                                 NOT FOR PUBLICATION WITHOUT THE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-1868-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DARIUS H. GITTENS,

     Defendant-Appellant.
______________________________

                   Submitted December 12, 2018 – Decided July 18, 2019

                   Before Judges Koblitz, Ostrer and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 13-06-
                   0659.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      A ninety-six count indictment charged defendant Darius Gittens and a co-

defendant with twenty-five burglaries and related offenses between 2011 and

2012 in several municipalities. After the court severed seven counts, a jury

convicted defendant of third-degree burglary of three homes and a second-

degree theft from one of them; and acquitted him of the attempted burglary of a

fourth home. The jury also separately acquitted him of a second-degree certain

persons not to have weapons offense.1 Thereafter, with the intention of applying

to Drug Court, defendant entered an open plea to twenty additional third-degree

burglaries, three related second-degree thefts, and one third-degree attempted

burglary.   By agreement, the State then dismissed without prejudice six

firearms-related offenses, including the remaining certain persons offenses.

After the court denied defendant's Drug Court application, the court imposed an

aggregate term of seventeen years, with an eight-year parole disqualifier.

Following the merger of four burglary counts into related theft counts, the court

imposed consecutive terms of ten years and seven years on two of the theft

counts, with parole ineligibility terms of five and three years, respectively. The

court imposed concurrent seven-year terms on the remaining two theft counts.



1
   The seventh charge, a fourth-degree certain persons not to have weapons
offense, was apparently not tried.
                                                                          A-1868-16T3
                                        2
As for the multiple remaining (unmerged) burglary and attempted burglary

counts, the court imposed concurrent five-year terms. The State then dismissed

the remaining counts.

      On appeal, defendant presents the following arguments for our

consideration:

            POINT I

            THE COURT ERRED IN DENYING DEFENDANT'S
            ADMISSION INTO DRUG COURT.

            POINT II

            DEFENDANT'S MOTION FOR MISTRIAL BASED
            UPON A DNA SCIENTIST'S TESTIMONY THAT
            CODIS MEANT CONVICTED OFFENDER DNA
            INDEXING SYSTEM SHOULD HAVE BEEN
            GRANTED.

            POINT III

            COMMENTS    MADE     BY   THE    COURT
            CONCERNING    A  SUITCASE   FOUND    IN
            DEFENDANT'S BEDROOM WERE PREJUDICIAL
            AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

            POINT IV

            THE STATE PRESENTED IMPROPER OPINION
            TESTIMONY WHICH INFRINGED ON THE FACT-
            FINDING DUTY OF THE JURY WHICH REQUIRES
            REVERSAL OF DEFENDANT'S CONVICTION (not
            raised below).


                                                                      A-1868-16T3
                                      3
            POINT V

            ADMISSION OF IRRELEVANT IMMATERIAL
            AND PREJUDICIAL ITEMS AND DOCUMENTS
            INTO EVIDENCE WAS ERROR THAT DENIED
            THE DEFENDANT A FAIR TRIAL.

            POINT VI

            THE SENTENCE OF 17 YEARS WITH 8 YEARS OF
            PAROLE INELIGIBILITY WAS EXCESSIVE AND
            SHOULD BE MODIFIED AND REDUCED (Not
            raised below).

            POINT VII

            THE AGGREGATE OF ERRORS DENIED
            DEFENDANT A FAIR TRIAL (Not raised below).

      Finding no merit in any of these contentions, we affirm.

                                         I.

      We turn first to defendant's challenge of his jury trial conviction. We

consider defendant's points against the backdrop of substantial evidence of guilt.

      DNA from blood found on broken glass, window blinds, and fabrics at the

three burglary scenes matched defendant's DNA sample. The police seized from

defendant's home various tools and devices that could be used in committing a

burglary, including a list of police radio frequencies and a police scanner, radios,

flashlights, a jewelry test kit and cleaner, and a wireless camera locator. A



                                                                            A-1868-16T3
                                         4
police witness testified that defendant admitted his involvement in the four

burglaries. Defendant also secured the return of several stolen items.

