Opinion
DOCKET NO. A-0038-14T1
07-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent v. SADDIQUIE WILLIAMS, a/k/a SHEROD CLARK, SADDIQUIC WILLIAMS, BRANDON SPEARS, SADDIQUE WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 11-03-0301; 08-04-0405. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Saddiquie Williams appeals his conviction and sentence for third-degree eluding and disorderly persons resisting arrest. Having reviewed the arguments in light of the record and applicable law, we affirm.
I.
On February 17, 2011, Trenton Police officers received an anonymous tip about a man with a handgun in a black Hyundai sedan with Georgia license plates, located on Martin Luther King, Jr. Boulevard. The officers arrived at Martin Luther King, Jr. Boulevard, and approached defendant. A brief car chase ensued, which culminated in defendant's arrest. The officers alleged that, during the chase, defendant collided with their vehicles and resisted arrest. Following the chase and apprehension, defendant's son was discovered in the back seat of the vehicle.
On March 24, 2011, a Mercer County grand jury returned Indictment No. 11-03-0301, charging defendant with second-degree eluding police, N.J.S.A. 2C:29-2b (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:29-2 (count three); third-degree resisting arrest, N.J.S.A. 2C:29-21(2)(a) (count four); and fourth-degree child cruelty, N.J.S.A. 9:6-1 and 9:6-4 (count five). A jury trial was held in December 2013.
On the second day of trial, December 12, 2013, defendant took exception with the judge's order sequestering all witnesses. Following a brief dialogue amongst defendant, defendant's counsel, and the court, the judge warned defendant that an outburst in the presence of the jury would result in defendant's removal from the courtroom. At the end of the second day, the court agreed to release defendant on his own recognizance so that he could more actively participate in his defense.
On the following day, the judge learned that, due to some confusion regarding the court's order, defendant had not been released from jail the night before. As a result, defendant had not received his medication until that morning. Defendant's counsel requested a continuance, which the judge granted.
On December 16, 2013 the court held a Sands/Brunson hearing to determine the admissibility of defendant's prior convictions. Defendant interrupted the proceedings on several occasions, prompting the judge to warn him that further interruptions would lead to his removal. Defendant stated that he intended to testify at trial, and the court engaged in an extended voir dire to determine whether defendant knowingly and intelligently waived his right not to testify. During the colloquy, defendant indicated an understanding of his rights, and affirmed that he was taking his medications and thinking clearly.
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
Some of defendant's answers caused defense counsel to question whether defendant had taken his medication that day. Counsel stated that defendant was "not acting as rationally as he normally has done." However, the court found no reason to doubt defendant's repeated testimony that he took his medication for that day, and observed that defendant appeared "to be able to turn . . . [his behavior] on and off at will."
The judge again instructed defendant that outbursts in front of the jury would not be tolerated; however, defendant continued to speak at length about unrelated matters. The judge again warned defendant,
THE COURT: If I need to remove you from this courtroom, Mr. Williams, you will be locked up.
MR. WILLIAMS: What makes me — what makes me — what can I do? Can I get emotional? I won't — handcuff me around this post.
THE COURT: Mr. Williams, I've already given you this warning twice. I'm going to give it to you one more time. And then you're going to be removed from the courtroom and taken into custody. Okay?
MR. WILLIAMS: Okay. I understand that. I heard you correct.
After a five minute recess, the court again had to speak over defendant, and issued another warning:
THE COURT: - State - Mr. Williams? Be quiet. Again, I'm warning you.
MR. WILLIAMS: I know. You want to lock me up. I'm sorry. Let's get this trial — this jury in.
THE COURT: If there's any outbursts you will be removed from the courtroom and you will be taken into custody.
MR. WILLIAMS: What is outbursts? You know I cry a lot, Your Honor. I won't do anything that's going to — .
The jury was then brought in, and defendant took the stand. During direct examination, defendant made unsolicited references to previous involvement of the Division of Child Protection and Permanency, prior imprisonment, and a dropped kidnapping charge. While discussing his son, defendant became emotional, and stated his belief that "he [his son] got molested. And he sat in the house with my mom's dead body for two days . . ." Likewise, during cross examination, defendant volunteered testimony that he was driving without a license, his prior convictions and arrests, and plea negotiations, for which the judge gave curative instructions.
At sidebar, the court noted,
[j]ust for the record, Mr. Williams just winked at me. He's been winking at his attorney. He's been winking at the sheriff's officers. He clearly is in possession of his faculties, and he clearly is acting as he feels is appropriate, another sign that he is thinking clearly and is on medication. And he appears to be trying to put one over on counsel, his own counsel, and on the court, and I find he knows precisely what he is doing in terms of his behavior.
