Opinion
DOCKET NO. A-0594-12T4
01-31-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTWAN HATHAWAY, a/k/a ANTOINE HATHAWAY, ANTWAN HATAWAY, ANTWON HATHAWAY, ATWAN HATHAWAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 11-04-0440 and 11-04-0441.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Antwan Hathaway appeals his conviction for weapons offenses. He argues the trial court erred in denying his motion to suppress and in sentencing. We affirm.
I.
Defendant was stopped and patted down by a detective, who discovered a .25 caliber semi-automatic pistol. Defendant was charged in two indictments with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
Defendant filed a motion to suppress the gun, which the motion judge denied. In consecutive trials, the jury convicted defendant of the second-degree offenses and acquitted him of the fourth-degree charges.
On May 12, 2012, the trial judge sentenced defendant to eight years in prison, with three years of parole ineligibility, for unlawful possession of a handgun. The judge imposed a consecutive sentence of seven years in prison, with five years of parole ineligibility, for the "certain persons not to have weapons" offense. The judge also assessed fines and fees.
Defendant appeals, raising the following arguments:
POINT ONE
THE TRIAL COURT ERRED BY DENYING MR. HATHAWAY'S MOTION TO SUPPRESS EVIDENCE.
POINT TWO
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 104 (1986), AND THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
II.
"'[O]n appeal, we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted). Accordingly, we recount the evidence at the October 7, 2011 suppression hearing. The only witness was Detective Michael Black. The motion judge credited his testimony, and adopted it in the findings of the court.
Black has been employed by the Plainfield Police Department for thirteen years. For the last eight years, he has been in the Narcotics Bureau, dealing with narcotics, prostitution, burglary, robbery, and crimes arising out of bars.
Black was assigned to a robbery detail. The detail was tasked to cover a downtown "strip" from the 100 to 1200 blocks of West Front Street, where there had been a recent homicide and a rise in armed and strong-arm robberies. The robbers were targeting drunken Hispanic bar patrons, including illegal immigrants, after they left bars on the strip, a practice they called "Poppy Hunting." Robbers even attempted to rob undercover police officers posing as drunken bar patrons. Black and other officers were also combatting such robberies by conducting high-profile details, letting their cars be seen riding up and down the street, and investigating suspicious activity.
The State's brief refers to it as "papi hunting," but it was transcribed as "Poppy Hunting."
On January 15, 2011, Black and his partner, Detective Joseph Mulligan, were assigned to a high-profile detail. They were driving an unmarked Crown Victoria, a well-known police vehicle. Black was wearing a shirt that said "Police," a police baseball cap, and a police badge on his neck.
Around 10:00 p.m., the detectives were driving eastbound on West Front Street's 700 block, a high-crime area. Ahead, Black saw two men walking single file, fifteen feet apart. Defendant's brother, Tyrell Green, was in front, and defendant was behind. Black was aware that robbers engaged in "Poppy Hunting" often worked in pairs.
Green saw the police vehicle approaching and yelled to defendant, "yo, the police are coming." Defendant was visibly startled when he noticed the police vehicle.
Black's suspicions were further raised, because he observed Green wearing a thin bandanna tied around his neck and pulled up over his chin, just below his mouth. The bandanna could easily be lifted up to conceal his identity if he were to rob someone. Black pulled the Crown Victoria alongside the two men, and got out to question them. Black was concerned that the men might be armed because of the recent homicide, the robberies, the high-crime area, the bandanna on Green's face, and Green's warning to defendant.
Black decided to detain and pat down defendant to ensure he did not have a weapon, while Mulligan did the same with Green. Black instructed defendant and Green to put their hands on the wall, which they did. As Black began to frisk defendant, defendant turned his right side away from Black and against the wall, and argued that Black could not search him. Black replied he was just patting him down, not searching him. Black turned defendant straight, frisked his right side, and felt a heavy object which he immediately recognized as a firearm. Black retrieved the gun from defendant's pocket. Defendant tried to push away from Black and run. Black quickly tackled, arrested, and handcuffed defendant.
After hearing this evidence, reviewing briefs, and considering the matter, the judge denied defendant's motion to suppress. The judge analyzed the facts and the law, and then concluded:
For the foregoing reasons the stop and frisk of defendant was lawful pursuant to [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. The stop of defendant was justified by a reasonable suspicion that defendant was engaged in criminal activity known as "Poppy Hunting" robbery. The frisk of defendant was justified by a reasonable suspicion that defendant was armed and fell within the permissible scope outlined in [Terry].
