                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4850-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

E.G.T.,

     Defendant-Appellant.
___________________________

                   Argued telephonically April 20, 2020 –
                   Decided May 7, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 15-09-
                   1712.

                   Michael J. Confusione, argued the cause for appellant
                   (Hegge & Confusione, LLC, attorneys; Michael J.
                   Confusione, of counsel and on the brief).

                   Monica do Outeiro, Assistant Prosecutor, argued the
                   cause for respondent (Christopher J. Gramiccioni,
                   Monmouth County Prosecutor, attorney; Monica do
                   Outeiro, of counsel and on the brief).
PER CURIAM

      Defendant E.G.T.,1 appeals from his conviction for sexual assaulting his

first cousin and sentence. We affirm.

                                        I.

      We take the following facts from the trial record. J.S. and defendant are

first cousins. On August 10, 2014, J.S. traveled to New Jersey to attend another

cousin's baby shower; J.S. resides in Baltimore with her husband.            That

weekend, defendant was staying at his father's home in a nearby town but did

not attend the baby shower. Rather than drive back to Baltimore that evening,

J.S. accepted her uncle's invitation to spend the night at his home.

      After the baby shower, J.S. drove to her uncle's house where she met with

her uncle and defendant. Her uncle showed her around his house, including the

second-floor bedroom where she would be sleeping. Around 10:30 p.m., J.S.

and defendant decided to walk to a nearby bar to "catch up" over drinks. There,

they alternated in buying approximately five rounds of drinks. J.S. went to the

restroom after finishing her fourth drink. When she arrived back at their table,

J.S. noticed defendant had already purchased another round of drinks. J.S. noted



1
 We refer to defendant and the victim by initials to protect the victim's privacy.
R. 1:38-3(c)(12).
                                                                         A-4850-17T4
                                        2
her drink tasted "different," describing it as "rail vodka." J.S. and defendant left

the bar around 1:30 a.m.; each provided a different version of what transpired

afterwards.

      J.S. testified that prior to consuming the fifth drink she felt "tipsy" but

"[n]ot completely drunk." However, her fifth drink "tasted a little bit different"

and "off a little bit." After consuming it, J.S. does not remember how she got

back to her uncle's home or getting undressed.

      Her next recollection, through "tunnel vision," was laying naked in bed

with defendant who "spat" on two of his fingers and "shoved them inside [her]

vagina." J.S. attempted to stop defendant by "fl[inging] [her] left leg over him

and crouch[ing] on [her] right side in a fetal position" and attempting to say

"no," but was unable to because her "body was so weak." She "remember[ed]

feeling a tug on [her] hip as if [defendant] was trying to pull [her] back onto

[her] back and [she] passed out again." J.S. regained consciousness a second

time as defendant "was masturbating himself, and again he took his two fingers

and spit on them and shoved them inside of [her] and at that point [she] did say

no and [she] rolled over the same way [she] did the first time."

      J.S. testified she "was feeling much more conscious, much more alert than

the first time," but she felt "groggy, still heavy, still feeling kind of weak." At


                                                                           A-4850-17T4
                                         3
this point, she "covered [herself] up with the covers." In response, defendant

got dressed and left the room, asking J.S. if she wanted coffee. After a moment

of silence, J.S. responded "Yes, if you're making some." While defendant

showered, J.S. got dressed but could not locate her shirt. When defendant was

in the kitchen, J.S. asked from the bedroom if he knew where her shirt was;

defendant went upstairs and found J.S.'s shirt behind a pillow. J.S. then went

downstairs and had coffee while defendant was getting ready for work.

Defendant left for work about ten minutes later. Shortly thereafter, J.S. drove

back to Baltimore.

      J.S. testified she felt "differently" when compared to previous occasions

that she consumed similar amounts of alcohol, describing it as a "heavy

grogginess that was just unlike anything [she] had felt before." J.S. stated that

what she felt was "not the same" as a typical hangover.

