                                NOT FOR PUBLICATION WITHOUT THE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-1569-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HAKEEM T. MERCER,

     Defendant-Appellant.
_____________________________

                    Submitted September 13, 2018 – Decided January 30, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 13-11-
                    1394.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson D. Harkov, Designated Counsel,
                    on the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Nancy A. Hulett, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
            Defendant Hakeem T. Mercer appeals from the February 10, 2016

and April 26, 2016 orders of the Law Division denying motions to suppress

evidence, and the sentence imposed after entry of his guilty plea to conspiracy

to commit aggravated assault. We affirm.

                                       I.

      The following facts are derived from the record.       On April 5, 2013,

defendant was seen by several witnesses arguing with a group of men in a

bodega in Carteret. Defendant called his brother, Yasin Bell, to assist him in a

planned assault of the group. Bell arrived with co-defendant Daniel J. Gillens,

who, unbeknownst to defendant, brought a handgun. The three men engaged in

a physical confrontation with the group.

      A police officer, on alert from an anonymous tip that a shooting was about

to take place, heard gunshots from the area of the bodega. In less than a minute,

he arrived at the scene to find twenty-six-year-old Deont'e J. Shakleford on the

ground fatally wounded by multiple gunshots. Shakleford had not been part of

the group with whom defendant had argued. He exited a vehicle and approached

the bodega when he saw that his father was involved in the confrontation.

Several of his family members were present when he was shot.




                                                                         A-1569-16T2
                                       2
      Witnesses described the shooter as a heavyset, African-American man

wearing a red and white sweatshirt with burgundy or maroon sweatpants. The

witnesses described the direction in which the shooter ran from the scene. An

officer in the area to which the suspect fled, having been informed of the

shooter's description, encountered a person, later identified as Gillens, who

matched the description. The officer asked Gillens if he could speak with him.

Gillens's response was to flee on foot. The officer pursued him. During the

chase, another officer saw Gillens discard a handgun in a grassy area as he

rounded a corner outside the view of the pursuing officer. After Gillens was

apprehended, officers recovered the gun.

      The next day, Gillens was interviewed by detectives. After the interview,

the State authorized charges against defendant, who was then arrested.

      On November 7, 2013, a State grand jury indicted defendant and Gillens

for first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3 and N.J.S.A.

2C:5-2; first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2); second-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and

second-degree unlawful possession of a handgun without a permit, N.J.S.A.

2C:39-5(b). The grand jury also indicted defendant for second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b).


                                                                         A-1569-16T2
                                      3
      Gillens moved to suppress the gun, arguing that he was seized by the

officer's pursuit, which was initiated without reasonable suspicion of criminal

conduct, and that the gun, discarded as a result of the illegal seizure, cannot be

deemed to have been abandoned by him. Defendant joined the motion.

      The trial court held a suppression hearing at which two officers testified.

On February 10, 2016, the court entered an order denying the motion. In a

comprehensive written opinion, the court concluded that Gillens was seized

when the officer pursued him. The court concluded, however, that the seizure

was lawful because the officer "had a particularized suspicion that . . . Gillens

was involved in criminal activity based on the fact that he matched a very

specific description provided by multiple witnesses and police personnel" of the

shooter who fled toward the area where he encountered Gillens. This suspicion

and Gillens's flight were sufficient to permit the officer's pursuit.

      The court also concluded that Gillens voluntarily discarded the gun during

the pursuit. As the court explained,

            any privacy interest . . . Gillens maintained in the gun
            as personal property was relinquished when [he]
            knowingly and voluntarily surrendered control over the
            gun by hastily throwing it into a grassy area between
            apartment buildings. [T]here is a strong implication
            that . . . Gillens abandoned the gun specifically in
            response to the encounter with [police]; that he made
            the decision to throw the gun after he rounded the

                                                                          A-1569-16T2
                                         4
            corner in order to discard the weapon out of [the
            officer's] sight; and, that he threw the gun in order to
            avoid being apprehended with the weapon on his
            person.

      Gillens later moved to suppress transcripts of eleven telephone

conversations he had with his former girlfriend while he was incarcerated at the

Middlesex County Adult Correction Center (MCCC) awaiting trial. The State

intended to use the transcripts as evidence that Gillens and defendant engaged

in a conspiracy to commit murder, and that the killing of Shakleford was gang

related. Gillens claimed use of the transcripts would violate his right to privacy

under the Fourth Amendment, and its State equivalent, as well as his right to

counsel under the Sixth Amendment, and its State equivalent. The parties

dispute whether defendant joined this motion.

