STATE OF NEW JERSEY v. QUARWEE WALKER

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. QUARWEE WALKER, Defendant–Appellant.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. BRYAN WITHERSPOON, a/k/a BRIAN L. WITHERSPOON, a/k/a JAMAR HERBERT, a/k/a NEIL L. HERBERT, a/k/a BRYAN L. WHITERSPOON, a/k/a BRYAN L. WITHERSPOON, a/k/a BRYAN WITHERSPOON, JR., Defendant–Appellant.

A–2528–11T3A–2989–11T3A–2528–11) and Submitted (A–2989–11) September 30, 2013 – Decided

-- December 11, 2013

Before Judges Yannotti and Leone. Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant Quarwee Walker (Joseph E. Krakora, Public Defender, attorney;  Mr. Blum, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Bryan Witherspoon (Alison Perrone, Designated Counsel, on the brief). Stephen A. Pogany, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent in A–2528–11 (Carolyn A. Murray, Acting Essex County Prosecutor, attorney;  Mr. Pogany of counsel and on the briefs in A–2528–11 and A–2989–11).

Defendants Quarwee Walker and Bryan Witherspoon were tried jointly and convicted of drug offenses and conspiracy.   They claim plain error in the jury instructions and errors at sentencing.   We uphold their convictions, affirm Witherspoon's sentence, affirm Walker's sentence in part, and vacate and remand his sentence in part.

I.

The State's witnesses were East Orange Detectives Lance Merrill, Rahsaan Johnson, and Ramon Rodriguez.   They presented evidence that Walker and Witherspoon conspired to and did sell crack cocaine from December 10, 2008, through January 1, 2009, including sales on December 10, 11, 16, and 30, and on January 1. Each sale was made to Merrill, acting undercover, with either Johnson or Rodriguez observing from twenty-five to fifty feet away.   The sales occurred between 8:00 and 8:40 p.m., near or on the enclosed front porch of a house in an area lit by a streetlamp and by the lights of the adjacent high school football field and parking lot.   Both Johnson and Rodriguez knew Walker and Witherspoon prior to the events in question.

On December 10, Johnson observed Walker drive up in a GMC Yukon registered to Walker.   Walker and Witherspoon greeted each other and walked toward the house.   Merrill approached Walker and Witherspoon, asked for crack, and gave Walker $50.   Walker went inside the Yukon, emerged, and handed five bags of crack to Merrill.   Walker and Witherspoon then went into the house together.   At trial, Merrill and Johnson identified Walker as the man who sold the crack.

On December 11, Rodriguez observed Merrill approach Walker and ask for crack.   Walker told Merrill to see “B” in the house.   Merrill entered the porch and met Bryan Witherspoon.   Merrill gave $50 to Witherspoon in return for five bags of crack.   At trial, Merrill and Rodriguez identified Witherspoon as the man who sold the crack, and Walker as the man who directed Merrill to the house.

On December 16, Rodriguez observed Walker sitting in his Yukon.   Merrill approached Walker and asked for crack.   Walker gestured towards the house and told Merrill to see “Buzz” — co-defendant Neil Herbert, who is Witherspoon's brother.   Inside the porch, Merrill gave $100 to Herbert in exchange for ten bags of crack.   Merrill and Rodriguez identified Walker at trial.

On December 30, Johnson observed Witherspoon approach Merrill, who asked to buy ten bags of crack.   Witherspoon said he had only one bag, which he gave to Merrill in exchange for $10.   Witherspoon and Merrill exchanged phone numbers so they could talk once Witherspoon obtained more crack.   Merrill and Johnson identified Witherspoon at trial.

On January 1, Johnson observed as Merrill went to the house.   Walker pulled up in his Yukon and got out.   Merrill asked Walker for crack.   Walker got something out of his Yukon and motioned for Merrill to come with him into the porch.   There, Walker gave Merrill five bags of crack for $50.   At trial, both Merrill and Johnson identified Walker.   Walker was later arrested with $1,110 in cash.

At trial, Walker called his sister Hassana McPherson, his brother-in-law Marc McPherson, and his fiancée Takiya Knowles, who was also the mother of his five children.   They testified that he was at his son's birthday party at or around the time of the December 11 drug sale.   Walker also called Calvin Range and Josephine Witherspoon, residents of the house, who testified that they were friends with Walker and Witherspoon, that Walker and Witherspoon came to play cards at the house frequently, and that Range frequently borrowed Walker's Yukon.

II.

A grand jury indicted Walker, Witherspoon, and others with a series of third-degree offenses.   Regarding December 10, 2008, Walker was charged with possession of cocaine, N.J.S.A. 2C:35–10a(1), distribution of cocaine, N.J.S.A. 2C:35–5a(1) and –5b(3), and distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35–7 (counts one to three).   Regarding December 11, both Walker and Witherspoon were charged with the same trio of substantive offenses (counts five to seven), and with conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5–2 (count four).   Regarding December 16, Walker and Herbert were charged with the same three substantive offenses (original counts nine to eleven), and with conspiracy (original count eight).   Regarding December 30, Witherspoon was charged with the same substantive offenses (original counts twelve to fourteen).   Regarding January 1, 2009, Walker was charged with the same substantive offenses (original counts fifteen to seventeen).   Regarding an alleged sale on January 7, 2009, Walker was charged with possession of cocaine, possession of cocaine with intent to deliver, N.J.S.A. 2C:35–5a(1) and –5b(3), and distributing cocaine within a 1,000 feet of a school (counts eighteen to twenty), and with committing the same three offenses with heroin (counts twenty-one to twenty-three).1

Walker and Witherspoon were tried together twice.   The first trial took place from March 28 to April 13, 2011.   The jury acquitted Walker of counts eighteen to twenty-three relating to January 7, 2009.   On the other charges against Walker and Witherspoon, the jury deadlocked and a mistrial was declared.

A second trial on those charges was held from July 12 to 28, 2011, before a new judge (“the trial judge”).   Before the second trial, the trial judge dismissed the original count eight conspiracy charge, expanded count four to charge conspiracy from December 10 through January 1, and renumbered the original counts nine to seventeen as counts eight through sixteen.   The jury convicted Walker and Witherspoon of conspiring to distribute cocaine from December 10 through January 1 (count four).   The jury also convicted Walker of all charged offenses regarding December 10 (counts one to three), December 16 (renumbered counts eight to ten), and January 1 (renumbered counts fourteen to sixteen).   The jury acquitted Walker of the substantive offenses regarding December 11 (counts five to seven).   The jury convicted Witherspoon of all charged offenses regarding December 11 (counts five to seven) and December 30 (renumbered counts eleven to thirteen).

On October 28, 2011, the trial judge separately sentenced Walker and Witherspoon to a total of ten years in prison, with five years of parole ineligibility, as well as fines and penalties.

III.

Both Walker and Witherspoon appealed.   We calendared their appeals for the same date.   We consolidate the appeals solely for the purposes of addressing them in a single opinion.

Walker raises the following arguments in his appeal:

POINT I

THE COURT'S INSTRUCTIONS TO CONSIDER THE COUNTS SEPARATELY – AND FAILURE TO PERMIT THE JURORS TO COMMINGLE THE EVIDENCE ON THE ISSUE OF IDENTITY –IMPROPERLY NEGATED THE DEFENSE THAT THE DETECTIVES' MISIDENTIFICATION OF A DRUG SELLER AS WALKER FOR ONE DATE CAST DOUBT ON THEIR IDENTIFICATIONS OF WALKER FOR THE OTHER DATES.   U.S. CONST.   AMEND.  XIV;  N.J. CONST.   ART. I, PARA. 1. (not raised below)

POINT II

WALKER SHOULD BE RESENTENCED BECAUSE THE COURT DOUBLE–COUNTED HIS PRIOR RECORD AND CONFUSED WHICH COUNT WAS WHICH.

A. The Court Improperly Double–Counted Walker's Prior Drug Conviction in Sentencing Him to an Extended Term and in Using Aggravating Factors Three, Six, and Nine to Support a Maximum Sentence Within the Extended Term.

B. The Court Appeared to Confuse Which Count Was Which by Failing to Account for One Count, by Imposing No Sentence for One Date, by Merging Counts Pertaining to Different Dates, and by Imposing More than One Sentence for One Date. (not raised below)

Witherspoon raises the following arguments in his appeal:

POINT ONE

THE TRIAL COURT'S IDENTIFICATION INSTRUCTION, SUMMARIZING THE EVIDENCE IN A MISLEADING MANNER, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.   U.S. CONST.   AMENDS.  VI, XIV;  N.J. CONST. (1947).  (Not Raised Below)

POINT TWO

DEFENDANT'S DISCRETIONARY EXTENDED TERM, OF THE MAXIMUM BASE TERM AND MAXIMUM PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND.

IV.

Both Walker and Witherspoon challenge jury instructions given in their second trial.   As they failed to object to those instructions, they must show plain error.   R. 2:10–2.   Thus, they must show “ ‘[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’ ”  State v. Adams, 194 N.J. 186, 207 (2008) (citation omitted).   “The charge to the jury must be read as a whole in determining whether there was any error.”  Ibid. Furthermore, the prejudicial effect of the error “ ‘must be evaluated in light of the totality of the circumstances—including all the instructions to the jury, [and] the arguments of counsel.’ ”  Ibid. (citation omitted).   We must also consider “ ‘the overall strength of the State's case.’ ”  State v. Walker, 203 N.J. 73, 90 (2010) (citation omitted).   We must hew to this standard of review.

A.

Walker claims that the trial judge committed plain error by giving instructions on how to consider multiple charges.   Such instructions are intended to prevent prejudice to a defendant when multiple charges are tried together.   See, e.g., State v. Pitts, 116 N.J. 580, 603 (1989);  State v. Coruzzi, 189 N.J.Super. 273, 301 (App.Div.), certif. denied, 94 N.J. 531 (1983).   Walker first cites the judge's multiple charges instruction itself:

There are sixteen offenses charged in the indictment.   They are separate offenses by separate counts.   In your determination of whether the State has proven each defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, each defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based upon the law as I am giving it to you.

The judge's instruction essentially tracked the Model Jury Charge (Criminal), “Criminal Final Charge, Multiple Charges” (Jan. 14, 2013), with tailoring to the number of charges and defendants in this trial.

Walker also cites the end of the judge's instructions on conspiracy:

Each offense and each defendant in this indictment should be considered by you separately.   The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that defendant, and it should not control your verdict as to the charges against any other defendant.

The judge's instruction was virtually identical to the final paragraph of the Model Jury Charge (Criminal), “Conspiracy” (Apr. 12, 2010).

Neither Walker nor Witherspoon objected to either instruction.   Nevertheless, Walker asserts those instructions prevented the jurors from considering one of his defenses, namely his argument that because his alibi evidence for December 11 showed the detectives' identifications of him that day to be false, the jury should find that the detectives' identifications of him on December 10 and 16 and January 1 were also false.

Walker is incorrect.   The judge's instructions correctly advised the jury that it should consider each count separately, that a verdict on one count does not necessarily dictate the verdict on another count, and that the jury should consider “the evidence which is relevant and material to [a] particular charge” in determining “whether the State has proven” that charge.   Neither of the instructions suggested the jury could not consider defense evidence or argument that an identification witness mistaken on one day could be mistaken on another day.

Walker cites State v. Krivacska, 341 N.J.Super.   1 (App.Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L. Ed.2d 510 (2002), but there we merely stated that the multiple-charges instruction prohibits the jury “from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven.”  Id. at 43.   We did not indicate that it prevented a “false in one, false in all” argument like Walker raises here.

Indeed, the judge gave the jury the model “false in one, false in all” instruction.   That instruction made clear that if a witness “willfully or knowingly testified falsely ․ to any material facts in this case, with an intent to deceive,” the jury could “disregard all of” the witness's testimony.   That instruction adequately informed the jurors that they could consider the falsity of a detective's testimony identifying Walker on December 11 in determining whether to disregard that detective's identifications of Walker on the other days.

Walker next argues that other instructions, to which he also did not object, reemphasized that the jury could not consider his argument.   First, Walker cites the identification instruction, which he and Witherspoon requested.   However, nothing in that instruction precluded consideration of his “false in one, false in all” argument.   The trial judge's instruction simply set forth the requirements for proof of identity beyond a reasonable doubt, and listed factors the jury may consider, essentially following the model instructions then in effect.   See Model Jury Charge (Criminal), “Identification:  In–Court identification only” (June 4, 2007).

Indeed, the judge told the jurors they must “determine whether the identification of the defendant is reliable and believable and whether it is based on a mistake, or for any other reason, is not worthy of belie[f].”  The judge also instructed the jurors that they could consider “any other factor based on the evidence, or lack of evidence in the case, which you — you consider relevant to your determination of whether the in-court identification was reliable.”   Thus, the judge's identification instruction allowed the jury to consider the allegedly mistaken identification of Walker on December 11 in determining the reliability of the identifications of Walker on other dates.

