                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3741-13T3

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             August 16, 2017
v.                                        APPELLATE DIVISION

ELEX HYMAN,

     Defendant-Appellant.
___________________________________

         Argued November 9, 2016 – Decided August 16, 2017

         Before Judges Ostrer, Leone and Vernoia.

         On appeal from the Superior Court of New
         Jersey, Law Division, Ocean County, Indictment
         No. 10-11-2077.

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

         William Kyle Meighan, Assistant Prosecutor,
         argued the cause for respondent (Joseph D.
         Coronato, Ocean County Prosecutor, attorney;
         Samuel   Marzarella,  Supervising  Assistant
         Prosecutor, of counsel; Mr. Meighan, on the
         briefs).

         Appellant filed a pro se supplemental brief.

     The opinion of the court was delivered by

OSTRER, J.A.D.
     A jury found defendant Elex Hyman guilty of possessing cocaine

with intent to distribute and conspiring to do so, both second-

degree    offenses.         N.J.S.A.         2C:5-2,     N.J.S.A.    2C:35-

5(a)(1), -5(b)(2).      On appeal, defendant principally argues the

court erred in admitting as lay opinion testimony under N.J.R.E.

701 the lead investigative detective's interpretation of drug-

related slang and code words that defendant and others used in

recorded wiretapped conversations.

     We agree the detective's testimony interpreting the slang and

code words was in the nature of expert opinion.                However, the

court's   error   was    harmless       in   view   of   the    detective's

qualifications to testify as an expert, and the overwhelming

evidence of defendant's guilt. We therefore affirm the conviction.

                                    I.

     As part of an ongoing investigation of cocaine distribution,

the Ocean County Prosecutor's Office obtained wiretap orders in

January 2010, authorizing the State to intercept conversations

from telephone numbers used by co-defendants Daniel Rogers and

Travell Nickey.   Thereafter, the State overheard conversations on

February 5 and 7, 2010, in which defendant agreed to purchase 200

grams of cocaine from Rogers, with Nickey serving at times as an

intermediary. The State also intercepted conversations indicating

that Rogers intended to drive to defendant's home to deliver a

                                    2
                                                                    A-3741-13T3
100-gram package of cocaine. Officers later observed Rogers arrive

and briefly meet with defendant outside his home.

     Based on the intercepted communications and the surveillance,

officers obtained a warrant to search defendant's home.     In the

search that followed on February 20, 2010, police seized 50.5

grams of cocaine from a laundry room shelf; the wiretapped cell

phone; a money counter; a digital scale; and over $3000 in cash.

In a Mirandized statement,1 defendant admitted that the seized

cocaine was his.

     Defendant was tried separately from eight other defendants,

including Nickey and Rogers, who allegedly participated in the

conspiracy to manufacture, distribute or possess with the intent

to distribute cocaine.   After a N.J.R.E. 104 hearing, and over a

defense objection, the court permitted the State to elicit, as lay

opinion, the lead investigating detective's interpretation of

drug-related jargon.

     In the N.J.R.E. 104 hearing, Detective David Fox testified

he had been involved in hundreds of drug-related investigations,

including close to twenty wiretap investigations, and he had become

familiar with certain drug-related jargon.   He testified that some

terms were "universal" to the drug culture, and others unique to



1
   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
                                 3
                                                           A-3741-13T3
a particular drug network.   However, in this case, all the terms

used had come up in past investigations.

     The court expressed concern that Fox's testimony came close

to addressing the "ultimate issue" and suggested the State limit

his testimony solely to his understanding of what the different

slang phrases meant:

          I will allow Detective Fox to be questioned
          as originally I thought, that being that he's
          going to be ask[ed] to interpret certain
          phrases in the transcripts and that are played
          for the jury. And that's his purpose and I've
          heard enough to be able to indicate, in my
          opinion, that he qualifies to give testimony
          as a lay opinion in that the detective is using
          his own senses to acquire knowledge of the
          street slang or street language related to
          drug and illegal activities, and that he can
          give the jury some guidance because it is
          outside of their knowledge and outside of the
          Court's knowledge as to what those terms refer
          to.

               And I am going to, however, limit and I
          will sustain any objection if we get into any
          areas where he's giving an opinion concerning
          what the mental state of the individual or any
          of the individuals on the recordings or in the
          transcripts are, because I don't think that
          that's, he's not being qualified as an expert
          and I don't think he should be allowed to do
          that.

     Consistent with the court's direction, the prosecutor did not

ask Fox to offer an opinion expressly attributing a state of mind

or intent to the overheard speaker.   However, after playing each

recording for the jury, which followed along with a transcript,

                                4
                                                            A-3741-13T3
the prosecutor asked Fox to provide, based on his "training and

experience      and     knowledge   of   this    investigation,"     his

"interpretation of" a word or a phrase "as . . . used in" or "in

the context of" the recorded conversation.

     Fox opined: "that shit is good" referred to the quality of

cocaine; a "buck," used repeatedly, meant "100 grams of cocaine";

"two one's" and "two 100s" referred to "two separate individual

packages of 100 grams of cocaine"; "make it one and a half" meant

"150 grams of cocaine, one individual pack for 100 grams of

cocaine, one for 50 grams of cocaine"; "up top" referred to the

New York area; "he still want?" meant whether a person was "[s]till

looking to purchase a quantity of cocaine"; "you good?" inquired

"if somebody still has a current supply of cocaine"; and "hit you

up" (which is transcribed as "hitchu up") meant calling another

when ready to purchase cocaine.

     Assuming     the    accuracy   of   those   interpretations,    the

conversations supported the State's contention that defendant

agreed to purchase 100 grams of cocaine on two occasions.             On

cross-examination, Fox rejected suggestions that many of the words

used had their common meaning outside the criminal milieu, and

that defendant was discussing a potential loan of $100 or $200

dollars.




                                    5
                                                               A-3741-13T3
     Defendant testified briefly in his own defense solely to

challenge whether a particular phone number belonged to Nickey.

However,   on   cross-examination,       defendant   admitted   that   State

witnesses had accurately identified him, Nickey, and Rogers on the

recordings.     He also answered affirmatively when asked whether,

on February 5, 2010, he "had agreed to purchase 100 grams of

cocaine from Mr. Rogers with Mr. Nickey's assistance and he met

you at your house . . . for that purpose . . . ."               He conceded

that he did so again two days later.

