                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5814-13T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

THOMAS L. SCOTT, a/k/a
JAMES LONGENBERGER, and
CHRISTOPHER TUREAUD,

     Defendant-Appellant.
___________________________________

         Argued telephonically February       12,   2016   –
         Decided March 22, 2016

         Before Judges Sabatino and Accurso.

         On appeal from the Superior Court of New
         Jersey, Criminal Division, Monmouth County,
         Indictment No. 13-04-0733.

         Stephen W. Kirsch, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender, attorney;
         Mr. Kirsch, on the brief).

         Keri-Leigh Schaefer, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Christopher J.
         Gramiccioni,     Acting    Monmouth    County
         Prosecutor,   attorney;   Mary   R.  Juliano,
         Special    Deputy   Attorney   General/Acting
         Assistant Prosecutor, of counsel; Keri-Leigh
         Schaefer, on the brief.)

PER CURIAM
       Defendant Thomas L. Scott appeals from his conviction of

third-degree       possession   of   a   controlled    dangerous     substance,

namely, heroin, N.J.S.A. 2C:35-10(a)(1).               He also contends that

the     sentence    imposed     by   the      trial   court   was    manifestly

excessive.     We affirm.

                                         I.

       The State's proofs showed that on the afternoon of November

27, 2012, a Long Branch police detective detained defendant on

an unrelated matter.          The detective found two small packages in

defendant's left pants pocket.                The contents of the packages

were tested and shown to be 0.618 grams of heroin.1

       Defendant's theory at trial was that he did not intend to

possess the heroin        and that his mother Darlene Barbella had

placed the heroin in his pants without his knowledge.                  Although

defendant did not testify at trial, he presented testimony from

a     family   friend,   Lauren      Halbersberg.        He   also    proffered

testimony from his mother Barbella, who had given a defense

investigator a written statement.              Defendant opted to not call

Barbella after the trial judge made an in limine ruling before

trial, discussed infra, that is the main focus of this appeal.




1 Defendant does not contest the legality of the stop and search,
nor the admissibility of the lab results.




                                         2                             A-5814-13T3
      Defendant lived in Long Branch in an apartment upstairs

from his mother in a duplex she owned.                      Halbersberg testified

that on the day in question, she, defendant, and defendant's

cousin      Jordan    Scott    were     all    in    the    living       room   of    the

apartment.      Scott, who appeared to her to be intoxicated, was

lying on the couch asleep.              According to Halbersberg, defendant

was then getting ready to take a shower.

      Halbersberg       testified       that     Barbella        came     upstairs    and

noticed two packets on the table by the couch.                          Perceiving that

the packets contained drugs, Barbella became livid and started

shouting.      According to Halbersberg, Barbella picked up the two

packets and stuffed them in the pocket of blue jeans that were

draped over the couch.            Defendant, who was allegedly unaware of

what his mother had done, took the jeans into the bathroom and

put them on after taking his shower.                     He then went outside and

was encountered by the police detective.

      In her written statement, Barbella corroborated aspects of

Halbersberg's        narrative.       However,      as     the   State     points    out,

there    were        several    inconsistencies,            including        Barbella's

recollection that defendant was already in the shower when she

came upstairs.

      Prior to trial, the State moved in limine to be permitted

to cross-examine Barbella with two previous instances in which

she   had    allegedly     lied    in    order      to    protect       defendant    from



                                          3                                     A-5814-13T3
criminal liability.            In one instance, Barbella is said to have

falsely told police looking for her son that he was not home and

that she was feeling ill.                   In the second instance, Barbella

tried   to     recant    a    written      statement        that    she    had    given      the

police about his involvement in a burglary.

       The     State    initially       argued       that     the    two    instances         of

Barbella covering up for her son were admissible as her prior

bad acts under N.J.R.E. 404(b), shedding light on "her character

as a witness."          Defense counsel countered that the elements for

admission under Rule 404(b) were not met.                          Defense counsel also

stressed       that     the    two    incidents         were        not    admissible         as

impeachment with a prior criminal conviction under N.J.R.E. 609

because Barbella had not been convicted of any crimes relating

to her past conduct.

       In ruling on the in limine motion, the trial court observed

that    Rule    404(b)       does    not   pertain          here    because      the    issues

involve the impeachment of a potential witness.                           The judge noted

that N.J.R.E. 608 regarding witness impeachment would appear to

be the more appropriate pertinent evidence rule.                              However, the

court did not enforce the language in New Jersey's version of

Rule    608(a)     that       prohibits,        subject       to    certain      enumerated

exceptions,       the     admission        of       prior     specific      instances         of

falsehoods to show a witness's propensity for untruthfulness.




                                                4                                      A-5814-13T3
    Rather than enforcing the prohibition on specific instances

within Rule 608(a), the court found that it had discretion under

N.J.R.E. 104(a) to not apply strictly the Rules of Evidence.

The court also noted that Barbella "has a propensity to cover up

her son's wrongdoings."         The court ruled that Barbella's two

prior incidents of lying to the police would be admissible "both

on cross examination and on rebuttal if she elects to take the

stand."

    Given     the     court's   evidential      ruling,   defense     counsel

decided not to call Barbella as a witness, relying solely on

Halbersberg's    account   of   the    events   that   took   place   in    the

apartment.

    The jury found defendant guilty of the possession charge.

The court sentenced him to a five-year prison term with a two-

and-one-half-year period of parole ineligibility.

                                      II.

    Defendant raises the following points on appeal for our

consideration:

            POINT I

            THE TRIAL JUDGE IMPROPERLY HELD THAT A
            DEFENSE WITNESS COULD BE IMPEACHED WITH
            EVIDENCE OF PRIOR SPECIFIC BAD ACTS NOT THE
            SUBJECT OF A CONVICTION, EVEN THOUGH THE
            APPLICABLE EVIDENCE RULES QUITE CLEARLY BAR
            THAT PRACTICE.

            POINT II




                                      5                               A-5814-13T3
            THE    SENTENCE           IMPOSED          IS        MANIFESTLY
            EXCESSIVE.

For the reasons we will now discuss, neither of these points

warrants relief.

                                           A.

    Defendant        contends       that   the     trial     court    misapplied        the

rules and principles of evidence law in determining that                                 if

Barbella took the witness stand in the defense case, the State

would be permitted to impeach her credibility by disclosing to

the jury that she had twice lied in the past in order to protect

her son from law enforcement.                   The State does not endorse the

specific    analysis     set    forth      by    the     trial     court    but   instead

maintains     that    Barbella's        two      prior      acts    would    have     been

admissible evidence of her strong bias as a witness in favor of

her son's interests.           The State further argues that even if the

trial   court        erred     in     deeming       the      impeachment          evidence

admissible, any such error was harmless in light of the record

as a whole.

    Our scope of review of the trial court's evidentiary ruling

requires considerable deference.                 Such rulings generally "should

be upheld 'absent a showing of an abuse of discretion, i.e.

there has been a clear error of judgment.'"                          State v. J.A.C.,

210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138,

147 (2001)).     "An appellate court applying this standard 'should




                                           6                                      A-5814-13T3
not substitute its own judgment for that of the trial court,

unless "the trial court's ruling is so wide of the mark that a

manifest denial of justice results."'"                              Ibid. (quoting Brown,

supra, 170 N.J. at 147).

       As an initial matter, we observe that the trial court had a

sound    basis      to    find     that     Rule     404(b)    would       not   justify      the

admission of Barbella's past acts of making false statements in

order to protect her son from the authorities.                              Rule 404(b) is

generally a rule of exclusion, subject to certain exceptions,

rather than a rule of admission.                       State v. Herrerra, 211 N.J.

308,    339    (2012).            None    of   the    enumerated        exceptions       listed

within Rule 404(b) readily applies here to the mother's prior

conduct.

       The     judge      correctly        perceived         that    the    more      pertinent

evidence      rule     on    point       would   be    Rule    608,     which        allows   the

character of a testifying witness to be impeached by certain

means.        However, Rule 608 is unavailing to the State because,

subject      to    certain        caveats      not    applicable       here,     a    witness's

character         trait     for    truthfulness         or    untruthfulness           is     only

demonstrable by opinion or reputation evidence and "cannot be

proved by specific instances of conduct."                           N.J.R.E. 608(a).           See

also State v. Parker, 216 N.J. 408, 418-19 (2014).

