                                NOT FOR PUBLICATION WITHOUT THE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-3724-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALPHONSE J. ANDERSON, a/k/a,
ALPONSE ANDERSON,
ANDERWSON J. ALPHONSE,
ANDERSON ALPHONSE, and,
ANDERSON ALPONSE,

     Defendant-Appellant.
______________________________

                    Submitted December 2, 2019 – Decided March 6, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 16-06-0388.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Kelsey Alina Ball, Special
             Deputy Attorney General/Acting Assistant Prosecutor,
             of counsel and on the brief).

PER CURIAM

      Defendant, Alphonse Anderson, appeals from his trial convictions for

possession of controlled dangerous substances with intent to distribute and

simple possession of those same substances. One of the critical issues at trial

was whether defendant resided in the apartment where the drugs were found

during the execution of a search warrant. Defendant on appeal contends that the

trial court erred in denying his Fourth Amendment motion to suppress.

Defendant does not challenge the validity of the search warrant or the manner

in which the search of the apartment was executed. Rather, he contests the

seizure of a house key found on his person that linked him to the apartment.

That seizure occurred at the time of the raid but a block away from the

apartment.

      Defendant also contends the trial court erred in denying his motion to

exclude medical correspondence found during the warrant search that also

linked him to the apartment.     That motion was not based on the Fourth

Amendment but rather on the prosecutor's failure to disclose the documents in a

timely manner. Finally, defendant contends the sentence imposed is illegal and

excessive.

                                                                       A-3724-17T2
                                      2
       We have reviewed the record in light of the applicable legal standards and

conclude that the trial court properly denied defendant's Fourth Amendment

motion to suppress physical evidence. The house key at issue was seized during

the course of a lawful “Terry”1 stop that escalated to an arrest when the

reasonable suspicion that justified the detention ripened into probable cause.

       We also conclude that the trial court did not abuse its discretion in denying

defendant's motion to exclude medical documents bearing defendant's name

based on the State’s failure to turn the documents over in discovery in a timely

fashion. The remedy fashioned by the trial court for the discovery violation —

providing defense counsel an opportunity to review the documents before they

were     admitted   into   evidence—was      adequate    given   the   surrounding

circumstances. Although we do not condone the prosecutor's failure to obtain

the discoverable documents from the Elizabeth Police Department in a timely

fashion, we conclude defendant was not unfairly prejudiced by the discovery

violation.

       Although we affirm defendant’s trial conviction, we agree with him that

the trial court imposed an illegal sentence. As the State acknowledges, the

sentencing court was required to merge the convictions for simple possession


1
    Terry v. Ohio, 392 U.S. 1 (1968).
                                                                            A-3724-17T2
                                         3
and possession with intent to distribute.       Relatedly, the sentencing court

improperly imposed a concurrent extended term of imprisonment pursuant to

N.J.S.A. 2C:43-6(f) on defendant's simple possession conviction, even though

that offense is not eligible for that form of enhanced punishment. We therefore

remand the matter to the trial court to merge the convictions and correct the

sentence.



                                       I.



        On February 21, 2017, police executed a search warrant at an apartment

from which codefendant Levar Davis had distributed illicit drugs. 2 Police found

marijuana, cocaine, heroin, drug paraphernalia, and cash in the apartment.

Police also seized a prescription bottle with defendant's name on it and

correspondence addressed to defendant.

        Defendant moved to suppress physical evidence seized from his person at

the time of the police raid while he was detained a block away from the

apartment. The trial court convened an evidentiary hearing after which the trial




2
    Codefendant Davis is not a party to this appeal.
                                                                        A-3724-17T2
                                            4
judge denied defendant's motion, concluding that defendant had been lawfully

stopped, frisked, and arrested.

      After trial, a jury convicted defendant of possession of a controlled

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

with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.

2C:35-5(b)(3). The trial court granted the State's application for imposition of

a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced

defendant to two concurrent eight-year prison terms, each with a four-year

period of parole ineligibility.