      J.S. further testified:

            I knew that I did not consent to sex. I never actually
            saw him penetrate me with his penis. I knew that this
            was my cousin, my blood relative, my family, and I
            couldn't believe what just happened. I was in shock,
            traumatized, disgusted, and just I thought that, you
            know, I was just going to go have some drinks with
            somebody that I should have been able to trust.




                                                                        A-4850-17T4
                                       4
      The next morning, J.S. told her friend that defendant had raped her. That

same day, J.S. and her friend went to the Greater Baltimore Medical Center,

where a Sexual Assault Forensics Examination (SAFE) was performed on J.S.

Samples taken during the SAFE exam were compared to DNA profiles

developed from known samples from J.S., her husband, and defendant. The

State's forensic scientist opined that defendant was the major contributor for the

sperm located on J.S.'s vaginal swab.

      Defendant's version is much different. Defendant testified he and J.S.

walked to a bar where they had five or more rounds of alcoholic drinks. The

then walked to a pizzeria at 1:30 a.m. to get food before walking back to his

father's house. Defendant stated he and J.S. "were fine" but "both pretty drunk."

Defendant went upstairs where he went to the bathroom, got changed, and went

to bed. Thereafter, J.S. entered his room and "started kissing [him]." Though

shocked and "very surprised," defendant stated they engaged in consensual

sexual intercourse after removing each other's clothing, and then fell asleep

together.

      Defendant further testified he woke up the next morning at around 8:00

a.m. to go to work; he took a shower and went downstairs to the kitchen for

coffee. Thereafter, J.S. went downstairs wearing her pants and a bra, and told


                                                                         A-4850-17T4
                                        5
defendant she could not find her shirt. They went upstairs together to look for

J.S.'s shirt, which defendant found under the pillow where they slept. Defendant

then made J.S. a cup of coffee and they had a brief conversation in the kitchen

before defendant left for work.

      In September 2015, a Monmouth County Grand Jury returned an

indictment charging defendant with first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(7) (count one); and second-degree sexual assault, N.J.S.A.

2C:14-2(c)(1) (count two).

      Prior to trial, defendant moved in limine to exclude all testimony

advancing the theory that defendant drugged J.S.         Defendant argued such

testimony is inappropriate because the State lacked physical evidence or expert

testimony that J.S. was drugged, and J.S.'s own lay testimony that she was

drugged, or that she took a substance that altered her state of mind, was not

admissible.   Conversely, the State argued such testimony was appropriate

because J.S. "is allowed to testify to her perceptions, to her observations, to how

she's feeling."

      The trial court granted the motion in part.       It barred any testimony

asserting that J.S. "had been drugged."       The court allowed J.S. to testify




                                                                          A-4850-17T4
                                        6
regarding her mental and physical condition as well as her observations and

perceptions. The court explained:

            Under N.J.S.A. 2C:14-2(a)(7), the State must prove
            [d]efendant knew or should have known that J.S. "was
            physically helpless or incapacitated."

                    As a lay witness, J.S. may testify to her mental
            and physical condition as well as her observations and
            perceptions on the morning of the incident. J.S.
            testifying about her own mental and physical condition
            is certainly within her rational perception. Similarly,
            J.S.'s testimony is helpful to determining a fact in issue,
            specifically whether or not J.S. was physically helpless
            or incapacitated.

                  J.S., however, is not an expert witness. The State
            must not elicit testimony from J.S. that she "had been
            drugged." Such an opinion is scientific and falls within
            the realm of expert testimony. What J.S. perceived
            through one or more of her senses, however, is clearly
            admissible lay witness testimony.

The court also precluded the State from introducing testimony from the SAFE

nurse regarding testing for the presence of specific drugs as part of standard

toxicological testing performed on the victim's blood and urine samples and the

reasons why those tests were not performed.

      During a pretrial conference held the week before trial, the State raised

the issue of whether Dr. Safferstein, who had authored a preliminary report on

behalf of defendant, would be proffered as a defense toxicological expert. The


                                                                          A-4850-17T4
                                        7
State noted Dr. Safferstein was not listed on defendant's witness list and it had

not received his final expert report. Defense counsel advised the court that Dr.

Safferstein was not being called as a witness.

      The case proceeded to trial. In her opening, the prosecutor informed the

jury that after J.S. returned from the bar bathroom, "defendant ha[d] brought a

fifth round of drinks," and that "the drink tasted different; not horrible, just

different." She then stated that J.S. lost consciousness soon after. Later in the

trial, defendant did not object to J.S.'s testimony regarding her "self-described"

altered state. After the State rested, defense counsel moved for a mistrial

contending the State improperly elicited testimony from J.S., through leading

questions, that she felt "heavy grogginess that was just unlike anything she had

felt before" and "a line of questioning regarding the alcohol that she drank, her

history of drinking alcohol, her history of being drunk, [and] her history of being

under the influence of alcohol." The court denied the motion, finding it was

"satisfied" the State had "scrupulously complied" with its prior ruling.

      During the charge conference, defendant requested the court to warn the

State to not discuss drugs during its closing argument. The court responded, "I

think we're crystal clear on that."




                                                                           A-4850-17T4
                                        8
      On March 29, 2017, the jury found defendant guilty of second-degree

sexual assault but acquitted him of first-degree aggravated sexual assault.

      Defendant was evaluated at the Adult Diagnostic and Treatment Center to

determine eligibility for sentencing under the purview of the New Jersey Sex

Offender Act, N.J.S.A. 2C:47-1 to -10. The report by psychologist Mark Frank,

Ph.D., noted that defendant had "no known prior arrests or convictions for sex

offenses." Defendant's score on the Static-99R2 instrument placed him in the

average risk category for sexual reoffending. Dr. Frank concluded there was no

evidence "that the present offense forms a part of a repetitive pattern of criminal

sexual behavior." See N.J.S.A. 2C:47-2. He found "no indication of sexual

compulsion." See ibid. Accordingly, defendant was determined to be ineligible

for sentencing under the Sex Offender Act.

      Defendant, who was thirty-six years old at the time of sentencing, had no

juvenile record or prior indictable convictions. In 2003, defendant was charged



2
  "The Static-99 is an actuarial test used to estimate the probability of sexually
violent recidivism in adult males previously convicted of sexually violent
offenses." In re Civil Commitment of A.Y., 458 N.J. Super. 147, 158 n.1 (App.
Div. 2019) (quoting In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9
(2014)). The Static-99R is "based upon static factors, which are elements of a
person's history which cannot be changed, as opposed to dynamic factors, which
are elements which can be modified over time." In re J.P., 339 N.J. Super. 443,
451 (App. Div. 2001).
                                                                          A-4850-17T4
                                        9
with simple assault of his father, N.J.S.A. 2C:12-1(a)(1). The charge was

dismissed. A domestic violence restraining order entered against defendant

arising out of the same incident was dismissed in 2010. In 2012, defendant was

found guilty of violating a municipal ordinance for urinating in public.

      Defendant appeared for sentencing on July 21, 2017. The trial court found

aggravating factors three (risk defendant will reoffend) and nine (need for

deterrence), N.J.S.A. 2C:44-1(a)(3), (9), and no mitigating factors. It declined

to find mitigating factor seven (defendant has no history of prior delinquency or

criminal activity or has led a law-abiding life for a substantial period), N.J.S.A.

2C:44-1(b)(7).     The court found the aggravating factors "substantially

outweighed" the non-existent mitigating factors.

      Defendant was sentenced to a ten-year prison term subject to an eighty-

five percent period of parole ineligibility and three years of mandatory parole

supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the

reporting and registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23,

parole supervision for life, N.J.S.A. 2C:43-6.4, and mandatory fines and

penalties.

      In finding aggravating factor three, the judge determined there was a clear

risk defendant will commit another offense. The court noted defendant "is not


                                                                           A-4850-17T4
                                       10
accepting full blame for his part in this incident" and stated that "what happened

was totally inappropriate." In find aggravating factor nine, the judge explained

there was a clear need to deter both defendant and others from this unacceptable

behavior. The court noted it is unacceptable to blame the victim.