      Defendant testified in his own defense, but the jury evidently rejected his

explanation that he possessed the various instruments for use in his security

business; he sold various stolen items at his co-defendant's behest, unaware they

were stolen; his admission that he was involved in a burglary was "satirical";

and his co-defendant planted his blood at the scenes.

      Defendant called his co-defendant to testify.      The co-defendant had

pleaded guilty to two counts of third-degree burglary. Rather than exonerate

defendant, the co-defendant confirmed he pleaded guilty to conspiring –

implicitly with defendant – to commit the burglary at one of the three homes

involved in defendant's trial; and he denied planting defendant's blood at the

scene.

      In the face of this evidence, defendant contends that he was deprived of a

fair trial because a State Police Laboratory DNA scientist, who mentioned that

he once worked for the CODIS laboratory, explained erroneously that the

acronym stood for "Convicted Offender DNA Indexing System." 2 The judge


2
 CODIS actually stands for Combined DNA Index System. See Maryland v.
King, 569 U.S. 435, 444 (2013); 34 U.S.C. § 40702(a)(3).

                                                                         A-1868-16T3
                                       5
denied defendant's motion for a mistrial, reasoning that the statement referred to

the witness's employment background, not defendant's criminal background.

The witness did not imply that defendant was a convicted offender or that a

sample of his DNA was in CODIS.

      The court had previously delivered the model charge on DNA databases,

see Model Jury Charges (Criminal), "Instruction Regarding DNA Evidence and

CODIS" (May 13, 2013), which instructed the jury not to speculate about the

source of defendant's DNA sample. The judge described various databases that

would not associate defendant with past criminal behavior. After denying t he

mistrial motion, the judge promptly delivered a curative instruction. He stated

there was "nothing before this Court that connects Mr. Gittens to [CODIS]," and

referred back to the model charge he delivered earlier. The judge reiterated that

instruction in his final charge.

      Absent an abuse of discretion resulting in a manifest injustice, we will not

disturb a trial court's denial of a mistrial motion and its determination that its

instruction cured any potential prejudice from an errant remark.         State v.

Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). The witness's reference

posed little risk of prejudice, since he did not link defendant to CODIS or to




                                                                          A-1868-16T3
                                        6
"convicted offenders."   The judge then swiftly emphasized the point.         We

discern no error.

      Nor was defendant denied a fair trial because of the judge's off-hand

remark, describing for the record a suitcase the State offered in evidence. The

judge stated, "And the Court doesn't mean to make light of it but that fact is if

we'd seen that thing open up in an airport, we all would have run. It appears to

have a battery and bunch of wires and who knows what else, but it fills the

suitcase."   Defense counsel objected to admission of the suitcase on other

grounds, but did not object to the judge's characterization.      Therefore, we

consider defendant's argument under a plain error standard.

      Applying that standard, the judge's allusion to suitcase bombs was not

"sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached," or "denied a fair trial and fair

decision on the merits." State v. Macon, 57 N.J. 325, 336, 338 (1971). Although

the judge's remark was ill-advised, the State did not contend, nor did the judge

seriously suggest, that defendant was a bomb-maker, or the suitcase was a bomb.

Rather, the State contended that defendant utilized various forms of technical

electronic equipment to foil home security systems and to commit burglaries

undetected by police. In his own defense, defendant said he was an expert in


                                                                         A-1868-16T3
                                       7
security systems, but he used his expertise as a security consultant, not a burglar.

He explained that the suitcase was a home-made "signal jammer," which he used

to detect meeting attendees who surreptitiously transmit information in violation

of non-disclosure agreements. Under these circumstances, the judge's remark

did not constitute plain error.

      Defendant also challenges the court's admission into evidence, over his

objection, several items taken from defendant's residence – a police scanner,

nine flashlights, a jewelry cleaning kit, handcuffs, and a "Non-deadly Force

Training Commission Identification Card."3 He also contends the court erred in

admitting into evidence a property loss report that one burglary victi m filed with

the police, which itemized various items she said were stolen from her home.