In reviewing defendant's challenge to the judge's ruling, we must hew to our standard of review. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (citation omitted). In particular, we "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (citation omitted). However, we owe "no deference to the trial court in deciding matters of law." Id. at 337.
At a suppression hearing, "'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.'" Id. at 337-38 (citation omitted). "One such exception is denominated an investigatory stop or a Terry stop." Id. at 338 (footnote omitted).
"New Jersey has long recognized . . . that a police officer's duties include vital preventive roles and that reason and common sense dictate 'he should clearly have the right to stop persons on the street for summary inquiry.'" State v. Davis, 104 N.J. 490, 503 (1986) (quoting State v. Dilley, 49 N.J. 460, 464 (1967)).
"[P]olice officers are trained in the prevention and detection of crime. Events which would go unnoticed by a layman ofttimes serve as an indication to the trained eye that something amiss might be taking place or is about to take place."The United States Supreme Court similarly allows investigatory stops "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.
[Id. at 504 (quoting State v. Gray, 59 N.J. 563, 567-68 (1971)).]
Under both the United States and New Jersey Constitutions, we must first examine whether there was "'reasonable suspicion of criminal activity'" to justify the investigatory stop. State v. Williams, 192 N.J. 1, 9 (2007) (citation omitted). If the stop was justified, we must then consider whether there was reasonable suspicion "that the suspect 'may be armed and presently dangerous'" to justify the pat down. See ibid. (citation omitted).
A.
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.'" Mann, supra, 203 N.J. at 338 (citation omitted). Reasonable suspicion requires "a significantly lower degree of objective evidentiary justification than does the probable cause test," Davis, supra, 104 N.J. at 501, and "'requires a showing considerably less than preponderance of the evidence,'" State v. Stovall, 170 N.J. 346, 370 (2002) (citations omitted).
To determine if there was reasonable suspicion, "a reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Mann, supra, 203 N.J. at 338 (citation omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (citation omitted). Here, the circumstances established reasonable suspicion.
"It is fundamental to a totality of the circumstances analysis of whether reasonable suspicion exists that courts may consider the experience and knowledge of law enforcement officers." Stovall, supra, 170 N.J. at 363. Courts must give "sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). As the motion judge found, Black was an "experienced detective" with thirteen years of experience, including eight years investigating robberies and bar-related crimes. He had focused experience investigating the recent spate of robberies of bar patrons on this strip. He and other officers had "great success" in apprehending "Poppy Hunters" on the strip. He also conducted high-profile details on the strip looking for suspicious activity related to these robberies. Black's experience, and his knowledge of the pattern of those robberies and of the area, gave him a superior basis to discern whether activities in the area fit that pattern. See State v. Smith, 155 N.J. 83, 99, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).
Furthermore, Black could "consider an area's reputation for or history of crime," as well as "the late hour." State v. Pineiro, 181 N.J. 13, 24, 26-27 (2004). Black encountered the two men in a high-crime area at night. See id. at 18. More importantly, the two men were walking on the same street where the detective knew robbers frequently targeted drunken patrons after they left the street's bars. He knew, as the judge found, that "it was common for the perpetrators of these robberies to work in pairs." Further, the judge found that "[t]he manner in which they were walking also contributed to a reasonable suspicion" because defendant "was walking a distance behind Green" even though it soon became clear they were together.
Green's immediate warning to defendant that "the police are coming" gave Black clear reason to believe that the pair were engaged in illegal activity. Defendant's startled reaction upon learning of the approaching police also contributed to reasonable suspicion. Mann, supra, 203 N.J. at 339-40. Defendant argues that innocent individuals might be startled at the approach of a police vehicle. Even if true, that "does not detract from the well-established rule that a suspect's nervousness plays a role in determining whether reasonable suspicion exists." Stovall, supra, 170 N.J. at 367. Defendant notes that he did not engage in furtive or obstructive actions prior to the pat down, but reasonable suspicion should be assessed on the events that occurred, not things that did not occur.
Significantly, Green was wearing a bandanna covering his chin, and which could easily be pulled up to conceal his identity in a robbery. Bandannas and other masks are tools of the trade for robbers. Because the bandanna was thin, the judge found "there was a reasonable inference that Green was not wearing the bandanna for warmth." By partially obscuring his face with the bandanna, Green indicated that he wanted to conceal his identity, which further supported the inference that Green and defendant were robbers.
