                        NOT FOR PUBLICATION WITHOUT THE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-4057-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NICHOLAS M. IVES, a/k/a NAZIR
BAY, a/k/a NAZAIR BEY,

     Defendant-Appellant.
_____________________________

              Submitted February 9, 2017 – Decided June 8, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 13-02-0154.

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

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Kim L.
              Barfield, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
      Defendant Nicholas Ives, also known as Nazir Bey, appeals

from an April 10, 2015 judgment of conviction after a jury trial.

We affirm the conviction and remand for resentencing.

      Defendant was a senior corrections officer at Bayside State

Prison (Bayside).     In September 2011, Robert Percy, an inmate,

gave a corrections officer a bundle of heroin with a note attached,

implicating defendant in prison drug transactions.        Thereafter,

the New Jersey Department of Corrections Special Investigations

Division began investigating defendant.     Percy told investigators

defendant provided him with heroin, which Percy paid for by

arranging for his wife, A.P.,1 to send money to N.P., the wife of

fellow   inmate   Vincent   Heredia.   Defendant   and   Heredia   were

childhood friends and it was alleged defendant picked up payments

from N.P.'s home.

      Defendant was indicted for second-degree official misconduct,

contrary to N.J.S.A. 2C:30-2(a), and third-degree conspiracy to

distribute a controlled dangerous substance (CDS), contrary to

N.J.S.A. 2C:5-2 and 2C:39-5(a)(1).        Percy testified at trial,

telling the jury he was an addict currently serving a thirty-

three-year prison term.     He recounted it was easy to obtain heroin

in the various correctional facilities where he had been assigned.



1
    We use initials to protect the identity of non-party witnesses.

                                   2                           A-4057-14T3
While at Bayside, Heredia introduced Percy to defendant to obtain

heroin.   Percy received the heroin from defendant in the kitchen

where defendant was stationed.    According to Percy, defendant set

up a system to tape the drugs under a food cart where Percy would

retrieve them.   Defendant alerted Percy to the presence of drugs

under the cart by ripping the edge of the food order sheet on top

of the cart.

     Percy testified he lied to A.P., telling her he needed money

for legal fees and asking her to write three checks for $1500 each

and to send them to N.P.    The checks were made payable to N.P. and

defendant's mother.

     A.P. also testified.    She told the jury she wrote the checks

to N.P. and defendant's mother after Percy told her both worked

for lawyers who he hired.     N.P. testified Heredia called her and

told her to expect a "lawyer" to come to her house to turn over

money for his appeal.   She was reluctant to do so, but later agreed

after she spoke twice over the phone to an inmate N.P. identified

as "Pop-pop," who told her something was "coming her way" and gave

her messages for the "lawyer."     N.P. identified defendant as the

"lawyer" who came to her house, and identified her signature as

well as defendant's signature on the back of canceled checks. N.P.

identified a check made out to her for $1500 from A.P. and

testified the check was the mail she discussed with "Pop-pop."

                                  3                          A-4057-14T3
Defendant came to the house to pick up that check and endorsed the

check to himself so he could cash it. According to N.P., defendant

came to her house several more times but only to pick up unopened

envelopes sent to her house under the care of a different name.

A Wells Fargo bank employee provided testimony for the jury tracing

N.P.'s three checks to deposits into defendant's bank account.

       Defendant testified and acknowledged he and Heredia had grown

up together but no longer socialized as adults.          When Heredia was

incarcerated in Bayside, Heredia worked in the kitchen where

defendant was assigned.     Defendant testified Heredia wanted a new

life and asked defendant to help him get a lawyer for his appeal.

Defendant testified he declined to help because of his position

as a corrections officer but later agreed to ask his mother, who

Heredia knew, if she would help him contact a lawyer.            Defendant

told   Heredia   his   mother   would   assist   him,   and   Heredia   gave

defendant the names of two lawyers, which defendant passed on to

his mother.      Heredia told defendant he would send the money for

the lawyers to defendant's mother through a family member.

       Defendant testified that, due to N.P.'s reluctance to assist

in getting money for the lawyers, he agreed to pick up money from

N.P.   He acknowledged receiving the three checks, one of which was

endorsed to him and two others payable to his mother, which he

deposited in his Wells Fargo account.        He testified he later gave

                                    4                               A-4057-14T3
cash to his mother. He testified Heredia's attorney wanted $10,000

for the appeal; however, when Heredia was transferred to another

prison, defendant's mother returned the money to defendant, and

he subsequently returned it to N.P.            Defendant also acknowledged

guards and inmates at Bayside called him "the lawyer."               He denied

engaging in drug transactions and denied having contact with Percy.

     Defendant's       mother    also       testified.   She      corroborated

defendant's account of trying to assist Heredia to hire a lawyer,

claiming she received the cash from defendant and kept it in a

safe at her house, but later returned it to defendant who returned

it to N.P.     N.P. testified she never received money back from

defendant.

     The jury found defendant guilty of both charges on October

8, 2014.     On March 31, 2015, the trial judge denied defendant's

motion for a new trial, and after merging count two, conspiracy,

into count one, official misconduct, sentenced defendant to a

seven-year    prison    term    with    a    five-year   period    of    parole

ineligibility.     This appeal followed.

     On appeal defendant raises the following arguments:

           POINT I.

           THE CONVICTIONS WERE CLEARLY AGAINST THE
           WEIGHT   OF   THE   EVIDENCE,  NECESSITATING
           REVERSAL. U.S. CONST. AMEND XIV; N.J. CONST.
           (1947), ART. 1, PAR. 10.


                                        5                               A-4057-14T3
              POINT   II.

              THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

                                            I.

     Defendant argues the trial court erred in denying his motion

for a new trial pursuant to Rule 3:20-1. Specifically, he contends

the convictions were against the weight of the evidence because

Percy's testimony was not credible.

     A jury verdict should not be set aside as against the weight

of   the   evidence     unless,   when       balanced      against    the     jury's

opportunity to assess a witness's credibility, there has been a

clear   and    convincing    manifest       denial   of    justice.     State       v.

Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied,

151 N.J. 470 (1997).        "On a motion for a new trial, the objective

is not to second-guess the jury but to correct the injustice that

would result from an obvious jury error."                 Ibid.

     "Unless no reasonable jury could have reached such a verdict,

a reviewing court must respect a jury's determination."                     State v.

Afanador, 134 N.J. 162, 178 (1993).              When considering a motion to

set aside the verdict, the court must review the evidence to

determine "whether any trier of fact could rationally have found

beyond a reasonable doubt that the essential elements of the crime

were present."        Ibid. (quoting State v. Carter, 91 N.J. 86, 96

(1982)).      When a jury reaches its verdict based on its assessment

                                        6                                    A-4057-14T3
of the witnesses' credibility, the verdict cannot be set aside

unless there is clear evidence of "a mistake, partiality, passion

or prejudice."       State v. Haines, 20 N.J. 438, 447 (1956).

     We are satisfied that there is no such evidence in the record.

The jury was in the best position to determine the credibility of

Percy's testimony.         The jury heard the testimony about Percy's

drug use in prison and his manipulation of others to secure drugs

in prison, including lying to his wife.           Moreover, the lies Percy

told his wife are not inconsistent with the plan set in motion to

secure heroin in prison by paying defendant.               After considering

all of the evidence presented at trial, we are satisfied that a

jury could reasonably find defendant guilty of both charges.

Therefore, defendant's convictions were not against the weight of

the evidence, and there was no miscarriage of justice warranting

a new trial under Rule 3:20-1.

                                          II.

     Finally, defendant argues his sentence was excessive.             We are

constrained     to    vacate    defendant's     sentence   and    remand   for

resentencing,        as   the   judge's    findings   on    the    applicable

aggravating and mitigating factors conflict and not supported by

the record.

     As long as the sentence is based on competent credible

evidence and fits within the statutory framework, trial judges

                                      7                               A-4057-14T3
have broad sentencing discretion.            State v. Dalziel, 182 N.J. 494,

500 (2005).      Judges must identify and consider "any relevant

aggravating and mitigating factors" that "are called to the court's

attention" and "explain how they arrived at a particular sentence."

State   v.   Case,   220   N.J.   49,    64-65    (2014)    (quoting   State    v.

Blackmon, 202 N.J. 283, 297 (2010); State v. Fuentes, 217 N.J. 57,

72, 74 (2014)).      "Appellate review of sentencing is deferential,"

and we therefore avoid substituting our judgment for the judgment

of the trial court.        Id. at 65; see State v. O'Donnell, 117 N.J.

210, 215-16 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).

     The sentencing judge found aggravating factors three (the

risk of re-offense), six (the extent of defendant's prior criminal

record), and nine (the need for deterrence).               The judge also found

mitigating    factor   seven,     no    prior    history    of   delinquency    or

criminal activity.      In finding aggravating factor three the judge

stated,

             He is . . . 39 years of age.     There is no
             juvenile record.   The adult record consists
             of prior arrests, which resulted in the
             present indictable conviction. There is some
             risk that he's going to commit another
             offense. I will give that moderate weight.

     The judge found mitigating factor seven, defendant has no

real prior history of criminal activity.




                                         8                               A-4057-14T3
     The     judge's    finding     of        aggravating       factor    three     and

mitigating factor seven are in conflict and are not supported by

competent, credible evidence in the record.                  While it is true a

finding of aggravating factor three can coexist with a finding of

mitigating    factor    seven,    that        finding    must    be    "grounded     in

competent, credible evidence in the record."                     Case, supra, 220

N.J. at 67.     The judge did not provide a reasoned explanation as

to how he found defendant presented a risk to commit another

offense when this was defendant's first indictable conviction.                       As

such, we are constrained to vacate defendant's sentence and remand

for resentencing.

     In remanding for resentencing, we do not express an opinion

on whether the court should again find aggravating factor three

and mitigating factor seven.          Additionally, we do not express an

opinion on the length of the sentence imposed.                        On remand, we

require only that the court reconsider its determination as to

aggravating    factor     three     and   mitigating        factor       seven,   make

appropriate findings supporting its determination, and resentence

defendant based on its weighing of the aggravating and mitigating

factors.

     Defendant's       conviction    is       affirmed    and    his     sentence    is

vacated.      We remand for resentencing in accordance with this

opinion.   We do not retain jurisdiction.

                                          9                                   A-4057-14T3