Relatedly, as a point of plain error, defendant argues that a detective, without

being offered as an expert witness, impermissibly offered an expert opinion that

"items like flashlights, scanners, are items that would be in the possession of a

potential burglar committing burglaries in the evening hours." Although defense

counsel objected when the prosecutor asked the detective whether the items

seized from defendant's home had "any significance" to him, he did so on the


3
   Defendant also argues the court erred in permitting the State to introduce
gloves into evidence; however, the record reflects that the State agreed not to
introduce them after the court pressed the State to explain their relevance.
                                                                            A-1868-16T3
                                         8
ground that the witness "already testified as to the exact point," not that the

question called for an expert opinion.

      We discern no error in the admission of the items taken from defendant's

residence, or plain error in the admission of the detective's opinion. Turning

first to the opinion, we agree that the detective's testimony was, properly

characterized, expert opinion, as it relied on his specialized knowledge, skill,

experience or training. See State v. Hyman, 451 N.J. Super. 429, 443-44 (App.

Div. 2017) (distinguishing between expert and lay opinion of police witnesses).

However, defendant was obliged to raise an objection, to enable the court to

rule, and the State to respond. See State v. Robinson, 200 N.J. 1, 19 (2009).

Instead, defendant remained silent, and deprived the State of the opportunity to

qualify the detective as an expert, which it readily could have done, in light of

the detective's description of his training during his seventeen-year career.

      The opinion itself, if offered by an expert, did not usurp the jury's function

as defendant contends. The defense established on cross-examination that the

items could be purchased and used legally, and they were not directly tied to one

of the burglaries. On redirect, the officer offered his opinion that "items like

flashlights" – defendant had several in his bedroom – and "scanners" were

burglar's tools. That was not an opinion as to defendant's guilt that usurped the


                                                                            A-1868-16T3
                                         9
jury's function. See State v. Salernitano, 27 N.J. Super. 537, 541-42 (App. Div.

1953) (affirming conviction of possession of burglar's tools based in part on an

expert opinion); State v. Knudtson, 195 N.W.2d 698, 700-01 (Iowa 1972)

(approving admission of opinion from qualified expert that prybar, channel lock

pliers and other items were "burglar tools" in prosecution for breaking and

entering).   We therefore discern no plain error in the admission, without

objection, of the detective's opinion. Cf. Hyman, 451 N.J. Super. at 458-59

(concluding that admission of police witness's opinion as lay instead of expert

was harmless error where witness's expert qualifications were apparent from the

record).

      As for the items seized from defendant's residence, we deferentially

review the trial court's relevance determinations for an abuse of discretion. See

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (stating that

"[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal

'unless it can be shown that the trial court palpably abused its discretion, that is,

that its finding was so wide off the mark that a manifest denial of justice

resulted'") (quoting State v. Carter, 99 N.J. 86, 106 (1982)). We find no abuse

of discretion here. As the trial judge observed, defendant possessed devices and

tools that would enable him to commit burglaries, regardless of whether the


                                                                             A-1868-16T3
                                        10
items were purchased legally and had lawful uses. Therefore, the items were

relevant, as they tended to prove his guilt.

      Finally, defendant contends the court erred in permitting into evidence a

burglary victim's written itemization of her losses prepared shortly after the

burglary of her home. The State used the document to refresh the victim's

recollection of numerous items of jewelry and other collectibles that were taken,

and their appraised values. The list was not admissible as a past recollection

recorded, N.J.R.E. 803(c)(5), because the witness testified that, once refreshed

by the document, she recalled the items and their values. At trial, the prosecutor

contended that the document was admissible under N.J.R.E. 607 as a prior

consistent statement, but the State does not press that contention before us, nor

point to any express or implied charge of recent fabrication. Rather, the State

now contends that the document was not hearsay at all, because the victim

testified. As to that point, we disagree. The witness's availability may assure

defendant's right of confrontation, but it does not convert a hearsay document

into non-hearsay.

      Nonetheless, we are convinced that any error in admitting the document

was harmless. The document was cumulative. The witness testified at length

about the items taken from her home. Many of them were returned by defendant


                                                                          A-1868-16T3
                                       11
himself. The total value of the items taken exceeded $115,000 – far more than

the $75,000 threshold for a second-degree theft. We are unconvinced that the

document's admission was prejudicial or confused the jury.