Later, after the jury was dismissed for a break, defendant responded to the judge's finding, stating, "[c]an I explain what I'm doing? I'm trying to be confident[,]" and "I don't know if it's coming out the wrong way, but the winking and the little ditty-bop I got in my walk, it's confidence now." The court engaged in a brief colloquy, concluding on the record that defendant knew what was going on and knew what he was doing. Defendant replied:
I told you that the first day. I told you that the first day. Remember you told me to get — right before — the jury come here? I said on the record it's my feelings. I can turn them on and turn them off. Yes. Yes. I can do that. You can do it, too. Because you overrule — you won't even let her [defense counsel] do her job. And you turn beet — you turn red like you're mad.
After the jury was dismissed for the day, defense counsel complained that defendant would not permit her to put a favorable fact witness on the stand. Defense counsel then requested a competency evaluation be performed, stating that defendant had never before been so irrational or disorganized; she could not have a civilized discussion with him; he did not trust her; he was not on his medication; and he was incapable of assisting in his own defense. Defense counsel also requested a mistrial.
The court denied the request for a mistrial, holding:
There's no basis for a mistrial. Mr. Williams, I believe, has a — perhaps strategic difference with Ms. Turner [defense counsel] about how best to try this case. He made a personal appeal to the jury through his testimony. That is not a personal appeal that Ms. Turner would have counseled and he did, in that personal appeal make certain statements that were contrary to the results she obtained in the Sands/Brunson hearing. However, I see no basis for a mistrial.
On December 17, 2013, the judge began by stating, outside the presence of the jury, that defendant was arrested the night before in Trenton on other charges. Following a brief colloquy, defendant was briefly removed by a sheriff's officer for continually interrupting the judge. Defense counsel renewed her arguments concerning defendant's competency, and requested an evaluation. Again, the judge denied the request, reasoning that defendant's statements before the jury were part of defendant's strategy.
Defendant was permitted back into the courtroom, and was warned several more times not to act-out in front of the jury. Defense counsel pointed out that defendant's appearance was unpresentable, and that he smelled. Defendant stated he had urinated in his pants earlier. However, the court stated that defendant's appearance was the same as ever, and he could not detect that defendant urinated in his pants. The jury was then let in, and trial proceeded with defendant's sole witness.
On the final day of trial, December 18, 2013, defendant refused to change out of his prison garb, contrary to the advice of his counsel. This gave rise to a lengthy and chaotic discussion in which the court tried to determine whether defendant wished to change into street clothes, and defendant attempted to place on the record his reasons for being dissatisfied with his counsel and the trial. After being repeatedly interrupted and disobeyed by defendant, the court warned,
[t]his is your last chance Mr. Williams. Next time, you're out of here and the trial will proceed in your absence. You won't be brought back in. Okay. You said crazy by choice, not by chance. That reaffirmed my thinking that Mr. Williams' behavior in this trial is solely the product of his own free will. It is not the product of any mental illness.
Finally, defendant agreed to change his clothing, and was escorted from the room by a sheriff's officer for that purpose. When the court went back on the record, the sergeant in charge of building security was present. He stated that, outside the courtroom, when officers began removing defendant's restraints, he "went after [the] officers, tried to push them away from him." According to the sergeant, "it took six officers to bring him down to get him calm, to get him into the elevator to bring him back downstairs," and one officer was bleeding from his hand. The sergeant stated that it was a security issue, and that he feared for the safety of those in the courtroom, and in particular, for the safety of defendant's counsel. He stated "shackled or unshackled, he can't remain here."
Defendant's counsel renewed her position that defendant was incompetent to stand trial, stating, "I do not think he is competent. I haven't thought he was competent all the way through trial, and I stick by that." The State argued that defendant willingly waived his right to be present at trial under Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), and defense counsel agreed.
The judge also agreed, adding that defendant was repeatedly warned, and that he, too, was concerned for the safety of sheriff's officers and defense counsel. The judge also stated that he would instruct the jury not to consider defendant's absence. The jury was then brought into the court, and jury instructions were given, including an instruction regarding defendant's absence.
Following deliberations, the jury returned a verdict acquitting defendant of counts two, three, and five, but finding him guilty of third-degree eluding and disorderly persons resisting arrest, lesser-included offenses to counts one and four, respectively.
The sentencing hearing was held on June 10, 2014. Defendant was present at the hearing. The judge granted the State's motion for an extended term sentence based on previous convictions in 1998 and 2008. He then proceeded to weigh the aggravating and mitigating factors. N.J.S.A. 2C:44-1. The judge ascribed considerable weight to aggravating factor three, stating, "there is without doubt in the Court's mind a basis for finding Aggravating 3, that Mr. Williams will commit another offense." In support of this finding, the court pointed to defendant's criminal history, which indicated two prior New Jersey convictions, four municipal court convictions, five out-of-state convictions in Pennsylvania, and three pending matters. The court also stated that defendant's attitude and conduct at trial evidenced a "lack of respect for the police and the criminal justice system."
The court also found aggravating factor six (extent of prior criminal record and seriousness of offenses) due to the extensiveness of defendant's criminal record, though he did not "give it great weight." Finally, the judge found aggravating factor nine (the need to deter defendant and others).
With respect to mitigating factors, the court rejected mitigating factor two ("defendant did not contemplate that his conduct would cause or threaten serious harm"), reasoning that eluding is a serious crime, and defendant threatened serious harm by crossing over the yellow lines in the course of eluding arrest. The court also rejected mitigating factor three ("defendant acted under strong provocation") as baseless. Finally, the judge ascribed "moderate weight" to mitigating factor eleven (excessive hardship), due to the fact that defendant's son would suffer excessively as a result of defendant's incarceration.
The judge concluded that the aggravating factors were preponderant, and sentenced defendant to "five years with a two-and-one-half year period of parole ineligibility" on the third-degree eluding conviction and $330 in fines and fees on the disorderly persons resisting arrest conviction.
On appeal, defendant presents the following issues for our consideration:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S DENIAL OF COUNSEL'S REPEATED REQUESTS THAT THE DEFENDANT BE EXAMINED FOR COMPETENCY, U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S REPEATED MOTIONS FOR A MISTRIAL.
POINT III
THE TRIAL COURT REVERSIBLY ERRED IN REMOVING DEFENDANT FROM THE COURTROOM AND TRYING HIM IN ABSENTIA WITHOUT FIRST ADOPTING A REASONABLE METHOD OF COURTROOM DISCIPLINE WHICH WOULD PERMIT DEFENDANT TO REMAIN IN THE COURTROOM. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PARS. 1, 10. (Not Raised Below).
POINT IV
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
II.
We begin with defendant's contention that his right to due process was violated by the court's refusal to hold a hearing in order to determine his competency to stand trial. Defendant contends his conduct at trial was so irrational and self-defeating that it raised a bona fide doubt as to his competency to stand trial. In particular, he points to his insistence upon discussing prior arrests during his testimony, and his refusal to permit testimony by a key defense witness. Having reviewed the record and applicable law, we disagree.
A trial judge's failure to order a competency hearing constitutes reversible error on appeal when it "clearly and convincingly appears that the defendant was incapable of standing trial." State v. Spivey, 65 N.J. 21, 37 (1974) (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)); State v. Harris, 181 N.J. 391, 458 (2004), cert. denied sub nom., Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, we consider the "clear and convincing" standard to be met where a defendant has shown "a bona fide doubt as to [his] competence to stand trial." Spivey, supra, 65 N.J. at 37 (citing Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822 (1966)). A trial court's determination on the subject of competency will be sustained so long as there is sufficient supporting evidence in the record. State v. Purnell, 394 N.J. Super. 28, 50 (App. Div. 2007).
"Where evidence raises a bona fide doubt as to a defendant's competence, a competency hearing must be held." Purnell, supra, 394 N.J. Super. at 47. To do otherwise is to deprive a defendant "of his due process right to a fair trial." State v. Cecil, 260 N.J. Super. 475, 480 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993).
However, "'[m]ere suggestion' of incapacity is not sufficient." Spivey, supra, 65 N.J. at 36. In determining whether a bona fide issue exists, the trial judge should "make an effort to inquire of defendant, after instructing him in the same manner that prospective jurors are instructed about trial procedures, about his understanding of the N.J.S.A. 2C:4-4 factors." Purnell, supra, 394 N.J. Super. at 50.
The test for competency to stand trial is codified in N.J.S.A. 2C:4-4(a), which provides: "No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." The proofs must establish that the defendant "has the mental capacity to appreciate his presence in relation to time, place and things[.]" N.J.S.A. 2C:4-4(b)(1). It must also be established that defendant understands his presence in a courtroom facing criminal charges; the role of the judge, prosecutor, defense attorney, and jury; his rights, and the consequences of waiver of the same; and his ability to adequately participate in his own defense. N.J.S.A. 2C:4-4(b)(2).
At the time of trial, defendant undoubtedly suffered from mental health issues, for which he received medication. His actions were, at times, extremely disruptive and perhaps self-defeating. However, there is ample evidence in the record to support the court's finding that he was fully aware of his situation, and of the identities and roles of the people involved in his trial. Furthermore, there is ample evidence in the record to support the court's finding that defendant was able to participate in his own defense.
The not guilty verdicts and convictions for lesser-included offenses may belie that his actions were self-defeating.
Defendant contends that a bona fide doubt as to his competence was raised when he insisted on discussing prior charges and arrests which the court had previously suppressed, and refused to permit a supportive fact witness to testify in his defense. However, viewed in the context of the trial record, and the defense theory, these actions are not so irrational as to raise a bona fide doubt as to his competency.
Part of the defense theory at trial apparently revolved around an argument that defendant's one-time girlfriend habitually made false claims about defendant to the police. In that context, defendant's "self-defeating" actions in bringing up prior arrests appears less unreasonable. Likewise, defendant explained his decision to prevent a defense witness from testifying; he implied that the witness, whom he knew as "Nookie," was not as credible as other more "professional" witnesses he would prefer to call.
Furthermore, defendant displayed a relatively nuanced understanding of trial procedure, evidencing a comprehension of the respective roles of the judge, jury, prosecutor, and defense counsel, as well as the role of closing arguments and attorney client privilege. Where defendant did not understand the procedure or import of a certain aspect of trial, he did not hesitate to ask. We therefore conclude that defendant's conduct at trial did not raise a bona fide question as to his competency.
III.
We turn next to defendant's argument that the trial judge abused his discretion by denying defense counsel's repeated motions for a mistrial. Defendant contends that the trial judge abused his discretion by failing to declare a mistrial following defendant's erratic and prejudicial behavior before the jury. Having reviewed the record and applicable law, 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), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). Thus, we will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice. Harvey, supra, 151 N.J. at 205. 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, supra, 427 N.J. Super. at 407.
The trial court was within its discretion to continue the trial because defendant's conduct was intentional and did not result in a "manifest injustice." In their briefs, both parties discuss State v. Montgomery, 427 N.J. Super. 403 (App. Div. 2012). In Montgomery, the "defendant assaulted defense counsel, fought with sheriff's officers, attempted to escape from the courtroom, and was subdued by the sheriff's officers." Id. at 405. The outburst occurred following the conclusion of the State's case and in the presence of the jury. Ibid. When the jurors were returned to the courtroom, "the judge gave a cautionary instruction that the jury must disregard the incident when deliberating and base the verdict solely on the evidence presented in the courtroom." Id. at 406. Each juror acknowledged that they understood, and could comply with the instruction. Ibid.
Montgomery then moved for a mistrial. The trial judge concluded that his conduct was calculated to cause disruption and delay and denied his motion for a mistrial, stating,
[i]f I were to grant [defendant] a mistrial and in a sense, give him what he wish[ed], a delay, then he would be benefiting from what is clearly [abhorrent] conduct in a sense, declaring that anytime someone . . . did not like the way the trial is going, they can take a swing at their attorney and get a redo.
[Ibid. (alterations in original).]
On appeal, we affirmed the conviction. We agreed with the trial judge's conclusion that defendant's conduct "was a deliberate, calculated attempt to cause a mistrial," and concluded that, "[a] defendant cannot engage in courtroom misconduct, especially assaulting his attorney and fighting with sheriff's officers, and then expect to be rewarded with a mistrial or new trial for his or her egregious behavior, where, as here, the judge took appropriate cautionary measures." Id. at 410.
In this case, there is ample evidence in the record that defendant's conduct was intentional. Thus, to grant a mistrial would be to reward defendant for deliberately disrupting the trial process. Furthermore, any misconduct and statements that occurred in the presence of the jury are far less egregious and prejudicial than those in Montgomery. Finally, the court issued curative instructions both during trial and at the conclusion of trial, reminding the jury what it could, and could not, consider in reaching its decision. Thus, we are satisfied that the trial judge was within his discretion to deny defendant's motions for a mistrial.
IV.
We turn next to defendant's argument that the trial judge abused his discretion by removing defendant from the courtroom during the jury charge and verdict. Defendant concedes that the trial judge warned him numerous times that further outbursts would result in his removal. However, he argues the court abused its discretion by failing to threaten him with contempt before barring him from court. We disagree.
A criminal defendant's right to be present at trial is secured by the confrontation and due process clauses of the United States Constitution and the New Jersey Constitution. See U.S. Const. amends. V and VI; N.J. Const. art. I, ¶ 10; State v. Dellisanti, 203 N.J. 444, 453 (2010). The procedural outline of the right is spelled out in Rule 3:16(b).
Despite these multiple layers of protection, the right of a defendant to be present at trial is not absolute. State v. Whaley, 168 N.J. 94, 100 (2001). That right must be weighed against a trial judge's ultimate responsibility for controlling the court, and his or her broad discretion in doing so. See State v. Tedesco, 214 N.J. 177, 188-189 (2013).
Rule 3:16(b) requires the defendant's presence "at every stage of the trial, including . . . the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule." The rule permits a defendant to waive his or her right to be present, either by "express written or oral waiver placed on the record, or . . . conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence." R. 3:16(b). Behavior that is sufficiently disruptive can constitute a knowing and voluntary waiver under Rule 3:16(b).
Likewise, our courts have adopted the United States Supreme Court's reasoning in Illinois v. Allen, which authorizes trial judges to bar incorrigibly disruptive and disrespectful criminal defendants from their own trials. See, e.g., State v. Luna, 193 N.J. 202, 211 (2007); State v. Reddy, 137 N.J. Super. 32, 36 (App. Div. 1975). In Allen, the Court stated:
we explicitly hold today that a defendant can lose his right to be present at trial
if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.
[Allen, supra, 397 U.S. at 343, 90 S. Ct. at 1060-1061, 25 L. Ed. 2d at 359.]
The Court went on to state that:
No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
[Id. at 343-44, 90 S. Ct. at 1061, 25 L. Ed. 2d at 359.]
Defendant does not argue that the court had any duty to bind and gag him, and we do not think such a course would be reasonable in this case. We echo the Court's sentiment in State v. Tedesco, when it stated, "[w]e cannot envision a set of circumstances when that approach would be the wisest course." 214 N.J. 177, 198 (2013). --------
Here, there is ample evidence in the record of defendant's disruptive and disrespectful conduct. The trial judge gave at least seventeen warnings to defendant that he would be removed if he could not conform his behavior to the requirements of the proceeding. Moreover, the removal in this case occurred just before the jury charge and verdict, the final portion of defendant's trial. The period of time during which defendant was barred was therefore relatively short, and did not implicate defendant's right of confrontation. See State v. A.R., 213 N.J. 542, 558 (2013). Finally, the judge took pains to ensure defendant could be present at the June 10, 2014 sentencing hearing, which indicates that the defendant was not permanently barred from the proceedings. We are therefore satisfied that the judge did not deprive defendant of his due process rights, or commit a reversible error, by ordering defendant's removal from the court.
V.
Finally, we address defendant's argument that the trial judge abused his discretion by issuing an excessive sentence. Defendant contends the trial judge double-counted his prior criminal record by relying on it to apply a discretionary extended term and finding aggravating factors three (risk that defendant will commit another offense) and six (extent of prior criminal record and seriousness of offenses). We disagree.
We apply the deferential abuse of discretion standard to sentencing decisions. State v. Robinson, 217 N.J. 594, 603 (2014). Thus, we will affirm a sentence so long as (1) the trial court followed the sentencing guidelines; (2) the findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not shock the conscience. State v. Bolvito, 217 N.J. 221, 228 (2014). However, as always, we address issues of law de novo. Id. at 604.
In this case, the trial court granted the State's motion for extended term sentencing of defendant as a persistent offender under N.J.S.A. 2C:44-3. Under that statute, a persistent offender is defined as,
a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[N. J.S.A. 2C:44-3(a).]
Defendant does not challenge his status as a persistent offender. Rather, he contends that, because the court counted his prior convictions in determining his status as a persistent offender, it could not then also consider those same prior convictions in weighing aggravating factors three and six. To support this proposition, defendant points to State v. Vasquez, 374 N.J. Super. 252 (App. Div. 2005).
Defendant's analogy to Vasquez is inapposite. In that case, the sentencing judge erroneously relied upon a single prior conviction to justify the imposition of an extended term sentence, and to decide the length of that extended term. Id. at 267. We found that this amounted to a "double-counting" of his prior conviction, and resentenced defendant to the presumptive term of seven years. Id. at 268-69.
Here, the trial judge relied on defendant's prior 1998 and 2008 convictions to determine defendant's eligibility for imposition of an extended sentence. However, unlike in Vasquez, here the defendant has an extensive criminal record that well exceeds the minimum necessary for an enhanced sentence. Likewise, with respect to aggravating factor six, the court relied upon defendant's extensive record, including four municipal court convictions and five out-of-state convictions to conclude that defendant's record displayed "a repeated and constant disregard for the law."
Accordingly, we conclude the sentencing judge did not improperly double-count defendant's prior convictions, and we discern no error or abuse of discretion in the court's sentencing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION