                                NOT FOR PUBLICATION WITHOUT THE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-2003-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHNATHAN L. CHISOM,

     Defendant-Appellant.
______________________________

                    Submitted September 13, 2018 – Decided September 24, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 15-11-
                    1375.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael Denny, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Joie D. Piderit, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Johnathan L. Chisom appeals from a September 16, 2016

judgment of conviction for second-degree eluding, N.J.S.A. 2C:29-2(b) (count

one), fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count two), and

third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(c)

(count four). Defendant also appeals from his December 12, 2016 sentence to

five years in prison for count one, which was merged with count two, and the

three-year concurrent sentence for count four. We affirm.

      The following facts are taken from the record. On August 19, 2014,

defendant visited the residence of his girlfriend, the victim, in Sayreville. He

had taken a cab to her home because his driver's license was suspended. Once

there, the couple consumed more than one bottle of wine and defendant became

intoxicated. Defendant discovered a text message on the victim's telephone from

another man with whom he believed the victim was having an affair. An

argument ensued, and the victim attempted to leave in her vehicle, but realized

defendant had the key, which he refused to give her.

      As a result, she left the residence on foot and began to walk down the

street. Defendant followed her and the couple stopped on the property of Joseph

DeFelice. There, according to the victim, defendant yelled at her to return home,

grabbed her upper arm, and continued to accuse her of infidelity. When the


                                                                         A-2003-16T4
                                       2
victim refused to comply with defendant's demands, he jerked her body as if he

intended to throw her into oncoming traffic, and pulled her pocketbook off and

threw it across the street.

      The victim ran across the street towards a house with its lights on. As she

approached the house, she "felt a really hard push" from behind and fell to the

ground. Defendant then grabbed her leg and began dragging her away as she

tried to crawl backward. Defendant then grabbed her shirt and lifted her off the

ground.

      DeFelice testified he was at home watching television and heard the

couple arguing. He observed the victim was sitting on his yard, with defendant

standing over her. DeFelice asked them to "break it up" or he would contact the

police. He called police and informed them there was a domestic dispute

involving two individuals who were drunk.

      DeFelice testified the couple then crossed the street, the victim was on the

ground, and defendant was attempting to pick her up by her wrist. He described

it like "a kid who doesn't want to get up, he's having a temper tantrum, you're

trying to pick them up and just, like, yank them, let's go. Pretty much like that."

DeFelice said defendant went into the street and retrieved a purse in the road ,

the couple walked away, and continued arguing.


                                                                           A-2003-16T4
                                        3
      Mark Turon was jogging in the neighborhood at the time. He testified he

observed the victim walking with "a man stumbling back and forth behind her."

He noted she appeared "panicked and terrified," and "was briskly walking ahead

of the man." Turon continued his run, but returned and observed the couple

from across the street. Turon testified he saw the victim "was with her bottom

down, and [defendant] . . . he was shaking her, beating on her." Turon shouted

at defendant to stop, crossed the street, and kept yelling at him to stop. As he

approached defendant, Turon testified there was "a horrific smell of alcohol."

      Turon testified he saw a man standing in the area, and told him to call the

police. When police arrived, Turon testified defendant pushed him aside and

ran. Turon chased after him, but did not find defendant.

      Sayreville Police Officer George Lestuck was the first to arrive on scene.

Officer Lestuck testified he recognized defendant from at least three prior

meetings. He saw defendant walking away from the scene, and told him to stop,

but instead defendant "took off." Officer Lestuck saw the victim on the ground

and took her back to her house, while other officers searched the area for

defendant. Officer Lestuck searched the house, but defendant was not there.

Officer Lestuck advised the victim to stay with a friend for the night. After she




                                                                         A-2003-16T4
                                       4
left with her friend, Officer Lestuck returned to the station to obtain an arrest

warrant for defendant for assault.

      Officers then contacted the local cab company to inquire if they had any

calls for a pick-up in the area. Police asked the cab dispatcher to call if there

were any such requests. At 10:56 p.m. the cab dispatcher notified police there

had been a pick-up request near the victim's house. The caller ID showed the

victim's name, but the caller's voice was male.

      Officers Lestuck, Gabriel Lugo, and Anthony D'Onofrio took up positions

around the neighborhood to stop the cab defendant had hailed. Officer Lugo,

who had two prior contacts with defendant, testified he had parked his police

cruiser on a corner a few blocks from the victim's home when he noticed

defendant driving by in the victim's vehicle. Officer Lugo signaled the car to

pull over, but the vehicle sped away.

