                        NOT FOR PUBLICATION WITHOUT THE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-5384-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JONATHAN F. RAMOS-PIEDRAHITA,
a/k/a JONATHAN F. RAMOS-PEDTAHITA,

        Defendant-Appellant.

________________________________________________________________

              Argued February 14, 2017 – Decided August 18, 2017

              Before Judges Espinosa and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No 13-
              12-1002.

              Jaime B. Herrera, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ms. Herrera, of counsel and on the brief).

              Kimberly L. Donnelly, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Grace H. Park,
              Acting Union County Prosecutor, attorney;
              Meredith L. Balo, Special Deputy Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
      Defendant was convicted of second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1), and related offenses, arising out of the

stabbing of Mauricio Hurtado,1 whom he did not know, during an

altercation outside a bar in the early morning hours of August 4,

2013.     He was sentenced to seven years subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.           He appeals his conviction

and     sentence,    presenting   the       following   arguments   for   our

consideration:

                    POINT I

                    DEFENDANT WAS DEPRIVED OF A FAIR
                    TRIAL WHEN THE PROSECUTOR INDICATED
                    DURING HIS OPENING STATEMENT THAT A
                    WITNESS, WHOM HE KNEW COULD NOT BE
                    PRODUCED   AT   TRIAL,    IDENTIFIED
                    DEFENDANT    AS    THE    ASSAILANT.
                    DEFENDANT WAS FURTHER PREJUDICED
                    WHEN THE PROSECUTOR ARGUED IN
                    OPENING AND CLOSING STATEMENTS THAT
                    ANOTHER WITNESS SAW DEFENDANT STAB
                    THE VICTIM, WHEN THE WITNESS TOLD
                    POLICE AND TESTIFIED AT TRIAL THAT
                    HE DID NOT WITNESS THE ATTACK ON THE
                    VICTIM.

                    POINT II

                    THIS CASE SHOULD BE REMANDED FOR
                    RESENTENCING, AS THE TRIAL COURT
                    FAILED    TO   CONSIDER   MITIGATING
                    FACTORS SUPPORTED BY THE EVIDENCE,
                    AND    IGNORED    THE   PROSECUTOR'S
                    REQUEST FOR A DOWNGRADE AND THE
                    VICTIM'S PLEA FOR LENIENCY.

1
   The transcript identifies the witness as Mauricio Furtado.               We
have used the name as set forth in the indictment.

                                        2                            A-5384-14T2
     The circumstances that led to the stabbing began when Carlos

Castano-Garcia, a friend of defendant's, became embroiled in an

argument with Jeffrey Martinez, who was dating Hurtado's ex-

girlfriend.    The men went outside, engaged in some pushing, and

returned to the bar.            Defendant arrived later and spoke with

Castano-Garcia about his altercation with Martinez.

     At some point, Castano-Garcia, Hurtado, Martinez, defendant,

and a "bunch of people" went back outside the bar and into the

adjacent parking lot.         According to Castano-Garcia, Martinez tried

to fight him, and defendant placed himself between the two men and

tried   to   separate    them.      While    there   was    "some    pushing   and

shoving,"    nobody     was   punched,    kicked,    or    injured   other     than

Hurtado.

     Castano-Garcia       testified      that   after     about   three   or   four

minutes, "[H]urtado was kind of want to fight, too, so [defendant]

tried to stop [H]urtado, and [H]urtado, you know, push [defendant]

with his lefthand side and he almost fell . . . but he didn't."

Hurtado also testified he pushed defendant "a little hard" and

defendant stumbled but did not fall to the ground.

     Video surveillance footage from the bar shows defendant,

Martinez, and an unidentified male then left the group and walked

to defendant's red Mazda in the parking lot.                Defendant went into

his car for two seconds and then began to return to the group.

                                         3                                A-5384-14T2
The two other men grabbed him; defendant broke free of their grip

and ran toward the group.

     Castano-Garcia testified defendant ran to his car, and then

ran back with a knife to Hurtado and stabbed him.

     Hurtado    testified   that,   after   returning   from   his   car,

defendant stabbed him below his left armpit with a blade.       Hurtado

also stated defendant tried to stab him two more times and was

aiming at his chest.

     Juan Alvarez, the owner of the bar, testified he observed

defendant holding a blade while he and the other men were fighting.

He did not state he witnessed the actual stabbing.

     After the attack, defendant drove himself and Martinez away

from the bar.

     In response to a dispatch about the stabbing, Elizabeth Police

Officer Jeffrey Cruz and his partner drove to Morris Avenue, where

they encountered defendant shortly after 2:00 a.m. Officer Cruz

stated defendant was "sweating a little profusely" and "seemed

nervous."   Defendant originally told the officers his name was

"Fabian Ramos," but then presented a form of identification with

his real name.

     Officer David Haverty was on patrol when he was flagged down

by men at the bar.     He attended to Hurtado's wound prior to the

arrival of an ambulance and then, upon learning of defendant's

                                    4                            A-5384-14T2
detention, transported witnesses to the scene to conduct "show-

up"    identification        procedures.       Alvarez    and     Castano-Garcia
                              2
identified      defendant.           After   the   show-ups,      defendant    was

arrested.      He told the officers what car he had and where it was

parked, and the car was towed to police headquarters that night.

       With defendant's consent, Detective Lawrence Smith searched

defendant's vehicle and recovered a knife in the front passenger

compartment.      At trial, Hurtado identified this knife as the one

used to stab him.        The knife was sent for DNA testing at the Union

County      Prosecutor's     Laboratory.      Monica     Ghannam,    a   forensic

scientist at the laboratory, testified she tested a bloodstain on

the knife and the DNA matched Hurtado's DNA sample.

       At    around   2:50    a.m.    that   morning,    Hurtado     arrived     at

University Hospital in Newark.           He had a stab wound approximately

one centimeter long, and the trauma surgeon used one suture to

close the wound.       Hurtado was kept in the trauma bay for a short

period after that to "sober up," and he was discharged at 4:25

a.m.     He later identified defendant as the man who stabbed him,

selecting his photo from a photo array.

       The jury convicted defendant of second-degree aggravated

assault,      N.J.S.A.       2C:12-1(b)(1)     (count     one);     third-degree


2
  Alvarez later identified a photograph of defendant at the police
department.

                                         5                                A-5384-14T2
aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); fourth-

degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-

5(d) (count three); and third-degree possession of a weapon (knife)

for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).                The

trial judge merged courts two, three, and four into count one and

sentenced defendant to seven years of incarceration with an eighty-

five percent parole disqualifier on count one.

                                     II.
                                                3
     For   the   first   time   on    appeal,       defendant   argues   that

statements made by the prosecutor in his opening statement and

summation regarding identifications of defendant deprived him of

a fair trial.    "The jurisdiction of appellate courts rightly is

bounded by the proofs and objections critically explored on the

record before the trial court by the parties themselves."                State

v. Robinson, 200 N.J. 1, 19 (2009).                 Because there were no

objections to these comments at trial, our review is limited to

"a search for plain error."      State v. Nesbitt, 185 N.J. 504, 516

(2006).    That is, a reversal is only warranted if the alleged

error was "clearly capable of producing an unjust result."                  R.

2:10-2.



3
   We note that, contrary to the requirement of Rule 2:6-2(a)(1),
the fact that these arguments were not raised in the trial court
is not noted in the point headings or the arguments.

                                      6                              A-5384-14T2
     We acknowledge at the outset that the comments challenged

here can fairly be characterized as imprudent statements regarding

the number of persons who identified defendant.           The capacity of

these alleged errors to "produc[e] an unjust result" is negligible

because one of the witnesses who did identify defendant was a

personal friend of long-standing.          Further, the potential for

prejudice was essentially negated by the trial judge's vigilant

and astute response.

     During his opening statement, the prosecutor referred to

Hurtado, Castano-Garcia, and Alvarez and stated: "All three of

those witnesses are going to testify that they saw this defendant

stab the victim and attempt to stab him again."         (Emphasis added).

After telling the jury that Officer Cruz detained defendant, he

told them: "Three individuals – not including the victim at this

point – were taken in police cruisers to the area where the

defendant   was   being   held   and   ident   –   100-percent   positively

identified him as the person who stabbed the victim."            (Emphasis

added).