      Defendant now raises the following contentions for our consideration:

             POINT ONE

             THE TRIAL COURT IMPROPERLY DENIED
             DEFENDANT'S    MOTION    TO SUPPRESS
             EVIDENCE SEIZED AS A RESULT OF HIS
             INVESTIGATIVE DETENTION.

             POINT TWO

             DEFENDANT WAS UNDULY PREJUDICED BY
             THE   TRIAL COURT'S  ADMISSION  OF
             BELATEDLY    PRODUCED    DISCOVERY
             MATERIALS.

             POINT THREE

             THE SENTENCE IMPOSED ON DEFENDANT IS
             ILLEGAL AND EXCESSIVE.

                                                                        A-3724-17T2
                                       5
                                     II.



                                     A.

      We first address defendant's Fourth Amendment contention.              The

gravamen of defendant's argument is that he was unlawfully stopped by two

police officers who were not personally aware of the facts justifying his

detention.

      The circumstances leading to defendant's encounter with the officers are

thoroughly recounted in the trial court's written opinion and need only be

summarized briefly in this opinion. On February 21, 2017, officers assigned to

the Elizabeth Police Department Narcotics Division executed a search warrant

at one of the apartments in a two-family house on Olive Street. The Superior

Court judge who issued the warrant authorized a "no knock" 3 entry of the

premises.



3
    See generally State v. Johnson, 168 N.J. 608 (2001) (explaining the
circumstances when police executing a search warrant of a residence are
authorized to dispense with the general rule that requires them to announce their
identity and purpose before entering). As noted, defendant does not challenge
the validity of the search warrant or the manner in which it was executed. We
nonetheless note that police were executing a court-authorized “no knock”
search warrant to highlight potential officer safety concerns associated with
detaining persons who had just left the target premises.
                                                                         A-3724-17T2
                                           6
      The affidavit in support of the warrant application included information

about several "controlled buys" involving codefendant Davis, who was known

to live in the targeted apartment.    Although defendant was not personally

involved in those drug transactions, he was specifically mentioned in the search

warrant affidavit.   For example, the affiant who applied for the warrant,

Detective Athanasios Mikros, attested in the application that he personally knew

that defendant was a high-ranking member of the Haitian Posse street gang. The

affidavit also included information from a confidential informant who stated that

defendant lived with Davis.     The affidavit further asserted that on several

occasions during the course of the investigation, police officers observed

defendant and Davis entering and exiting the apartment and both appeared to

have their own set of keys.

      As the police were preparing to execute the raid, Detective Mikros

observed defendant and another person leave the apartment and cross Route 1

and 9. Detective Mikros instructed Officers Figueiredo and Xavier by radio to

detain defendant and the other individual. Those two officers, who were in a

marked patrol car, had previously been instructed by Mikros to remain near the

target apartment to support the law enforcement operation. Officers Figuerido

and Xavier were stationed across Route 1 and 9 and saw defendant cross the


                                                                         A-3724-17T2
                                       7
highway. The ensuing detention, however, occurred more than a block from the

apartment. The two-family house, moreover, was not within the officers' line of

sight when they initiated the stop.

        Officer Figuerido testified that as he approached defendant, he

immediately detected the smell of marijuana. The officer conducted a pat down

of defendant, revealing a set of keys. By this time, the narcotics raid had begun.

When contraband was found in the apartment, Detective Mikros instructed

Officer Fiueredo by radio to place defendant under arrest, at which time the keys

were seized as evidence. 4 The trial judge noted in his opinion that Officer

Figueiredo's testimony at the motion to suppress was presented in a "thoughtful,

competent, thorough, and professional manner," and the judge found him to be

"a highly credible witness."

                                       B.