      Officer D'Onofrio, who joined the pursuit in a separate vehicle, also

identified defendant as the driver of the vehicle. Officer D'Onofrio had at least

two prior interactions with defendant.

      The vehicle defendant was driving reached speeds of eighty miles per

hour, drove through several red lights, crossed a dividing median, became

airborne, and glanced off of an oncoming car. After hitting the oncoming car,


                                                                         A-2003-16T4
                                         5
defendant continued fleeing, but the front right tire of the vehicle was flat.

Therefore, the officers ceased the pursuit for safety reasons.     The victim's

vehicle was ultimately recovered abandoned in Perth Amboy.

      Police issued a "be on the lookout" bulletin for defendant to neighboring

towns. On August 20, 2014, at approximately 1:15 a.m., Woodbridge Police

Officer Marc Sokolow saw defendant exiting a cab in Woodbridge. Officer

Sokolow recognized defendant from a prior contact and placed him under arrest.

      Following defendant's indictment, he was also charged with simple assault

and criminal mischief, both disorderly persons offenses. Defendant filed a pre-

trial motion to sever the disorderly persons offenses from the indictable

offenses, which the trial judge denied. Defendant was tried and convicted by a

jury on the indictable offenses. The trial judge acquitted him of the disorderly

persons charges, and sentenced defendant accordingly. This appeal followed.

      On appeal, defendant raises the following arguments:

            POINT I:

            THE JUDGE ERRED BY FAILING TO GRANT
            [DEFENDANT'S] MOTION FOR A SEPARATE
            TRIAL ON THE DISORDERLY PERSONS
            CHARGES RELATED TO THE EARLIER
            ARGUMENT, CREATING TREMENDOUS RISK OF
            UNDUE PREJUDICE IN [DEFENDANT'S] JURY
            TRIAL FOR THE LATER ELUDING.


                                                                        A-2003-16T4
                                       6
POINT II:

PROSECUTORIAL MISCONDUCT DURING THE
TRIAL AND SUMMATION INTENDED TO
REFRAME THE TRIAL INTO A VERDICT ON
[DEFENDANT'S]   CHARACTER    DENIED
[DEFENDANT] DUE PROCESS AND A FAIR
TRIAL.

     A.    The prosecutor intentionally elicited
     voluminous other-crimes evidence that was not
     relevant to any material issues concerning the
     charges before the jury.

     B.     The prosecutor argued during summation
     that [defendant] had violated [the victim's] rights
     as a woman and emphasized her love for him.

POINT III:

THE    JUDGE'S INSTRUCTIONS   ON    THE
ACCEPTABLE USE OF THE OTHER—CRIMES
EVIDENCE     WERE   INCOMPLETE      AND
CONFUSING, CREATING A GREAT RISK THE
EVIDENCE WAS USED IMPROPERLY. (Not raised
below)

POINT IV:

THE   CUMULATIVE      EFFECT      OF     THE
AFOREMENTIONED        ERRORS         DENIED
[DEFENDANT] A FAIR TRIAL. (Not raised below)

POINT V:

THE   TRIAL   JUDGE  SHOULD    HAVE
DOWNGRADED [DEFENDANT'S] SENTENCE TO
THE THIRD-DEGREE RANGE BECAUSE THE

                                                           A-2003-16T4
                          7
            MITIGATING  FACTORS   SUBSTANTIALLY
            OUTWEIGHED THE AGGRAVATING FACTORS.

                                       I.

      Defendant argues the court should have severed the disorderly persons

offenses of simple assault and criminal mischief from the indictable offenses

tried by the jury. Defendant claims he was prejudiced because the jury heard

testimony related to those charges, whereas the judge was the sole factfinder for

the disorderly persons charges.

      The State opposed defendant's motion to sever arguing the evidence of the

disorderly persons charges was "intrinsic to the crime of eluding," which

stemmed from the altercation. Defendant asserted the prior altercation was not

necessary to prove motive, because defendant had stipulated to having a

suspended license, which provided the motive to flee the police when they

attempted to stop him while operating the victim's car.         The trial judge

determined while "it is a little cumulative in terms of the fact that we have the

driving while suspended as a motive, . . . it makes it an even stronger case for

motive, plan, intent, preparation, all of the allowable reasons that something

comes in under 404(b)," and denied the motion.