      On April 26, 2016, the trial court entered an order denying Gillens's

motion. In a detailed written opinion, the court found that Gillens received

notice when he was admitted to the MCCC that his calls, except for legal calls,

would be recorded and monitored for security purposes.          A similar notice

appeared on the form on which inmates request phone privileges at the MCCC.

In addition, at the start of each call, a recorded message reminded Gillens that

the call may be monitored and recorded. The court noted that it has long been

established that prison officials may monitor and record inmate telephone calls

                                                                          A-1569-16T2
                                        5
for the safety and security of the facility. Thus, the court concluded Gillens did

not have an expectation of privacy in his jailhouse calls.

      In addition, the court rejected Gillens's right to counsel arguments,

concluding that the conversations were not with his attorney and did not concern

trial strategy, and the recordings did not interfere with his ability to prepare his

defense.   Finally, the court rejected as meritless Gillens's contention that

recording the calls was the equivalent of employing a jailhouse informant to

solicit incriminating evidence. The trial court noted that Gillens initiated the

calls at issue, his former girlfriend was not an agent of law enforcement, and the

recordings were conducted openly with notice.

      On May 11, 2016, defendant entered a guilty plea to an amended count

indictment charging him with second-degree conspiracy to commit aggravated

assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(1). In exchange, the

State agreed to drop all remaining charges and recommend a ten-year sentence

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1

      The court accepted defendant's guilty plea following a plea colloquy:



1
  Gillens entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4.
He admitted that he went to Carteret to assist defendant with a physical
altercation, and that he shot Shakleford. The court sentenced him to twenty-five
years of incarceration, with an eighty-five-percent period of parole ineligibility.
                                                                            A-1569-16T2
                                         6
Q:   Okay. On April 5, 2013, you were in Carteret;
     correct?

A:   Yes.

            ....

Q:   And earlier in the day in Carteret, you were alone
     at a store . . . a little corner store or a bodega; is
     that correct?

A:   Yes.

Q:   And there was a time where you were approached
     by a group of individuals . . . and you got into a
     verbal altercation with those individuals; correct?

A:   Yes.

Q:   And after you got into the verbal altercation with
     the individuals, you then . . . you made a call to
     your brother . . . Yasin Bell; correct?

A:   Yes.

Q:   And in calling Yasin Bell, you were requesting of
     him that he come to where you were, so he could
     assist you with a fight that was going to happen;
     correct?

A:   Yes.

Q:   And when Yasin Bell arrived, Mr. Gillens, Daniel
     Gillens, who sits beside you, he was with Yasin
     Bell, correct?

A:   Yes.


                                                              A-1569-16T2
                           7
            Q:     And after that, you individuals, in fact, went back
                   to the area of the store [and] it was your intention
                   and the intention of the group to get into a
                   physical altercation; correct?

            A:     Yes.

            Q:     And you're conceding that, in going to get into
                   that physical altercation, it was your intent to
                   cause serious bodily injury to the individuals on
                   the other end of that altercation; correct?

            A:     Yes.

During the plea allocution, defendant did not admit to directing the murder of

any individual, nor did he admit to being a gang member.

      On October 14, 2016, the trial court held a sentencing hearing, during

which the State submitted a sentencing memorandum outlining the evidence in

its file regarding the events leading up to Shakleford's death. The memorandum

included a summary, derived from witness statements, of the verbal altercation

that resulted in defendant's call to his brother. According to the State, defendant,

who lived in Newark, had been selling drugs in Carteret while he was staying

with his sister, and the argument concerned drug dealing near the store. The

State asserted that during the dispute defendant identified himself as a member

of the Bloods, a street gang, and made threatening remarks, including a promise

that "someone was going to die" that night.


                                                                            A-1569-16T2
                                         8
      The State also tied defendant and Gillens to gang activity in other ways:

            Defendant Mercer bragged to Detectives during this
            investigation about his "rap videos." As your Honor is
            aware, the State provided these videos as part of
            discovery in this case. Not only are the videos replete
            with reference to drug dealing and murder but in some
            videos gang symbols are displayed. And, shockingly
            one particular video, "1000 grams," reenacts a murder
            where the victim is approached from behind and shot in
            the head. The lyrics by Mercer: "I could get you
            murdered for a thousand grams."