Based on all these facts, the experienced detective, armed with first-hand knowledge of the recent rash of robberies on that street, could draw reasonable inferences. As the motion judge found, the facts and inferences gave rise to reasonable suspicion "that defendant was engaging in criminal activity, specifically 'Poppy Hunting,' which would lead to potential for the robbery which the detectives were assigned to patrol."
Defendant concedes that Black had experience in investigating this kind of robbery, but suggests that his experience and assignment led him astray. The judge could properly find, however, that Black's experience and assignment made him more observant and accurate. See State in Interest of J.B., 284 N.J. Super. 513, 518-19 (App. Div. 1995) (upholding an investigative stop for narcotics activity in part because the officers "were not on routine patrol but were specifically present to perform an assigned police function" regarding narcotics activity).
Defendant stresses that there was no testimony that the investigatory stop on the 700 block was near a bar or a drunken bar patron. However, Black did testify that there were "bars along the strip" comprising the 100 to 1200 blocks of West Front Street where "drunken patrons who leave the bars [are] targeted by robbers," and that the strip also contained many residences "where a lot of these patrons do reside." Black also specifically testified that the 700 block was "a high-crime area."
Defendant cites trial testimony that the stop occurred at a store right before a small diner. The trial testimony also showed that there were residences on the other side of the street. In any event, defendant cannot rely on trial testimony in appealing the ruling at the suppression hearing. Robinson, supra, 200 N.J. at 15.
Black was not required to pass by Green and defendant after seeing Green wearing a bandanna obscuring his face, hearing Green warn defendant that the police were coming, and witnessing defendant's startled reaction to the police vehicle. "'The police would be derelict in their duties if they did not investigate such events.'" Davis, supra, 104 N.J. at 504 (quoting Gray, supra, 59 N.J. at 567-68); see Terry, supra, 392 U.S. at 23, 88 S. Ct. at 1881, 2d L. Ed 2d at 907 ("It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.").
B.
The same facts and inferences establishing reasonable suspicion for the stop also support reasonable suspicion for the pat down. "Indeed, the same conduct that justifies an investigatory stop may also present the officer with a specific and particularized reason to believe that the suspect is armed." State v. Privott, 203 N.J. 16, 30 (2010). Reasonable suspicion was also supported by the violent nature of the suspected crime and the detective's knowledge that "Poppy Hunting" robbers were often armed.
Defendant does not dispute that in a Terry stop, the detective could order defendant and Green "to face the wall with their hands raised." Terry, supra, 392 U.S. at 7, 88 S. Ct. at 1872, 20 L. Ed. 2d at 897. Nor does defendant claim that Black exceeded the scope of a Terry frisk. As in Terry, he properly "patted down the outer clothing of" defendant's garments "until he had felt [a] weapon[], and then he merely reached for and removed the gun[]." Id. at 29-30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.
To conduct a pat down, an "officer must have a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous.'" State v. Roach, 172 N.J. 19, 27 (2002) (citation omitted). "'The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
Like reasonable suspicion to stop, the existence of reasonable suspicion to frisk "is based on the totality of the circumstances." Roach, supra, 172 N.J. at 27. "'[D]ue weight must be given'" to the detective's experience. See Valentine, supra, 134 N.J. at 543 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Given that Black knew pairs of robbers were targeting bar patrons on the strip, "the location of the investigatory stop can reasonably elevate a police officer's suspicion that a suspect is armed." Id. at 547. Green's warning "after seeing a police car, defendant's nervousness, . . . the high-crime nature of the area, and the time of night," likewise elevated that suspicion. See id. at 553-54. These factors, coupled with the bandanna partially obscuring Green's face and Black's experience and knowledge of the recent robberies, gave rise to a reasonable suspicion that Green and defendant were "Poppy Hunting."
The reasonable suspicion of robbery supports the decision to frisk defendant. "In certain circumstances, 'the right to frisk must be immediate and automatic if the reason for the stop is . . . an articulable suspicion of a crime of violence,'" such as robbery. Id. at 544 (quoting Terry, supra, 392 U.S. at 33, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913 (Harlan, J., concurring)). In Terry, the Court cited the officer's belief that the "men were contemplating a daylight robbery — which, it is reasonable to assume, would be likely to involve the use of weapons." Terry, supra, 392 U.S. at 28, 88 S. Ct. at 1883, 20 L. Ed. 2d at 910. Here, given Black's knowledge that the "Poppy Hunting" robbers were often armed, Black could reasonably infer that the men likely would be armed. See Valentine, supra, 134 N.J. at 545.