      A trial judge's decision to admit prior bad acts evidence will be upheld

unless the decision is deemed to be an abuse of discretion. State v. Marrero,

                                                                         A-2003-16T4
                                       8
148 N.J. 469, 483-84 (1997). Absent a showing of a mistaken exercise of

discretion such as a "clear error of judgment," we will not disturb the trial court's

decision.   State v. Moorman, 286 N.J. Super. 648, 660 (App. Div. 1996).

Evidence that is highly inflammatory may still be admitted where its probative

value outweighs its prejudicial effect. See State v. Cusick, 219 N.J. Super. 452,

464-65 (App. Div. 1987) (admitting evidence defendant had previously sexually

assaulted children, on the grounds such evidence was "extremely probative" to

establish defendant's intent in a trial for the sexual assault of minors).

      N.J.R.E. 404(b) prohibits the introduction of evidence showing a person

committed other crimes, wrongs or bad acts in order to prove the disposition of

the person to commit such acts. However, evidence of other crimes is admissible

to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident when such matters are relevant to a material issue

in dispute." N.J.R.E. 404(b).

             [I]n order to avoid the over-use of extrinsic evidence of
             other crimes or wrongs:

                   1. The evidence of the other crime must be
                   admissible as relevant to a material issue;

                   2. It must be similar in kind and reasonably
                   close in time to the offense charged;



                                                                             A-2003-16T4
                                         9
                  3. The evidence of the other crime must be
                  clear and convincing; and

                  4. The probative value of the evidence
                  must not be outweighed by its apparent
                  prejudice.

            [State v. Cofield, 127 N.J. 328, 338 (1992).]

      Defendant argues the evidence was inadmissible and Cofield factors one,

three, and four were not met. He asserts factor one was not met because the

evidence was not necessary to prove motive, as he had stipulated to having a

suspended license. As we noted, the trial judge found evidence of defendant's

altercation with the victim provided support for "motive, plan, intent,

preparation, all of the allowable reasons that something comes in under 404(b),"

as defendant fled in the victim's car.      Defendant's suspended license only

provided support for motive. It was not an abuse of discretion for the trial judge

to deny the motion under factor one.

      Defendant argues factor three was not met because the trial judge had not

heard any testimony prior to the decision to admit the evidence, but relied on

the State's assurance it would offer three witnesses who saw defendant assault

the victim. Defendant claims the only person who would testify to the assault

was the victim.    As such, he asserts the trial judge should have held an

evidentiary hearing to determine whether the proffered testimony provided

                                                                          A-2003-16T4
                                       10
"clear and convincing" evidence of the assault. Defendant argues because the

trial judge acquitted him of the disorderly persons charges, and found the State's

witnesses not credible, the evidence should not have been admitted.

      The trial judge did not abuse her discretion by finding the disorderly

persons charges were supported by clear and convincing evidence. There was

probable cause to issue an arrest warrant for defendant after his altercation with

the victim and before the car chase. Moreover, the victim and Turon's testimony

of the assault, as we have recounted it, was clear and convincing evidence.

Although the trial judge ultimately found their testimony not credible and

acquitted defendant of the disorderly persons charges, the burden was beyond a

reasonable doubt and therefore higher than the clear and convincing standard

necessary to meet the third Cofield factor.

      Defendant argues the fourth factor was not met because the evidence was

more prejudicial than probative. We disagree.

      The trial judge found the evidence was:

            [R]elevant to the issue of [defendant's] motive and his
            intent and even his preparation of why he did what he
            did. And it was certainly similar in time. . . . I don't
            think . . . the prejudice weighs heavier than the need for
            this information to explain the circumstances of what
            happened that evening.



                                                                          A-2003-16T4
                                       11
      We agree. The probative nature of the evidence and its potential to shed

light on defendant's opportunity, intent, preparation, plan, knowledge, identity,

and motive clearly outweighed any prejudicial effect. The judge's finding under

the fourth factor was not an abuse of discretion and the decision to deny the

motion to sever was not an error.

                                       II.

      We turn next to defendant's contention the prosecutor exceeded the

bounds of proper advocacy by presenting the evidence of the disorderly persons

offenses in the jury trial. Defendant asserts the prosecutor's purpose of arguing

the other crimes was "to portray [defendant] as a bad person who runs away

from the police." Specifically, defendant notes the victim was allowed to testify

to her "fear, panic, and injury [defendant] had caused her," and testified

"[defendant] tried to shove her into traffic."    Defendant argues Turon was

permitted to testify the victim was "terrified," and permitted to opine on

defendant's level of intoxication using Turon's Russian and Polish heritage,

which Turon stated enabled him to determine defendant's inebriated state .