            The evidence similarly supported Defendant Gillens'[s]
            gang affiliation. Defendant Gillens'[s] cell phone had
            several references to the Blood's (sic) street gang.
            Additionally, [Gillens] has tattoos consistent with gang
            affiliation. Specifically, [Gillens] has two tear drops
            tattooed on his face. During pre-trial litigation, it was
            argued by Defendant Gillens, that the nature and
            meaning of the tattoos were so well-known that he
            should be permitted to cover them during the trial to
            avoid undue prejudice.

Finally, the State suggested defendant ordered a hit on one of the people with

whom he had been arguing and that Gillens mistook Shakleford for that person.

      During the hearing, the assistant prosecutor made the following remarks,

urging the court to rely on the pretrial witness testimony:

            On April 5, 2013, the [c]ourt knows that there was a[n]
            altercation at the store involving Hakeem Mercer. We
            had a pretrial motion on this issue where [Ms.] Alston
            testified as to what she heard on that day. [She] was
            only one of the several [S]tate's witnesses that
            overheard Hakeem Mercer during that altercation.

                                                                        A-1569-16T2
                                        9
            From what th[e] [S]tate can tell, Judge, the altercation
            was over drug dealing. That Mr. Mercer wanted to sell
            drugs in Carteret and that the local individuals, who
            may or may not have been dealing in that area, were
            opposed to it. I'm not asking the [c]ourt, obviously, to
            consider any evidence of drug dealing and hold it
            against Mr. Mercer, but just to provide some
            background as to why we're here.

                  ....

            [T]he victim's [cousin], Jahir Foster, [fifteen] years of
            age . . . overhear[d] Mr. Mercer say "I'll kill you with
            my bare hands. I'll shoot your face off. I'm going to
            show you how we get down in Newark."

            On the phone [before the shooting], [defendant] said
            "It's about [twenty] Bloods outside the store and they're
            trying to get at me, so I need you all to come out here
            and get out here now."

            Saying to [to one individual], "Y'all fake Blood, but we
            Blood, true Blood from Newark and I'm going to show
            you how we get down, cause we don't play."

            "Yeah, you a fake Blood. You got that fake body on
            you. I'm going to show you how we get down in
            Newark. We true Bloods. We don't play and I promise
            you we gonna get you all. One of you all is going to
            die."

Alston's statements and the rap videos were the subject of pretrial motions. The

trial court concluded that Alston's statements were admissible, but did not reach

a decision on the videos before entry of defendant's guilty plea.



                                                                         A-1569-16T2
                                      10
      At the sentencing hearing, defendant's counsel disputed the State's account

of what took place before the shooting and denied defendant was in a gang.

Although the plea agreement incorporated the State's recommendation of a ten-

year sentence, defendant's counsel urged the court to impose a five-year term.

      The court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3),

defendant's risk of recidivism, was applicable because defendant was on

probation as a result of two counts of distribution of a controlled dangerous

substance was this crime occurred. The judge also noted that defendant had

been disciplined while at the MCCC for refusing an order and threatening

another inmate. The court additionally found aggravating factor nine, N.J.S.A.

2C:44-1(a)(9), criminal deterrence, applicable.

      With respect to both aggravating factors the court found that

            [t]here was a verbal confrontation that did take place.
            Mr. Mercer argues that he was unaware there would be
            any weapons involved. There is testimony to the extent
            that Mr. Mercer made comments about the individuals
            there being fake Bloods, that someone was going to die
            today. And according to [one witness], Mr. Mercer told
            him that he should [not] be in the area, because he was
            going to murder one of them.

            Now, Mr. Mercer denies these allegations through
            counsel. And the [c]ourt had an opportunity to address
            the credibility of Ms. Alston at a hearing and I did find
            her credible . . . .


                                                                         A-1569-16T2
                                      11
            So, to the extent that there were comments made by Mr.
            Mercer, that there were comments made to the other
            individuals that were in the area, and that there was a
            call made, I find that compelling when it applies to
            [aggravating] factors three and nine.