     The jury found defendant guilty of the conspiracy and the

substantive offense noted above.          The court granted the State's

motion for an extended term, based on a prior possession-with-

intent-to-distribute conviction, and imposed a fourteen-year term

on the substantive charge, with a six-year period of parole

ineligibility.    The court imposed a five-year concurrent term on

the conspiracy charge.

     Defendant raises the following points on appeal:

           POINT I

           THE JUDGE FAILED TO QUALIFY FOX AS AN EXPERT
           WITNESS DESPITE TESTIMONY THAT WAS BEYOND THE
           KEN OF THE AVERAGE JUROR, AND PERMITTED FOX
           TO TESTIFY IMPROPERLY AS A LAY WITNESS.
           MOREOVER, THE JUDGE ERRED IN DEVISING A HYBRID
           JURY INSTRUCTION THAT INCORPORATED PART OF THE
           EXPERT WITNESS JURY CHARGE, BUT NONETHELESS
           REFERRED TO FOX AS A LAY WITNESS, THEREBY
           CONVEYING THAT LA[Y] OPINION HAD THE AUTHORITY
           OF EXPERT OPINION. (U.S. CONST. AMENDS. VI,
                                     6
                                                                   A-3741-13T3
         XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10).
         (Partially raised below).

         A.   The Judge Failed To Qualify Fox As An
              Expert Witness Despite Testimony That Was
              Beyond The Ken Of The Average Juror, And
              Fox Provided Testimony That Exceeded The
              Scope Of Permissible Lay Opinion.

         B.   The Judge Concocted A Hybrid Jury
              Instruction    To   Cover   Only    Fox's
              Testimony, But Still Characterized Him As
              A Lay Witness, Despite Incorporating A
              Few Sentences From the Expert Witness
              Model Charge.

         POINT II

         THE   SENTENCING   IMPOSED    WAS  MANIFESTLY
         EXCESSIVE AND THE JUDGE FAILED TO MERGE THE
         CONSPIRACY   TO   POSSESS   WITH  INTENT   TO
         DISTRIBUTE CONVICTION INTO THE UNDERLYING
         POSSESSION   WITH    INTENT    TO  DISTRIBUTE
         CONVICTION.

    Defendant presents the following additional point in a pro

se supplemental brief:

         DEFENDANT IS ENTITLED TO A REVERSAL OF HIS
         CONVICTION AND A NEW TRIAL BASED ON THE FACT
         THAT DEFENSE COUNSEL WAS INELIGIBLE TO
         PRACTICE LAW IN THE STATE OF NEW JERSEY AT THE
         TIME OF HIS REPRESENTATION IN THIS MATTER, IN
         VIOLATION OF THE DEFENDANT'S RIGHT TO COUNSEL
         GUARANTEED BY THE U.S. CONSTITUTION, AMEND.
         VI, AND NEW JERSEY CONSTITUTION, ART. I, ¶ 10.



                                II.

    We apply a deferential standard of review to the trial court's

evidentiary rulings.     "The necessity for, or propriety of, the

                                 7
                                                          A-3741-13T3
admission   of   expert   testimony,   and   the   competence   of   such

testimony, are judgments within the discretion of the trial court."

State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S.

1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); see also Estate

of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84

(2010) (stating, "the decision to admit or exclude evidence is one

firmly entrusted to the trial court's discretion").2            However,

when the trial court applies the wrong legal test when analyzing

admissibility, we review the issue de novo.        Konop v. Rosen, 425

N.J. Super. 391, 401 (App. Div. 2012).




                                  A.

     We first discuss fundamental principles governing lay and

expert opinion testimony, noting that the proponent of opinion

evidence bears the burden to establish its admissibility.            State

v. Torres, 183 N.J. 554, 567 (2005).


2
  If the issue pertains to "the admissibility of expert scientific
evidence," then "the appellate court need not be as deferential
to the trial court's ruling . . . as it should be with the
admissibility of other forms of evidence." State v. Torres, 183
N.J. 554, 567 (2005) (holding expert testimony on gang practices
was admissible); see also State v. Harvey, 151 N.J. 117, 167 (1997)
("Like trial courts, appellate courts can digest expert testimony
as well as review scientific literature, judicial decisions, and
other authorities. To the extent that general acceptance focuses
on issues other than a witness's credibility or qualifications,
deference to the trial court is less appropriate.").
                                 8
                                                                A-3741-13T3
      Lay opinion testimony is governed by N.J.R.E. 701, which

states:

            If a witness is not testifying as an expert,
            the witness' testimony in the form of opinions
            or inferences may be admitted if it (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.

The   witness's   perception   must       "rest[]   on    the   acquisition   of

knowledge through use of one's sense of touch, taste, sight, smell

or hearing."   State v. McLean, 205 N.J. 438, 457 (2011) (citations

omitted); see also N.J.R.E. 602 ("Except as otherwise provided by

Rule 703 (bases of opinion testimony by experts), a witness may

not testify to a matter unless evidence is introduced sufficient

to support a finding that the witness has personal knowledge of

the matter.").

      Examples include opinions about a vehicle's speed, based on

seeing or hearing it go by; and a person's intoxication, based on

seeing,   hearing,   and   smelling       the   person.     Ibid.   (citations

omitted).   As the McLean Court explained, police officers may also

offer lay opinions on such subjects as a person's narcotics

intoxication, ibid. (citing State v. Bealor, 187 N.J. 574, 588-89

(2006)); the point of impact between vehicles involved in a

collision, id. at 459 (citing State v. LaBrutto, 114 N.J. 187,

197-99 (1989)); and "whether a neighborhood [was] a 'high crime

                                      9
                                                                       A-3741-13T3
area,'" ibid. (citing Trentacost v. Brussel, 164 N.J. Super. 9,

19-20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980)).

       Although courts have "referred as well to the officer's

training   and   experience,"     to    justify    admitting   the   officer's

testimony as lay opinion, "the analysis of admissibility has been,

as it must be, firmly rooted in the personal observations and

perceptions of the lay witness in the traditional meaning of . .

. Rule 701."      Ibid.     "[U]nlike expert opinions, lay opinion

testimony is limited to what was directly perceived by the witness

and may not rest on otherwise inadmissible hearsay."                Id. at 460.