      To the extent not addressed, defendant's remaining points challenging his

jury conviction lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

                                       II.

      Defendant contends the trial court erred in denying his Drug Court

application.4 It was his second. His first was denied because he was statutorily

barred, apparently based on the firearms charges in the indictment. He applied

again after his guilty plea and the State's dismissal of the remaining firearms

charges.5

      The court found that defendant met all but one of the nine criteria for

admission under N.J.S.A. 2C:35-14(a)(1)-(9). He was ineligible because the

court could not find that "no danger to the community w[ould] result from the

person being placed on special probation," N.J.S.A. 2C:35-14(a)(9). The court

cited defendant's numerous prior contacts with the criminal justice system,


4
  The judge who ruled on the Drug Court appeal was not the judge who presided
over the trial and sentenced defendant.
5
  Although defendant was acquitted of one count of being a certain person not
to possess a firearm, other firearms-related offenses remained.
                                                                         A-1868-16T3
                                      12
including his prior escape from incarceration. Defendant's record included

convictions for: burglary in California in 1979, and in New York in 1982 and

1985; escape in New York in 1988; and misdemeanor theft in Florida in 2009.

The court focused on the serious nature of defendant's crimes, noting they

extended over a year, involved sophisticated, well-planned burglaries, and

resulted in thefts involving substantial value. The judge stated, "The instant

burglaries were not mere impulsive petty thefts taking small monetary amounts,

they were repetitive, planned out, and sophisticated acts with an intended

outcome of substantial monetary gain. The court considers the degree [and]

frequency of the present crimes as an indication that [d]efendant would and will

present a danger to the community."

      Although a decision whether the Drug Court statute governs a particular

case is a legal question that we review de novo, State v. Maurer, 438 N.J. Super.

402, 411 (App. Div. 2014), "application of N.J.S.A. 2C:35-14(a)(9) requires

fact-finding and an exercise of the sentencing judge's discretion."      State v.

Hyland, 238 N.J. 135, 139 (2019). We therefore review the trial court's finding

for an abuse of discretion, rather than exercise de novo review, as defendant

contends. Under that deferential standard, we may not substitute our judgment

for the trial court. Instead, our task is to ascertain whether there is sufficient


                                                                          A-1868-16T3
                                       13
evidence in the record to support the court's decision. State v. Roth, 95 N.J.

334, 363-64 (1984).

      We conclude there was. As the trial court noted, defendant was not a

burglar who engaged in petty thefts to support his drug addiction. Defendant

engaged in twenty-three home burglaries over an extended period of time. He

used sophisticated equipment to foil security devices and evade the police. The

monetary harm of his crimes was substantial. The fact that defendant succeeded

in avoiding confrontations with residents of the homes he burglarized, which

defendant highlights, does not obviate the danger he posed to their safety; the

impact his crimes had on their sense of security; or the obvious risk he posed to

the community's property.

      We recognize that the Legislature in 2012 relaxed the requirements for

admission to Drug Court, by removing the blanket prohibition of persons

convicted of second-degree burglary and second-degree robbery. L. 2012, c. 23,

§ 5; see N.J.S.A. 2C:35-14(b)(2). Nonetheless, the Legislature anticipated that

few such offenders would surmount the hurdle presented by the factors in

N.J.S.A. 2C:35-14(a)(1)-(9).     While 3000 individuals were anticipated to

become newly eligible under the expanded admission criteria, only 100 were

expected to ultimately gain admission.      See Fiscal Note to S. 881 (Third


                                                                         A-1868-16T3
                                      14
Reprint), 215th Legislature 6 (June 25, 2012) (stating that the Administrative

Office of the Courts estimated that 3000 additional defendants per year would

become eligible under the expanded admissions criteria); Senate Budget and

Appropriations Comm. Statement to S. 881 (First Reprint), 215th Legislature 6

(April 3, 2012) (noting that, since robbery or burglary typically involves

violence, the Judiciary estimated that the proposed amendment would result in

the additional admission into the Drug Court Program of 100 offenders).