The court declined to find aggravating factors one, especially heinous, cruel, or

depraved acts, N.J.S.A. 2C:44-1(a)(1), two, the victim was vulnerable or

incapable of resistance, N.J.S.A. 2C:44-1(a)(2), five, substantial likelihood

defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(5),

and six, extent of defendant's criminal record, N.J.S.A. 2C:44-1(a)(6).

      As to the mitigating factors, the court considered factor six, N.J.S.A.

2C:44-1(b)(6), victim compensation based on defendant's willingness to

compensate the victim's family, giving the factor little weight.      The court

rejected the mitigating factors urged by defendant's counsel: three, defendant

acted under strong provocation, N.J.S.A. 2C:44-1(b)(3); four, there were

substantial grounds justifying or excusing his conduct, N.J.S.A. 2C:44-1(b)(4);

and five, the victim's conduct induced or facilitated the crime, N.J.S.A. 2C:44-

1(b)(5).

      After weighing the aggravating and mitigating factors, the court sentenced

defendant to a ten-year period of incarceration, with an eighty-five-percent

period of parole ineligibility, pursuant to NERA, the terms recommended by the


                                                                          A-1569-16T2
                                      12
State pursuant to the plea agreement. The court also assessed fines and penalties

and ordered defendant to serve three years on parole after his release.

      This appeal followed. Defendant makes the following arguments:

      POINT I

            THE TRIAL COURT ERRED WHEN IT DENIED
            DEFENDANT'S     MOTION     TO   SUPPRESS
            EVIDENCE SEIZED AS A RESULT OF A
            WARRANTLESS      SEARCH    BECAUSE    THE
            SEIZURE OF THE RECORDINGS OF DEFENDANT
            GILLENS'[S] PHONE CALLS FROM THE JAIL WAS
            MADE    WITHOUT     INFORMED    CONSENT,
            CONTRARY TO THE UNITED STATES AND NEW
            JERSEY CONSTITUTIONS.

      POINT II

            THE TRIAL COURT ERRED WHEN IT DENIED
            DEFENDANT'S MOTION TO SUPPRESS THE
            FIREARM SEIZED NEAR THE SCENE OF
            GILLENS'[S] ARREST AS A RESULT OF A
            WARRANTLESS SEARCH, CONTRARY TO THE
            UNITED     STATES  AND  NEW   JERSEY
            CONSTITUTIONS.

      POINT III

            THE RELIANCE BY THE SENTENCING COURT,
            WITHOUT DEFENDANT'S CONSENT, ON FACTS
            THAT WERE NOT PART OF DEFENDANT'S
            FACTUAL    BASIS   AND    WERE   ALSO
            REPEATEDLY CONTESTED BY DEFENDANT
            AND HIS ATTORNEY, VIOLATED DEFENDANT'S
            RIGHT TO TRIAL BY JURY AND STATE V.


                                                                          A-1569-16T2
                                      13
            NATALE, AND REQUIRES A REMAND FOR A
            NEW SENTENCE HEARING.

      POINT IV

            DEFENDANT'S SENTENCE WAS EXCESSIVE
            AND CONSTITUTED AN ABUSE OF DISCRETION,
            REQUIRING HIS SENTENCE BE VACATED AND
            THE CASE RETURNED TO THE TRIAL COURT
            FOR A NEW SENTENCE HEARING.

                                       II.

A.    Seizure of Gillens's Handgun.

      As a preliminary matter, the State argues defendant lacks standing to

challenge the seizure of Gillens's handgun. "Under our well-established State

constitutional jurisprudence, an accused generally has standing to challenge a

search or seizure whenever 'he has a proprietary, possessory or participatory

interest in either the place searched or the property seized.'" State v. Randolph,

228 N.J. 566, 571-72 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)).

"When the accused is charged with committing a possessory . . . offense . . .

standing is automatic, unless the State can show that the property was abandoned

. . . ." Randolph, 228 N.J. at 571-72 (citing State v. Brown, 216 N.J. 508, 529

(2014)).   The abandoned property doctrine is a "narrow exception" to the

automatic standing rule. State v. Johnson, 193 N.J. 528, 549 (2008).



                                                                          A-1569-16T2
                                       14
               [F]or standing purposes, property is abandoned if: (1) a
               person has either actual or constructive control or
               dominion over property; (2) he knowingly and
               voluntarily relinquishes any possessory or ownership
               interest in the property; and (3) there are no other
               apparent or known owners of the property.