Second, Walker cites the judge's alibi instruction, which generally followed the model instruction, Model Jury Charge (Criminal), “Alibi” (May 12, 2008), with tailoring to reflect that Walker presented witnesses to establish an alibi for December 11.   The judge instructed that Walker “contends that he was not present at the time and place that the crime was allegedly committed — and the only crime we're talking about is the crime which took place on December 11, 2008,” that the State had to prove he was present on that date, and that if the State failed to do so, the jury “must find the defendant not guilty.”   The judge's alibi instruction properly reflected that the alibi testimony addressed only December 11;  as Walker's counsel stated in the charge conference, “I don't have an alibi for those other dates.   The alibi pertains to 12/11, Judge.”   The alibi instruction in no way precluded Walker from making his “false in one, false in all” identification argument.

Indeed, Walker's counsel presented that argument for the jury's consideration.   In his opening, he described the alibi evidence for December 11, and then argued that if the detectives testified that “it's the same person day after day after day, and he's not there this day, that impacts the credibility of the State's case.”   In his closing, he noted “[t]he cops are absolutely convinced, one hundred percent, that on each day it's the same person.”   He then argued that “if Mr. Walker's not there on the 11th,” “there's something wrong with this identification,” and the jury should find “a very quick not guilty as to everything in the indictment that charges Mr. Walker.”   Neither the judge nor the prosecutor ever suggested that that the jury could not consider Walker's argument.

Walker argues that his acquittal on the December 11 charges, and his conviction of the charges relating to other dates, proves that the instructions prevented the jury from considering his “false in one, false in all” argument.   However, there are other factors that may account for the jury's allegedly inconsistent verdicts.   Obviously, Walker presented alibi evidence only as to December 11.   On December 11, it was Witherspoon, not Walker, who sold Merrill crack;  the observing detective was Rodriguez who, unlike Johnson, never expressed certainty that his identification was correct, and whose credibility was especially attacked;  and Walker's Yukon was not present.

In any event, “defendant's reliance on inconsistencies in the jury's verdict to bolster his argument ․ is unpersuasive.”  State v. Maloney, _ N.J. _ (2013) (slip op. at 22).  “[W]e cannot know with any certainty the reasons behind the jury's verdict, and indeed the jury may have acquitted based on compromise, lenity, or other concerns unrelated to the evidence.”  State v. Kelly, 201 N.J. 471, 475 (2010).  “[T]herefore a defendant is forbidden from collaterally attacking a guilty verdict on one count with an apparently irreconcilable acquittal on another count.”  Id. at 487.

Walker also contends that the judge sua sponte should have instructed the jury on the permissibility of Walker's argument.   We reject that contention for several reasons.   First, the judge did give the “false in one, false in all” instruction.   Second, if Walker now claims a different instruction should have been given, “[w]e stress ․ that no [such] instruction was requested.”   Krivacska, supra, 341 N.J.Super. at 42;  see also State v. Wakefield, 190 N.J. 397, 456–57 (2007).   A judge has no duty to charge the jury on its own motion unless “the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction.”  State v. Rivera, 205 N.J. 472, 489 (2011).   Further, “trial counsel's failure to request an instruction gives rise to a presumption that he did not view its absence as prejudicial to his client's case.”  State v. McGraw, 129 N.J. 68, 80 (1992).

Third, to show plain error, a “defendant has the burden of proving that the error was clear and obvious.”   See State v. Morton, 155 N.J. 383, 421 (1998).   Walker cites no case requiring such an instruction.2  Rather, he tries to analogize to cases discussing limiting instructions when the State introduces uncharged crimes under N.J.R.E. 404(b).  However, “the essential point to be made in [a Rule 404(b) ] limiting instruction” is that the jury should not consider “the other-crime evidence to prove defendant's disposition to commit the offenses with which he was charged.”  State v. Stevens, 115 N.J. 289, 309 (1989).   Walker's exculpatory use of the alleged misidentification on December 11 did not raise such a risk, and thus no such limiting instruction was needed.