       Furthermore, lay opinion must assist the jury either in

understanding    the   witness,    or    determining     a   fact    in    issue.

N.J.R.E. 701.     In that respect, it is no different from expert

opinion.   "[T]estimony in the form of an opinion, whether offered

by a lay or an expert witness, is only permitted if it will assist

the jury in performing its function."             McLean, supra, 205 N.J. at

462.    In other words, "[t]he Rule does not permit a witness to

offer a lay opinion on a matter 'not within [the witness's] direct

ken . . . and as to which the jury is as competent as he to form

a conclusion[.]'"      Id. at 459 (quoting Brindley v. Firemen's Ins.

Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).

       The Court gave an example of a helpful lay opinion that is

of particular note here.      The Court stated:

                                        10
                                                                          A-3741-13T3
          Thus, for example, a lay         witness was
          permitted to offer an opinion about the
          meaning of street slang that defendant used
          during a conversation relating to a crime
          because it was "unfamiliar to the average
          juror, . . . [it] was of assistance in
          determining the meaning and context of his
          conversation with defendant and was obviously
          relevant to the issue of defendant's motive
          and intention."

          [Id. at 458 (quoting State v. Johnson, 309
          N.J. Super. 237, 263 (App. Div.), certif.
          denied, 156 N.J. 387 (1998)).]

     In McLean, the       Court concluded that an officer was not

authorized to offer his lay opinion that the defendant had engaged

in a drug-related transaction, based on observed interactions

between defendant and another person.              Id. at 463.      The Court

explained that the officer "presumed to give an opinion on matters

that were not beyond the understanding of the jury."                       Ibid.

Furthermore, "it was an expression of a belief in defendant's

guilt . . . ."    Ibid.

     By   contrast,     expert     testimony    depends    on   a   witness's

"specialized   knowledge"     to   address     matters   outside    a   juror's

understanding.    N.J.R.E. 702 states:         "If scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or

otherwise."      The   rule   embodies     three   requirements:    "(1)      the
                                      11
                                                                        A-3741-13T3
intended testimony must concern a subject matter that is beyond

the ken of the average juror; (2) the field testified to must be

at a state of the art such that an expert's testimony could be

sufficiently reliable; and (3) the witness must have sufficient

expertise to offer the intended testimony."           State v. Kelly, 97

N.J. 178, 208 (1984); see also Torres, supra, 183 N.J. at 567-68.

       The McLean Court held that "a question that referred to the

officer's training, education and experience, in actuality called

for an impermissible expert opinion."       205 N.J. at 463.       Likewise,

we held in State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div.

1995), that an officer's testimony about the use of beepers in

drug transactions should have been admitted as expert, not lay

opinion, because it was based on his extensive experience in drug

related arrests, and not his personal observations of the defendant

using the beeper.

       In addition, an expert's testimony must be "so distinctively

related to some science, profession, business or occupation as to

be beyond the ken of the average layman."            Boland v. Dolan, 140

N.J.   174,   188   (1995)   (internal   quotation   marks   and    citation

omitted).     Expert testimony is common in drug cases, because it

"provides necessary insight into matters that are not commonly

understood by the average juror, such as the significance of drug

packaging and weight, scales and cutting agents, stash sites, the

                                    12
                                                                    A-3741-13T3
role of confederates, and other activities consistent with drug

trafficking."      State v. Cain, 224 N.J. 410, 413 (2016).             An expert

may also testify about "identifiable logos on drug packaging . .

. ."    Id. at 426.       However, the proponent must establish "the

field of inquiry . . . [is] generally accepted such that an

expert's   testimony     would   be    sufficiently       reliable."      Torres,

supra, 183 N.J. at 568 (relying on "persuasive judicial decisions"

to   establish     reliability    of    expert      on    gang    practices     and

organization).

       Our evidence rules provide that "otherwise admissible" expert

testimony "is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact."           N.J.R.E. 704. However,

the McLean Court held that in the context of a criminal trial,

"experts may not, in the guise of offering opinions, usurp the

jury's function by . . . opining about [a] defendant's guilt or

innocence . . . ."       205 N.J. at 453; see also id. at 461 (stating

"expert opinions may not be used to express a view on the ultimate

question of guilt or innocence" (citing State v. Reeds, 197 N.J.

280, 300 (2009))); State v. Odom, 116 N.J. 65, 82 (1989).

       Recently,    in   Cain,   supra,      224   N.J.   at     429,   the   Court

jettisoned a procedure endorsed in Odom, supra, 116 N.J. at 80-

81, that had permitted an expert to testify as to a defendant's

state of mind, an ultimate issue in an intent-to-distribute case,

                                        13
                                                                          A-3741-13T3
without pronouncing the defendant's guilt.                 The Court cautioned

that hypothetical questions should only be used when necessary and

that "no one is fooled when a hypothetical tracks the evidence"

and removes the defendant's name.             Ibid.; see also State v. Simms,

224   N.J.    393,   408   (2016)   ("The      practice    of     assuming   in    a

hypothetical question an unnamed 'individual' when every detail

of the question makes clear the reference is to the defendant

serves   no   purpose      and   will   not    dissipate    the    prejudice      of

inappropriate opinion testimony.").

      The Cain Court reviewed federal and other states' decisions

rejecting expert testimony about a defendant's "state of mind" in

a narcotics prosecution that goes to an element of the offense.

Id. at 428. The Court specifically referenced Fed. R. Evid. 704(b)

— to which New Jersey has no analogue — which expressly states,

"In a criminal case, an expert witness must not state an opinion

about whether the defendant did or did not have a mental state or

condition that constitutes an element of the crime charged or of

a defense.     Those matters are for the trier of fact alone."                 See

ibid.

      Finding that the probative value of such expert testimony on

state of mind is outweighed by potential jury confusion and

prejudice to a defendant, id. at 427-28, the Court held, "[g]oing

forward, in drug cases, an expert witness may not opine on the

                                        14
                                                                         A-3741-13T3
defendant's state of mind." Id. at 429. In particular, "[w]hether

a defendant possessed a controlled dangerous substance with the

intent to distribute is an ultimate issue of fact to be decided

by the jury."     Ibid.