     These comments strayed from the evidence that was produced

at trial.   Although Alvarez stated he observed defendant with a

knife during the altercation, he did not state he saw defendant

stab Hurtado. The evidence also failed to support the prosecutor's

assertion that three witnesses identified defendant at the show-

                                       7                            A-5384-14T2
up because the State was unable to locate one of the witnesses.

The prosecutor disclosed this fact during the trial and defendant

does not contend the prosecutor knew the witness was unavailable

when he gave this opening statement.

       Haverty was asked about the identifications at trial.                      When

the prosecutor asked how many witnesses he brought to the scene,

Officer Haverty testified: "I believe it was three."                     When asked

about the results, Officer Haverty stated: "I believe all three

were    positive.    They      positive       --    positively    identified       the

suspect."    Haverty did not identify the names of the witnesses who

had made these identifications.

       At this point in the trial, although two witnesses had

identified    defendant,       Hurtado    and      Alvarez,    only     Alvarez    had

identified him at a show-up.           Following Haverty's testimony, the

trial    judge   questioned      the     prosecutor     about     the    number     of

identifications Haverty had mentioned.                  She noted, "any prior

identifications     of   the    defendant . . .        can't     be   testified     to

unless those witnesses are actually witnesses under the hearing

under Evidence Rule 803."         She determined that Castano-Garcia was

a second person who identified defendant at the show-up and asked

the assistant prosecutor who the third person was.                      He replied,

"[t]here was another guy[, W.C.]."                 When the judge asked if the

prosecutor planned to call W.C., the prosecutor disclosed that the

                                          8                                  A-5384-14T2
State was not able to find him.   The judge stated she did not want

the jury to hear further testimony about a third person identifying

defendant at the show-up.   She directed the prosecutor to instruct

other police officers who testified about the show-up not to talk

about any third identifying witness.      The judge asked defense

counsel if he had any objection and he replied, "Certainly not,

Judge."4

     Later, Officer Cruz took the stand and stated he "had two

show-ups where people positive[ly] identified the suspect in this

case."

     The trial later gave a curative instruction to the jury to

clarify the evidence regarding the number of identifications at

the show-up.   Defense counsel expressed he had no objection to the

proposed statement.   The court then told the jury the following:

           I think there was some mention of the fact
           that there were three on-scene identifications
           of the Defendant.       Remember one of the
           witnesses was talking about the show-up
           procedure about witnesses being brought to the
           scene.
                And I think someone – I don't remember
           who – said three. There were actually two on-
           scene identifications of the Defendant during
           that show-up procedure, not three. There were


4
   Although defendant now complains that no curative instruction
was given following Haverty's testimony, there was neither an
objection nor a request for any curative instruction. Nonetheless,
the trial judge took a proactive role to avert further error and
defense counsel explicitly approved of the procedure she outlined.

                                  9                         A-5384-14T2
           two.   And I believe and, again, it's your
           recollection that counts, not mine.
                The on-scene identifications of the
           identification [sic] were by Mr. Alvarez, the
           owner of the bar; and also Carlos C[a]stano-
           Garcia, who of course both of them testified
           yesterday. So I just wanted to clear that up.

      During his summation, the prosecutor stated Alvarez:

           [p]ositively identified the Defendant at a
           show-up    shortly     after    this     event
           occurs . . . .   And he says that's him, the
           guy with the knife in his hand. Comes in to
           court, looks at him again, and says that's him
           right there. That's the guy with the knife
           in his hand.

Then,   discussing     Officer   Haverty's      testimony,   the   prosecutor

stated two witnesses, Castano-Garcia and Alvarez went to the show-

up and "positively identified the Defendant as the person who

stabbed [Hurtado] and tried to stab him two more times in the

chest."   In discussing Officer Cruz's testimony, the prosecutor

again referenced the two show-up identifications by Castano-Garcia

and   Alvarez    and   stated,   "they    all   positively   identified    the

Defendant as the individual who stabbed the victim in this case

and attempted to stab him twice more in the chest."

      These     comments   failed   to    acknowledge   that,   although     he

identified defendant and said he had a blade during the altercation

that resulted in the stabbing, Alvarez did not state he saw

defendant stab the victim.