Walker cites State v. Garfole, 76 N.J. 445 (1978), which ruled that a defendant may use other-crimes evidence “defensively” to negate guilt.  Id. at 453.   Garfole and its progeny make clear, however, that a defendant's use of other-crimes evidence is not subject to the requirements that Rule 404(b) imposes on the State's use of such evidence, precisely because “prejudice to the defendant is no longer a factor.”  Id. at 452–53;  see also State v. Cook, 179 N.J. 533, 566 & n.7 (2004) (noting that Rule 404(b) “has no bearing on” defensive use of other-crime evidence);  State v. Fulston, 325 N.J.Super. 184, 190 (App.Div.1999), certif. denied, 163 N.J. 397 (2000).   Walker cites no case requiring a Rule 404(b) instruction when a defendant uses other-crimes evidence.

Further, Rule 404(b) addresses “uncharged” crimes.  State v. Rose, 206 N.J. 141, 159, 179–80 (2011).   No case holds that a Rule 404(b) instruction is required regarding charged crimes.   Cf. Krivacska, supra, 341 N.J.Super. at 43 (finding no plain error);  State v. Blakney, 389 N.J.Super. 302, 347–52 (App.Div.) (Weissbard, J., dissenting) (finding improper a divided and garbled Rule 404(b) limiting instruction), rev'd on dissent, 189 N.J. 88, 97 (2006) (declining to decide if the defective instruction alone was prejudicial).   Thus, Walker cannot show clear and obvious error.

In any event, Walker fails to show an error “clearly capable of producing an unjust result.”   R. 2:10–2.   The State presented a strong case to support Walker's convictions.   Even if Rodriguez and Merrill were mistaken in their identification of Walker on December 11, that does not necessarily mean they were mistaken on other days.   Such an error gives no reason to doubt Johnson's identifications of Walker on December 10 and January 1, or to ignore the corroboration provided by Walker's use of his Yukon on December 16 and January 1. For all these reasons, we find no plain error.

B.

Witherspoon challenges the trial judge's identification instruction.   At the charge conference, Witherspoon and Walker requested “the identification instruction.”   The judge granted their request.   The judge then noted that “at least two of the witnesses, if not three of them, indicated that they knew both of the defendants beforehand.”   The judge stated:  “That certainly is a factor that can be argued․  I'll name the individuals who — who have made it․”

The judge's instruction essentially followed the model instruction then in effect.   Model Jury Charge (Criminal), “Identification:  In–Court Identification Only” (June 4, 2007).   The judge instructed that the State had to prove identity beyond a reasonable doubt.   As the model instruction suggested, the judge told the jury that the State has presented the testimony of the three detectives who “identified the person who committed the crimes charged here.”   The judge then instructed the jurors it was their “function to determine whether the identification of the defendant is reliable and believable,” and laid out the factors they could consider.   After telling the jurors they could consider “any other factor based on the evidence, or lack of evidence in the case, which you — you consider relevant to your determination of whether the in-court identification was reliable,” the judge gave an example of another “relevant factors case.” 3  “For example, it is alleged that the three detectives, or at least two detectives, had knowledge of — of who Mr. Walker and Mr. Witherspoon were, prior to the commission of these offenses.”   The judge then explained that, regardless of their prior knowledge, “[u]nless the ․ in-Court identification resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense, it should be afforded no weight.”

Because Witherspoon, like Walker, made no objection at the charge conference or at trial, he must show plain error.   Witherspoon cannot even show error.   “[T]rial courts are free to add specific factual references to the identification instruction when necessary for clarity or when the court concludes that such references are required in the interest of justice.”   State v. Robinson, 165 N.J. 32, 45 (2000).   Here, it was within the judge's “sound discretion,” ibid., to explain an otherwise unexplained factor:  namely, that the jury could consider the testimony of Detectives Johnson and Rodriguez that they knew defendants prior to the offenses, but that such prior knowledge was no substitute for an identification based on observation at the time of the crime.

Witherspoon claims the judge's instruction was one-sided.   However, as set forth above, the judge's explanation about the limited role of prior knowledge was balanced.   Given this balanced instruction, the judge was not required to “comment on weaknesses in the State's evidence,” and properly left such commentary to defense counsel.  Id. at 43–45.   In any event, Witherspoon did not ask the judge to give such commentary.   See McGraw, supra, 129 N.J. at 80.4  Even if more “factual context” could have been added, “[i]t is not plain error when jury instructions are not incorrect but merely capable of being improved.”  State v. Tierney, 356 N.J.Super. 468, 481 (App.Div.), certif. denied, 176 N.J. 72 (2003).

V.

Walker and Witherspoon next claim that their sentences are excessive.  “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 by _ N.J. _ (2013).

A.

Witherspoon's sentence of ten years in prison with five years of parole ineligibility does not shock the conscience.   Because he had been “previously convicted on at least two separate occasions,” he concededly qualified for an extended term as a persistent offender under N.J.S.A. 2C:44–3a.   His three other convictions, and “other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation,” were sufficient to justify finding a serious criminal record under N.J.S.A. 2C:44–1a(6), without double counting.   State v. Dunbar, 108 N.J. 80, 92 (1987).   Also, there was sufficient evidence supporting the trial judge's findings of a risk of recidivism and a need for deterrence.  N.J.S.A. 2C:44–1a(3), (9).   Witherspoon's arguments are without sufficient merit to warrant further discussion.   See R. 2:11–3(e)(2).

B.

Similarly, Walker's sentence to ten years in prison, with five years of parole ineligibility, does not shock the conscience.   The trial judge imposed that sentence on the count charging the December 10 distribution of cocaine within 1,000 feet of a school, into which the judge merged the other December 10 counts and the count charging conspiracy from December 10 through January 1 (counts one through four).   Walker had been previously convicted of second-degree possession of controlled dangerous substances (CDS) with intent to distribute, third-degree possession of CDS with intent to distribute within 1,000 feet of a school, and on a separate occasion third-degree unlawful possession of a firearm.   He also had two juvenile adjudications, multiple adult and juvenile arrests, and a municipal court conviction.   Because he had been “previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute” CDS, the judge was required to impose an extended term under N.J.S.A. 2C:43–6f.  “The extent of the defendant's [other] prior criminal record and the seriousness of the offenses of which he has been convicted” justified the judge's finding under N.J.S.A. 2C:44–1a(6), even without double counting.   See State v. McDonald, 209 N.J. 549, 555 (2012);  Dunbar, supra, 108 N.J. at 92;  cf.  State v. Vasquez, 374 N.J.Super. 252, 267–68 (App.Div.2005).   There also was sufficient evidence supporting the judge's findings of risk of recidivism and need for deterrence.  N.J.S.A. 2C:44–1a(3), (9).   These determinations “go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.”  State v. Thomas, 188 N.J. 137, 153 (2006).   We therefore reject Walker's double-counting argument.

C.

Walker complains that there was confusion concerning some of the count numbers at his sentencing.   Walker does not claim that the trial judge was confused in sentencing on counts one through four, in which the judge followed the practice, also employed in sentencing Witherspoon, of imposing a sentence on the school zone count and merging the other counts relating to the same date into the school zone count.

Instead, Walker claims confusion in sentencing on the counts following the original count eight.   This confusion apparently arose because the original count eight was dismissed before the second trial.   The original counts nine through seventeen were renumbered counts eight through sixteen for purposes of the second trial.   However, at sentencing, the presentence report, the judge, and the judgment of conviction all used the original count numbers.   The resulting confusion apparently led the judge to impose no sentence on the original count seventeen, the January 1, 2009 school zone count;  to merge the remaining January 1 counts instead with the December 16, 2008 school zone count;  and to merge the December 16 possession count with the December 16 distribution count rather than merging both with the December 16 school zone count.

As the sentencing judge failed to impose a sentence on the original count seventeen, and as confusion seems to have affected sentencing on the original counts nine through seventeen, we vacate the sentences on those counts and remand for resentencing on those counts.   We affirm the convictions of both defendants, the sentences of Witherspoon, and the sentences of Walker on counts one through four.

Affirmed in part, vacated in part, and remanded in Appeal No. A–2528–11.

Affirmed in Appeal No. A–2989–11.

FOOTNOTES

1.  FN1. The indictment also charged Range, Alberto Alvarez, Keir Meachum, and Cleo Hope with the same offenses regarding January 7. The charges against those defendants, and Herbert, were resolved separately from the trials involving Walker and Witherspoon.

2.  FN2. We note that no such instruction is included in the more elaborate model identification instructions, effective September 4, 2012, which were based on the subsequent and prospective ruling in State v. Henderson, 208 N.J. 208, 220, 299 (2011).

3.  FN3. The judge was following the model instruction suggestion that the jury “should be charged on any other relevant factor present in this case.”  Ibid.

4.  FN4. Witherspoon cites his explanation at the charge conference why “the identification instruction” should be given, but he did not ask that the judge incorporate that explanation in its instruction.   He asked only that the jury “hear the law ․ on identification.”

PER CURIAM

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