      Although the Cain Court did not expressly limit its "going

forward" rule to expert opinions on "the defendant's state of

mind" that may "constitute[] an element of the crime," nevertheless

the Court prohibited testimony about whether a defendant had the

requisite intent to distribute, an essential element of the drug

offense.      Ibid.    Given the nature of the out-of-state authority

the   Court    found   persuasive,   and   given   the   Court's   focus   on

preventing usurpation of the jury's role in deciding the ultimate

issue of intent to distribute, we understand Cain to prohibit an

expert from offering an opinion on a drug defendant's state of

mind when it is an element of the offense.

      We subsequently held that the "going forward" rule governed

cases, like this one, still on appeal when Cain was decided. State

v. Green, 447 N.J. Super. 317, 327 (App. Div. 2016).

                                     B.

      We now apply these principles to the admissibility of opinion

testimony on drug culture slang or code words.             We are aware of

no holding by our courts on the need for such opinion testimony.

Some such words may have entered the popular lexicon as a result

                                     15
                                                                    A-3741-13T3
of music, film, and other aspects of modern culture, obviating the

need for opinion testimony.            As such, a drug dealer's "facially

coherent conversation" may need no interpretation.                      See United

States v. Garcia, 291 F.3d 127, 142-43 (2d Cir. 2002) (discussing

factors to determine whether lay opinion was needed to interpret

drug dealers' conversation), cert. denied, 546 U.S. 878, 126 S.

Ct. 173, 163 L. Ed. 2d 176 (2005).

       Yet, other drug slang or code words remain beyond the average

juror's understanding, particularly those unique to a particular

drug network.        Thus, lay or expert opinion testimony about that

jargon may be warranted.           See State v. Nesbitt, 185 N.J. 504, 521

(2006) (Albin, J., dissenting) (stating that "[a]n average juror

will    not   know     the   meaning   of   code       language   used    by    drug

distributors," and an expert's testimony may serve to enlighten

the jury on such "arcane subjects"); cf. Torres, supra, 183 N.J.

at 573 (noting that jurors would need assistance in understanding

"the significance of particular gang symbols"); Johnson, supra,

309    N.J.   Super.    at   263   (permitting     a    lay   opinion    that   the

expression "get paid" referred to payment in sex as well as

money).3


3
  Federal courts, which have expressly addressed the issue, agree
that opinion testimony about drug code words, jargon, and slang
can often be helpful. See, e.g., Garcia, supra, 291 F.3d at 139
("Given the attempts of drug dealers to disguise the content of
their discussions as legitimate subject matters, courts may allow
                                16
                                                                          A-3741-13T3
     In the exercise of its gatekeeping function, a trial court

must determine that the opinion testimony will likely assist the

jury in understanding drug culture vernacular. See Nesbitt, supra,

185 N.J. at 514 ("Trial courts are expected to perform a gatekeeper

role in determining whether there exists a reasonable need for an

expert's testimony, and what the parameters of that testimony may

be.").   Furthermore, once the court permits such testimony, it

must guard against opinions that stray from interpreting drug code

words, and pertain to the meaning of conversations in general and

the interpretation of "ambiguous statements that were patently not

drug code."   State v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2003),

cert. denied, 541 U.S. 1092, 124 S. Ct. 2832, 159 L. Ed. 2d 259

(2004); see also United States v. Wilson, 484 F.3d 267, 278 (4th

Cir. 2007) (noting that portions of an expert opinion went beyond




witnesses to 'decipher' the codes drug dealers use and testify to
the true meaning of the conversations."); United States v. Delpit,
94 F.3d 1134, 1145 (8th Cir. 1996) ("There is no more reason to
expect unassisted jurors to understand drug dealers' cryptic slang
than antitrust theory or asbestosis."); United States v.
Theodoropoulos, 866 F.2d 587, 592 (3d Cir. 1989) (finding expert
testimony   helpful   for   the   jury   to   understand   recorded
conversations involving "different codes, two languages, and
truncated sentences"); United States v. Hoffman, 832 F.2d 1299,
1310 (1st Cir. 1987) ("Lay jurors cannot be expected to be familiar
with the lexicon of the cocaine community."); Ralph V. Seep,
Annotation, Admissibility of Expert Evidence Concerning Meaning
of Narcotics Code Language in Federal Prosecution for Narcotics
Dealing — Modern Cases, 104 A.L.R. Fed. 230 (2017).
                                 17
                                                           A-3741-13T3
translating arcane code words, and opined on "language that needed

no interpretation").

     Defendant does not question the need for opinion testimony

to interpret alleged slang or code words, nor does he question

that Fox had the experience to qualify as an expert witness. Also,

he does not address whether, consistent with Kelly and Torres, Fox

applied    a     reliable    methodology,    based    on   his   training   and

experience, to interpret the terms defendant used in the overheard

conversations.4

     The problem, defendant argues, is that Fox was not designated

and offered as an expert.            Instead, he gave a purported lay

opinion.         Defendant    contends      Fox's    opinions    impermissibly


4
  The Advisory Committee Notes to the 2000 Amendments to Fed. R.
Evid. 702 explain that:

               when a law enforcement agent testifies
               regarding the use of code words in a drug
               transaction, the principle used by the agent
               is that participants in such transactions
               regularly use code words to conceal the nature
               of their activities. The method used by the
               agent   is  the   application   of   extensive
               experience to analyze the meaning of the
               conversations. So long as the principles and
               methods are reliable and applied reliably to
               the facts of the case, this type of testimony
               should be admitted.

At least one federal court questioned the reliability of the
methods used by a drug slang expert.       See United States v.
Hermanek, 289 F.3d 1076, 1093-97 (9th Cir. 2002), cert. denied,
537 U.S. 1223, 123 S. Ct. 1336, 154 L. Ed. 2d 1081 (2003).

                                      18
                                                                      A-3741-13T3
"imput[ed] his interpretation of the slang" to the speakers and

opined about defendant's guilt.        Defendant argues Fox's testimony

violated the limitations in McLean and, recently, Cain and Simms.5

He also asserts Fox could not have testified as an expert, because

he also testified as the lead investigator.               Finally, he argues

the jury instructions were erroneous.         We address these points in

turn.

                                     1.

     We agree that Fox testified as an expert, not a lay witness.

He was asked repeatedly to render opinions based on "his training

and experience and knowledge of this investigation."                   The basis

of his opinion, like that of the officer in McLean, was his

training,    education   and   experience     —    not    his   "own    senses,"

perceptions and observations.        See McLean, supra, 205 N.J. at 456,

459; see also Kittrell, supra, 279 N.J. Super. at 236.

     Neither at the N.J.R.E. 104 hearing, nor at trial, did Fox

connect     his   "knowledge    of    [the]       investigation"       and    his

interpretation of the slang and code words.              There is no evidence

that Fox was undercover, or had conversed with defendant or other

conspirators when the arcane terms were used.               Fox's "knowledge

of [the] investigation" certainly included his familiarity with


5
  Defendant invoked Cain and Simms in a letter submitted to us
pursuant to Rule 2:6-11(d).    We also considered the State's
response.
                               19
                                                                        A-3741-13T3
the wiretapped conversations.         Yet, Fox's statement did not become

a lay opinion because he heard the wiretaps with his own ears, any

more than a non-treating physician's diagnosis becomes a lay

opinion because the physician's own hands were used to conduct an

independent medical examination.

       Nor can a lay opinion rest on Fox's personal knowledge that

defendant met with Rogers, police seized drugs at defendant's

home, and defendant acknowledged ownership.               A witness may not

offer a lay opinion that a person must have been talking about

drugs simply because he is personally aware of evidence the person

was dealing drugs.         See United States v. Hermanek, 289 F.3d 1076,

1096   (9th    Cir.    2002)   (criticizing       proponent's   reasoning      as

"circular, [and] subjective," where the agent "appear[ed] at times

to have interpreted cryptic language as referring to cocaine simply

because he believed [the defendants] to be cocaine traffickers"),

cert. denied, 537 U.S. 1223, 123 S. Ct. 1336, 154 L. Ed. 2d 1081

(2003).       Such    an   opinion   does   not    implicate    the   witness's

perceptions of language.        Rather, the witness infers meaning based

on other facts in evidence — a task as to which the jury may need

no assistance.        Cf. McLean, supra, 205 N.J. at 460 (stating that

it is improper to admit "testimony [that] sets forth facts that

are not so outside the ken of jurors that they need an expert to

spell out for them" their significance).

                                       20
                                                                       A-3741-13T3
     The State also misplaces reliance on the McLean Court's

reference to Johnson, supra, in which it endorsed the helpfulness

of a lay opinion about street slang.          McLean, supra, 205 N.J. at

458 (citing Johnson, supra, 309 N.J. Super. at 263).            In Johnson,

supra, the defendant kidnapped, sexually assaulted, and murdered

a young mother. 309 N.J. Super. at 243. The lay witness testified

that before the defendant committed the crimes, he invited the

witness to join him in stealing a car to get money for drugs,

which the witness declined.    Id. at 244.      The defendant reportedly

responded, "[Y]ou . . . think I'm playing. I'm going to get paid."

Ibid.   Having heard the phrase used on the streets and in prison,

the witness testified that he understood the phrase "get paid" to

mean the defendant was going to get money or sex.            Id. at 263.

Although the witness never heard the defendant himself use the

phrase,   the   court   confined    the    witness's   testimony   to    his

understanding, as opposed to the defendant's.             Id. at 262-63.

Furthermore,    another   witness     testified    that   the    defendant

explained to him that "get paid" meant get money by robbery.             Id.

at 264.

     Johnson is distinguishable.          First, the Supreme Court cited

Johnson to illustrate the requirement that lay opinions be helpful;

and not the requirement that lay opinion be "firmly rooted in

. . . personal observations and perceptions . . . ."                McLean,

                                    21
                                                                   A-3741-13T3
supra, 205 N.J. at 458-59.     Second, unlike the detective in this

case, the first witness in Johnson participated in a conversation

with the defendant in which the questioned phrase was used.               309

N.J. Super. at 244.     Also, the witness's testimony pertained to

his understanding of the phrase.          Id. at 263.       By contrast, in

this case, Fox testified as to the meaning of drug code words as

defendant and the other conspirators used them.             Furthermore, in

Johnson, the meaning of the questioned phrase was clarified by the

second witness.     Id. at 263-64.        "Therefore, the danger of any

improper   inference   from   [the    first    witness's]     testimony   was

rendered nugatory."    Id. at 264.

     The   Second   Circuit   Court    of     Appeals   has   instructively

distinguished between lay and expert opinion on drug code words.

If the government asked a drug dealer, testifying on its behalf,

to "offer[] his opinion on the allegedly coded conversation and

[the defendant's] knowledge based on his 'past experience in drug

dealing,' [then] his opinion was not based on his perception of

the situation as a participant in it."           Garcia, supra, 291 F.3d

at 139 n.9.   Under those circumstances, the government would need

to qualify the witness as an expert and make the appropriate pre-

trial disclosures, "[i]n order to offer opinion testimony based

on [the witness's] knowledge as a drug dealer . . . ."            Ibid.     On

the other hand, if the government offered the witness's opinion

                                     22
                                                                    A-3741-13T3
"on the basis of his status as a participant," id. at 139, then

the witness's testimony would qualify as lay opinion and would be

admissible,   if    the   proponent    presented       "a   proper    foundation

explaining    the    basis     for   [the      witness's]   opinion       of    [the

defendant's] knowledge" of the alleged code words.                Id. at 141.6

     The court applied the same principles to a witness who

infiltrated   a     criminal    network     and    testified     based     on   his

perceptions made while undercover:

          An undercover agent whose infiltration of a
          criminal scheme has afforded him particular
          perceptions of its methods of operation may
          offer helpful lay opinion testimony under Rule
          701 even as to co-conspirators' action that
          he did not witness directly. By contrast, an
          investigative agent who offers an opinion
          about   the    conduct    or    statements   of
          conspirators based on his general knowledge
          of similar conduct learned through other
          investigations,    review    of    intelligence
          reports, or other special training, does not
          meet the requirements of Rule 701 and must
          qualify as an expert pursuant to Rule 702.

          [United States v. Yannotti, 541 F.3d 112, 126
          n.8 (2d Cir. 2008), cert. denied, 556 U.S.
          1130, 129 S. Ct. 1648, 173 L. Ed. 2d 999
          (2009).]

See also United States v. Johnson, 617 F.3d 286, 292-93 (4th Cir.

2010)   (holding      inadmissible        as     lay   opinion       an    agent's



6
  The court added, "When a conversation has a legitimate purpose
understandable to a lay person, testimony about a code without
some evidence of prearrangement or some other foundation is
inappropriate." Ibid.
                                23
                                                                          A-3741-13T3
interpretation of wiretapped phone calls, where he relied not on

his personal knowledge and perception, but on his experience as a

DEA     agent,   his   post-wiretap    interviews,   and   co-defendants'

statements); United States v. De Peri, 778 F.2d 963, 977 (3d Cir.

1985)    (permitting    a   participant    in   conversations   with   the

defendant to offer lay opinion as to meaning of coded statements

because it was based on his "direct perception of the event"),

cert. denied, 475 U.S. 1110, 106 S. Ct. 1518, 89 L. Ed. 2d 916

(1986).7

      In sum, we are convinced that Fox's testimony was in the

nature of expert opinion.        Consequently, the State should have

expressly sought to qualify him as such.8         However, as we discuss

below, we conclude this error was harmless.

                                      2.




7
  Unlike N.J.R.E. 701, the federal rule on lay opinion has, since
2000, expressly provided that a lay opinion is one "not based on
scientific, technical or other specialized knowledge within the
scope of Rule 702." Fed. R. Evid. 701(c). However, that does not
reduce the persuasive force of these federal decisions. The Garcia
court did not consider the 2000 amendment to "substantively change
Rule 701"; rather, it was to prevent use of lay opinion to evade
expert opinion requirements. Garcia, supra, 291 F.3d at 139 n.8.
We also recognize that the federal circuits have not all approached
these issues the same way. See United States v. Freeman, 730 F.3d
590, 596 (6th Cir. 2013) (noting circuit split).
8
  The State would also have been obliged to provide pre-trial
disclosures, designating Fox as an expert. See R. 3:13-3(b)(1)(I).
Defendant does not address this omission.
                                 24
                                                                 A-3741-13T3
       Defendant also contends that the scope of Fox's opinion, if

it had been admitted as an expert opinion, impermissibly invaded

the province of the jury by opining as to defendant's guilt.                       As

to that contention, we disagree.

       Fox did not expressly opine that defendant conspired to

possess cocaine with the intent to distribute.                       Nor did Fox

attribute to defendant, or the persons with whom he conversed, any

state of mind that was an element of the charged offenses. Rather,

consistent with the trial court's limitations, Fox confined his

opinion to the meaning of the spoken terms.                   Although he opined

as    to   that   meaning   as    used     in   the   conversations,   we    reject

defendant's argument that Fox's opinions were impermissible.

       We recognize that there is at least a conceptual difference

between an expert (or lay witness) defining jargon and code words

outside of any context, and defining those terms as used in a

particular conversation, especially as used by a defendant.                        In

the   former      case,   the    opinion    witness    does   not   opine   on    the

speaker's intended usage.          In the latter case, the opinion witness

offers a view as to the speaker's intended meaning of the term,

which relates to a speaker's state of mind.                     But, unless the

opinion witness assigns a state of mind that satisfies an element

of an offense, we do not understand it to be barred.




                                           25
                                                                            A-3741-13T3
     Federal    courts   have    also   rejected   the   argument   that   an

expert's opinion regarding the meaning of code words used by a

defendant or his associates constituted an opinion in violation

of Fed. R. Evid. 704(b).         In United States v. Plunk, 153 F.3d

1011, 1018 (9th Cir. 1998), cert. denied, 526 U.S. 1060, 119 S.

Ct. 1376, 143 L. Ed. 2d 535 (1999), the Ninth Circuit stated:

          [The defendant] has pointed to nothing in [the
          detective's] testimony that comprises an
          explicit opinion that [the defendant] intended
          or knew anything in conjunction with the
          crimes charged.    Likewise, nothing in the
          testimony   necessarily    compels   such   an
          inference or conclusion.      [The detective]
          offered his opinion about the meaning of drug
          jargon in encrypted exchanges between the
          conspirators, allowing the jurors to determine
          for themselves the legal significance of the
          conversations as interpreted.

The court specifically rejected the defendant's argument that the

expert was required to interpret the terminology in a virtual

vacuum, and avoid answering questions "'as to specific alleged

code words used by [the] defendants.'"        Ibid. (citation omitted).9

     The Second Circuit has distinguished between drug terminology

experts   who    have    "made     sweeping   conclusions     about     [the

defendants'] activities," and experts who offer testimony confined


9
  We do not foreclose a trial court from imposing such a limitation
on different grounds, such as to avoid undue prejudice where the
expert also testifies as a fact witness. See Torres, supra, 183
N.J. at 580 (stating that under N.J.R.E. 403, a trial court has
discretion "where appropriate, to limit the scope" of opinion
testimony offered by an expert who is an investigating officer).
                                 26
                                                                    A-3741-13T3
to the meaning of the code words used.       See United States v.

Simmons, 923 F.2d 934, 946-47 n.5 (2d Cir.), cert. denied, 500

U.S. 919, 111 S. Ct. 2018, 114 L. Ed. 2d 104 (1991).     The court

rejected the argument that an expert violated Fed. R. Evid. 704(b)

by interpreting "he will wear green" to mean "[the defendant]

would have money with him," and "he knows how to go" to refer to

the timing of a payment for heroin.     Id. at 947.   Instead, the

court held that the witness's testimony "related only to the

meaning of unfamiliar narcotics jargon, [and] left to the jury the

task of determining whether the decoded terms demonstrated the

necessary criminal intent."   Ibid.; see also Dukagjini, supra, 326

F.3d at 52-53 (finding no violation of Fed. R. Evid. 704(b) by the

district court allowing an expert to interpret words used to

specify certain drugs).

     Persuaded by this federal authority, we reject defendant's

argument that Fox impermissibly testified about defendant's state

of mind, and invaded the province of the jury to determine guilt.




                                 3.

     We also reject defendant's categorical argument that Fox

would have been disqualified as an expert witness because he also

testified as the lead investigator in the case.

                                 27
                                                           A-3741-13T3
       As we have already noted in footnote 9, supra, the Supreme

Court has recognized the risk of undue prejudice when a principal

fact witness also testifies as an expert.

           [W]hen the expert witness is an investigating
           officer, the expert opinion may present
           significant danger of undue prejudice because
           the qualification of the officer as an expert
           may lend credibility to the officer's fact
           testimony regarding the investigation. That
           is a delicate situation that requires the
           trial court to carefully weigh the testimony
           and determine whether it may be unduly
           prejudicial.

           [Torres, supra, 183 N.J. at 580.]

See also McLean, supra, 205 N.J. at 454.     However, the Court has

not imposed an absolute ban on such dual roles.      Torres, supra,

183 N.J. at 580; see also Dukagjini, supra, 326 F.3d at 56 (despite

the risk that case agents testifying as experts may "easily elide"

between the two aspects of their testimony, the court declined to

"prohibit categorically" such dual roles).

       Short of barring a lead investigator from testifying as an

expert, the trial court has discretion "where appropriate, to

limit the scope of such testimony."    Torres, supra, 183 N.J. at

580.   Also, "[i]n all cases where expert testimony is allowed, the

trial court . . . should give a limiting instruction to the jury

'that conveys to the jury its absolute prerogative to reject both

the expert's opinion and the version of the facts consistent with

that opinion . . . .'"   Ibid. (citation omitted).    In sum, Fox's
                                 28
                                                           A-3741-13T3
testimony regarding his role as lead investigator would not have

necessarily precluded him from testifying as an expert.

                                4.

     Predicated on his contention that Fox should have testified

as an expert, defendant also argues that the judge should have

delivered the model charge on expert testimony.   As defendant did

not raise this issue before the trial court, we apply a plain

error standard of review.   See State v. Townsend, 186 N.J. 473,

498 (2006).   "Plain error in the context of a jury charge . . .

[must be] sufficiently grievous . . . to convince the court that

of itself the error possessed a clear capacity to bring about an

unjust result." Torres, supra, 183 N.J. at 564 (internal quotation

marks and citation omitted).

     We agree that the model charge on expert testimony was

warranted, inasmuch as Fox should have testified as an expert.

However, any prejudice to defendant was limited by the court's

delivery of a hybrid instruction that, significantly, borrowed

elements of the model charge on expert testimony.

     The judge introduced the subject of Fox's testimony by noting:

               In addition, a witness came before you
          and offered his opinion as to the meaning of
          words and terms used in the recorded
          conversations. In this case, Detective David
          Fox testified as to his opinion of certain
          terms and phrases used in the intercepted
          communications that were played for you as
          jurors.
                                29
                                                           A-3741-13T3
     In so doing, the judge omitted the opening paragraph of the

model charge, which describes the rationale for permitting expert

opinion:

                As a general rule, witnesses can testify
           only as to facts known by them.      This rule
           ordinarily does not permit the opinion of a
           witness to be received as evidence. However,
           an exception to this rule exists in the case
           of an expert witness who may give (his/her)
           opinion as to any matter in which (he/she) is
           versed which is material to the case. In legal
           terminology, an expert witness is a witness
           who has some special knowledge, skill,
           experience or training that is not possessed
           by the ordinary juror and who thus may be able
           to provide assistance to the jury in
           understanding the evidence presented and
           determine the facts in this case.

           [Model   Jury  Charge         (Criminal),     "Expert
           Testimony" (2003).]

However, the court did provide this paragraph in instructing the

jury how to assess the testimony of two other experts: a forensic

chemist, and an expert in the field of possession with intent to

distribute.

     The judge then gave a hybrid instruction regarding Fox's

testimony,    which   largely   mirrored   the   model   jury   charge   for

experts.   The most significant differences in the charge included




                                    30
                                                                   A-3741-13T3
the court's replacement of the words "expert" and "expert opinion"

with "witness" and "lay opinion."10


10
  We set forth the court's instruction, in which we highlight
language drawn from the Model Jury Charge (Criminal), "Expert
Testimony" (2003), bracket language omitted from the model charge,
and capitalize language the court added:

               DETECTIVE FOX'S OPINIONS WERE BASED ON
          HIS UNDERSTANDING OF THE TERMS THROUGH HIS
          PERCEPTIONS AND EXPERIENCE IN THE CONTEXT OF
          THIS CASE.      You are not bound by such
          [expert's] opinion, but you should consider
          each opinion and give it the weight to which
          you deem it is entitled, whether that be great
          or slight[,] or you may reject it.          In
          examining each opinion, you may consider the
          reason[s] given for it, if any, you may also
          consider the [qualifications and] credibility
          of the [expert] WITNESS OFFERING THE OPINION.

               It is always within YOUR FUNCTION, YOUR
          [the] special function [of the jury] AS JURORS
          to determine whether the facts on which the
          answer or testimony of [an expert] THE WITNESS
          is based actually existS. The value or weight
          of the opinion [of the expert] OFFERED BY THE
          WITNESS is dependent upon, and is no stronger
          than, the facts on which it is based.       In
          other words, AGAIN the probative value of the
          LAY opinion [will] WOULD depend upon whether
          from all of the evidence in the case[,] you
          find that those facts are true. You may[,]
          in fact[,] determine from the evidence in the
          case that the facts that form the basis of the
          opinion are true, [are] not true, or [are]
          true in part only, and[,] in light of such
          findings, you should decide what [a]ffect such
          determination has upon the weight to be given
          to the opinion of the [expert] WITNESS. Your
          acceptance or rejection of the [expert]
          WITNESS' opinion will depend, therefore, to
          some extent on your findings as to the truth
          of the facts relied upon. AGAIN, the ultimate
                                31
                                                           A-3741-13T3
     A trial court's role is to "instruct juries on the proper

weight to be given to an expert opinion and to emphasize that the

ultimate decision about a defendant's guilt rests solely with the

jury."   Nesbitt, supra, 185 N.J. at 513.       "Appropriate and proper

charges to a jury are essential to a fair trial."       State v. Green,

86 N.J. 281, 287 (1981).        However, when assessing the propriety

of a trial court's jury instruction, we must consider "whether the

charge in its entirety was ambiguous or misleading."            State v.

R.B., 183 N.J. 308, 324 (2005) (internal quotation marks and

citation omitted).

     Defendant highlights the court's failure to instruct the

jurors to consider Fox's qualifications, in assessing his expert

opinion.        Although the omission was error, the State elicited

Fox's extensive background in drug investigations and wiretaps.

The general charge on credibility invited the jury to consider

Fox's background, by instructing the jury to consider a witness's

"means     of    obtaining   knowledge   of   the   facts,"   "power    of

discernment," and "ability to . . . observe."            The court also

directed the jury to consider the basis of Fox's opinion.




            determination of whether or not the State has
            proven   THE  defendant's   guilt  beyond   a
            reasonable doubt is to be made only by the
            jury.
                                  32
                                                                 A-3741-13T3
     Under the circumstances of this case, we do not conclude that

the instruction so prejudicially affected defendant's substantial

rights as to have a clear capacity to bring about an unjust result.

                                 5.

     Although we agree that Fox should have been qualified as an

expert and testified as one, the error was harmless in this case.

"[E]ven though an alleged error was brought to the trial judge's

attention, it will not be grounds for reversal if it was 'harmless

error.'"   State v. J.R., 227 N.J. 393, 417 (2017) (quoting State

v. Macon, 57 N.J. 325, 337-38 (1971)).        "'Convictions after a fair

trial, based on strong evidence proving guilt beyond a reasonable

doubt, should not be reversed because of a technical or evidentiary

error that cannot have truly prejudiced the defendant or affected

the end result.'"   Ibid. (quoting State v. W.B., 205 N.J. 588, 614

(2011)).

     In Kittrell, supra, 279 N.J. Super. at 236, we held — as we

do here — that a police witness who presented a purported lay

opinion should have testified as an expert, since his opinion was

based on his extensive experience and specialized knowledge of

drug-related crimes.     We concluded the evidentiary error was

harmless since "enough evidence was presented to qualify [the

detective] as an expert . . . ."      Ibid.




                                 33
                                                                A-3741-13T3
       In United States v. Griffith, 118 F.3d 318, 322-23 (5th Cir.

1997), a case strikingly similar to this one, a Drug Enforcement

Agent was not proffered as an expert, but nevertheless interpreted

wiretapped conversations involving drug dealers.            Like Fox, the

agent testified that her opinions were based on her "knowledge and

experience."    Id. at 322.       As in Kittrell, the Fifth Circuit

concluded there was sufficient evidence to find that the agent

qualified as an expert, and the admission of the testimony as lay

opinion was harmless error.       Id. at 323.   "[A]ny error was one of

form rather than substance.       [The agent] was clearly qualified;

that   her   credentials   were   established    after     she   began   her

substantive testimony, rather than at its outset, did not affect

[the defendant's] substantial rights."          Ibid.; see also United

States v. Mendoza, 244 F.3d 1037, 1046 (9th Cir.) (finding harmless

the admission of lay opinion, instead of expert opinion, where the

court "discern[s] from the record that the witness could have been

qualified as an expert"), cert. denied, 534 U.S. 897, 122 S. Ct.

221, 151 L. Ed. 2d 158 (2001); United States v. Ramsey, 165 F.3d

980, 984 (D.C. Cir.), cert. denied, 528 U.S. 894, 120 S. Ct. 223,

145 L. Ed. 2d 187 (1999).

       We reach the same conclusion here, as it is clear from Fox's

testimony during trial (and the N.J.R.E. 104 hearing) that he

possessed    sufficient    education,    training,   and   experience     to

                                    34
                                                                   A-3741-13T3
qualify as an expert in the field of drug trafficking and street

slang.         This testimony laid the proper foundation for Fox's

qualification as an expert.            Moreover, defendant does not claim

prejudicial surprise.

       Furthermore, any error in permitting Fox to testify as to his

interpretation of drug slang and code words was rendered harmless

by   defendant's     own   admissions      that   State    witnesses    correctly

identified him on the recordings and he was overheard ordering 100

grams of cocaine on two separate occasions.

                                       III.

       Defendant's sentencing arguments require only brief comment.

Contrary to his contention, the court was not compelled to merge

the conspiracy count into the substantive count.                  Generally, a

conspiracy to commit an offense merges with the completed offense,

when     the    latter   "was    the   sole   criminal      objective    of    the

conspiracy." State v. Hardison, 99 N.J. 379, 386 (1985). However,

the scope of the conspiracy here involved an agreement to possess

with the intent to distribute 200 grams of cocaine, while the

substantive offense involved possession with intent to distribute

roughly fifty grams seized from his house. In short, the objective

of   the   conspiracy      was   broader   than   the     substantive   offense;

therefore, merger was not required.




                                        35
                                                                         A-3741-13T3
     As for the term of imprisonment, the court sentenced defendant

below the midpoint of the mandatory extended term range of ten to

twenty years.     The court found aggravating factors three ("[t]he

risk that the defendant will commit another offense"), six ("[t]he

extent of the defendant's prior criminal record and the seriousness

of the offenses which he has been convicted"), and nine ("[t]he

need for deterring the defendant and others from violating the

law").   See N.J.S.A. 2C:44-1(a)(3), (6), and (9).         The court did

not find any mitigating factors.

     The record does not support defendant's contention that the

court should have found mitigating factors seven ("[t]he defendant

. . . has led a law-abiding life for a substantial period of time

before the commission of the present offense") and eleven ("[t]he

imprisonment of the defendant would entail excessive hardship to

himself or his dependents").          See N.J.S.A. 2C:44-1(b)(7), (11).

Defendant   did   not   show   that    his   children   would   experience

"excessive" hardship from his absence, and defendant presented no

evidence that he was a significant source of support for his five

children.   Also, the presentence report noted that the mother,

whose address was different than defendant's, "has primary care

of the children."    See State v. Dalziel, 182 N.J. 494, 505 (2005).

Defendant also had an extensive juvenile and adult record spanning




                                      36
                                                                  A-3741-13T3
from 1985 to 2006.     In light of that record, the court was not

compelled to find mitigating factor seven.

     In sum, we are satisfied, based on our review of the record,

that the court set forth its reasons for defendant's sentence with

sufficient   clarity   and   particularity,   the   court's   essential

findings were supported by competent and credible evidence in the

record, the court correctly applied the sentencing guidelines in

the Code, and the court did not abuse its sentencing discretion.

See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady,

198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J. 334, 363-65

(1984).

     Finally, the argument presented in defendant's pro se brief

lacks sufficient merit to warrant discussion in a written opinion.

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

     Affirmed.




                                  37
                                                               A-3741-13T3