                                     10                               A-5384-14T2
     "A prosecutor must 'conscientiously and ethically undertak[e]

the difficult task of maintaining the precarious balance between

promoting justice and achieving a conviction,' ensuring that at

all times his or her 'remarks and actions [are] consistent with

his or her duty to ensure that justice is achieved.'"             State v.

Jackson,   211   N.J.   394,   408   (2012)   (alterations   in   original)

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).             Thus,

although prosecutors are afforded "considerable leeway" when they

address the jury, their comments must be "related to the scope of

the evidence."     State v. Cole, ___ N.J. ___ (2017) (slip op. at

39-40 (quoting State v. Frost, 158 N.J. 76, 82 (1999)). References

made by the prosecutor "to matters extraneous to the evidence" may

provide a ground for reversal.        Jackson, supra, 211 N.J. at 408.

     "Notwithstanding the high standard to which a prosecutor is

held as he or she gives an opening statement or summation, 'not

every     deviation     from   the    legal    prescriptions      governing

prosecutorial conduct' requires reversal."        Id. at 408-09 (quoting

Williams, supra, 113 N.J. at 452).        "Prosecutorial misconduct is

a basis for reversal of a criminal conviction if the conduct was

so egregious that it deprived the defendant of the right to a fair

trial."    State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State

v. Josephs, 174 N.J. 44, 124 (2002)).          In determining whether a

prosecutor's improper comments are grounds for reversal, "the

                                     11                             A-5384-14T2
making by trial counsel of a timely and proper objection and the

action of the trial judge in connection therewith are ordinarily

controlling considerations."     State v. McGuire, 419 N.J. Super.

88, 149 (App. Div.) (quoting State v. Wilson, 57 N.J. 39, 50-51

(1970)), certif. denied, 208 N.J. 335 (2011).

     We draw no inference from the failure to object to the

prosecutor's   statement    in   his   opening    that   three   persons

identified defendant at the show-up because it was unknown at that

time that the third person would be unavailable to testify.

     Turning   to   the    misstatements   that    Alvarez   identified

defendant as the man who stabbed Hurtado — although we do not

condone this sloppy lumping of Alvarez with the two other witnesses

who did provide such testimony — the failure to object reasonably

reflects defense counsel's perception that the comments were not

prejudicial.   Alvarez did identify defendant as holding a blade

during the fight; no one else was seen with a knife; Hurtado was

stabbed; and both he and defendant's friend of a dozen years

testified it was defendant who stabbed him.

     In reviewing the challenged comments, we consider "the tenor

of the trial and the responsiveness of counsel and the court to

the improprieties when they occurred."     State v. Timmendequas, 161

N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136,

151 L. Ed. 2d 89 (2001).      As noted, there were no objections to

                                  12                             A-5384-14T2
any of the comments here.       The failure to object deprived the

trial judge of the opportunity to ameliorate errors as they occur.

See id. at 575.    Still, the trial judge acted presciently and

effectively to address the potential for prejudice in the testimony

that three persons identified defendant at the show-up.

     Weighing the improper comments of the prosecutor against the

compelling evidence that it was defendant who stabbed Hurtado, we

are satisfied the comments did not have the clear capacity to

produce an unjust result, R. 2:10-2, requiring reversal.

                                  IV.

     Defendant argues his sentence was excessive.        He contends the

trial judge erred in her assessment of aggravating and mitigating

factors.   He also argues the judge should have imposed a more

lenient sentence in light of the prosecutor's recommendation that

a sentence one degree lower be imposed and the victim's endorsement

of leniency.   We disagree.

     "Appellate   review   of   sentencing   decisions   is   relatively

narrow and is governed by an abuse of discretion standard."        State

v. Blackmon, 202 N.J. 283, 297 (2010).       The Supreme Court directs

appellate courts to determine whether:

           (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

                                  13                             A-5384-14T2
          (3) the application of the guidelines to the
          facts of [the] case makes the sentence clearly
          unreasonable so as to shock the judicial
          conscience.

          [State v. Fuentes, 217 N.J. 57, 70 (2014)
          (alteration in original) (quoting State v.
          Roth, 95 N.J. 334, 364-65 (1984)) (internal
          quotations marks omitted).]

     There were a number of statements in support of defendant at

sentencing.     The trial judge heard statements from defendant,

defendant's mother, and defendant's wife.     She received thirty-

five letters supporting leniency for defendant, including one

letter from the victim, Hurtado.

