminal), "Identification: In-
               Court and Out-of-Court Identifications" (rev. July 19,
               2012).]

With regard to M.W.'s use of powerful painkillers, they were not administered

until after the offense. The intoxication instruction focuses on intoxication "at

the time of the incident." Indeed, "intoxication" is a sub-factor to the factor

"witness's opportunity to view and degree of attention," which "assess[es] the

witness's opportunity to view the person who committed the offense at the time

of the offense and the witness's degree of attention to the perpetrator at the time

of the offense."

         Moreover, defendant repeatedly referenced M.W.'s drug use.        During

opening, defendant argued that M.W. smoked marijuana before the incident,

"inducing an altered state of consciousness, which has a[n] impact on your

perception."     In summation, defendant again maintained that drinking and

smoking marijuana could have impacted M.W.'s perception, particularly at

night.     Counsel's arguments mitigated the minimal possibility that the jury

would not have considered marijuana use when assessing the reliability of

M.W.'s identification. See Robinson, 165 N.J. at 47. The argument that the

omission of marijuana from the instruction prejudiced the outcome has no merit.




                                                                           A-1527-15T4
                                        16
      Defendant also contends that the State's remark minimizing the

significance of M.W.'s use of alcohol and marijuana was an improper and unfair

response to defendant's repeated assertions. However, the State is permitted to

give a "measured response" to allegations made by defendant in summation.

State v. Murray, 338 N.J. Super. 80, 88 (App. Div. 2001); see also State v.

Darrian, 255 N.J. Super. 435, 454-55 (App. Div. 1992); State v. Engel, 249 N.J.

Super. 336, 379-80 (App. Div. 1991). Here, the State's remarks were "invited"

as a response to the summation offered by defendant and did no more than "right

the scale." Engel, 249 N.J. Super. at 379; United States v. Young, 470 U.S. 1,

12-13 (1985); State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001). The

prosecutor's remark that the alcohol and marijuana did not affect her thinking

was also a fair comment on the evidence, as M.W. testified that she was "fine"

and "coherent" after having a couple of alcoholic drinks and sharing a blunt.

There was no error in the jury charge. Certainly not error "clearly capable of

producing an unjust result." See R. 2:10-2.

                                      III.

      Nor did the trial court err in omitting the Hampton/Kociolek charge.

Defendant contends the trial court should have given a jury instruction on

defendant's alleged oral statement to his co-defendant that she "handle that."


                                                                       A-1527-15T4
                                     17
Such omissions constitute reversible error "only when, in the context of the

entire case, the omission is 'clearly capable of producing an unjust result.'" State

v. Jordan, 147 N.J. 409, 425 (1997) (quoting R. 2:10-2). If "the defendant's

statement is unnecessary to prove defendant's guilt because there is other

evidence that clearly establishes guilt, . . . the failure to give a Hampton charge

would not be reversible error." Id. at 425-26.

      In this case, defendant did not request either a Hampton or Kociolek

instruction. Since no objection was heard at the time the charge was given, we

presume no error occurred likely to prejudice defendant's case.            State v.

Singleton, 211 N.J. 157, 182 (2012). The presumption controls here. Defense

counsel was involved in at least two formal on-the-record charge conferences,

and given at least two separate drafts of the jury instructions. During closing,

defendant actually used the statement he made to Lusby that she "handle" M.W.

to his benefit.      He argued that by making the request, he gave Lusby the

responsibility to obtain revenge. Defendant made a strategic decision to use the

statement to his benefit. He cannot now successfully maintain that the omission

of the instructions, which call upon juries to examine such statements very

closely because of the possibility they were not made or misheard, was

prejudicial error.


                                                                            A-1527-15T4
                                        18
      The court did charge the jury regarding witness credibility and prior

contradictory statements. The court instructed the jury on how to evaluate the

testimony. The court delivered the general credibility instruction advising the

jury to consider a number of factors, including the witness's appearance and

demeanor, bias, power of discernment, ability to observe and recollect, and

whether the witness's testimony was supported or unsupported by other

evidence. See Model Jury Charges (Criminal), "General Information as to

Credibility of Witnesses" (revised May 12, 2014). The final charge included

specific instructions as to the witnesses' prior inconsistent statements.       See

Model Jury Charges (Criminal), "Credibility: Prior Contradictory Statements of

Witnesses (Not Defendant) " (approved May 23, 1994). The final charge also

instructed the jury to consider the witnesses' prior convictions. See Model Jury

Charges (Criminal), "Credibility: Prior Conviction of a Witness" (revised

February 24, 2003). The charge adequately conveyed to the jury the information

necessary to evaluate each witness's testimony.

                                       IV.

      We do not address defendant's cumulative error argument as we consider

it to be so lacking in merit as to not warrant discussion in a written opinion. See

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


                                                                           A-1527-15T4
                                       19
                                       V.

      In challenging his sentence, defendant focuses upon mitigating factor

eleven, N.J.S.A. 2C:44-1(b)(11). Clearly, as the judge said, nothing about this

defendant's relationship to his family warranted consideration of that factor ,

which requires extraordinary circumstances.          Every defendant who is

incarcerated causes great hardship to his family and loved ones due to his

imprisonment. See State v. Dalziel, 182 N.J. 494, 505 (2005).

      Moreover, a defendant's sentence is subject to "limited appellate review"

where the trial judge "properly identifies and balances aggravating and

mitigating factors that are supported by competent credible evidence in the

record." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell,

117 N.J. 210, 215 (1989)). This court must not "second-guess a trial court's

finding of sufficient facts to support an aggravating or mitigating factor if that

finding is supported by substantial evidence in the record." O'Donnell, 117 N.J.

at 216.

      In the end, where the sentence is reasonable, we are "bound to affirm a

sentence, even if [the appellate court] would have arrived at a different result."

Cassady, 198 N.J. at 180 (quoting O'Donnell, 117 N.J. at 215). We do not

"substitute [our] judgment for that of the trial court." Ibid. (quoting State v.


                                                                          A-1527-15T4
                                       20
Evers, 175 N.J. 355, 386 (2003)). If the sentencing court's findings of facts are

grounded in competent, reasonably credible evidence and the court has applied

correct legal principles in exercising its discretion, then we modify the sentence

only if application of the facts to the law is such a clear error of judgment that

it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984).

      The sentence in this case was supported by aggravating and mitigating

factors, which in turn were supported by evidence in the record. No error of

judgment occurred, much less a clear error of judgment. The court correctly

applied legal principles to the facts.

                                         VI.

      Finally, defendant contends that defendant should not have been orde red

to pay restitution as his sole source of income was his Social Security disability

benefits, which are not subject to garnishment. We do not reach that argument

as in fact according to 42 U.S.C. § 402(x), incarcerated persons who receive

disability benefits generally forfeit their benefits during incarceration. See 20

C.F.R. § 404.468 (2017).       Even if that were not the case, the amount of

restitution that the court ordered, $8593.69 was payable to the Violent Crimes

Compensation Board (VCCB), as it had paid that amount to M.W. for medical

and dental treatment.     Under N.J.S.A. 2C:44-2(c)(2), a sentencing court is


                                                                          A-1527-15T4
                                         21
required to order a "defendant to pay any restitution ordered for a loss previously

compensated by the Board to the [VCCB]." N.J.S.A. 2C:44-2(c)(2). Thus,

defendant is obligated to pay restitution, not to the victim, but to the VCCB.

This point also lacks merit.

      Affirmed.




                                                                           A-1527-15T4
                                       22
