                                NOT FOR PUBLICATION WITHOUT THE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-2365-17T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

LEMAR S. LESTER,

     Defendant-Respondent.
_____________________________

                    Submitted December 4, 2018 – Decided January 3, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-02-0425.

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for appellant (Tiffany M. Russo,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Daniel S. Rockoff, Assistant Deputy Public
                    Defender, of counsel and on the brief).

PER CURIAM
      The State appeals from the judgment of conviction dated January 22,

2018, and argues that the sentencing judge mistakenly exercised her discretion

by downgrading defendant's offenses pursuant to N.J.S.A. 2C:44-1(f)(2), and

sentencing defendant as a second-degree rather than first-degree offender. For

the reasons that follow, we reverse and remand the matter to the trial court for

resentencing.

                                        I.

      On July 29, 2016, defendant was arrested and charged with committing a

robbery in Union County. Defendant was released on bail. On October 28,

2016, police officers arrested defendant in connection with a series of armed

robberies that took place earlier that evening in South Orange. The police report

states that during one of these robberies, defendant and a juvenile accomplice

wore ski masks, approached a group of teenagers, punched one of them, and

stole their cell phones and a wallet. According to the report, defendant and his

accomplice used an imitation handgun.

      On November 22, 2016, a Union County grand jury charged defendant

with second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one), and third-

degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1)




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                                        2
(count two). On January 23, 2017, defendant pled guilty to count one, and the

State agreed to dismiss the other charge.

      On February 14, 2017, an Essex County grand jury returned a thirty-four

count indictment charging defendant with first-degree armed robbery, N.J.S.A.

2C:15-1 (counts one, six, eight, ten, twelve, fourteen, sixteen, seventeen,

eighteen, and nineteen); second-degree possession of a weapon, N.J.S.A. 2C:39-

5(b) (count two); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts three, seven, nine, eleven, thirteen, and

fifteen); third-degree hindering his own apprehension or prosecution, N.J.S.A.

2C:29-3(b)(4) (count four); fourth-degree using a juvenile to commit a criminal

offense, N.J.S.A. 2C:24-9 (count five); and third-degree receipt of stolen

property, N.J.S.A. 2C:20-7(a) (counts twenty to thirty-four).

      On June 16, 2017, the Law Division judge in Union County sentenced

defendant on the Union County robbery to three years of incarceration, subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge ordered

that defendant's sentence would run concurrently with any sentence imposed on

the Essex County charges.

      On December 8, 2017, defendant pled guilty to four counts of first-degree

robbery, as charged in counts one, six, eight, and ten of the Essex County


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                                       3
indictment. The State agreed to recommend that the judge sentence defendant

to concurrent ten-year prison terms, each subject to NERA, to run concurrently

with the sentence imposed in Union County.          The State also agreed to

recommend dismissal of the remaining charges.

      At the plea hearing, defendant stated under oath that on October 28, 2016,

he was in South Orange and threatened four individuals with the use of a gun,

in order to obtain cell phones or other property from them. Defendant said his

purpose was to obtain and keep the property taken. Defendant stated he obtained

cell phones and some cash from the victims. He also stated that he committed

the robberies at different times in the area of Tillou Road of South Orange.

      Following his guilty plea to the Essex County charges, and prior to the

sentencing hearing, defendant filed a letter brief with the trial court in Essex

County requesting that the court sentence him as a second-degree offender,

pursuant to N.J.S.A. 2C:44-1(f)(2). In his brief, defendant asserted that the

police did not recover a firearm when they arrested him. He stated that he was

addicted to drugs at the time he committed these robberies. He claimed this was

the "root cause" of both the Union County robbery and the Essex County

robberies.




                                                                         A-2365-17T1
                                       4
      Defendant also argued that the court should consider that previously he

pled guilty to second-degree robbery in Union County and the Law Division in

that county had sentenced him on that conviction. Defendant asserted that he

probably should have been sentenced on both the Union County and Essex

County offenses in one proceeding.

      On January 22, 2018, the Law Division judge in Essex County sentenced

defendant. The judge first addressed the aggravating factors under N.J.S.A.

2C:44-1(a). The judge found that aggravating factor three applied. N.J.S.A.