               [State v. Carvajal, 202 N.J. 214, 225 (2010) (citing
               Johnson, 193 N.J. at 549).]

"The test is whether, given the totality of the circumstances, an objectively

reasonable police officer would believe the property is abandoned." Brown, 216

N.J. at 531.

      Here, defendant was charged with two counts in which possession of the

handgun was an element, circumstances that ordinarily would vest him with

automatic standing to appeal the trial court's suppression order. The State,

however, argues that because the trial court found that Gillens abandoned the

gun during a constitutionally sound pursuit, defendant falls within a "narrow

exception" to the automatic standing rule. We agree.

      After weighing the credibility of the witnesses who testified at the

suppression hearing, the trial court concluded that Gillens voluntarily

abandoned the gun while fleeing from a lawful pursuit.

               We are bound to uphold a trial court's factual findings
               in a motion to suppress provided those findings are
               supported by sufficient credible evidence in the record.
               Deference to those findings is particularly appropriate

                                                                          A-1569-16T2
                                         15
              when the trial court has the opportunity to hear and see
              the witnesses and to have the feel of the case, which a
              reviewing court cannot enjoy.

              [State v. Watts, 223 N.J. 503, 516 (2015) (citations and
              quotations omitted).]

There is ample support in the record for the trial court's finding that Gillens

abandoned the gun in response to his encounter with a police officer. Gillens

tossed the gun in a grassy area of an apartment complex as he fled. His purpose,

as made plain by the evidence admitted at the hearing, was to not be in

possession of the gun when police officers caught up to him. See State v.

Ramos, 282 N.J. Super. 19 (App. Div. 1995) (holding that a package discarded

when defendant fled from an attempted investigatory stop based on reasonable

suspicion is admissible).

        Nor are we persuaded by defendant's argument that the pursuit of Gillens

was undertaken unlawfully, thus vitiating his abandonment of the gun. We

review the trial court's determination that the officers had particularized

suspicion of criminal activity when they pursued Gillens, a question of law, de

novo.    State v. Vargas, 213 N.J. 301, 327 (2013).        Under both Article I,

Paragraph 7 of our State Constitution and the Fourth Amendment, a person is

free from unreasonable searches and seizures. U.S. Const. amend. IV; N.J.

Const. art. I, ¶ 7. A warrantless seizure is presumptively invalid. State v. Mann,

                                                                          A-1569-16T2
                                        16
203 N.J. 328, 337 (2010). To be lawful, a warrantless seizure must fall within

one of the few well-delineated exceptions to the warrant requirement. Id. at

337-38. One such exception is an investigatory stop. Id. at 338.

      An investigatory stop "is valid if it is based on specific and articulable

facts which, taken together with rational inferences from those facts, give rise

to a reasonable suspicion of criminal activity." Ibid. (quotation omitted). A

court reviewing this issue must assess whether "the facts available to the officer

at the moment of the seizure . . . warrant a man of reasonable caution in the

belief that the action taken was appropriate." Ibid. (citation omitted). This must

amount to something more than an unparticular suspicion or hunch.

      The record fully supports the trial court's conclusion that the officer who

approached Gillens had reasonable, particularized suspicion that he had

participated in a shooting. Gillens matched the physical description given by

witnesses, and was wearing the clothing they described. He was in the area to

which the witnesses saw the shooter flee. And, when asked by an officer to

engage in a conversation, he fled.

      Contrary to defendant's argument, the facts of this case are unlike those in

State v. Tucker, 136 N.J. 158 (1994). In that case, Tucker was sitting on a curb

when police officers approached him. In response, he fled. With no information


                                                                          A-1569-16T2
                                       17
regarding Tucker and no reason other than his flight to suspect him of criminal

activity, the officers gave chase. The Court held that the pursuit of Tucker, and

his ultimate capture, constituted unconstitutional seizures undertaken without

reasonable suspicion.    Id. at 173.    The Court in Tucker emphasized that

"evidence of criminality" such as "reports of recent nearby crimes . . .

descriptions of recent crime suspects [or] nearby potential or [actual] victims of

crimes" could constitute reasonable suspicion. Id. at 169 (second alteration in

original) (quoting State v. Tucker, 265 N.J. Super. 358, 360 (App. Div. 1993)).

Here, as recounted above, the officer who approached Gillens had ample

information suggesting that Gillens had engaged in criminal activity, a crucial

distinction from the facts before the Court in Tucker.

