                                NOT FOR PUBLICATION WITHOUT THE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-3277-16T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

LEE M. TRAVERS,

     Defendant-Appellant.
_______________________

                   Submitted November 28, 2018 – Decided January 2, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 09-12-2238.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Louis H. Miron, Designated Counsel, on the
                   brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Regina M. Oberholzer, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Defendant Lee Travers appeals from his July 1, 2016 convictions after a

jury trial.   He originally pled guilty to second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1), and second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b), and was sentenced pursuant to a plea agreement to eight

years in prison with an eighty-five percent parole disqualifier subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2.          He successfully appealed

based on his failure to provide a factual basis, and we vacated his guilty plea

and remanded for further proceedings. State v. Travers, No. A-0172-12 (App.

Div. May 13, 2014). The jury convicted defendant of first-degree attempted

murder of his wife, Linda, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count One),

second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (Count Two); third-degree terroristic threats against Linda, N.J.S.A. 2C:12-

3(b) (Count Three), third-degree aggravated assault against Linda, N.J.S.A.

2C:12-1(b)(2) (Count Four), fourth-degree aggravated assault against Linda,

N.J.S.A. 2C:12-1(b)(4) (Count Five), third-degree terroristic threats against his

son, N.J.S.A. 2C:12-3(b) (Count Nine), and second-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(b) (Count Ten). He was acquitted of the charges

against his daughter:    second-degree endangering the welfare of his child,

N.J.S.A. 2C:24-4(a)(2) (Count Six), and third-degree terroristic threats, N.J.S.A.


                                                                         A-3277-16T3
                                        2
2C:12-3(b) (Count Seven). He was also acquitted of second-degree endangering

the welfare of his son, N.J.S.A. 2C:24-4(a)(2) (Count Eight). The jury heard

evidence that, in the presence of his fifteen-year-old son and eleven-year-old

daughter, he threatened to kill his wife Linda, aimed his gun at her, and pulled

the trigger numerous times, but the gun did not fire. Defendant, sixty-one years

old at the time of the crimes in February 2009, was sentenced to an aggregate

term of twenty-nine years in prison with more than eighteen years of parole

ineligibility. He will be first eligible for parole when he is seventy-nine years

old. He argues the seizure of the gun found in his car was illegal, the jury charge

was defective, and his sentence was excessive. After reviewing the record in

light of the contentions advanced on appeal, we affirm the convictions, but

remand for resentencing.

      In 2009, defendant and Linda had been married twenty-two years and

lived in a house in Toms River with their son and daughter. Their relationship

had deteriorated, and the couple slept in separate rooms. On a morning in

February, after an argument between the two, Linda told defendant he had two

days to move out of the house. That evening, Linda took their daughter out for

dinner, returning home at approximately 10:00 p.m. Linda heard defendant on

the telephone saying he was "going to put an end to this" and that "he'd take


                                                                          A-3277-16T3
                                        3
everybody out." He said not to "believe everything you read tomorrow in the

newspaper." Linda woke her son.

      Defendant came upstairs, where his daughter was at the door of the

bedroom and his son and Linda inside. He told Linda, "you're done, I'm gonna

kill you." Defendant raised his hand, aiming a gun at Linda and pulled the

trigger at least six times, but the gun did not fire. Their son grabbed and lowered

defendant's hand, while Linda ran downstairs. Linda fled the house, crossed the

street, and called 9-1-1. As defendant and his son were struggling over the gun,

defendant said "let me go or I'll shoot you, too." Defendant then ran out of the

house.

      After leaving the house, defendant drove to the home of an acquaintance,

Joseph Lee, who lived twenty to twenty-five minutes away. Inside Lee's home,

defendant told Lee he "he fired some shots at his wife and [his son] got in

between it and he shot at him and the gun didn’t work." Defendant collapsed,

and Lee called 9-1-1 because he thought defendant was having a stroke or heart

attack. The police and an ambulance arrived in response to Lee's call. They

found defendant unresponsive and unconscious on the floor. Defendant did not

have a gun on him.