     Defendant was on probation at the time of this offense.     The

presentence report states the prior offense occurred approximately

one year earlier, and describes it as "aggravated assault - bodily

injury with deadly weapon (recklessly) (with accomplice, kicked

victim while on ground)."     Defense counsel contended the weapon

was a chair, rather than a deadly weapon.      He stated defendant

agreed to plead guilty to the offense as part of a plea agreement

to preserve the ability of his brother, who was not a United States

citizen, to remain in this country.   The prosecutor confirmed that

nothing in the presentence report stated defendant used a deadly

weapon in the prior incident, but rather that his brother had used

the chair.    The trial judge noted defendant had stated under oath

that he was guilty of the offense in pleading guilty.

                                 14                         A-5384-14T2
     Defense counsel urged the court to sentence defendant one

grade   lower   pursuant   to    N.J.S.A.    2C:44-1(f)(2).      He     argued

defendant was intoxicated and emotional at the time of the offense,

and further, was remorseful and thankful the injury was minor.

     The trial judge found aggravating factors three, six, and

nine, N.J.S.A. 2C:44-1(a)(3), (6), (9).            In finding aggravating

factor three, N.J.S.A. 2C:44-1(a)(3) (the risk defendant would

commit another offense), the trial judge noted defendant committed

the present offense while on probation for committing a previous

aggravated    assault.     She   found   that   aggravating    factor      six,

N.J.S.A.   2C:44-1(a)(6)    (the    extent    of   the   defendant’s     prior

criminal record and the seriousness of the offenses of which he

has been convicted) was also supported by the prior aggravated

assault.     No specific support was cited for the judge's finding

of aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for

deterring the defendant and others from violating the law).

     The judge also found mitigating factor nine, N.J.S.A. 2C:44-

1(b)(9)("the character and attitude of the defendant indicated

that he's unlikely to commit another offense").           However, she gave

this factor limited weight.         She noted, "[The present offense]

does seem out of character for [defendant] based upon everything

I read about him[,] . . . [b]ut in balance there's also a man

who's been involved in two violent incidents."

                                    15                                 A-5384-14T2
       The trial judge denied the request to sentence defendant one

degree lower, explaining N.J.S.A. 2C:44-1(f)(2) permits the court

to sentence defendant to a term appropriate for a crime of one

degree lower only if "clearly convinced the mitigating factors

substantially outweigh the aggravating factors" and the interests

of justice so demand.        Quoting State v. Megargel, 143 N.J. 484,

496-502 (1996), the trial judge explained "defendant must provide

compelling reasons for the downgrade 'in addition to and separate

from   the   mitigating   factors   that   substantially      outweigh   the

aggravating factors that the trial court finds.'"

       The   trial   judge     concluded    the    aggravating     factors

substantially outweighed the mitigating factors and the interests

of justice did not demand defendant be sentenced as if the present

offense were a third-degree crime.       She acknowledged defendant had

been pushed by Hurtado, but also that "[h]e didn't even fall to

the    ground,"   "[t]here's   no   allegation    he   was   injured,"   and

"[t]here's no evidence that Mr. Hurtado was armed or was acting

in a threatening manner towards the defendant."          Although Hurtado

sustained only a "superficial injury," the judge noted defendant

could have injured Hurtado much more seriously and, in fact,

unsuccessfully attempted to stab him two more times.             The judge

acknowledged defendant had been intoxicated, but noted this did



                                    16                              A-5384-14T2
not stop him from remembering, retrieving, and using the knife in

his car.

     The trial judge also stated: "I appreciate that Mr. Hurtado

has asked for leniency, that's important to the Court, and I

appreciate that [defendant] has expressed remorse.           However, while

he apologized[,] he also minimized his responsibility."           The trial

judge then sentenced defendant to seven years of incarceration

with an eighty-five percent parole disqualifier.

     Defendant argues the trial judge abused his discretion when

it imposed a seven-year prison sentence because (1) its findings

of both a need to deter defendant and that defendant was unlikely

to commit another offense were inconsistent, (2) it ignored the

video evidence that the victim provoked the attack relevant for

mitigating   factors   four   and   five,   and   (3)   it    ignored    the

recommendation of the prosecutor and the victim that defendant

receive a lenient sentence.

     We are not persuaded by defendant's argument that the trial

judge should have determined that the victim was the aggressor

and, as a result, find mitigating factors four, N.J.S.A. 2C:44-

1(b)(4) (substantial grounds tending to excuse or justify the

defendant's conduct), and five, N.J.S.A. 2C:44-1(b)(5) (victim of

defendant's conduct induced or facilitated its commission).                It

is undisputed that Hurtado was unarmed.       Pushing and shoving are

                                    17                              A-5384-14T2
inadequate provocations for initiating an assault with a deadly

weapon.    See State v. Docaj, 407 N.J. Super. 352, 369 (App. Div.

2009) (noting, in a murder case in which defendant contended the

offense was a passion/provocation manslaughter, "Even in instances

of 'mutual combat,' the defendant's response must be proportionate

to the provocation." (citing State v. Oglesby, 122 N.J. 522, 536

(1991)).

       Moreover, the judge acknowledged Hurtado pushed defendant and

that defendant's assault may have been in response.                 She found

that Hurtado's push was too weak to cause defendant to fall down,

notwithstanding       his   level   of     intoxication,      and   therefore

incomparable     to     defendant's       violent     retaliation.         The

determination that mitigating factors four and five were not

applicable was supported by competent, credible evidence.

       We also discern no irreconcilable conflict in finding both a

need to deter defendant and that defendant was unlikely to commit

another offense.      Aggravating factor three evaluates a defendant's

overall risk and mitigating factor nine focuses narrowly on the

influence of the defendant's "character and attitude," in the

determination of risk.         In this case, the court found all the

support given for defendant demonstrated this offense was "out of

character," but the evidence of his prior violent offense coupled

with   details   surrounding    this     present    offense   demonstrated    a

                                    18                                A-5384-14T2
greater probability that defendant might commit another offense.

In other words, defendant might typically be a law-abiding person

but his character did not preclude him from engaging in behavior

that was both criminal and violent.            Therefore, the sentencing

court's   determination    that   the   risk   of    defendant   committing

another offense outweighed his character and attitude to avoid

such conduct was supported by competent, credible evidence.

     Turning   to   the   trial   judge's   decision     not   to   sentence

defendant to a third-degree sentence, we note the bar is very high

for a defendant to obtain such relief.              N.J.S.A. 2C:44-1(f)(2)

provides:

            [W]here the court is clearly convinced that
            the mitigating factors substantially outweigh
            the aggravating factors and where the interest
            of justice demands, the court may sentence the
            defendant to a term appropriate to a crime of
            one degree lower than that of the crime for
            which he was convicted.

            [(Emphasis added).]

     "The reasons justifying a downgrade must be 'compelling,' and

something in addition to and separate from, the mitigating factors

that substantially outweigh the aggravating factors."               State v.

Rice, 425 N.J. Super. 375, 384 (App. Div.) (quoting Megargel,

supra, 143 N.J. at 505), certif. denied, 212 N.J. 431 (2012).

However, "because the focus remains on the offense and not the

offender, the surrounding circumstances used as compelling reasons

                                   19                                A-5384-14T2
for a downgrade should arise from within the context of the offense

itself."    State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009)

(citing Megargel, supra, 143 N.J. at 500-01).     Factors a court may

consider include "the degree of the crime [which] is the focus of

the sentence"; whether "[t]he surrounding circumstances of an

offense may make it very similar to a lower degree offense"; and

"facts personal to the defendant," including his "role in the

incident."    Ibid. (quoting Megargel, supra, 143 N.J. at 500-01).

      The offense here was a second-degree aggravated assault with

a deadly weapon.     Defendant stabbed the victim just under his

armpit and attempted to stab him in the chest twice, circumstances

that do not "make [the offense] very similar to a lower degree

offense."    Defendant's role in the offense was that he left an

altercation with an unarmed man to retrieve a weapon and return

to stab him repeatedly.

      We therefore conclude the trial judge's determination that

the   mitigating   factors   did   not   substantially   outweigh   the

aggravating factors and that there were no compelling reasons to

sentence defendant in the third-degree range was amply supported

by the record and did not constitute an abuse of discretion.

      Affirmed.




                                   20                          A-5384-14T2