Defendant further argues the prosecutor elicited testimony from Officer

D'Onofrio that defendant had previously been implicated in other criminal




                                                                         A-2003-16T4
                                      12
interactions at the victim's home. Also, defendant claims the prosecutor made

prejudicial comments in summation by referencing women's rights.

      At the outset, we note defendant failed to object to the testimony regarding

the other crimes during the trial. When a defendant fails to object to testimony

at trial, we review for plain error, and "disregard any alleged error 'unless it is

of such a nature as to have been clearly capable of producing an unjust result.'"

State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Under the plain

error standard, "defendant has the burden to show that there is an error, that the

error is 'clear' or 'obvious,' and that the error has affected 'substantial r ights.'"

State v. Chew, 150 N.J. 30, 82 (1997) (quoting and ruling "[o]ur law is the same"

as United States v. Olano, 507 U.S. 725, 734 (1993)).

      "[W]hen counsel does not make a timely objection at trial, it is a sign 'that

defense counsel did not believe the remarks were prejudicial.'" State v. Pressley,

232 N.J. 587, 594 (2018) (citation omitted). "Defendant's lack of objections . . .

weighs against defendant's claim that errors were ‘clear’ or 'obvious.' Indeed,

'[i]t [is] fair to infer from the failure to object below that in the context of the

trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471

(2002) (alterations in original) (citation omitted).




                                                                              A-2003-16T4
                                        13
      Officer D'Onofrio's testimony that he knew defendant from prior brief

interactions was limited, and was central to proving the eluding offense and the

officer's identification of defendant as the driver of the vehicle. Moreover, the

admission of this testimony and the facts surrounding the disorderly persons

offenses were not error because the trial judge instructed the jury to not treat the

testimony as evidence of other convictions or arrests. Additionally, defense

counsel's objection to Turon's testimony regarding defendant's state was

sustained.

      We turn to defendant's assertions of prosecutorial misconduct in

summations. The following occurred during the prosecutor's summation:

             [PROSECUTOR]: Ladies and gentlemen, a woman has
             a right to walk out of her house when she wants. A
             woman has a right to walk away from somebody she's
             upset with or someone who is bothering her. A woman
             has a right to walk on the street without being harassed
             or followed. A woman has a right not to be dragged,
             pushed down, pulled, held —

             [DEFENSE COUNSEL]: Objection.

      As a result of defense counsel's objection, the trial judge stated she did

not "want to go too much further talking about women's rights. I mean, I know

the point of it but we don't want that to be the focus of this case." The prosecutor

then resumed summation and stated:


                                                                            A-2003-16T4
                                        14
              Ladies and gentlemen, a woman has a right not to be
              restrained by someone else. And this defendant knew
              that those – that that's what the real world expectations
              were. And as a result of that, he knew that what he was
              doing out there was wrong, and he knew that he wasn't
              going to take responsibility for what he was doing out
              there.

Defendant did not renew his objection and the remainder of the prosecutor's

summation addressed the evidence relating to the eluding offense.

      In considering this issue, we note "[p]rosecutors are afforded considerable

leeway in closing arguments as long as their comments are reasonably related to

the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999)

(citations omitted). Prosecutors "are duty-bound to confine their comments to

facts revealed during the trial and reasonable inferences to be drawn from that

evidence." Id. at 85 (citation omitted). "In determining whether prosecutorial

misconduct is prejudicial and denied defendant a fair trial, [courts] consider

whether defense counsel made a timely and proper objection, whether the

remark was withdrawn promptly, and whether the court ordered the remarks

stricken from the record and instructed the jury to disregard them." State v.

Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-

42 (1953)).




                                                                          A-2003-16T4
                                        15
      During summation a prosecutor may not "make inaccurate legal or factual

assertions[.]" Frost, 158 N.J. at 85. Also, "'[a] prosecutor is not permitted to

cast unjustified aspersions' on defense counsel or the defense."            Id. at 86

(citations omitted). Prosecutorial "misconduct does not warrant reversal unless

it is 'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson,

211 N.J. 394, 409 (2012) (quoting Frost, 158 N.J. at 83). "To warrant reversal

on appeal, the prosecutor's misconduct must be 'clearly and unmistakably

improper' and 'so egregious' that it deprived defendant of the 'right to have a jury

fairly evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-94 (citation

omitted).

