SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4057-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS M. IVES, a/k/a NAZIR

BAY, a/k/a NAZAIR BEY,

Defendant-Appellant.

_____________________________

Submitted February 9, 2017 – Decided 

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Cumberland County, Indictment 

No. 13-02-0154.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Laura B. Lasota, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Kim L. 

Barfield, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

June 8, 2017
2 A-4057-14T3

Defendant Nicholas Ives, also known as Nazir Bey, appeals 

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

We affirm the conviction and remand for resentencing.

Defendant was a senior corrections officer at Bayside State 

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

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

implicating defendant in prison drug transactions. Thereafter, 

the New Jersey Department of Corrections Special Investigations 

Division began investigating defendant. Percy told investigators 

defendant provided him with heroin, which Percy paid for by 

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

fellow inmate Vincent Heredia. Defendant and Heredia were 

childhood friends and it was alleged defendant picked up payments 

from N.P.'s home. 

Defendant was indicted for second-degree official misconduct,

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

distribute a controlled dangerous substance (CDS), contrary to 

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

telling the jury he was an addict currently serving a thirtythree-year prison term. He recounted it was easy to obtain heroin 

in the various correctional facilities where he had been assigned. 

 

1 We use initials to protect the identity of non-party witnesses. 
3 A-4057-14T3

While at Bayside, Heredia introduced Percy to defendant to obtain 

heroin. Percy received the heroin from defendant in the kitchen 

where defendant was stationed. According to Percy, defendant set 

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

retrieve them. Defendant alerted Percy to the presence of drugs 

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

of the cart.

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

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

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

defendant's mother.

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

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

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

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

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

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

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

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

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

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

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

testified the check was the mail she discussed with "Pop-pop."
4 A-4057-14T3

Defendant came to the house to pick up that check and endorsed the 

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

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

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

A Wells Fargo bank employee provided testimony for the jury tracing 

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

Defendant testified and acknowledged he and Heredia had grown 

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

incarcerated in Bayside, Heredia worked in the kitchen where 

defendant was assigned. Defendant testified Heredia wanted a new 

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

Defendant testified he declined to help because of his position 

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

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

told Heredia his mother would assist him, and Heredia gave 

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

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

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

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

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

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

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

deposited in his Wells Fargo account. He testified he later gave 
5 A-4057-14T3

cash to his mother. He testified Heredia's attorney wanted $10,000 

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

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

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

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

engaging in drug transactions and denied having contact with Percy. 

Defendant's mother also testified. She corroborated 

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

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

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

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

defendant.

The jury found defendant guilty of both charges on October 

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

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

into count one, official misconduct, sentenced defendant to a 

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

ineligibility. This appeal followed.

On appeal defendant raises the following arguments:

POINT I.

THE CONVICTIONS WERE CLEARLY AGAINST THE 

WEIGHT OF THE EVIDENCE, NECESSITATING 

REVERSAL. U.S. CONST. AMEND XIV; N.J. CONST.

(1947), ART. 1, PAR. 10.
6 A-4057-14T3

POINT II.

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I.

Defendant argues the trial court erred in denying his motion 

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

the convictions were against the weight of the evidence because 

Percy's testimony was not credible.

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

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

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

clear and convincing manifest denial of justice. State v. 

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

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

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

would result from an obvious jury error." Ibid.

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

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

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

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

determine "whether any trier of fact could rationally have found 

beyond a reasonable doubt that the essential elements of the crime 

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

(1982)). When a jury reaches its verdict based on its assessment 
7 A-4057-14T3

of the witnesses' credibility, the verdict cannot be set aside 

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

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

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

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

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

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

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

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

secure heroin in prison by paying defendant. After considering 

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

jury could reasonably find defendant guilty of both charges. 

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

the evidence, and there was no miscarriage of justice warranting

a new trial under Rule 3:20-1.

II. 

Finally, defendant argues his sentence was excessive. We are 

constrained to vacate defendant's sentence and remand for 

resentencing, as the judge's findings on the applicable 

aggravating and mitigating factors conflict and not supported by 

the record.

As long as the sentence is based on competent credible 

evidence and fits within the statutory framework, trial judges 
8 A-4057-14T3

have broad sentencing discretion. State v. Dalziel, 182 N.J. 494, 

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

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

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

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

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

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

and we therefore avoid substituting our judgment for the judgment 

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

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

The sentencing judge found aggravating factors three (the 

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

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

mitigating factor seven, no prior history of delinquency or 

criminal activity. In finding aggravating factor three the judge 

stated, 

He is . . . 39 years of age. There is no 

juvenile record. The adult record consists 

of prior arrests, which resulted in the 

present indictable conviction. There is some 

risk that he's going to commit another 

offense. I will give that moderate weight. 

The judge found mitigating factor seven, defendant has no 

real prior history of criminal activity. 
9 A-4057-14T3

The judge's finding of aggravating factor three and 

mitigating factor seven are in conflict and are not supported by 

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

finding of aggravating factor three can coexist with a finding of 

mitigating factor seven, that finding must be "grounded in 

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

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

to how he found defendant presented a risk to commit another 

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

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

for resentencing.

In remanding for resentencing, we do not express an opinion 

on whether the court should again find aggravating factor three 

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

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

require only that the court reconsider its determination as to 

aggravating factor three and mitigating factor seven, make 

appropriate findings supporting its determination, and resentence 

defendant based on its weighing of the aggravating and mitigating 

factors. 

Defendant's conviction is affirmed and his sentence is 

vacated. We remand for resentencing in accordance with this 

opinion. We do not retain jurisdiction.