      B.    Recorded Telephone Calls.

      The State argues that defendant did not preserve his right to challenge the

April 26, 2016 order because he did not join Gillens's motion to suppress t he

transcripts of his jailhouse conversations. The trial court's opinion and order on

the motion to suppress the transcripts do not mention defendant. This contrasts

with the court's opinion and order on the motion to suppress Gillens's gun, which

both note that defendant joined the motion. Defendant's counsel, however,

presented oral argument on the return date of the motion regarding the recorded


                                                                          A-1569-16T2
                                       18
conversations. We consider counsel's participation in oral argument sufficient

to preserve the issues raised in the motion for appeal.

      We are, however, constrained to conclude that defendant lacks standing

to challenge the April 26, 2016 order. Defendant has neither a proprietary,

possessory, nor participatory interest in the contents of Gillens's jailhouse

telephone conversations. Randolph, 228 N.J. at 571-72. The conversations took

place on a publicly owned and operated telephone, in a secure correctional

facility, between Gillens and his former girlfriend, after the events underlying

the criminal charges against defendant. Defendant is a complete stranger to the

conversations. He is not charged with a possessory offense related to transcripts

of the conversations. The mere fact that Gillens may have implicated defendant

in criminal activity while speaking with his girlfriend is insufficient to vest him

with standing to challenge the April 26, 2016 order.

      Moreover, the trial court's denial of Gillens's suppression motion was

substantively unassailable. Gillens did not have a protected interest in the

content of his phone conversations because he was routinely informed that he

was speaking on a recorded line and chose to do so. See e.g., State v. Evers,

175 N.J. 355, 370 (2003) (concluding there is no reasonable expectation of

privacy attached to a statement made to third parties); State v. Constantino, 254


                                                                           A-1569-16T2
                                       19
N.J. Super. 259, 262 (Law Div. 1991) (finding no reasonable expectation of

privacy attached to a private statement made in a public space). Even assuming,

however, that Gillens had a reasonable expectation of privacy in the content of

his phone calls, jail officials may impinge upon inmates' privacy rights for

legitimate penal interests such as security.

      The Law Division addressed this point in State v. Ryan, 145 N.J. Super.

330, 333 (Law. Div. 1976). There, two pretrial detainees in a municipal jail

challenged the admissibility of their recorded conversation, which was obtained

through the jail's electronic surveillance monitoring system, a one-way intercom

to keep officers alert of possible security problems. Id. at 332. The defendants

alleged the monitoring violated their Fourth, Fifth, and Sixth Amendment rights

and their right of privacy. Ibid. The court disagreed:

            Lawful incarceration necessitates the reasonable
            withdrawal from a prisoner of certain rights normally
            enjoyed by a person in free society. It is inherent in our
            penal system that a prisoner is not clothed with the
            usual array of guaranteed constitutional rights. It may
            be true that a prisoner does not leave his constitutional
            rights at the jailhouse gates, however, a prisoner does
            not enjoy the same right of privacy as nonincarcerated
            persons. Lack of privacy must be balanced against
            reasonable security in the jail. In the end, the scales
            must be tipped in favor of security.

            [Id. at 335.]


                                                                         A-1569-16T2
                                       20
      That said, however, law enforcement may not disregard the warrant

requirement of the Fourth Amendment when conducting a jailhouse search or

seizure unrelated to "legitimate penological interests" such as "internal order,

discipline, security, and rehabilitation . . . ." Turner v. Safley, 482 U.S. 78, 89

(1987); In re Rules Adoption, 120 N.J. 137, 147 (1990). See also State v.

Jackson, 321 N.J. Super. 365, 374-81 (Law. Div. 1999) (holding defendant-

inmate's constitutional right to privacy was violated when law enforcement

conducted a pre-textual warrantless search of defendant's cell after the

prosecutor was denied a search warrant by the judge).

      Here, Gillens's conversations were recorded pursuant to standard MCCC

protocol implemented for security purposes. The record here is devoid of

evidence suggesting a pre-textual motivation for the recording, or any

coordinated effort to collect evidence to support a criminal investigation or

prosecution.   Gillens elected to have incriminating conversations with his

girlfriend, aware that jail officials were recording his words. The trial court

correctly concluded that no constitutional violation occurred when transcripts of

those calls were given to the State for use in Gillens's criminal prosecution.

Once lawfully in possession of the contents of Gillens's telephone calls, jail

officials were free to give them to the prosecutor's office.


                                                                           A-1569-16T2
                                       21
      C.    Defendant's Sentence.

      We review a sentence for abuse of discretion. State v. Pierce, 188 N.J.

155, 166 (2006). We are to affirm a sentence, even if we would have imposed

a different one, so long as the sentencing judge "properly identifies and balances

aggravating and mitigating factors that are supported by competent cr edible

evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005) (quoting State

v. O'Donnell, 117 N.J. 210, 215 (1989)).        Moreover, a sentence imposed

pursuant to a plea agreement is presumed to be reasonable because it was

negotiated by the parties. State v. Fuentes, 217 N.J. 57, 70 (2014).

      The sentencing court must examine the aggravating and mitigating factors

enumerated in N.J.S.A. 2C:44-1(a) and (b). Each factor found by the court must

be relevant and supported by "competent, reasonably credible evidence." Id. at

72 (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The court then must conduct

a qualitative balancing of the factors to determine the appropriate sentence.

Fuentes, 217 N.J. at 72-73. One "reasonable" approach is for the court to begin

its analysis in the middle range for the offense at issue and determine whether

the factors justify departure above or below the middle range. Id. at 73 (quoting

Natale, 184 N.J. at 488). A sentencing court is not limited to the factual

admissions that formed the basis of the plea.       Id. at 71-72.   Instead, "the


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sentencing court gathers information necessary to assess the defendant's history

and characteristics, and to understand the nature and circumstances of his or her

crime." Id. at 72.

      Defendant argues that the trial court should not have applied aggravating

factor three, N.J.S.A. 2C:44-1(a)(3), because he had a "minor criminal record,"

and because of the "unique circumstances" of his present offense. In addition,

defendant argues the trial court should not have applied aggravating factor nine,

N.J.S.A. 2C:44-1(a)(9), because a five year sentence would have satisfied the

deterrent and punitive requirements of the criminal code. There is substantial

credible evidence in the record supporting the trial court's specific findings of

fact with regard to the aggravating and mitigating factors. Defendant had a prior

conviction for distributing drugs, hardly a minor crime.        In addition, the

circumstances of defendant's crime are not unique. When confronted by a group

of individuals, defendant, rather than walking away or calling the police,

decided to escalate the situation by conspiring with his brother and Gillens, who

he summoned to the scene, to commit aggravated assault.

      Defendant also argues that it was inappropriate for the court to consider

the State's arguments linking defendant to gang activity, and suggesting he

ordered the murder of the man with whom he had an argument. However, the


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court was free to consider all information concerning defendant's life and

characteristics in determining his sentence, which includes the statements he

made prior to the shooting suggesting that he was a member of a gang and that

someone would die that night. Defendant need not have conceded these facts

for the court to consider them at his sentencing.

      The trial court acknowledged defendant's contention that the statements

attributed to him by Alston and other witnesses were incorrect. Having had the

opportunity to judge Alston's credibility at a pretrial hearing, the court

determined she was credible and accepted her report of what defendant said.

The court did not find that defendant was a member of a gang, that he murdered

Shakleford, or that the killing was the result of gang-related activity. In fact,

the court declined to find aggravating factor five, substantial likelihood

defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(5),

applied. The court found instead, based on Alston's credible testimony, that

defendant boasted of a gang-related association, and threatened extreme

violence during the altercation that preceded Shakleford's shooting.

      We also reject defendant's argument that his sentence is excessive.

"Appellate review of the length of a sentence is limited." State v. Miller, 205

N.J. 109, 127 (2011). We are satisfied that the judge's findings and balancing


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of the aggravating and mitigating factors are supported by adequate evidence in

the record, and the sentence is neither inconsistent with sentencing provisions

of the Code of Criminal Justice nor shocking to the judicial conscience. See

Fuentes, 217 N.J. at 70; State v. Bieniek, 200 N.J. 601, 608 (2010); State v.

Cassady, 198 N.J. 165, 180-81 (2009). By his own admission, defendant, a

convicted felon on probation, plotted to commit aggravated assault, s etting in

motion the events that resulted in the senseless murder of a young man in front

of his family members. Ten years of imprisonment is consistent with the gravity

of defendant's criminal behavior.

      Affirmed.




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