                                                                          A-3277-16T3
                                        4
      Once defendant was in custody, the police located defendant's car in Lee's

driveway. They looked through the window of the locked car and saw an old

revolver on the front seat. The gun was in poor condition. Concerned that the

gun could discharge because it was cocked and loaded with six rounds, the

police unlocked the car, removed the gun, and rendered it safe. Defendant did

not have a permit to carry a gun.

      The State's firearms expert examined the gun and found it to be "fireable,"

although it had a "cylinder timing" problem. In order to fire the gun, the expert

had to turn the cylinder by hand several degrees to align the firing pin and the

hammer. All of the bullets showed impressions from the firing pin, indicating

that the trigger was pulled at least six times.

      The gun was destroyed, pursuant to court order, prior to trial. The parties

entered into a trial stipulation that the loaded revolver was taken from

defendant's car and destroyed.

      Defendant argues on appeal:

             POINT I: THE TRIAL COURT ERRED IN DENYING
             DEFENDANT'S MOTION TO SUPPRESS THE
             SEIZURE OF THE GUN WHERE THE POLICE
             OFFICERS     SEIZED   THE    GUN     FROM
             DEFENDANT'S AUTOMOBILE WITHOUT A
             WARRANT AND UNDER CIRCUMSTANCES
             WHERE THE DISCOVERY OF THE GUN WAS NOT


                                                                        A-3277-16T3
                                         5
            INADVERTENT AND THERE WAS NO EXIGENCY
            TO JUSTIFY THE WARRANTLESS SEIZURE.

            POINT II:   THE TRIAL COURT ERRED IN
            CHARGING     THE    JURY  CONCERNING
            DEFENDANT'S ATTEMPTING TO COMMIT
            MURDER WHERE HE DID NOT COMPLETE THE
            CRIMINAL ACT NOR WAS HE ABLE TO DO SO
            UNDER THE ATTENDANT CIRCUMSTANCES.
            (NOT RAISED BELOW).

            POINT III: THE TRIAL COURT ABUSED ITS
            DISCRETION IN SENTENCING DEFENDANT TO
            SUCH A DRACONIAN AND UNJUST SENTENCE
            BASED UPON THE RECORD AND, THEREFORE,
            DEFENDANT'S    SENTENCE   SHOULD   BE
            VACATED.

                             I. Motion to Suppress

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018) (quoting

State v. Boone, 232 N.J. 417, 425-26 (2017)). A reviewing court does so

"because those findings 'are substantially influenced by [an] opportunity to hear

and see the witnesses and to have the 'feel' of the case, which a reviewing court

cannot enjoy.'" Ibid. (quoting State v. Gamble, 218 N.J. 412, 424-25 (2014)).

"A trial court's findings should not be disturbed simply because an appellate


                                                                         A-3277-16T3
                                        6
court 'might have reached a different conclusion . . . .'" State v. Mann, 203 N.J.

328, 336 (2010) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We owe

no deference "to conclusions of law made by trial courts in suppression

decisions, which we instead review de novo." Sencion, 454 N.J. Super. at 31-

32.

      "The Fourth Amendment to the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution require that police officers obtain a

warrant before conducting a search, unless that search falls into a recognized

exception to the warrant requirement." Id. at 32. "A search without a warrant

is presumptively invalid" unless it falls within an exception to the warrant

requirement, Mann 203 N.J. at 340, and the State "bears the burden of proving

by a preponderance of the evidence that a warrantless search or seizure 'falls

within one of the few well-delineated exceptions to the warrant requirement.'"

State v. Elders, 192 N.J. 224, 246 (2007) (quoting State v. Pineiro, 181 N.J. 13,

19-20 (2004)).

      "Those exceptions include, among others, plain view . . . ." Sencion, 454

N.J. Super. at 32 (quoting State v. Pena-Flores, 198 N.J. 6, 11 (2009)). Probable

cause is required to invoke the "plain view" doctrine. State v. Johnson, 171 N.J.

192, 208 (2002). Probable cause has been defined as "a well-grounded suspicion


                                                                         A-3277-16T3
                                        7
that a crime has been or is being committed." State v. Moore, 181 N.J. 40, 45

(2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).

      Under the plain view doctrine at the time this case was decided, 1 three

elements were required: 1) a police officer "must be lawfully in the viewing

area"; 2) the officer "has to discover the evidence 'inadvertently'"; and 3) it must

be "'immediately apparent' to the police that the items in plain view were

evidence of a crime, contraband, or otherwise subject to seizure." Mann, 203

N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).               The

"inadvertence" prong of the plain view test "is satisfied if the police did not

'know in advance the location of the evidence and intend to seize it.'" Johnson,

171 N.J. at 211 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 470

(1971)).

      Defendant concedes the police were lawfully in the viewing area of the

gun and the officers reasonably believed at the time of the seizure that the gun

may be evidence of a crime. Defendant challenges, however, the State's claim

that recovery of the gun was "inadvertent," as was required by the plain view

standard then in effect. Defendant posits that because the police responded to a


1
  The New Jersey Supreme Court eliminated the second prong, "inadvertence,"
from the plain view test, but made clear that the ruling was prospective only.
State v. Gonzales, 227 NJ. 77, 82 (2016).
                                                                           A-3277-16T3
                                         8
9-1-1 call concerning defendant having a gun, the State cannot claim that the

police's discovery of the gun was inadvertent.

      The trial court found the testimony of the State's witnesses credible, and

the photographs moved into evidence supported the State's witnesses' testimony

as it "related to the condition and position of the handgun and the debris in and

condition of the interior of the vehicle." The court found that the gun in

defendant's car was in plain view and that the condition of the gun posed an

imminent danger, creating exigent circumstances permitting the officers to enter

the car to retrieve the weapon. "Because the seizure of the firearm . . . was

proper under the plain view doctrine, it was not necessary for the State to

establish exigent circumstances under the automobile exception."        State v.

Reininger, 430 N.J. Super. 517, 537 (App. Div. 2013).

      The officers did not know in advance the location of the gun and did not

intend to seize it. The search, therefore, met the standard under the plain view

test. Mann, 203 N.J. at 341. The trial court did not err in denying defendant's

motion to suppress based on the plain view exception to the warrant requirement.

                         II. Attempted Murder Charge

      Defendant argues that the jury should not have been instructed on the

theory of impossibility under N.J.S.A. 2C:5-1(a)(1), because defendant did not


                                                                         A-3277-16T3
                                       9
and could not have completed the criminal act because the gun used in the crime

had a cylinder timing issue. Alternatively, defendant argues that at a minimum,

the jury should also have been instructed on the substantial step theory under

N.J.S.A. 2C:5-1(a)(3).

      Pursuant to N.J.S.A. 2C:5-1(a):

            A person is guilty of an attempt to commit a crime if,
            acting with the kind of culpability otherwise required
            for commission of the crime, he [or she]:

            (1) Purposely engages in conduct which would
            constitute the crime if the attendant circumstances were
            as a reasonable person would believe them to be;

                  ....

            (3) Purposely does or omits to do anything which, under
            the circumstances as a reasonable person would believe
            them to be, is an act or omission constituting a
            substantial step in a course of conduct planned to
            culminate in his commission of the crime.

      Attempt under N.J.S.A. 2C:5-1(a)(1) "concerns a completed crime which

fails of its purpose because the facts are not as defendant believes them to be,"

whereas attempt under N.J.S.A. 2C:5-1(a)(3) only "requires that the actor, with

intent to commit the crime, takes a substantial step toward its commission."

State v. Kornberger, 419 N.J. Super. 295, 302 (App. Div. 2011).




                                                                         A-3277-16T3
                                        10
      "Attempted murder requires that a 'defendant must have purposely

intended to cause the particular result that is the necessary element of the

underlying offense-death.'" State v. Sharp, 283 N.J. Super. 296, 299 (App. Div.

1995) (quoting State v. Rhett, 127 N.J. 3, 7 (1992)); N.J.S.A. 2C:11-3(a)(1);

N.J.S.A. 2C:5-1(a).

      Defendant concedes defense counsel did not contemporaneously object to

the jury charge. When a defendant fails to object contemporaneously to a jury

charge, the plain error standard applies, State v. Nero, 195 N.J. 397, 407 (2008),

and thus "there is a presumption that the charge was not error and was unli kely

to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).

But, erroneous jury instructions are "poor candidates for rehabilitation . . . ." Id.

at 196 (Hoens, J., dissenting) (quoting State v. Vick, 117 N.J. 288, 289 (1989)).

      The trial court instructed the jury on attempted murder based on the

impossibility theory under N.J.S.A. 2C:5-1(a)(1), stating that a person is guilty

of an attempt to commit murder if "the person purposely engaged in conduct

which was intended to cause the death of the victim if the attendant

circumstances were as a reasonable person would believe them to be." See

Model Jury Charges (Criminal), "Attempted Murder – Impossibility (N.J.S.A.

2C:5-1 and N.J.S.A. 2C:11-3(a)(1))" (approved Dec. 1992).             The evidence


                                                                            A-3277-16T3
                                        11
demonstrated that defendant aimed his fully loaded gun at his wife, and pulled

the trigger at least six times, thus had the gun been operating properly, Linda

would have been shot. See Kornberger, 419 N.J. Super. at 302.

      Defendant's conduct fits precisely the definition of attempted murder

under N.J.S.A. 2C:5-1(a)(1) provided by State v. Condon, which provides this

example: "where the person purposefully or knowingly aims what he [or she]

believes is a properly functioning gun at another person and pulls the trigger,

intending to kill the other person, unaware that the gun is inoperable." 391 N.J.

Super. 609, 617 (App. Div. 2007). The trial court did not err in giving the jury

instruction on attempted murder based on impossibility under N.J.S.A. 2C:5 -

1(a)(1), and did not err in failing to give the jury instruction based on a

substantial step under N.J.S.A. 2C:5-1(a)(3).

                            III. Excessive Sentence

      An appellate court applies "a deferential standard of review to the

sentencing court's determination, but not to the interpretation of a law." State

v. Bolvito, 217 N.J. 221, 228 (2014). "Appellate review of sentencing decisions

is relatively narrow and is governed by an abuse of discretion standard." State

v. Blackmon, 202 N.J. 283, 297 (2010). An appellate court may not "substitute




                                                                         A-3277-16T3
                                      12
[its] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,

65 (2014).

      We must, however, ensure that the trial court followed the appropriate

sentencing guidelines.    We determine whether the trial court: 1) exercised

discretion that "was based upon findings of fact grounded in competent,

reasonably credible evidence"; 2) "applied the correct legal principles in

exercising its discretion"; and 3) applied the facts to the law in a manner that

demonstrates "such a clear error of judgement that it shocks the conscience."

State v. McDuffie, 450 N.J. Super. 554, 576 (App. Div. 2017) (quoting State v.

Megargel, 143 N.J. 484, 493 (1996)).

      "In exercising its authority to impose sentence, the trial court must

identify and weigh all of the relevant aggravating factors that bear upon the

appropriate sentence as well as those mitigating factors that are 'fully supported

by the evidence.'" Blackmon, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J.

494, 504-05 (2005)).

      Defendant argues the sentencing court abused its discretion when it found

aggravating factor one applied because of defendant's daughter's victimization,

when defendant was acquitted of the charges against his daughter, and also erred

when it gave only little weight to mitigating factor seven.


                                                                         A-3277-16T3
                                       13
      The sentencing court found mitigating factor seven, defendant's prior law-

abiding life, N.J.S.A. 2C:44-1(b)(7), but gave the mitigating factor "very, very

slight weight." As we stated in defendant's prior appeal: "Defendant's prior

criminal record consists of an ordinance violation in 1985, as well as a disorderly

persons conviction and two more ordinance violations relating to a single

incident in 2004." Travers, slip op. at 3. The sentencing court considered

defendant's arrest record in conjunction with the seriousness of his current

convictions and found that it "certainly demonstrate[d] antisocial behavior."

"Adult arrests that do not result in convictions may be 'relevant to the character

of the sentence . . . imposed.'" State v. Rice, 425 N.J. Super. 375, 382 (App.

Div. 2012) (alteration in original) (quoting State v. Tanksley, 245 N.J. Super.

390, 397 (App. Div. 1991)).         When considering arrests, however, most

importantly "the sentencing judge shall not infer guilt as to any underlying

charge with respect to which the defendant does not admit his guilt." State v.

Green, 62 N.J. 547, 571 (1973).

      The seriousness of a current crime should also not be used to minimize a

law-abiding life when the defendant has lived a long, crime-free life. The

sentencing court properly considered mitigating factor seven, as a sixty-nine-

year-old person with defendant's history should be considered to have lived a


                                                                          A-3277-16T3
                                       14
lengthy, law-abiding life. She gave factor seven less weight than it appears to

merit, however.

      The court also found aggravating factors one, the nature and

circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); three, the risk that

defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and nine, the

need to deter defendant and others from violating the law, N.J.S.A. 2C:44-

1(a)(9). The court found factor one applied because the acts "were committed

by the defendant in a cruel manner and . . . his intent was to commit pain and

suffering on his victims . . . ." "[A]ggravating factor one must be premised upon

factors independent of the elements of the crime and firmly grounded in the

record." State v. Fuentes, 217 N.J. 57, 63 (2014). The acts committed by

defendant required the element of intent, including the intent to kill.        See

N.J.S.A. 2C:5-1(a); see also N.J.S.A. 2C:11-3; N.J.S.A. 2C:39-4(a); N.J.S.A.

2C:12-3(b); N.J.S.A. 2C:12-1(b)(2) and (4); N.J.S.A. 2C:39-5(b). Therefore, by

considering defendant's intent as an aggravating factor, the sentencing court

double-counted an element of the crimes. "Elements of a crime, including those

that establish its grade, may not be used as aggravating factors for sentencing of

that particular crime." State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div.




                                                                         A-3277-16T3
                                       15
2018) (quoting State v. Lawless, 214 N.J. 594, 608 (2013)). "To do so would

result in impermissible double-counting." A.T.C., 454 N.J. Super. at 254.

      A court may consider harm caused to a non-victim of a crime for which a

defendant is being sentenced. Lawless, 214 N.J. at 615. Defendant, however,

was acquitted of the charges against his daughter, the very same behavior the

court relied on to find aggravating factor one. See State v. Farrell, 61 N.J. 99,

107 (1972) (holding that "unproved allegations of criminal conduct should not

be considered by a sentencing judge"); see also State v. Sainz, 107 N.J. 283, 294

(1987) (finding that a sentencing court must not sentence a defendant "for a

crime that is not fairly embraced by the guilty plea").

      The sentencing court stated, "I also have considered . . . the [eleven]-year-

old daughter, while the defendant is not convicted of, she is not technically the

victim of a crime for which the defendant has been sentenced, I can consider as

part of the nature and circumstances under aggravating factor number [one]."

Considering a charge, after acquittal, as an aggravating factor is similar to

double-counting and ignores the jury's findings. The sentencing court explicitly

found aggravating factor one based on the intentional manner in which

defendant committed the crimes of threatening his wife and son and attempting




                                                                          A-3277-16T3
                                       16
to kill his wife, and its impact on his daughter, whom he was acquitted of

threatening or endangering.

      The court concluded that the aggravating factors outweighed the

mitigating factors and sentenced defendant, at the age of sixty-nine, to twenty-

nine years of incarceration with more than eighteen years of parole ineligibility.

The State concedes that defendant's conviction on Count Two, possession of a

weapon for an unlawful purpose, should have merged into his conviction on

Count One, attempted murder. Defendant argues all of the sentences should

have been concurrent because, even though there were two victims, his wife and

son, the crime occurred at the same time and location and was part of one single

criminal episode, and the conduct against his son was collateral to defendant's

objective with respect to his wife.

      "[M]ultiple sentences shall run concurrently or consecutively as the court

determines at the time of sentence." N.J.S.A. 2C:44-5(a); see also State v.