       The trial court did stray in its analysis in finding that

it had the authority to "relax" these evidence provisions under



                                                 7                                      A-5814-13T3
Rule 104(a).        Rule 104(a) does not provide a substantive basis

for   admissibility      but     instead        is,   in   essence,      a    procedural

device for a trial court in making a ruling on an evidential

issue.      Indeed, the drafters of our present Rules of Evidence

specifically make clear in a Comment that, unlike the                               Court

Rules, the Rules of Evidence were designed to omit a general

"relaxation rule" akin to Court Rule 1:1-2 except for certain

enumerated       situations      not    pertinent          here.        See     N.J.R.E.

101(a)(2).         See also Biunno, Weissbard & Zegas, Current N.J.

Rules    of    Evidence,      1991    Supreme     Court     Committee        Comment    on

N.J.R.E. 101(a) (2015).

      On      appeal,   the    State    contends       that     the     trial    court's

evidentiary ruling should be sustained on an alternative ground:

namely,     that    Barbella's       past   behavior       of   lying    in     order    to

shield her son from law enforcement authorities is evidence of

her strong bias in favor of her son, showing that she will go to

such lengths as making false statements to law enforcement.

      As a procedural matter, defendant objects to the State's

present     reliance    on    bias     impeachment         principles        because    the

prosecutor did not advance that specific argument to the trial

court.      Although it would have been preferable for the State to

have asserted this alternative legal argument sooner, we are

unpersuaded that the State should be barred from advocating it

here.      We must bear in mind that our role on appeal is to review



                                            8                                    A-5814-13T3
judgments and orders, not trial court opinions.                      Bandler v.

Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015).                     "[A] party

may challenge only the propriety of the judgment entered by the

trial court, not the reasoning underlying the court's decision."

Ibid. (citing Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199

(2001)).      "It is a commonplace of appellate review that if the

order   of    the   lower   tribunal    is   valid,   the   fact     that     it   is

predicated upon an incorrect basis will not stand in the way of

its affirmance."         Isko v. Planning Bd. of Livingston, 51 N.J.

162,    175    (1968),   abrogated     on    other   grounds   by,      Commercial

Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546

(1991).2

       Turning to the merits of the bias impeachment question, we

agree   with    the   State   that   Barbella's      past   acts   of    lying     to

protect her son, assuming they were proven to the jury, qualify

as admissible evidence under the pertinent case law.                      Although


2 We do not regard the Supreme Court's opinion in State v. Witt,
223 N.J. 409 (2015), disallowing defendant from challenging the
lawfulness of a motor vehicle stop for the first time on appeal,
as precluding our consideration of the bias impeachment argument
here.    The Court in Witt found it significant that the
appellant's failure to raise the lawfulness issue in the trial
court deprived the opposing side "the opportunity to establish a
record that might have resolved the issue[.]" Id. at 419. That
is not the case here.     The bias impeachment issue is a pure
legal question that requires no further development of the
factual record. Moreover, the admissibility of the impeachment
proof, unlike the lawfulness of the motor vehicle stop in Witt,
was a sharply contested issue in the trial court.



                                        9                                   A-5814-13T3
neither the       federal nor New Jersey evidence rules contain a

specific    "bias        impeachment"       provision,          the      ability       of    an

opposing   party        to    undermine     the    credibility        of     a    testifying

witness on the grounds of bias is a well-established principle

under our common law.                See, e.g., United States v. Abel, 469

U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 457 (1984).

The    common     law    of     evidence      conceives       of      bias       as   a     term

describing "the relationship between a party and a witness which

might lead the witness to slant, unconsciously or otherwise,

[her] testimony in favor of or against a party."                                  Ibid.       In

Abel, the Supreme Court authorized the admission of proof of

extrinsic acts as a form of bias impeachment, even though no

specific   codified          federal   rule       of   evidence       contains        such    an

explicit authorization.              Id. at 469 U.S. 56, 105 S. Ct. at 471,

83 L. Ed. 2d at 460.

       Similarly in New Jersey, the admissibility of evidence of

conduct to substantiate a witness's bias for or against a party

in a case is well established in our case law.                         See, e.g., State

v. Pontery, 19 N.J. 457, 473 (1955); State v. Holmes, 290 N.J.