Like the officer in Terry, Black appropriately conducted the pat down of defendant "without giving him any chance to explain his presence or his actions." Terry, supra, 392 U.S. at 33, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913 (Harlan, J., concurring). "There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet." Ibid.; see Dilley, supra, 49 N.J. at 466. In reviewing a pat down, we are
concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties."'[C]ourts should not set the test of sufficient suspicion that the individual is "armed and presently dangerous" too high when protection of the investigating officer is at stake.'" Id. at 545 (citation omitted).
[Valentine, supra, 134 N.J. at 542 (quoting Terry, supra, 392 U.S. at 23-24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907).]
We agree with the motion judge that "the frisk of defendant was supported by a reasonable suspicion that defendant was armed," based on "string of robberies which involved the use of weapons," the high-crime area, the time of day, the reactions of the pair to the approach of police, the bandanna partially obscuring Green's face, and Black's experience and knowledge of the activities of robbers "Poppy Hunting" on this strip.
Defendant argues that he did not say anything, run, or try to hide anything before the pat down began. He notes that the detective had not received any specific information that a robbery was going to occur that night, that defendant was involved, or that he owned weapons. Although such facts would also have been suspicious, they were unnecessary to establish reasonable suspicion under these circumstances. We therefore affirm the denial of defendant's motion to suppress.
Like the motion judge, we consider only the facts known before the frisk began. See Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260 (2000) ("The reasonableness of official suspicion must be measured what the officers knew before they conducted their search."); State v. Goree, 327 N.J. Super. 227, 242 (App. Div. 2000) (finding no reasonable suspicion where the defendant acted suspiciously only during the attempted pat down). Thus, we do not consider defendant's turning his right side to the wall to prevent Black from frisking the area where the gun was later found, or his attempted flight after the gun was seized.
III.
Defendant next raises two challenges to his sentence. "We review a sentence imposed by the trial court to determine whether the court: (1) followed the sentencing guidelines; (2) based its determination of aggravating and mitigating factors on credible evidence in the record; and (3) applied the guidelines in a manner that did not result in a sentence that shocks the judicial conscience." State v. Morgan, 423 N.J. Super. 453, 474-75, (App. Div. 2011), aff'd, 210 N.J. 477 (2013). We find no violation of those requirements here.
A.
First, defendant complains that the trial judge imposed consecutive sentences for the offenses of unlawful possession of a weapon, and certain persons not to have weapons. Defendant argues this violated State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Yarbough announced a set of "general sentencing guidelines for concurrent or consecutive-sentencing decisions." Id. at 644; see State v. Carey, 168 N.J. 413, 423 (2001). Here, the judge cited Yarbough, emphasizing its first criterion that "there can be no free crimes in a system for which the punishment shall fit the crime." Yarbough, supra, 100 N.J. at 643. The judge was also concerned that running the sentences concurrently "would render meaningless the certain persons offense."
The judge's third reason for running consecutively the sentences under N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-7(b) was that "the legislature has a clear intent to specifically deter those who have a criminal history from possessing guns." In State v. Wright, 155 N.J. Super. 549, 551 (App. Div. 1978), we addressed predecessor statutes, namely possession of a pistol without a permit, N.J.S.A. 2A:151-41 (repealed) and possession of a firearm after having been convicted of the crime of atrocious assault and battery, N.J.S.A. 2A:151-8 (repealed). We cited the "strong legislative policy in this State with respect to gun control, designed to protect the public, which places restrictions on those who may carry such weapons and is intended to prevent criminal and other unfit elements from acquiring and possessing them." Id. at 553. We then stated:
The additional penalty under N.J.S.A. 2A:151-8 may either be concurrent with, or consecutive to, that for the conviction under N.J.S.A. 2A:151-41(a). The Legislature could not have intended that a convicted felon who possesses or carries an operable gun in a place not excepted from the permit requirements of N.J.S.A. 2A:151-41(a), be treated the same as a defendant who is not such a felon — a result which would flow from merging convictions under that provision and N.J.S.A. 2A:151-8.Based on that reasoning, we held that the convictions for the weapon offenses did not merge. Ibid. We have applied Wright's merger holding to the successor statutes violated by defendant. State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010), certif. denied, 205 N.J. 520 (2011).