      Given the wide latitude afforded the prosecutor in presenting summations,

the summation here did not mislead or prejudice the jury or the outcome. Rather,

the prosecutor's argument intended to describe defendant's motive for eluding

police after he assaulted the victim. Moreover, the prosecutor's remarks were

limited and contained within a much broader summation, whose message had no

relationship to women's rights.

                                         III.

      Defendant argues the trial judge erred by not providing a limiting

instruction regarding the other-crimes evidence prior to the admission of the


                                                                               A-2003-16T4
                                         16
testimony. He also argues the charging instruction given to the jury before

deliberation was incomplete and confusing. Specifically, he asserts the charging

instruction was confusing, unclear, and utilized terms such as "consciousness of

guilt," "flight," and "scene of the altercation" without defining the terms or

explaining the nature of the altercation. Defendant also argues the charge should

have instructed the jury it could only consider the other-crimes evidence to

prove motive.

      Again, we note defendant did not seek a limiting instruction before the

admission of the other-crimes evidence, and did not object to the jury charge

given to the jury. Therefore, we review his arguments subject to the plain error

standard.

      We have stated:

            [I]n addition to its inclusion in the final jury charge, a
            prompt delivery of limiting instructions, either before,
            simultaneously with, or immediately after, the
            admission of other crimes evidence is preferable, and
            — unless there is some compelling reason to do
            otherwise — should be standard procedure followed by
            trial courts in all cases.

            [State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.
            2000).]

The Supreme Court has stated: "instructions should be timely given both when

the evidence is admitted and in the final charge." State v. Gillispie, 208 N.J. 59,

                                                                           A-2003-16T4
                                       17
93 (2011) (citation omitted). Notably, the failure to give the instruction in either

case was not determined to be plain error. See ibid. and Angoy, 329 N.J. at 89.

      Defendant has not demonstrated how he was prejudiced due to the lack of

a jury instruction before the admission of the other-crimes evidence. For these

reasons, we decline to conclude the lack of such an instruction here was

reversible error.

      In her closing instructions to the jury, the trial judge said the following:

             The State has introduced evidence of an altercation
             between the defendant and [the victim] shortly before
             the crimes charged. Normally such evidence is not
             permitted under our Rules of Evidence. Our rules
             specifically exclude evidence that the defendant may
             have committed other crimes, wrongs or acts when it is
             offered only to show that he has a disposition or
             tendency to do wrong and therefore must be guilty of
             the charges, the offenses charged.

             Before you give any weight to that evidence, you must
             be satisfied that the defendant fled from the scene of the
             altercation. If you are not so satisfied, you may not
             consider it for any purpose.

             However, our rules do permit evidence of other crimes,
             wrongs or acts when the evidence is used for certain
             specific narrow purposes. In this case, the State has
             introduced this evidence to show that the defendant's
             consciousness of guilt in a prior altercation gave rise to
             a motive to commit the charged offenses.

             Here the evidence has been offered to attempt to
             convince you that the defendant's involvement in the

                                                                            A-2003-16T4
                                        18
            altercation and the flight therefrom is evidence of the
            defendant's motive to elude the police and resist arrest.
            You may not draw this inference unless you conclude
            that the acts alleged were motive to engage in the
            crimes charged in the indictment.

      When we assess jury instructions, the charge must be read as a whole.

State v. Martini, 187 N.J. 469, 477 (2006). "[A] court should not state generally

the content of N.J.R.E. 404(b), but should 'state specifically the purposes for

which the evidence may be considered and, to the extent necessary for the jury's

understanding, the issues on which such evidence is not to be considered.'"

Gillispie, 208 N.J. at 92 (quoting State v. Fortin, 162 N.J. 517, 534 (2000)

(quoting State v. Stevens, 115 N.J. 289, 309 (1989))).

      Here, the jury instruction was understandable and neither confusing nor

in need of further definitional terms. Moreover, the instruction explained the

other-crimes evidence was for the purpose of proving motive, and nothing more.

The instruction followed the model jury charge for Rule 404(b), which advises

the trial judge to "[d]escribe the limited purpose, relevant to a genuine, disputed

issue, for which the evidence has been introduced, and explain specifically how

that limited purpose relates to the facts of the case."      Model Jury Charge

(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev.

Sept. 12, 2016). Here, the instruction explained the other-crimes evidence could


                                                                           A-2003-16T4
                                       19
be used only for the limited purpose of establishing motive to commit the

eluding offense. Defendant has not demonstrated the jury charge prejudiced him

on account of the jury's inability to understand it.

                                        IV.

      Defendant argues the cumulative effect of the errors at trial undermined

his constitutional rights to due process and a fair trial. However, we are satisfied

that none of the errors alleged by defendant, individually or cumulatively,

warrant the granting of a new trial. State v. T.J.M., 220 N.J. 220, 238 (2015);

State v. Orecchio, 16 N.J. 125, 129 (1954).

                                        V.

      Finally, defendant argues the trial judge should have downgraded his

sentence from second-degree eluding to a third-degree offense because the

mitigating factors substantially outweighed the aggravating factors.             We

disagree.

      It is well settled that when reviewing a trial court's sentencing decision,

"[a]n appellate court may not substitute its judgment for that of the trial court."

State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210,

215 (1989)). However, an appellate court may review and modify a sentence

when the trial court's determination was "'clearly mistaken.'" State v. Jabbour,


                                                                            A-2003-16T4
                                        20
118 N.J. 1, 6 (1990) (internal quotation marks omitted) (quoting State v. Jarbath,

114 N.J. 394, 401 (1989)). Within these limitations, an appellate court can:

            (a) review sentences to determine if the legislative
            policies, here the sentencing guidelines, were violated;
            (b) review the aggravating and mitigating factors found
            below to determine whether those factors were based
            upon competent credible evidence in the record; and (c)
            determine whether, even though the court sentenced in
            accordance with the guidelines, nevertheless the
            application of the guidelines to the facts of this case
            makes the sentence clearly unreasonable so as to shock
            the judicial conscience.

            [State v. Evers, 175 N.J. 355, 387 (2003) (citation
            omitted).]

      Moreover,

            The [New Jersey Code of Criminal Justice] provides
            that a sentencing court

            shall deal with a person who has been convicted of a
            crime of the first or second degree by imposing a
            sentence of imprisonment unless, having regard to the
            character and condition of the defendant, it is of the
            opinion that his imprisonment would be a serious
            injustice which overrides the need to deter such conduct
            by others.

            [Id. at 388 (citation omitted).]

"Absent a proper finding of 'serious injustice' that outweighs the need for general

deterrence, a trial court must impose a custodial sentence." Ibid. (citation

omitted).

                                                                           A-2003-16T4
                                       21
            In deciding whether the "character and condition" of a
            defendant meets the "serious injustice" standard, a trial
            court should determine whether there is clear and
            convincing evidence that there are relevant mitigating
            factors present to an extraordinary degree and, if so,
            whether cumulatively, they so greatly exceed any
            aggravating factors that imprisonment would constitute
            a serious injustice overriding the need for deterrence[]

                  ....

            . . . that a particular defendant is distinguished from the
            "heartland" of cases for the particular offense.

            [Id. at 393-94.]

      Here, at sentencing, the judge found aggravating factors three (risk that

the defendant will commit another offense) and nine (need for deterring the

defendant and others) applied.       The judge found mitigating factors six

(defendant has compensated or will compensate the victim), seven (defendant

has no history of delinquency), nine (character and attitude of defendant indicate

that he is unlikely to commit another offense), and ten (defendant is particularly

likely to respond affirmatively to probationary treatment) applied.

      Defendant argued for a downgrade, but the judge declined, finding the

aggravating and mitigating factors were balanced. Specifically, the judge stated:

            Now I know that defense counsel is arguing . . . it would
            be a serious injustice to sentence [defendant] to prison
            and that the [c]ourt should . . . at least look at a degree


                                                                          A-2003-16T4
                                       22
            below what he was found guilty of when determining
            his sentence.

            And while every person is special in their own way, this
            is not the type of unique situation. He had some tough
            years. He had a . . . bad breakup. He got hooked on
            . . . alcohol and drugs. And that is sadly a very common
            thing in this day and age.

            . . . He may have PTSD . . . and that's something that
            has perhaps gone unaddressed for a lot of years, but it
            doesn't rise to the level of making him such a unique
            circumstance that it would be a serious injustice to put
            him in jail.

      On appeal defendant claims the court erred by not considering all the

mitigating factors supported by the evidence, namely, defendant's veteran status,

employment, his efforts towards substance abuse recovery, and the poor health

of his mother. Our review of the record reveals the judge considered these

mitigating factors defendant now raises on appeal. The trial judge balanced

these factors against the rather serious nature of defendant's offense and other

aggravating factors we have noted. For the reasons stated by the trial judge in

her thorough sentencing decision, defendant's sentence was not a serious

injustice warranting our intervention.

      Affirmed.




                                                                         A-2003-16T4
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