      In declining to find mitigating factor seven, the court explained that

because of defendant's prior "involvement with the criminal justice system," it

could not find "defendant has no history of prior delinquency [or] criminal

activity, or has led a law abiding life for a substantial period of time." This

appeal followed.

      Defendant raises the following points for our consideration:

            POINT I

            THE TRIAL COURT ERRED IN NOT GRANTING IN
            FULL DEFENDANT'S MOTION TO PRECLUDE
            THE    PROSECUTION     FROM     ELICITING
            TESTIMONY AND ARGUMENT BEFORE THE
            JURY SUGGESTING THAT J.S. MUST HAVE BEEN
            DRUGGED BY DEFENDANT ON THE NIGHT IN
            QUESTION, AND IN NOT GRANTING A MISTRIAL
            AFTER THE PROSECUTION PLACED THE
            FORBIDDEN EVIDENCE AND ARGUMENT
            BEFORE THE JURY.

            POINT II

            THE TRIAL COURT ERRED IN NOT PERMITTING
            DEFENDANT TO OFFER AT TRIAL THEIR OWN
            SCIENTIFIC   EVIDENCE     AND    EXPERT

                                                                         A-4850-17T4
                                       11
            TESTIMONY SHOWING THAT J.S. DID NOT
            HAVE ANY DRUGS IN HER SYSTEM AT THE
            TIME IN QUESTION (PLAIN ERROR; RAISED BUT
            NOT OBJECTED TO BELOW).
            POINT III

            THE PROSECUTOR EXCEEDED FAIR COMMENT
            ON THE EVIDENCE BY TELLING THE JURY
            DURING    SUMMATION    THAT    DEFENSE
            COUNSEL WAS INVOKING ONLY "MYTHS,"
            "STEREOTYPES,"  AND     "CLICHÉS"     IN
            ATTACKING THE RAPE VICTIM'S CREDIBILITY
            (PLAIN ERROR).

            POINT IV

            DEFENDANT'S SENTENCE IS IMPROPER AND
            EXCESSIVE.

We have considered these arguments and find they lack merit.

                                       II.

      Defendant argues the trial court erred in not granting his motion in limine

in its entirety. Specifically, defendant argues the testimony elicited from J.S.,

coupled with the State's comments, prejudiced him by allowing the State to

invite the jury to speculate that J.S.'s fifth drink was drugged. For that same

reason, defendant contends the court erred in denying his motion for a mistrial.

                                       A.

      We first address the partial denial of defendant's motion in limine.

"Traditional rules of appellate review require substantial deference to a trial

                                                                        A-4850-17T4
                                      12
court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We

uphold the trial court's rulings "absent a showing of an abuse of discretion, i.e.,

there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233

(2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An appellate court

applying this standard should not substitute its own judgment for that of the trial

court, unless 'the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484

(1997) (internal quotation marks omitted)). If an abuse of discretion is found,

"we must then determine whether any error found is harmless or requires

reversal." State v. Prall, 231 N.J. 567, 581 (2018).

      Defendant moved to bar the State from eliciting testimony that suggested

J.S. was drugged by defendant. The court disallowed such evidence by the State

but permitted J.S. to give lay testimony about her perceptions during the

incident.

      Lay witness testimony is governed by N.J.R.E. 701, which provides that

a lay "witness' testimony in the form of opinions or inferences may be admitted

if it (a) is rationally based on the perception of the witness and (b) will assist in

understanding the witness' testimony or in determining a fact in issue." To be

admissible, "[t]he witness's perception must 'rest[] on the acquisition of


                                                                            A-4850-17T4
                                        13
knowledge through use of one's sense of touch, taste, sight, smell or hearing.'"

State v. Hyman, 451 N.J. Super. 429, 442 (App. Div. 2017) (second alteration

in original) (quoting State v. McLean, 205 N.J. 438, 457 (2011)).