Randolph, 210 N.J. 330, 354 (2012) (finding that a sentencing court should be

cautious when imposing "multiple consecutive maximum sentences unless

circumstances justifying such an extraordinary overall sentence are fully

explicated on the record").     Five factors that a court should consider in

determining whether to impose a concurrent or consecutive sentence are:


                                                                         A-3277-16T3
                                       17
            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous.

            [State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting
            State v. Yarbough, 100 N.J. 627, 644 (1985)).]

These facts "should be applied qualitatively, not quantitatively." State v.

Carey, 168 N.J. 413, 427 (2001).

      "[C]rimes involving multiple victims represent an especially suitable

circumstance for the imposition of consecutive sentences because the 'total

impact of singular offenses against different victims will generally exceed the

total impact on a single individual who is victimized multiple times.'" Molina,

168 N.J. at 442 (quoting Carey, 168 N.J. at 429). The "multiple-victims factor

is entitled to great weight and should ordinarily result in the imposition of at

least two consecutive terms." Ibid. (quoting Carey, 168 N.J. at 429-30).



                                                                         A-3277-16T3
                                      18
      The sentencing court considered the Yarbough factors and found

defendant's attempted murder of his wife, Count One, and defendant's threat to

his son, Count Nine, were two different crimes that had separate consequences

justifying consecutive terms. The sentence for Count Ten, unlawful possession

of a weapon, was imposed consecutively to Counts One and Nine because the

court found it dealt with a different fact pattern than Counts One and Nine.

      The court did not abuse its discretion in imposing consecutive terms for

Counts One and Nine.      Although defendant's conduct resulting in the two

convictions occurred at the same time and location, it was directed at two

different people.   We do not, however, find sufficient reasons to sentence

defendant consecutively for possession of a gun without a permit. This crime

occurred with the others in one continuous episode and it was a misapplication

of discretion to order that it be served consecutively, especially in light of

defendant's age.

      The court must consider defendant's parole eligibility. N.J.S.A. 2C:43-

2(e); see also State v. Hannigan, 408 N.J. Super. 388, 399 (App. Div. 2009)

(noting that because "a court's decision to impose consecutive indeterminate

sentences has an impact on primary parole eligibility," it "must consider that




                                                                        A-3277-16T3
                                      19
impact when imposing consecutive sentences"). Under the sentence imposed

defendant would not be eligible for parole until he is seventy-nine years old.2

      Moreover, empirical evidence suggests that incarceration of inmates, such

as defendant, into old age generally results in overburdened prisons while

offering little in terms of public safety. The Pew Charitable Trusts & the John

D. and Catherine T. MacArthur Foundation, State Prison Health Care Spending:

An              Examination,                9            (Jul.             2014),

https://www.pewtrusts.org/~/media/assets/2014/07/stateprisonhealthcarespendi

ngreport.pdf. Similarly, "studies demonstrate that the risk of recidivism is

inversely related to an inmate's age." United States v. Howard, 773 F.3d 519,

532-33 (4th Cir. 2014) (citing Tina Chiu, It's About Time: Aging Prisoners,

Increasing Costs, and Geriatric Release, Vera Inst. of Justice (Apr. 2010),

http://www.vera.org/pubs/its-about-time-aging-prisoners-increasing-costs-and-

geriatric-release-0) (vacating the life sentence of a forty-one-year-old defendant

as substantively unreasonable where the defendant had been considered a

potential recidivist based on stale crimes).




2
  Defendant's prior guilty plea to less serious crimes would have rendered him
eligible for release in 2016, when he was sixty-nine years old.
                                                                         A-3277-16T3
                                       20
       Given the court's lack of consideration of defendant's age at parole

eligibility, the court's improper consideration of aggravating factor one and

improper consecutive sentence for possession of a gun without a permit, we

remand for resentencing. Also, as conceded by the State, the conviction for

possession of a gun for an unlawful purpose, Count Two, merges into Count

One.

       The convictions are affirmed, but we remand for resentencing. We do not

retain jurisdiction.




                                                                      A-3277-16T3
                                     21