2C:44-1(a)(3) (risk that defendant will commit another offense). The judge

noted that defendant was arrested and charged with committing the Essex

County robberies while on bail following his arrest for the Union County

robbery.

      The judge also found that aggravating factor nine applied.        N.J.S.A.

2C:44-1(a)(9) (need to deter defendant and others from violating the law). The

judge noted that "there's a need for specific and general deterrence of crimes of

violence." The judge pointed out that defendant and his juvenile accomplice

threatened and stole cell phones and other property from several younger

persons. The robberies had all taken place the same evening.




                                                                         A-2365-17T1
                                       5
      The judge found that aggravating factor six did not apply. N.J.S.A. 2C:44-

1(a)(6) (extent of the defendant's prior criminal record and the seriousness of

the offenses of which he has been convicted). The judge stated that "defendant's

prior involvements with the criminal justice system . . . before [the Union

County robbery], were all in municipal [court]," the offenses "were not offenses

of violence," and the offenses related to defendant's "issue with substance

abuse."

      The judge then addressed the mitigating factors under N.J.S.A. 2C:44-

1(b). The judge found that mitigating factor four applied. N.J.S.A. 2C:44-

1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the

defendant's conduct, though failing to establish a defense"). The judge stated

that if the matter had been tried, defendant could have established that he

suffered from a substance-abuse problem and had been under the influence of

narcotics when he committed the offenses.

      The judge also found that mitigating factor seven applied.         N.J.S.A.

2C:44-1(b)(7) ("defendant has no history of prior delinquency or criminal

activity or has led a law-abiding life for a substantial period of time before the

commission of the present offense"). The judge stated that before the Union




                                                                          A-2365-17T1
                                        6
County robbery, the defendant did not have any "prior indictable convictions for

purposes of this sentencing."

      The judge then considered other factors she deemed relevant to the

sentence. The judge noted that defendant had been sentenced separately in

Union County and Essex County rather than having all of these offenses

consolidated in one proceeding. The judge stated, "defendant is somewhat

penalized by having two separate dispositions in two separate counties with an

offense date interval so close together."

      The judge stated that "on a [ten-]year sentence with [eighty-five] percent

[parole ineligibility,] the defendant would serve eight years, six months and two

days." The judge found that because a separate sentence previously had been

imposed in Union County, defendant would be serving more than the mandatory

minimum term of eight years, six months, and two days on the ten-year, first-

degree sentence because the Essex County and Union County sentences "do not

intersect." The judge stated that due to the separate sentencing proceedings and

dispositions of the two indictments, the result would be arbitrary.

      The judge also considered defendant's presentence report, which indicated

that defendant had used marijuana and other prescription drugs. The judge

found that "substance abuse has been recognized as a form of illness" and stated


                                                                         A-2365-17T1
                                        7
that "defendant's actions [were] consistent with that of someone who is addicted

to drugs." The judge concluded that when defendant committed the robberies,

he was "probably under the influence of some mind altering substance because

the manner of the commission makes absolutely no sense."

      The judge also reasoned that the court was "permitted to view the gravity

of this particular offense in the universe of other offenses [of a] similar[]

degree[] and similar[] type." The judge stated that, if the case had gone to trial,

the evidence in the record would tend to support a jury finding that the defendant

did not actually use a firearm to threaten the victims during the robberies.

      The judge therefore determined that, "in the interest of fundament[al]

fairness," defendant should be sentenced as a second-degree offender, pursuant

to N.J.S.A. 2C:44-1(f)(2). The judge then sentenced defendant to an eight-year

term of incarceration, with an eighty-five percent period of parole ineligibility,

pursuant to NERA. The State's appeal followed.

                                        II.

      On appeal, the State argues that the trial court erred by downgrading the

offenses and sentencing defendant as a second-degree offender pursuant to

N.J.S.A. 2C:44-1(f)2). The State argues that the matter should be remanded for

imposition of the bargained-for sentence.


                                                                           A-2365-17T1
                                        8
        This court's role in reviewing a trial court's sentencing determination is

limited. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence

unless: (1) the trial court violated the sentencing guidelines; (2) the court's

findings of the aggravating and mitigating factors "were not based upon

competent and credible evidence in the record;" or (3) the court's application of

the sentencing guidelines to the facts results in a sentence that is "clearly

unreasonable so as to shock the judicial conscience." Ibid. (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984).