Super.    302,    313        (App.   Div.   1996).         As      our     Supreme        Court

acknowledged again very recently, "the claimed bias of a witness

is    generally    an        appropriate    inquiry      in     cross-examination             in

criminal trials[.]"             State v. Bass, ___ N.J. ___, ___ (2016)

(slip op. at 19).             Of course, the trial court may limit inquiry



                                            10                                        A-5814-13T3
into    a   witness's    potential     bias,    based     upon   concerns     of

"harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that is repetitive or only marginally

relevant."      Id. at 20 (citing Delaware v. Van Arsdall, 475 U.S.

673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)).

       Here, the admission of Barbella's past acts demonstrating

the strength of her bias for defendant is consistent with these

well-settled principles.       To be sure, a mother would naturally

be presumed to favor her child's interests in avoiding criminal

prosecution and jail.       But the proffered evidence goes further

than that general proposition.         Barbella's past acts of lying to

the authorities for her son would establish not only that she

possesses such parental bias, but that she would risk punishment

herself by lying to the authorities concerning her son's actions

or whereabouts.

       The trial court did not misapply its authority in ruling

that Barbella's past acts exhibiting the degree of her bias

would be a fair method of impeaching the credibility of her

narrative that she placed the heroin in her son's pants pocket

without him being aware of it.            Nor do we find that such proof

was    categorically    inadmissible    as     unfairly   prejudicial      under

N.J.R.E. 403.

       Even if, for the sake of discussion, the trial court erred

in     ruling   that    Barbella's     prior     untruthful      conduct     was



                                     11                               A-5814-13T3
admissible, we agree with the State that the ruling was, at

most,   harmless       error       in     light       of   the     record    as     a    whole.

Barbella's account was essentially cumulative of Halbersberg's

testimony, which the jury obviously did not believe.                                      It is

highly speculative that the jury could have believed Barbella's

repetitive version of the same events.                            Moreover, even if the

court had excluded Barbella's past untruthful conduct to protect

her son, the State would have been entitled in summation to

argue the mother's bias anyway.                        The jurors themselves might

have    independently            discounted          the   probative        force       of     the

mother's testimony, in light of the family relationship.

       For these many reasons, the court's in limine ruling is

sustained.      Defendant's conviction is affirmed.

                                                B.

       We   need     not    dwell        at    length      upon    defendant's          separate

argument      that   his     sentence          is    excessive.       Defendant          has    an

extensive      criminal          record       that    includes       twenty-three            adult

convictions, five of them for illegal possession of CDS.                                       The

sentencing judge rightly deemed defendant a "habitual offender"

who poses the risk of committing future crimes.                               We recognize

that    the    judge       did     not        explicitly     state    why     he     rejected

defendant's        invocation       of        mitigating      factors       one     (lack       of

serious harm) and two (defendant did not contemplate that his

conduct would cause serious harm) and that he should have done



                                                12                                      A-5814-13T3
so.    See State v. Case, 220 N.J. 49, 69 (2014).                   Nevertheless,

we are not persuaded to remand this matter for resentencing

because    of    that    omission,    given     the   patent    strength     of   the

aggravating factors that the judge found to predominate here.

The    sentencing    judge    was    clearly    made    aware   from   the    trial

proofs that defendant possessed slightly more than a half of a

gram of heroin, but nevertheless was persuaded to impose a five-

year    custodial       sentence    with    a   two-and-one-half-year        parole

disqualifier         when      considering            defendant's      individual

characteristics.

       Given defendant's lengthy prior criminal record, the chosen

sentence does not shock our conscience, and we do not second-

guess it.       State v. Bieniek, 200 N.J. 601, 607-08 (2010).

       Affirmed.




                                           13                              A-5814-13T3