        The trial court properly barred the State from eliciting lay opinion testimony

from J.S. that she was drugged without tests indicating the presence of an illicit

substance, State v. Bealor, 187 N.J. 574, 590-92 (2006), while permitting her to

testify—as a lay witness—on her own rationally based perceptions, N.J.R.E. 701(a).

As the court also reasoned, such testimony "is helpful in determining a fact in issue,

specifically whether or not J.S. was physically helpless or incapacitated."3 N.J.R.E.

701(b). The testimony was relevant to J.S.'s vulnerability and state of mind and was

limited to her own perceptions as permitted under N.J.R.E. 701(a). It was also

relevant to whether the sexual intercourse was consensual and her ability to

accurately recollect the incident. N.J.R.E. 701(b). The testimony was not unduly

prejudicial under N.J.R.E. 403. We discern no abuse of discretion in allowing such

testimony.


3
  "An actor is guilty of aggravated sexual assault if he commits an act of sexual
penetration" on the victim where "the actor knew or should have known" the
victim was "incapable of providing consent" because she was "physically
helpless or incapacitated," or "mentally incapacitated." N.J.S.A. 2C:14-2(a)(7).




                                                                             A-4850-17T4
                                        14
                                       B.

      We next address the denial of defendant's motion for a mistrial. Defendant

contends the prosecutor improperly elicited testimony from J.S. suggesting she

was drugged by defendant and improperly commented on J.S.'s state of

consciousness during her opening argument. Defendant contends the testimony

and these comments planted the suggestion that J.S. was drugged. We disagree.

      "The decision to grant or deny a mistrial is entrusted to the sound

discretion of the trial court, which should grant a mistrial only to prevent an

obvious failure of justice." State v. Montgomery, 427 N.J. Super. 403, 406-07

(App. Div. 2012) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). In making

this determination, we give deference to the trial court, "which is in the best

position to gauge the effect of the allegedly prejudicial evidence." Montgomery,

427 N.J. Super. at 407 (quoting Harvey, 151 N.J. at 205).

      Here, the court ruled "[t]he State must not elicit testimony from J.S. that

she 'had been drugged.'" The State did not do so. It properly limited its

questions to J.S.'s perceptions regarding her level of intoxication ; ability to

speak or move; and whether she was awake, asleep, or unconscious. This

examination of the victim fell squarely within the questioning permitted by the


                                                                        A-4850-17T4
                                      15
court and avoided any impermissible lay testimony that J.S. had been drugged.

Notably, defense counsel did not object to J.S.'s testimony concerning her

altered state. We discern no abuse of discretion by the trial court, much less a

manifest injustice.

                                      III.

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

precluding him from introducing scientific evidence and expert testimony that

J.S. did not have any drugs in her system during the incident. Specifically,

defendant argues he "should have been permitted to introduce the lab report and

expert opinion to argue that no such 'date rape' drugs were found in J.S.'s

system." We find no merit in this argument.

      Defendant did not name his toxicology expert, Dr. Safferstein, on his

witness list. He apparently did not serve the State with Dr. Safferstein's final

report. Further, during a pretrial conference held the week before trial, defense

counsel reported to the court that Dr. Safferstein was not being called as a

witness.

      Contrary to defendant's argument, the trial court did not preclude defense

counsel from introducing Dr. Safferstein's report or testimony.       Instead, it

appears the defense made a strategic choice not to list or call his toxicology


                                                                        A-4850-17T4
                                      16
expert as a trial witness, electing not to use such evidence. Accordingly, we

discern no error.

                                         IV.

      Defendant argues for the first time on appeal that the prosecutor's

comments during her closing, combined with testimony suggesting he "drugged"

J.S., "raise reasonable doubt as to whether the error led the jury to a result it

otherwise might not have reached." We disagree.

      During summation, defense counsel advanced the theory that defendant

and J.S. engaged in consensual sexual intercourse and that J.S. manufactured the

rape allegation to "coverup" the fact she "had unprotected sex with [her] first

cousin and [she] cheated on [her] husband." Defense counsel supported this

theory by asserting J.S.'s actions were not indicative of someone who was raped.

He argued, for example, that "common sense tells us, that if someone's raped

they don't have coffee with the person who raped them[,] . . . they don't invite

the rapist back into the bedroom, in just a bra, to help them find their shirt [,] . .

. [and] they don't act normal all morning long."

      In response, the prosecutor described defense counsel's comments as

"myths," "stereotypes," and "clichés" regarding how a victim of sexual assault




                                                                             A-4850-17T4
                                        17
is expected to react. Defense counsel did not object or request that the court

provide a curative instruction.

      Although a prosecutor is "afforded considerable leeway" during

summation, they "must refrain from improper methods that result in a wrongful

conviction." State v. Smith, 167 N.J. 158, 177 (2001) (citing State v.Frost, 158

N.J.76, 82-83(1999) (other citations omitted)). Thus, "'not every deviation from

the legal prescriptions governing prosecutorial conduct' requires reversal." State

v. Jackson, 211 N.J. 394, 408-09 (2012) (quoting State v. Williams, 113 N.J.

393, 452 (1988)).

      A reviewing court evaluates challenged remarks in the context of the

summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div.

2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)). Reversal is warranted

only if the remarks were "clearly and unmistakably improper" and "substantially

prejudiced the defendant's fundamental right to have a jury fairly evaluate the

merits of his or her defense." State v. Ingram, 196 N.J. 23, 43 (2008) (quoting

State v. Harris, 181 N.J. 391, 495 (2004)). To warrant such a severe remedy, an

appellate court must be convinced the error was "clearly capable of producing

an unjust result." State v. R.B., 183 N.J. 308, 330 (2005) (quoting R. 2:10-2).

"The possibility must be real, one sufficient to raise a reasonable doubt as to


                                                                         A-4850-17T4
                                       18
whether [it] led the jury to a verdict it otherwise might not have reached." Ibid.

(alteration in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

      Here, the prosecutor's remarks did not exceed the bounds of fair comment

regarding the evidence and the victim's credibility. The remarks appropriately

responded to defense counsel's repeated notion that victims of sexual assault

should act a certain way. See State v. C.H., 264 N.J. Super. 112, 135 (1993)

("Generally, remarks by a prosecutor, made in response to remarks by opposing

counsel, are harmless." (citing State v. DiPaglia, 64 N.J. 288, 297 (1974)).

Further, defense counsel did not object, request a curative instruction, or

otherwise seek to remedy the purported prejudice resulting from the State's

comments until this appeal. See Frost, 158 N.J. at 83-84 (generally, if defense

counsel does not object to the prosecutor's remarks, such "remarks will not be

deemed prejudicial" as "[t]he failure to object suggests that defense counsel did

not believe the remarks were prejudicial at the time they were made" (citation

omitted)).

      Viewed in the context of the entire summation, the comments were not

clearly and unmistakably improper and did not substantially prejudice

defendant's right to have the jury fairly evaluate the merits of his defense.

Indeed, defendant was found not guilty of aggravated sexual assault. The


                                                                         A-4850-17T4
                                       19
prosecutor's closing argument clearly did not cause the jury to conclude that J.S.

had been drugged and thereby rendered "helpless," "incapacitated," or otherwise

"incapable of providing consent." See N.J.S.A. 2C:14-2(a)(7).

                                       V.

      Finally, we address defendant's argument that his sentence was improper

and excessive. Defendant was sentenced to a ten-year prison term, the maximum

for second-degree sexual assault. N.J.S.A. 2C:43-6(a)(2).

      The court found aggravating factors three and nine.         In addition to

reviewing defendant's prior record, it noted defendant did not accept blame for

his conduct or the fact that "what happened was totally inappropriate." The

court found there is need to deter defendant, "who at this point still doesn't

acknowledge his role in this offense," and others, who "need to know that this

behavior is not acceptable."

      Defendant argues the court did not sufficiently explain its finding of

aggravating factors three and nine as well as its rejection of mitigating factor

seven. He then contends that even if those aggravating factors are supported by

the record, they should be given minimal weight and do not substantially

outweigh mitigating factor seven.

      "[Our] review of sentencing decisions is relatively narrow and is governed


                                                                         A-4850-17T4
                                       20
by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297

(2010). We do not substitute our judgment for that of the trial court. State v.

Natale, 184 N.J. 458, 489 (2005). A sentence should only be disturbed when

the trial court failed to follow sentencing guidelines, when the aggravating and

mitigating factors are not supported by the evidence, or when the facts and law

show "such a clear error of judgment that it shocks the judicial conscience."

State v. Roth, 95 N.J. 334, 364 (1984) (citing State v. Whitaker, 79 N.J. 503,

512 (1979)); accord State v. Case, 220 N.J. 49, 65 (2014).

      In weighing the aggravating and mitigating factors, the court must conduct

a qualitative—not quantitative—analysis and provide a "clear explanation" of

how it weighed the factors and applied them to the sentencing range. State v.

Fuentes, 217 N.J. 57, 73 (2014). "To facilitate meaningful appellate review,

trial judges must explain how they arrived at a particular sentence." Case, 220

N.J. at 65 (citing Fuentes, 217 N.J. at 74; R. 3:21-4(g)). "[I]f the trial court fails

to identify relevant aggravating and mitigating factors, or merely enumerates

them, or forgoes a qualitative analysis, or provides little 'insight into the

sentencing decision,' then the deferential standard will not apply." Ibid. (quoting

State v. Kruse, 105 N.J. 354, 363 (1987)).




                                                                             A-4850-17T4
                                         21
      Defendant also contends the trial court improperly found aggravating

factors three and nine by considering his claim of innocence. "The need for

public safety and deterrence increase proportionally with the degree of the

offense." State v. Carey, 168 N.J. 413, 426 (2001) (citing State v. Megargel,

143 N.J. 484, 500 (1996)). While "a defendant's refusal to acknowledge guilt

following a conviction is generally not a germane factor in the sentencing

decision," State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985), a denial

of involvement or lack of remorse can be considered in evaluating whether the

defendant is likely to commit another offense, Carey, 168 N.J. at 426-27, and

the need for deterrence, State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div.

1991). Although defendant professed sorrow for what happened, he maintains

his innocence of sexual assault and lacks remorse for his crime.

      While defendant has no prior criminal convictions, his record includes a

domestic violence restraining order in 2003 and violation of a municipal

ordinance in 2012. Further, the Static-99R instrument categorized defendant as

posing an average risk for criminal sexual reoffense. Given these circumstances,

we discern no abuse of discretion in applying aggravating factors three and nine.

      Defendant argues the trial court erred by not applying mitigating factor

seven. We disagree. Defendant does not dispute that a final restraining order


                                                                        A-4850-17T4
                                      22
(FRO) was entered against him under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. The sentencing court may consider that

FRO, which is based on a predicate act enumerated in the Criminal Code.

N.J.S.A. 2C:25-19(a). Defendant also violated a municipal ordinance two years

before the sexual assault by urinating in public. Such conduct is not indicative

of leading a law-abiding life for a substantial period of time before the present

offense. See State v. Buckner, 437 N.J. Super. 8, 38 (App. Div. 2014), aff'd on

other grounds, 223 N.J. 1 (2015) (finding that defendant's municipal

convictions, arrests, and bench warrant during the preceding ten years was

"behavior that requires a finding that he had not led a 'law-abiding life'").

      Lastly, defendant contends we should remand for resentencing because

the ten-year prison term is unreasonable. We disagree. The aggravating factors

and lack of mitigating factors were supported by the record, as was the finding

that the aggravating factors substantially outweighed the non-existent mitigating

factors. Where the aggravating factors preponderate, the term should be at the

high end of the sentencing range. Fuentes, 217 N.J. at 73. We discern no basis

to disturb the sentence; it is not manifestly excessive, unduly punitive, or so

clearly unreasonable that it shocks the judicial conscience.

      Affirmed.


                                                                          A-4850-17T4
                                       23
