                                NOT FOR PUBLICATION WITHOUT THE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-5242-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RHUDELL C. CRUZ-SNELLING,
a/k/a RHUDY CRUZ, RHODELL
SNELLING, RHUDELL CHARLES
CRUZ-SNELLING, RHUDY C. CRUZ,
RHUDELL C. CRUZ, and RHODELL
CRUZ,

     Defendant-Appellant.
_____________________________

                    Argued December 18, 2019 – Decided April 21, 2020

                    Before Judges Whipple, Gooden Brown, and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 16-11-1420.

                    Douglas R. Helman, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Douglas R. Helman, of
                    counsel and on the brief).
            Erin M. Campbell, Assistant Prosecutor, argued the
            cause for respondent (Esther Suarez, Hudson County
            Prosecutor, attorney; Erin M. Campbell, on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Rhudell C. Cruz-Snelling appeals from a January 11, 2018

judgment of conviction after a jury trial. We affirm.

      Defendant raises the following arguments on appeal.

            POINT I: ALL OF THE CONVICTIONS MUST BE
            REVERSED BECAUSE THE STATE FAILED TO
            PROVE BEYOND A REASONABLE DOUBT THAT
            CRUZ-SNELLING WAS THE SHOOTER.      (Not
            raised below).

            POINT II: THE STATE FAILED TO ESTABLISH
            BEYOND A REASONABLE DOUBT THAT CRUZ-
            SNELLING LACKED A GUN PERMIT. (Not raised
            below).

            POINT III: THE JUDGE ERRED IN ADMITTING
            TESTIMONY ABOUT CRUZ-SNELLING'S PRIOR
            GUN POSSESSION UNDER N.J.R.E. 404(B), AND
            COMPOUNDED THE ERROR BY FAILING TO
            PROVIDE AN APPROPRIATE CURATIVE OR
            LIMITING INSTRUCTION.

                  A.    The strictures of N.J.R.E. 404(b).




                                                                     A-5242-17T4
                                       2
                    B.    The evidence regarding Cruz-
                    Snelling's prior gun possession should not
                    have been admitted under [Cofield1].

                    C.    The judge failed to properly instruct
                    the jury after admitting the prior bad act
                    evidence.

              POINT IV: THE JUDGE DOUBLE-COUNTED
              CRUZ-SNELLING'S PRIOR CONVICTION, USING
              IT TO SENTENCE HIM TO AN EXTENDED TERM
              AND AS AN AGGRAVATING FACTOR. (Not raised
              below).

        In a supplemental pro se brief, defendant additionally raises the following

issues on appeal:

              POINT I: THE STATE IMPERMISSIBLY SHIFTED
              THE BURDEN OF PROOF TO CRUZ-SNELLING TO
              PROVE THAT HE DID NOT VIOLATE N.J.S.A. 39-
              5(b)(1). (Not raised below).

              POINT     II:      THE         PHOTOGRAPHIC
              IDENTIFICATION      OF      [CRUZ-SNELLING]
              VIOLATED HIS RIGHT TO DUE PROCESS
              BECAUSE       THE       PROCEDURE      WAS
              IMPERMISSIBLY      AND       UNNECESSARILY
              SUGGESTIVE AND SHOULD HAVE BEEN
              SUPPRESSED. (Not raised below).

              POINT III: [CRUZ-SNELLING] WAS DENIED DUE
              PROCESS BECAUSE THE COURT PERMITTED A
              LAY    WITNESS     TO   PROFFER    EXPERT
              TESTIMONY        WITHOUT     A     PROPER
              FOUNDATION.

1
    State v. Cofield, 127 N.J. 328 (1992).
                                                                           A-5242-17T4
                                         3
            POINT IV: THE CUMULATIVE ERRORS
            DEPRIVED CRUZ-SNELLING A FAIR TRIAL. (Not
            raised below).

      We glean the following facts from the record. On June 3, 2016, four

individuals were driving around Kearny, some were drinking and taking drugs.

They were Christina Pereira, Natasha Echevarria, Yeomen Brato, and Samantha

Margalho. Around 1:00 a.m., they stopped and got out of the car on Kearny

Avenue, to meet a woman named Erica Martinez. Pereira wanted to fight

Martinez.

      Around 1:30 a.m., while waiting for Martinez, someone with braids

wearing a black sweater started shooting at them. While most of the group ran,

Pereira did not and was shot in the wrist, and a bullet grazed her neck. The

others ran back to Pereira and took her to a nearby hospital in Newark. Several

Kearny police officers responded to the area of Kearny Avenue after a report of

shots fired, but the shooter and the victims were gone.

      Responding Officer Podolski found a .22 caliber bullet fragment and

blood at the scene. Officer Manolis went to the hospital in Newark where he

found Pereira in the emergency room; he took photos of a small hole in her right

wrist that appeared to be a "small caliber bullet fragment or bullet round that

went through." The photos were entered into evidence at trial.


                                                                        A-5242-17T4
                                       4
      Detectives took photos of the scene, which were also entered into

evidence, and obtained two surveillance videos of the scene from nearby stores.

The videos showed a figure running, as well as a person firing a weapon at least

four times at 1:23 a.m.

      Pereira refused to be interviewed, but police were able to interview

Echevarria.   Echevarria gave Detective Gonzalez a statement detailing her

account of the events of the shooting. When Gonzalez showed Echevarria a

photo of defendant, she identified him as the person she recognized to be

"Suicide" who had shot Pereira.

      Based on Echevarria's identification and the surveillance video, arrest

warrants were issued, and defendant was arrested the day after the shooting. He

was indicted for second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b)(1); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b);

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); three counts of second-

degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(1); and three counts

of third-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(2).

Defendant was also indicted on drug charges that were later dismissed.




                                                                         A-5242-17T4
                                       5
       Prior to trial, when presented with a stipulation that defendant did not have

a permit for a gun, he refused to sign it, so the State asked the trial judge to

include a 39-2(b)2 instruction that allows a jury to presume defendant did not

possess a gun permit until he established to the contrary.

       At trial, the only witness other than police officers was Echevarria, who

testified that in the early morning hours of June 3, 2016, she and her friends

were driving around and ended up on Kearny Avenue because there was

supposed to be a fight between Pereira and Martinez.            Echevarria readily

admitted she was "drunk and . . . high so [she] really don't remember exactly

parts by parts . . . ."

       She testified that after she and her friends got out of the car, at about 1:30

a.m., she heard gunshots coming from the corner and ran. She testified the

shooter was wearing a black sweater and had his hair in braids, but she did not

see whether the shooter had facial hair. When asked whether the shooter was

moving fast or slow, she stated she "wasn't watching whoever it was, I . . . just

heard [a gunshot] and everybody started running." Echevarria admitted she was

on Xanax and drunk, but that she did not initially tell police that.          When




2
    N.J.S.A. 2C:39-2(b).
                                                                             A-5242-17T4
                                          6
Echevarria heard Pereira screaming, she went to her and wrapped Pereira's

bleeding arm and hand with a sweater and then took her to the hospital.

      Echevarria testified she later went to the Kearny Police Department and

gave a statement to police, but that she "was also medicated," which she did not

tell police.   Echevarria confirmed while she was at the police station, she

identified a photo of "Suicide," who was defendant. When asked if she told the

police she was able to identify the shooter, Echevarria responded "[y]es, but I

was actually medicated, which I'm telling you now . . . I would have told them

anything . . . I didn't say I saw . . . him at the scene . . . that's the face that I

remember . . . I was also medicated that night, too, on junk, Xanax." At that

point, because of the inconsistencies between Echevarria's testimony and her

prior statement to police, the State asked that her prior statement be admitted

and the court conducted a Gross3 hearing.

      During the Gross hearing, the judge heard testimony from Detective

Gonzalez that when he took Echevarria's statement, she came to the station

voluntarily, was "calm," and "did not appear to be under the influence." He did

not smell alcohol on her breath, and she was not slurring her words or acting



3
  A hearing required under State v. Gross, 121 N.J. 1 (1990) to determine the
reliability and admissibility of a prior inconsistent statement.
                                                                             A-5242-17T4
                                         7
abnormally. Based on his experience observing individuals under the influence

of alcohol or narcotics from his work in street crimes, Gonzalez testified that

Echevarria did not appear to be under the influence of any intoxicants.

      The statement, which had been video recorded, was played for the trial

judge. The judge found Echevarria's statement, as well as her identification,

credible, and although there was only one photo shown to Echevarria, "it was

presented in a manner in which the police were looking to ascertain whether the

person in the photo was the person that she was describing as knowing and t he

question posed was very clear, is this the person that you're referring to as

Suicide."

      The trial judge found that during her in-court testimony, Echevarria was

"attempting to be evasive" by feigning a lack of recollection, and "seems to

remember in good detail some issues but when it comes to the actual shooting,

all of a sudden her memory seems to go blank." The trial judge noted that

Echevarria's testimony regarding her drinking and intoxication would be subject

to exploration by defense counsel on cross-examination as to "any effect that

may have had on her ability to observe [and] recall," but found that overall the

"circumstances in which the statement and the identification were given are




                                                                          A-5242-17T4
                                       8
credible and reliable." He therefore permitted portions of the video-recorded

statement to be played for the jury.

      The State also asked that a portion of Echevarria's statement, where she

said she saw defendant with the same gun previously at Martinez's house, be

admitted, as they asserted it was relevant to her inconsistent testimony regarding

where Martinez lived and whether defendant lived there as well. The trial judge

found that portion of Echevarria's statement was inconsistent with her trial

testimony, where she "pretty much said she didn't see anything." The trial judge

stated "if it was just a gun, I would agree with the defense, it would be prejudicial

and there really would be no probative value to it but here[,] she previously

testified she saw the defendant previously with that gun."

      Echevarria then resumed her testimony, wherein she stated that what she

said at the police station in her statement "was the truth," despite that she was

intoxicated and not sober. Echevarria then indicated some of what she testified

to earlier that day in court was not the truth, because she was nervous. This

time, when asked if she saw defendant the night of the shooting, Echevarria

responded she did see him, that "[h]e was the one with a gun in his hand," and

she said otherwise earlier because she "was just nervous" and "was scared." She

testified defendant was "just shooting" multiple shots from a car toward herself


                                                                             A-5242-17T4
                                         9
and her friends. Echevarria also testified that she saw defendant with the same

gun before at Martinez's house. When asked whether her testimony earlier that

she did not remember whether the shooter had facial hair was true, Echevarria

responded "I'm sorry, no," and testified the shooter had a beard. The State then

asked Echevarria if the photo of defendant was the photo she identified as the

shooter, to which she responded yes, and asserted it was the truth. Echevarria

testified that she saw defendant shooting when she turned around before she ran.

      During the jury charge conference, defense counsel, the prosecutor, and

the trial judge discussed jury charges, including those for "out-of-court and in-

court identification," "prior inconsistent statements," "false in one, false in all,"

and defendant's right not to testify. Defense counsel did not ask for a limiting

instruction related to Echevarria's testimony about seeing defendant with the gun

on a prior occasion in Martinez's home.

      The trial judge fully instructed the jury regarding identification of

defendant and the jury's function in determining whether Echevarria's

identification was reliable and believable, or whether it was based on a mistake

or for any other reason not worthy of belief. He instructed the jury they must

decide whether there was sufficiently reliable evidence that defendant was the

person who committed the offense, telling them "[e]ye witness identification


                                                                             A-5242-17T4
                                        10
evidence must be scrutinized carefully," and that "even if made in good faith,"

a witness' categorical identification may be mistaken.

      The trial judge then instructed the jury on the portions of the criminal code

they must apply to the facts. Both defendant and the State indicated they were

satisfied with the jury charges.

      During deliberations, the jury asked to review the surveillance videos

again, to review Echevarria's testimony and statement, to review Gonzalez'

testimony, and to confirm the location of the perspective of the second

surveillance video. The jury also asked if they could have defendant stand up

so they could compare his body frame to the footage. After discussing with the

judge, all counsel agreed playbacks of Gonzalez' and Echevarria's testimony and

re-playing the two surveillance videos for the jury was acceptable. The next

day, the trial judge played back the testimony of Echevarria and Gonzalez and

played the surveillance videos for the jury once again; one of the videos was

replayed twice at the jury's request. After further deliberations, the jury asked

to see one of the surveillance videos twice more.

      Approximately two and a half hours after the last replay of the videos, the

jury returned a unanimous verdict, finding defendant guilty of: unlawful

possession of a weapon; possession of a weapon for an unlawful purpose; two


                                                                           A-5242-17T4
                                       11
counts of aggravated assault; and six counts of aggravated assault, extreme

indifference.

      Defendant was subject to a mandatory extended term because of his prior

conviction for possession of a weapon for an unlawful purpose. In considering

aggravating factors, the trial judge noted defendant's criminal history began as

a juvenile in 2002, stating defendant was "involved in violent behavior since the

age of about [thirteen]," he "only [knew] how to be violent and dangerous

because that [was defendant's] history," and "[t]he extent and seriousness of

[defendant's] prior record" showed an overwhelming risk defendant would

commit another offense and an overwhelming need to deter.

      The trial judge found the aggravating factors substantially outweighed the

lacking mitigating factors, and, after merging some charges, sentenced

defendant to: ten years for possession of a weapon for an unlawful purpose; a

concurrent extended term of seventeen years with an eighty-five percent parole

disqualifier for aggravated assault of the injured victim; and a consecutive term

of eighteen months with eighteen months of parole ineligibility for th ree counts

of second-degree attempted aggravated assault for the uninjured victims, for a

total sentence of eighteen and a half years, with just under sixteen years' parole

ineligibility.


                                                                          A-5242-17T4
                                       12
      This appeal followed.

                                       I.

      On appeal, defendant argues that because there was insufficient evidence

to prove beyond a reasonable doubt he was the shooter, the State did not meet

its burden to establish the identity of the perpetrator, an essential element of

aggravated assault.

      Under Rule 2:10-1, "the issue of whether a jury verdict was against the

weight of the evidence shall not be cognizable on appeal unless a motion for a

new trial on that ground was made in the trial court." Where no such motion

was made, we "may refuse to consider it." State v. Smith, 262 N.J. Super. 487,

511 (App. Div. 1993) (citing State v. Ross, 249 N.J. Super. 246, 253 (App. Div.

1991)). However, we may consider the merits, if we so choose, "in the interest

of justice." Ibid.

      Here, defendant did not move for a new trial on the grounds the jury

verdict was against the weight of the evidence, so we need not consider

defendant's argument that the State did not prove he was the shooter beyond a

reasonable doubt. However, considering the merits in the interest of justice, as

permitted by Smith, we conclude "any trier of fact could rationally have found"

defendant was the shooter beyond a reasonable doubt based on Echevarria's


                                                                        A-5242-17T4
                                      13
testimony, the two surveillance videos, and the photos of the scene. See State

v. Afanador, 134 N.J. 162, 178 (1993) (stating that where there is a challenge to

a jury conviction, "[t]he evidence should be sifted to determine whether any trier

of fact could rationally have found beyond a reasonable doubt that the essential

elements of the crime were present.").

      While defendant argues "[n]o reasonable jury could have concluded,

based entirely on the testimony of a witness whose ability to perceive was

irredeemably compromised, that the State proved the issue of identity beyond a

reasonable doubt," defendant did not seek to have Echevarria's testimony barred

at trial on these or any other grounds.        Additionally, the jury viewed the

surveillance videos showing the shooter multiple times. While it was dark, the

record reflects that defendant's distinctive features, such as his size, his hair, and

his beard, were visible on the surveillance video and corroborated Echevarria's

testimony. The jury was also able to view photos of the scene, taken shortly

after the shooting, to gauge the distance between Echevarria and the shooter as

well as the lighting conditions, and weigh whether Echevarria's testimony was

credible under the circumstances. Additionally, the jury heard Echevarria's own

testimony that she was intoxicated during the shooting and while giving her

statement and was able to weigh whether that impacted the reliability of her


                                                                              A-5242-17T4
                                         14
testimony and whether her testimony matched up with the surveillance videos

and photo evidence of the scene.

      Further, the trial judge meticulously instructed the jury as to witness

identification of a perpetrator and the factors they were to consider when

determining whether Echevarria's identification of defendant was credible, such

as stress, lighting, distance, and her intoxication, among many other factors.

Finally, there is no clear evidence that the jury was mistaken or prejudiced; to

the contrary, they requested playback of Echevarria's and Gonzalez' testimony,

and asked to review the surveillance video several times, which indicates they

were diligent in carefully considering and weighing the evidence.

      Therefore, based on the foregoing reasons, we discern no "miscarriage of

justice under the law," and the jury's verdict should not be disturbed on the

grounds that the State did not prove defendant was the shooter beyond a

reasonable doubt. See State v. Jackson, 211 N.J. 394, 413 (2012) (holding a

jury conviction "should not be disturbed on appeal 'unless it clearly appears that

there was a miscarriage of justice under the law'").

                                       II.

      We also reject defendant's next argument his conviction for unlawful gun

possession must be overturned because the State presented no proof he did not


                                                                          A-5242-17T4
                                       15
possess a gun permit, which was an essential element of the crime, but rather

relied solely on the inference allowed by N.J.S.A. 2C:39-2(b), presuming that

defendant did not have a permit until he established to the contrary.

      In State v. Ingram, the New Jersey Supreme Court considered the

constitutionality of the statutory presumption of N.J.S.A. 2C:39-2 that a

defendant accused of weapons possession shall be presumed not to have the

required permit until he establishes otherwise. 98 N.J. 489, 491 (1985). There,

the Court stated

            (1) the absence of a required permit is an essential
            element of a weapons offense as defined under N.J.S.A.
            2C:39-5; (2) once possession of a weapon is shown and
            an accused fails to come forward with evidence of a
            permit, the State may employ the statutory presumption
            of N.J.S.A. 2C:39-2 to establish the absence of the
            required permit; and (3) a jury should be instructed that
            although such a statute authorizes the inference that
            there is no such permit, the ultimate burden of
            persuasion rests on the State, with the jury being at
            liberty to find the ultimate fact one way or the other.

            [Id. at 500.]

      Here, as in Ingram, the State presented no evidence that defendant did not

have a permit, but rather relied on the presumption permitted by N.J.S.A. 2C:39-

2(b). As mandated by Ingram when relying on the presumption, the State

requested, and the trial judge instructed the jury, "as with all elements, the State


                                                                            A-5242-17T4
                                        16
bears the burden of showing beyond a reasonable doubt the lack of a valid permit

and . . . you may draw the inference only if you feel it appropriate to do so under

all the facts and circumstances," and told the jury if the State failed to prove any

elements beyond a reasonable doubt they must find defendant not guilty.

      Therefore, the State's reliance on the presumption without producing

evidence of its own, where jury instructions were given indicating the burden

remained on the State despite the presumption, is permitted under Ingram.

                                        III.

      We reject defendant's argument from his pro se brief that Gonzalez' use

of a single photo of defendant for identification purposes was in violation of

proper identification procedure. "[A] 'confirmatory' identification . . . is not

considered suggestive."     State v. Pressley, 232 N.J. 587, 592 (2018).           A

confirmatory identification is where a witness identifies someone they already

know but who they cannot identify by name, such as when a person is known to

the witness "only by a street name." Id. at 592-93 (citation omitted).

      Here, police were not attempting to have Echevarria identify someone

unknown to her only based on what she witnessed that night. Rather, Echevarria

had already stated someone she previously knew as "Suicide" was the one who

shot at herself and her friends. The photo was merely confirming who "Suicide"


                                                                            A-5242-17T4
                                        17
was and was therefore a non-suggestive confirmatory identification and not

problematic under Pressley.

       We also reject defendant's argument that his conviction should be

overturned due to Echevarria's testimony she saw defendant with the gun prior

to the night of the shooting. Defendant argues this portion of Echevarria's

statement should not have been admitted under State v. Cofield, 127 N.J. 328

(1992), and that the judge failed to properly instruct the jury after admitting

prior bad act evidence. The State argues that defendant's possession of a gun in

his home is not inherently illegal, and thus is not a prior bad act subject to a

404(b)4 test, but that even if it were, the Cofield prongs were satisfied.

       The evidentiary ruling of a trial judge on the admissibility of evidence is

"entitled to great deference and ordinarily should not be disturbed unless it is

'wide of the mark.'" State v. Fortin, 189 N.J. 579, 597 (2007) (quoting State v.

Marrero, 148 N.J. 469, 484 (1997)).

       Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts is not

admissible to prove the disposition of a person in order to show that such person

acted in conformity therewith." However, other crimes, wrongs, or acts may be

admissible for "other purposes, such as proof of motive, opportunity, intent,


4
    N.J.R.E. 404(b)
                                                                             A-5242-17T4
                                       18
preparation, plan, knowledge, identity or absence of mistake or accident when

such matters are relevant to a material issue in dispute." Ibid. "The general

principle stated in N.J.R.E. 404 applies only when evidence of a trait of character

or other specific act is offered for the purpose of drawing inferences about the

conduct of a person on a particular occasion." Biunno, Weissbard & Zegas,

Current N.J. Rules of Evidence, cmt. 1(b) on N.J.R.E. 404 (2019) (citing State

v. Clark, 324 N.J. Super. 178, 189 (App. Div. 1999)).

      Where a prior act sought to be admitted is not a criminal act and its

probative value is outweighed by its inflammatory nature, it may still unduly

prejudice the jury against a defendant. State v. Skinner, 218 N.J. 496, 500

(2014).   In Skinner, a defendant's inflammatory rap lyrics, which were

purportedly admitted to show motive and intent, but that were unrelated to the

crime for which he was charged, were found to have a prejudicial impact that

vastly outweighed any potential probative value. Ibid.

      There was no separate hearing to determine whether Echevarria's

testimony she saw defendant with the same gun was admissible under N.J.R.E.

404(b), but it was raised at the end of the Gross hearing. Defendant argues that

while possession of a gun in his home might have been legal, it was too

prejudicial. We agree with defendant the judge erred in admitting the statement,


                                                                           A-5242-17T4
                                       19
but we consider it harmless under all the facts and circumstances of this case.

While the trial judge found probative the fact that it was allegedly the same gun

used at the shooting, not "just a gun" which would not be probative and would

be prejudicial, we think that misses the point. That portion of the statement had

little, if any, probative value, as Echevarria did not need to disclose she observed

a gun in order to testify she could identify defendant after seeing him at

Martinez's home.

      However, in light of the other evidence against defendant—the

surveillance videos showing the scene of the shooting, the actual shooting, and

the shooter's build, hair, and facial features—the fact that Echevarria testified

she saw defendant with the same gun before was not likely central to the jury's

conviction, but simply corroborated her identification. During trial, the record

reflects that the gun itself and tying that specific gun to defendant was not the

central subject of the identification, but rather defendant's distinctive hair, build,

and facial hair, and whether it matched that of the shooter on the surveillance

videos, which the jury asked to view several times.

      We also reject defendant's argument that Echevarria's testimony about the

gun she saw that night was the "same gun" defendant possessed at his house on

an earlier date was an impermissible lay opinion in violation of N.J.R.E. 701.


                                                                              A-5242-17T4
                                         20
Rule 701 states that a witness not testifying as an expert may testify "in the form

of opinions or inferences . . . if [the testimony] (a) is rationally based on the

perception of the witness and (b) will assist in understanding the witness'

testimony or in determining a fact in issue."

      Here, the fact at issue was not whether defendant used the same gun in the

shooting—the State did not even produce a gun and attempt to tie it to defendant.

Rather, the fact at issue was whether Echevarria recognized defendant as the

shooter, and her testimony as to seeing defendant with a gun was based on her

perception and related to her testimony that she had seen defendant at Martinez's

home before.

                                       IV.

      Finally, we reject defendant's sentencing arguments. Defendant argues

that the trial judge double counted prior gun offenses, first by imposing an

extended term which doubled the sentencing range, and again by using

defendant's prior history as an aggravating factor to impose a sentence "far

above the applicable midpoint."

      "[We] review sentencing determinations in accordance with a deferential

standard," and "must not substitute [our] judgment for that of the sentencing

court." State v. Fuentes, 217 N.J. 57, 70 (2014). We review to determine


                                                                           A-5242-17T4
                                       21
whether sentencing guidelines were violated, whether the aggravating and

mitigating factors found were based upon competent credible evidence in the

record, and whether the application of the guidelines to the facts of the case

"make the sentence clearly unreasonable so as to shock the judicial conscience."

State v. Roth, 95 N.J. 334, 364-65 (1984). A trial judge "has discretion to adjust

a sentence upward from the presumptive term after weighing aggravating and

mitigating factors" under N.J.S.A. 2C:44-1(a) and (b). State v. Vasquez, 374

N.J. Super. 252, 268 (App. Div. 2005).

      Citing Vasquez, 374 N.J. Super. at 267, defendant argues that using the

same convictions as both a basis for finding a defendant should be sentenced to

an extended term, as well as a basis for finding an aggravating factor to increase

the length of a defendant's sentence, is prohibited "double-counting." However,

Vasquez does not require a different sentence in this case.

      Here, while discussing aggravating factors, the trial judge mentioned the

2016 conviction that triggered the extended term, as well as defendant's current

conviction for which he was being sentenced. However, the judge specifically

noted defendant had an extensive criminal history dating back to 2002 and had

been involved in violent behavior since the age of thirteen. The trial judge found




                                                                          A-5242-17T4
                                       22
the aggravating factor of the need to deter based on "[t]he extent and seriousness

of [defendant's] prior record." (emphasis added).

      The record reflects the trial judge did not "double-count" the offense that

triggered the extended term as an aggravating factor, but rather found the

aggravating factor based on the "competent credible" evidence of defendant's

extensive criminal history. Therefore, there was no abuse of discretion here.

      While defendant argues there are cumulative errors that deprived him of

a fair trial, a review of the record indicates there was only a single error that was

harmless under the facts and circumstances of this case, and that defendant did

receive the benefit of a fair trial. We do not address defendant's remaining

arguments as they lack sufficient merit to warrant discussion in a written

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

      Affirmed.




                                                                             A-5242-17T4
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