        When reviewing a trial court's decision in a motion to suppress, we defer

to the court's factual findings so long as they are "supported by sufficient

credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014)

(citing State v. Elders, 192 N.J. 224, 243 (2007)). "By contrast, the task of

appellate courts generally is limited to reviewing issues of law. Because legal


4
    It was later confirmed that one of the keys unlocked the door to the apartment.
                                                                           A-3724-17T2
                                            8
issues do not implicate the fact-finding expertise of the trial courts, appellate

courts construe the Constitution, statutes, and common law 'de novo—"with

fresh eyes" . . . .'" State v. S.S., 229 N.J. 360, 380 (2017) (quoting State v.

Morrison, 227 N.J. 295, 308 (2016)). We need not defer, therefore, to a trial

judge's interpretive conclusions "unless persuaded by their reasoning."

Morrison, 227 N.J. at 308 (citing State v. Goodwin, 224 N.J. 102, 110 (2016)).

      Applying these basic principles to the record before us, we affirm the

denial of defendant's Fourth Amendment suppression motion substantially for

the reasons set forth in the trial court's comprehensive and cogent written

opinion. We note, first, that the trial court correctly concluded that defendant's

detention was not automatically authorized as incident to the execution of the

search warrant. The United States Supreme Court held in Michigan v. Summers

that a warrant to search a premises for contraband "implicitly carries with it the

limited authority to detain the occupants of the premises while a proper search

is conducted." 452 U.S. 692, 705 (1981). In Bailey v. United States, however,

the Court placed geographic limits on the scope of the Summers doctrine,

holding that the Summers categorical rule authorizing detention did not apply

because Bailey was not in "the immediate vicinity of the premises to be

searched" when he was stopped. 568 U.S. 186, 200–01 (2013). In the case


                                                                          A-3724-17T2
                                        9
before us, the trial court likewise found that defendant's detention was initiated

only after he was outside the spatial constraint established in Bailey. Ibid. The

State has not cross-appealed that determination.

      The trial court correctly recognized, however, that its conclusion that the

detention was not authorized under the Summers doctrine does not necessarily

mean the detention was unlawful. Rather, it means the onus is on the State to

establish an independent basis upon which to justify the detention.

      The Supreme Court in Bailey recognized that Terry's investigatory stop

rule can provide an independent lawful basis for detention. Id. at 202. In that

instance, the Court expressed no view on whether there was reasonable

suspicion to justify a Terry stop, leaving that fact-sensitive question to be

addressed by the Court of Appeals on remand. Ibid. The Court of Appeals

ultimately found there was a lawful basis to detain Bailey under the Terry stop-

and-frisk doctrine. United States v. Bailey, 743 F.3d 322, 335 (2d Cir. 2014).

In reaching that conclusion, the court noted there is no bar to considering

"ownership or occupancy of premises to be searched in making a reasonable

suspicion assessment under Terry. Indeed, such a conclusion would be at odds

with Supreme Court precedent instructing that reasonable suspicion be

determined from the totality of circumstances."       Ibid.   In other words, in


                                                                          A-3724-17T2
                                       10
deciding whether reasonable suspicion exists to justify an investigative

detention under Terry, a reviewing court may consider the facts that had

convinced a judge to issue the search warrant.

      Applying those principles to the case before us, we conclude there was

reasonable suspicion to believe that defendant was involved in criminal activity

outlined in the search warrant. Detective Mikros was the affiant who prepared

the search warrant application and thus was personally aware of the facts that

linked defendant to the apartment.      Mikros, moreover, observed defendant

leaving that apartment moments before the raid. The detective also had reason

to believe defendant was a high-ranking member of a local street gang and

attested to that circumstance in the warrant application. Considering the totality

of these circumstances, Detective Mikros was aware of facts constituting a

reasonable and articulable suspicion sufficient to justify a Terry stop and frisk.5

See State v. Privott, 203 N.J. 16, 28 (2010) (deeming an officer's knowledge that




5
  We add that in this case, the officers smelled the odor of marijuana, permitting
the immediate escalation of the police-citizen encounter from a Terry stop to an
arrest. See infra note 6 and accompanying text. Given that the police would
have been permitted to conduct a search incident to arrest, which is a more
thorough and expansive search than the limited pat down authorized, we
conclude the pat down search would have been lawful in this case even if there
was no basis to suspect that defendant was carrying a weapon.
                                                                           A-3724-17T2
                                       11
defendant was associated with violent street gangs a relevant circumstance

supporting an investigatory stop).