        In sentencing defendant as a second-degree offender for the first-degree

robberies, the trial court relied upon N.J.S.A. 2C:44-1(f)(2).        The statute

provides that when a sentencing court is "clearly convinced that the mitigating

factors substantially outweigh the aggravating factors and where the interest of

justice demands, the court may sentence the defendant to a term appropriate to

a crime of one degree lower than that of the crime for which he was convicted."

Ibid.

        Thus, to warrant a sentencing downgrade under N.J.S.A. 2C:44-1(f)(2),

the trial court must make two findings. State v. Megargel, 143 N.J. 484, 495

(1996).    The court must be "clearly convinced that the mitigating factors

substantially outweigh the aggravating factors." Ibid. The court also must find


                                                                          A-2365-17T1
                                         9
that the "interest of justice . . . demand[s] the downgrade." Ibid. "The decision

to downgrade a defendant's sentence 'in the interest of justice' should be limited

to those circumstances in which defendant can provide 'compelling' reasons for

the downgrade." Id. at 501-02 (citing State v. Jones, 197 N.J. Super. 604, 607

(App. Div. 1984)).

      On appeal, the State argues that the sentencing judge erred in her

assessment of the aggravating and mitigating factors. We agree. As noted, the

judge found that mitigating factor seven applied because defendant did not have

a prior indictable offense. The record shows, however, that defendant has a

"history of prior delinquency." N.J.S.A. 2C:44-1(b)(7).

      The presentence report states that as a juvenile, defendant had nine

petitions filed against him, with nine adjudications. The adjudications include

burglary, simple assault, and aggravated assault. Defendant engaged in these

unlawful acts within a seven-year period before he committed the robberies in

2016, for which he was charged in Union and Essex Counties. As a result of the

juvenile adjudications, defendant was sentenced once to a prison term, to five

times straight probation, and twice to suspended prison terms. The judge erred

by disregarding defendant's juvenile record.




                                                                          A-2365-17T1
                                       10
      Moreover, the record does not support the judge's finding that defendant

has "led a law-abiding life for a substantial period of time before the commission

of the present offense." Ibid. The record shows that defendant committed the

robbery in Union County in July 2016, and the Essex County robberies in

October 2016.     Clearly, defendant did not lead a "law-abiding life for a

substantial period of time" before he committed the Essex County robberies.

      Accordingly, there was no factual basis in the record for the judge's

finding of mitigating factor seven.      Instead, the judge should have found

aggravating factor six, based on "the extent of the defendant's prior criminal

record and the seriousness of the offenses of which he has been convicted."

N.J.S.A. 2C:44-1(a)(6).

      The judge also erred by finding mitigating factor four, based on

defendant's addiction to narcotics. Drug dependency is not a mitigating factor

for sentencing purposes. State v. Ghertler, 114 N.J. 383, 390 (1989). See also

State v. Rivera, 124 N.J. 122, 126 (1991) (noting that the criminal code "does

not condone leniency" even where "the commission of the offense may be

related to the offender's drug or alcohol addiction"); State v. Towey, 244 N.J.

Super. 582, 595 (App. Div. 1990) (finding that "[c]rimes committed under the

influence of alcohol or drugs do not detract from the seriousness of the offense").


                                                                           A-2365-17T1
                                       11
      Defendant argues, however, that in State v. Clarke, 203 N.J. 166, 182

(2010), the Supreme Court "reversed its approach in Rivera and Ghertler." We

disagree. The decision in Clarke addressed companion appeals from trial court

decisions denying two defendants admission to Drug Court. Id. at 168. The

Court noted that in Clarke's case, the judge found three aggravating factors and

no mitigating factors, and concluded that a probationary sentence was not

appropriate. Id. at 182.

      The Court stated that the judge's "findings of the aggravating and

mitigating factors may have been adversely influenced by the judge's failure to

appreciate that Clarke's drug dependency at the time of the offense was an

important factor."   Ibid.   The Court did not, however, overrule Rivera or

Ghertler, and for sentencing purposes, those cases remain the law.