      The recent revision of the Drug Court Manual clarifies what is meant by

"danger to the community" as set forth in factor nine. "Danger to the community

means that the supervisory resources of drug court are not adequate to safely

treat the defendant in the community at the appropriate level of care." New

Jersey Statewide Drug Court Manual 9 (June 2019 ed.). Although unavailable

to the trial court, this revision supports the court's conclusion that the scope and

sophistication of defendant's criminal behavior posed a threat to the community

that the Drug Court Program could not be expected to control.

      We therefore affirm the trial court's denial of defendant's Drug Court

application.




                                                                            A-1868-16T3
                                        15
                                         III.

      Finally, we reject defendant's argument that the aggregate seventeen-year

sentence was excessive and should be set aside. "The reviewing court must not

substitute its judgment for that of the sentencing court." State v. Fuentes, 217

N.J. 57, 70 (2014). We may not set aside a trial court's sentence "unless: (1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      There was sufficient evidential support for the trial judge's findings of

aggravating factors three, the risk of reoffending; six, the extent of defendant's

prior record; and nine, the need to deter. See N.J.S.A. 2C:44-1(a)(3), (6) and

(9). Although defendant emphasizes that his prior burglary convictions were

remote in time, the court did not err in attaching weight to his criminal record,

particularly related to aggravating factor six, inasmuch as his criminal behavior

continued thereafter, including a theft in 2009. Nor did the court err in finding

that defendant posed a risk of reoffending, particularly in view of his record, his




                                                                              A-1868-16T3
                                         16
sophistication in the commission of crimes, and his admitted substance abuse

problem.

       Defendant contends the court erred in finding no mitigating factors. He

highlighted at sentencing, and repeats before us, that he cooperated with police

by retrieving several items. The court addressed the argument, but concluded

that defendant's efforts were a self-serving attempt to secure a favorable

disposition in a case in which the State had compelling DNA evidence against

him.    The court duly acknowledged defendant's cooperation, but was not

compelled under the circumstances to grant the mitigating factor any weight.

See State v. Dalziel, 182 N.J. 494, 504-05 (2005) (stating a judge was required

to acknowledge defendant's cooperation, but was not required to give it weight).

       Defendant also contends the court should have considered mitigating

factor ten – amenability to probation, specifically, drug court probation. See

N.J.S.A. 2C:44-1(b)(10). However, another judge had already found special

probation inappropriate. Absent a "serious injustice," mitigating factor ten does

not apply to a sentence for a crime – such as second-degree theft – with a

presumption of incarceration. See State v. Sene, 443 N.J. Super. 134, 144-45

(App. Div. 2015) (quoting State v. Evers, 175 N.J. 355, 388 (2003)).




                                                                         A-1868-16T3
                                      17
      Defendant also raises for the first time on appeal, that the court should

have found mitigating factors eight, defendant's conduct resulted from

circumstances unlikely to recur, and eleven, hardship to dependents. N.J.S.A.

2C:44-1(b)(8), (11). We discern no plain error. A mitigating factor eight

finding would have been inconsistent with the court's aggravating factor three

finding. And there was no compelling evidence that incarceration would cause

an excessive hardship to defendant's dependents.

      Finally, we reject defendant's argument that the sentence should be set

aside because of its disparity with the sentence of his co-defendant, who

received probation conditioned on 364 days in jail.              We recognize that

uniformity in sentencing is a major objective of the criminal justice system.

State v. Roach, 146 N.J. 208, 231-32 (1996). But, not all divergent sentences

are unfair or unjust. Ibid. "The question . . . is whether the disparity is justifiable

or unjustifiable." Id. at 232-33. A court must consider whether the individuals

receiving disparate sentences were similarly situated. State v. Case, 220 N.J.

49, 63 (2014). The sentencing judge did not abuse his discretion in imposing

disparate sentences. As the judge noted, the co-defendant was charged with few

crimes; and he faced the likelihood of additional incarceration as a result of other

pending charges. Furthermore, the co-defendant entered a plea and defendant


                                                                               A-1868-16T3
                                         18
did not. See State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div. 1988)

(justifying disparate sentence where co-defendants cooperated with law

enforcement authorities).

      Affirmed.




                                                                  A-1868-16T3
                                  19