      Furthermore, we reject defendant's contention that the officers who

actually initiated the stop were required to be personally aware of the facts

constituting reasonable suspicion. Officers Figueiredo and Xavier had been

directed to detain defendant by Detective Mikros. As the trial court aptly noted

in its written opinion, "[i]t is understood that 'effective law enforcement cannot

be conducted unless police officers can act on directions and information

transmitted by one officer to another and that officers, who must often act

swiftly, cannot be expected to cross-examine their fellow officers about the

foundation for the transmitted information.'" State v. Crawley, 187 N.J. 440,

457 (2006) (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir.

1976)).

      Because the trial court correctly found that Officers Figueiredo and Xavier

were acting on Detective Mikros's instructions and thus had lawful authority to

initiate a Terry stop and frisk, we need not address the State's alternate argument

that the officers detected the smell of marijuana on defendant's person—and




                                                                           A-3724-17T2
                                       12
therefore had grounds to arrest—even before they effectuated a Terry stop.6

Rather, we view the smell of marijuana as further justification for defendant's

arrest following the initial lawful detention that was based on Detective Mikro's

instruction. See Nishina, 175 N.J. at 517 ("New Jersey courts have recognized

that the smell of marijuana itself constitutes probable cause 'that a criminal

offense ha[s] been committed and that additional contraband might be present.'"

(alteration in original) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479

(App. Div. 1995))). Although the smell of marijuana by itself established

probable cause to arrest defendant, we believe that even without the odor of

marijuana, the officers had probable cause to arrest when they were advised by

Detective Mikros that controlled substances had been found in the apartment

defendant had just left. In these circumstances, the seizure of the key found on

defendant’s person was lawful as a search incident to the arrest. See State v.



6
   The State argues that the officers detected the odor of marijuana as they
approached defendant to conduct a "field inquiry." See State v. Nishina, 175
N.J. 502 (2003) (explaining that "[a] field inquiry 'is a limited form of po lice
investigation that . . . may be conducted "without grounds for suspicion" '"
provided the civilian with whom the officer is conversing reasonably believes
that he or she is free to walk away without answering any question (quoting
State v. Rodriguez, 172 N.J. 117, 126 (2002))). Given that Officers Figueiredo
and Xavier had been given explicit orders from Detective Mikros to detain
defendant, we do not believe the officers were about to initiate a consensual
field inquiry when they smelled the odor of marijuana.
                                                                         A-3724-17T2
                                      13
Dangerfield, 171 N.J. 446, 463–64 (holding police following a valid custodial

arrest for a criminal offense may conduct a search of the person of the arrestee

solely on the basis of the lawful arrest).

                                       III.

      We next address defendant's contention that the trial court erred by

admitting into evidence medical-related correspondence seized from the

apartment during the raid. These documents bore defendant's name and thus

helped to link him to the apartment. The State does not dispute this discoverable

material was not turned over in a timely manner as required by R. 3:13-3(b).

The issue before us, therefore, is not whether there was a discovery violation,

but rather whether the remedy fashioned by the trial court was appropriate to

safeguard defendant’s right to a fair trial.

       The circumstances of the discovery violation were revealed during an

N.J.R.E. 104 hearing convened by the trial court. At that hearing, Union County

Detective Jon Klimaszewski testified that in response to a defense discovery

request for all correspondence found in one of the bedrooms in the apartment,

he visited the Elizabeth Police Department to obtain what he believed to be a

complete set of documents seized from the apartment. As it turns out, the

Elizabeth   Police    Department     failed    to   provide   Klimaszewski   with


                                                                         A-3724-17T2
                                        14
approximately twenty pages of medical documents that had been found in the

apartment while executing the search warrant.

      On or about July 24, 2017, while reviewing all of the evidence as part of

the preparation for the upcoming trial, Detective Klimaszewski realized these

documents had not been provided to him during his first visit to the police

department. He immediately prepared a supplemental report and the prosecutor

informed defense counsel of the additional material that had not previously been

disclosed. On Thursday, July 27, 2017, defense counsel visited the Union

County Prosecutor's Office and was provided access to the documents. 7

      On Tuesday, August 1, 2017, just before opening arguments were

scheduled, defense counsel made an oral motion in limine to exclude the twenty

pages of medical documents from evidence. The trial court denied the motion

to exclude the documents and instead offered to adjourn the trial for a d ay to

give counsel further opportunity to review the documents. Counsel declined the

adjournment, explaining, "I don't need the time to review the documents."




7
   The State acknowledges that it thereafter failed to produce copies of the
documents for defense counsel despite his request that they be scanned and sent
to him electronically. Thus, while defense counsel had an opportunity to read
the documents five days before opening arguments, he was not provided with a
copy of the documents until the morning of trial.
                                                                         A-3724-17T2
                                      15
Counsel argued the mere existence of the documents bearing defendant's name

was prejudicial.

      Based on the testimony and arguments presented at the N.J.R.E. 104

hearing, the trial court found the State had not acted in bad faith. The judge

further noted that defense counsel had the opportunity to see the documents five

days prior to opening arguments, which the judge characterized as "well in

advance" of trial. The court concluded that although the prosecutor's office

should have turned over the records sooner, defense counsel should have made

the in limine motion when he first learned about the documents, not on the

morning of scheduled opening arguments.          The court thereupon denied

defendant's request to exclude the medical documents and instead ordered the

State to not introduce them until after lunch so that defense counsel would have

another opportunity to review the material during the break.

      We begin our review of the trial court's ruling by reaffirming the

importance of timely and complete discovery. As the New Jersey Supreme

Court explained in State v. Scoles, "[t]o advance the goal of providing fair and

just criminal trials, we have adopted an open-file approach to pretrial discovery

in criminal matters post-indictment." 214 N.J. 236, 252 (2013). "Once an

indictment has issued," the Court explained, "a defendant has a right to


                                                                         A-3724-17T2
                                      16
automatic and broad discovery of the evidence the State has gathered in support

of its charges." Ibid. (citing R. 3:13-3).

      When a party fails to comply with its obligations, the discovery rule

expressly states that the court may "grant a continuance or delay during trial" or

"enter such other order as it deems appropriate." R. 3:13-3(f). A court's failure

to take appropriate action to remedy a discovery violation can implicate the

defendant's right to a fair trial. State v. Clark, 347 N.J. Super. 497, 507, 510

(App. Div. 2002).

      In State v. Marshall, the Court made clear "[t]he choice of sanctions

appropriate for discovery-rule violations is left to the broad discretion of the

trial court." 123 N.J. 1, 134 (1991) (citing State v. Torro, 229 N.J. Super. 215,

223 (App. Div. 1988), disapproved of on other grounds by State v. Velez, 119

N.J. 185, 187 (1990)); see also State v. Broom-Smith, 406 N.J. Super. 228, 239

(App. Div. 2009), aff’d, 201 N.J. 229 (2010) (reviewing the trial judge's

discovery ruling for an abuse of discretion).

      As a general proposition, appellate courts "defer to a trial court's

resolution of a discovery matter, provided its determination is not so wide of the

mark or is not 'based on a mistaken understanding of the applicable law.'" State

ex rel. A.B., 219 N.J. 542, 554 (2014) (quoting Pomerantz Paper Corp. v. New


                                                                          A-3724-17T2
                                       17
Cmty. Corp., 207 N.J. 344, 371 (2011)). "An abuse of discretion 'arises on

demonstration of manifest error or injustice,' or when 'there has been a clear

error in judgment[.]'" Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57

(2019) (first quoting Hisenaj v. Keuhner, 194 N.J. 6, 20 (2008), then quoting

State v. Brown, 170 N.J. 138, 147 (2001)).          Said differently, an abuse of

discretion occurs when the trial judge's "decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d

1260, 1265 (7th Cir. 1985)).

       Applying these legal principles to the discovery violation that occurred in

this case, we conclude that the trial court did not abuse its discretion in deciding

not to impose the extreme sanction of excluding the medical correspondence

found during the execution of the search warrant. Defense counsel had been

alerted to the existence of the documents bearing defendant’s name five days

before the trial started. The five-day notice of the documents afforded defense

counsel sufficient time to adjust his trial strategy, protecting defendant's right to

a fair trial.




                                                                             A-3724-17T2
                                        18
      Furthermore, as we have noted, counsel had been provided timely

discovery concerning other trial evidence that linked defendant to the apartment,

including the key found on defendant's person and trial testimony from two

witnesses who claimed that defendant and codefendant Davis lived together in

the apartment. In these circumstances, we do not believe that defendant suffered

undue prejudice or otherwise was deprived the right to a fair trial.

      We note that defendant in his appellate brief argues the belatedly supplied

documents "altered the landscape upon which Defendant had made his decisions

to proceed to trial and his trial preparations." By referring to his decision to

“proceed to trial,” defendant intimates, without explication, that he might have

pled guilty had the medical correspondence been disclosed in a timely fashion.

So far as we can tell, defendant did not make this argument before the trial court.

Nor has defendant presented any evidence or proffer, whether by certification

or even by argument of counsel, that he would have pled guilty pursuant to a

plea agreement had this material been disclosed in a timely fashion.

      Finally, with respect to the discovery issue, we note that the trial court

lamented that this situation occurs all too frequently with large urban police

departments. The court stated:

            It's very clear that these are documents that in the
            ordinary course, had the prosecutor been aware of them,

                                                                           A-3724-17T2
                                       19
            would have turned them over.              This happens
            particularly when you're dealing with a large urban
            police department like Elizabeth. There's nothing novel
            about this. It is unfortunate and regrettable every time
            it happens.

      We take this opportunity to emphasize that such departments are by no

means exempt from the discovery rules. Our case law makes abundantly clear

that once "a case is referred to the prosecutor following arrest by a police officer

as the initial process, or on a complaint by a police officer, . . . local law

enforcement is part of the prosecutor's office for discovery purposes." State v.

W.B., 205 N.J. 588, 608 (2011) (citations omitted) (citing State v. Winne, 12

N.J. 152, 171 (1953)). Therefore, it is the prosecutor's responsibility not just to

report discovery violations promptly, as happened in this case, but to prevent

violations from occurring in the first place. We thus expect that hereinafter, all

discoverable material retained by a police department after execution of a search

warrant will be turned over to the prosecutor so that the prosecutor can provide

it to defense counsel when discovery is due under R. 3:3-13(b).

                                      IV.

      We next address defendant's sentencing contentions. The State concedes

that the trial court was required to merge defendant's conviction on count one

into his conviction on count three. See State v. Selvaggio, 206 N.J. Super. 328,


                                                                            A-3724-17T2
                                        20
330 (App. Div. 1985) ("[C]onvictions for possession merge into . . . convictions

for the simultaneous possession with intent to distribute the same substance.").

Furthermore, the sentencing court improperly imposed a concurrent extended

term on the conviction for count one under N.J.S.A. 2C:43-6(f) even though that

offense is not eligible for an extended term under that statutory provision.

Accordingly, it is necessary to vacate the illegal sentence and remand to impose

a lawful sentence.

      Defendant also argues that his sentence of eight years imprisonment with

a four-year period of parole ineligibility is excessive. He acknowledges that the

trial court was required to impose an extended term as a repeat offender under

N.J.S.A. 2C:43-6(f) due to his prior fourth-degree conviction for possession of

marijuana with intent to distribute. See State v. Irrizary, 328 N.J. Super. 198,

202 (App. Div. 2000) ("The extended sentence imposed by N.J.S.A. 2C:43-6(f)

is mandatory"). Accordingly, the court was required to impose a state prison

sentence within the extended term range for his current third-degree

conviction—five to ten years—and a term of parole ineligibility of one third to

one half of the imposed sentence or three years, whichever is greater. N.J.S.A.

2C:43-6(f).   "Where, within that range of sentences, the court chooses to

sentence a defendant remains in the sound judgment of the court" subject to


                                                                         A-3724-17T2
                                      21
applicable aggravating and mitigating factors. State v. Pierce, 188 N.J. 155, 169

(2006). In this instance, the court did not impose the maximum possible prison

and parole-ineligibility term, choosing instead to impose an eight-year term of

imprisonment with a four-year term of parole ineligibility.

      "Appellate courts review sentencing determinations in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). An appellate

court "does not sit to substitute its judgment for that of the trial court," State v.

O'Donnell, 117 N.J. 201, 215 (1989). We are "bound to affirm a sentence, even

if [we] would have arrived at a different result, as long as the trial court properly

identifies and balances aggravating and mitigating factors that are supported by

competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114

N.J. 394, 400–01 (1989)).       In other words, a sentence challenged on appeal

must be affirmed unless:

             (1) the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [Fuentes, 217 N.J. at 70 (alteration in original) (quoting
             State v. Roth, 95 N.J. 334, 364–65 (1984)).]



                                                                             A-3724-17T2
                                        22
      Applying these general sentencing principles to the record before us, we

conclude the trial court acted within the ambit of its discretion in imposing an

eight-year prison sentence with a four-year term of parole ineligibility. The

sentencing judge, who heard the trial and thus was familiar with the offense

conduct, considered both the nature and circumstances of the offense and

defendant's background, including his four prior convictions. The court found

aggravating factors three (the risk that defendant will commit another offense),

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

offenses of which he has been convicted), and nine (the need to deter). N.J.S.A.

2C:44-1(a)(3), (6), (9). Those aggravating circumstances are supported by

credible evidence in the record. State v. Dalziel, 182 N.J. 494, 505 (2005)

(citing Roth, 95 N.J. at 356–64). The court found no mitigating factors and

concluded    that   the   aggravating   factors   substantially outweighed      the

(nonexistent) mitigating factors.

      We note that defendant on appeal claims there are discrepancies between

the judgment of conviction and the transcript of the sentencing court's oral

decision. Defendant argues, for example, the court at the sentencing hearing did

not find on the record that aggravating factor six applies. Our review of the

transcript of the sentencing hearing contradicts defendant's appellate assertion.


                                                                           A-3724-17T2
                                        23
The record does show that the judge originally indicated he would not consider

aggravating factor six. Later in the course of the hearing, however, the judge

reconsidered that decision and concluded aggravating factor six applies.

Accordingly, the judgment of conviction accurately reflects the trial court's

ultimate oral decision with respect to this aggravating factor, which is amply

supported by defendant's significant criminal history.

      Defendant also contends on appeal that when the sentencing judge

concluded that the aggravating factors substantially outweigh the mitigating

factors, the judge in his oral decision failed to state that he was "clearly

convinced" of that determination. The judgment of conviction, in contrast,

includes this language. See State v. Williams, 310 N.J. Super. 92, 98 (App. Div.

1998) ("[T]he sentencing judge must be 'clearly convinced that the aggravating

factors substantially outweigh the mitigating factors' before imposing a parole

disqualifier." (quoting State v. Dunbar, 108 N.J. 80, 92 (1987))).         This

discrepancy is of no moment because, as we have noted, defendant was subject

to an automatic, mandatory term of imprisonment and parole indelibility

pursuant to N.J.S.A. 2C:43-6(f) based on his prior possession-with-intent-to-

distribute conviction. The sentencing judge, therefore, was not required to make

a finding that he was clearly convinced the aggravating factors outweigh the


                                                                        A-3724-17T2
                                      24
mitigating factors under N.J.S.A. 2C:43-6(b) before imposing a period of parole

ineligibility.

      Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.




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