      Therefore, the record does not provide any support for the conclusion that

the "mitigating factors substantially outweigh the aggravating factors." N.J.S.A.

2C:44-1(f)(2).    As we have explained, the record supports findings of

aggravating factors three, six, and nine, and does not provide a basis for finding

any mitigating factors. The record also does not support the conclusion that the

"interest of justice" demands a downgrade of the first-degree offenses for

sentencing purposes. Ibid.


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                                       12
      Here, the judge stated that defendant probably should have been

sentenced on the Union County and Essex County indictments in a single

proceeding. The judge noted that defendant was being sentenced in Essex

County several months after he was sentenced in Union County. The Essex

County sentence was concurrent with the Union County sentence; however,

because the Essex County sentence was imposed after the Union County

sentence, the judge believed the time served on both sentences would be longer

than the mandatory minimum for the Essex County sentence, as determined

under NERA.

      The judge's reasoning is flawed. Rule 3:25A-1 provides that when a

defendant has charges pending in more than one county, either the defendant, or

the prosecutor with defendant's consent, may move prior to sentencing to

consolidate the matters for disposition. The rule further provides that in ruling

on the motion, the presiding judge in the county where consolidation is sought,

shall consider

            (1) the nature, number, and comparative gravity of
            crimes committed in each of the respective counties, (2)
            the similarity or connection of the crimes committed
            including the time span within which the crimes were
            committed; (3) the county in which the last crime was
            committed; (4) the county in which the most serious
            crime was committed; (5) the defendant's sentencing
            status; (6) the rights of the victims and the impact on

                                                                         A-2365-17T1
                                      13
            any victim's opportunity to be heard; and (7) any other
            relevant factor.

            [Ibid.]

      Here, neither defendant nor the prosecutor sought consolidation of the

Union County and Essex County charges pursuant to Rule 3:25A-1. In any

event, the rule would not have required consolidation of the charges. The

offenses were all robberies, but the Union County robbery was a second-degree

offense, whereas the Essex County robberies involved the threatened use of a

weapon and were charged as first-degree offenses.

      Furthermore, defendant committed the Union County robbery in July

2016, and he committed the Essex County robberies several months later.

Apparently, the only connection between the offenses was that the robberies had

some relation to defendant's substance abuse. Based on a careful consideration

of all of these factors, the trial court could have decided, in the exercise of its

discretion, that consolidation was not warranted

      In addition, in this case, the judge in Essex County awarded defendant 207

days of gap-time credits pursuant to N.J.S.A. 2C:44-5(b). Such credits provide

"a defendant who is given two separate sentences on two different dates credit

toward the second sentence for the time spent in custody since he or she began

serving the first sentence."    State v. Hernandez, 208 N.J. 24, 38 (2011).

                                                                           A-2365-17T1
                                       14
However, gap-time credits are applied to the "back end" of the sentence and do

not reduce a period of parole ineligibility. Ibid. (citing Booker v. N.J. State

Parole Bd., 136 N.J. 257, 260 (1994)). See also Meyer v. N.J. State Parole Bd.,

345 N.J. Super. 424, 426 (App. Div. 2001) (gap-time credit may not reduce a

NERA parole disqualifier).

      We are not convinced that "the interests of justice" warrant a sentencing

downgrade in this case because the Union County and Essex County charges

were disposed of separately, and the gap-time credits awarded on the Essex

County sentence do not reduce the period of parole ineligibility mandated by

NERA. The offenses were properly handled as separate matters in Union and

Essex County counties, and the fact that defendant will be required to serve an

aggregate prison term that is longer than the mandatory minimum term for his

Essex County offenses is not a compelling reason for a sentencing downgrade.

      We therefore conclude that the judge did not comply with the sentencing

guidelines in N.J.S.A. 2C:44-1(f)(2), and her findings regarding the aggravating

and mitigating factors are not supported by sufficient credible evidence in the

record.     The trial court erred by sentencing defendant as a second-degree

offender.




                                                                        A-2365-17T1
                                      15
      Reversed and remanded to the trial court for resentencing in accordance

with this opinion. We do not retain jurisdiction.




                                                                      A-2365-17T1
                                      16