[Id. at 555.]
Defendant claims the sentencing judge failed to consider whether "the crimes and their objectives were predominantly independent of each other." Yarbough, supra, 100 N.J. at 644. To the contrary, the judge expressly "recognize[d] that this is one of the unusual situations where we just have a straight possession of a handgun that serves as a basis for the certain persons charge." The judge found that fact outweighed by the need to deter convicted criminals from possessing guns.
Thus, the sentencing judge's reasons for imposing consecutive sentences were "separately stated in the sentencing decision." Yarbough, supra, 100 N.J. at 643. These reasons are not invalid for being "succinctly explained." See State v. Spivey, 179 N.J. 229, 245 (2004) (upholding the judge's statement "[s]eparate crime, separate victim, separate incident of assault"); see also State v. Molina, 168 N.J. 436, 441-43 (2001) (upholding the judge's statement, "I'm going to sentence you . . . for both deaths, . . . and I am not making them concurrent"); State v. Ghertler, 114 N.J. 383, 392 (1989) (affirming that it is unnecessary "'that every sentence be a discourse'" (citation omitted)).
Remand is, however, necessary where the sentencing judge sets forth "no specific reasons . . . for imposing consecutive rather than concurrent sentences." See State v. Miller, 108 N.J. 112, 115 (1987); see also State v. Miller, 205 N.J. 109, 119, 130 (2011) (remanding where the transcript did not provide a basis for the judge's decision to impose consecutive sentences, and the "'statement of reasons' in the Judgment of Conviction [was] blank"). Here, the judge's statement of reasons noted "[t]he risk that the defendant will commit another offense," "[t]he extent of the defendant's prior criminal record," "the seriousness of the offenses of which [he] has been convicted," and the "need to protect the public" from defendant.
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Defendant argues that his crimes were not "committed at different times or separate places." Yarbough, supra, 100 N.J. at 644. While defendant's gun possession was the same for each crime, his prior conviction for possession of controlled dangerous substances with intent to distribute occurred at a separate time and place from his current handgun possession with an unlawful purpose. There is no legal bar against imposing a consecutive sentence where a current offense triggers a second offense based on a prior conviction. See, e.g., State v. Sutton, 132 N.J. 471, 484-86 (1993) (permitting consecutive sentences for a violation of probation).
Defendant also argues that his gun-related offenses did not involve "separate acts of violence or threats of violence," or "multiple victims." Yarbough, supra, 100 N.J. at 644. However, "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Carey, supra, 168 N.J. at 427-28.
"On appellate review, we do not substitute our judgment for that of the trial court unless the sentence is so wide of the mark as to require our intervention." Spivey, supra, 179 N.J. at 245. Given defendant's substantial juvenile and adult criminal history, "[w]e cannot conclude that the trial court abused its discretion by imposing consecutive sentences." Ibid.
B.
Second, defendant argues that the judge imposed an excessive sentence, even though the judge declined to impose an extended sentence. This argument is meritless. Based on the instant gun offenses and defendant's numerous juvenile adjudications, two other indictable convictions, and multiple non-indictable convictions, the judge properly found aggravating factor three, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6). Those prior convictions, and defendant's two parole revocations and three violations of probation, gave the judge sufficient reason to find aggravating factor six, a "risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). The judge correctly found that mitigating factors one and two did not apply because "having a firearm on the streets of Plainfield . . . . certainly threatens serious harm," and that defendant thus "contemplate[d] that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(1), (2). Even if unloaded, the gun was operable. The judge did not err in finding that "aggravating Factors 3 and 6 outweigh the nonexistent mitigating factors."
Defendant argues it would be double counting to reject those mitigating factors because he possessed a gun. The judge, however, did not rely on the mere fact of possession, but on the fact that defendant carried the gun on the streets, which is not an element of his offenses. Defendant's argument thus fails even assuming that double counting analysis applies here. Cf. Yarbough, supra, 100 N.J. at 644 (instructing that "there should be no double counting of aggravating factors"); State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989) (stating that "[d]ouble counting mitigating factors distorts the sentencing guidelines as much as double counting aggravating factors").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION