SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1650- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ROBERT W. SMITH, a/k/a MOOK SMITH, and KEVIN WILLIAMS, Defendant-Appellant.

_________________________

Submitted February 5, 2024

– Decided May 7, 202 4 Before Judges Gilson and Berdote Byrne. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 18

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- 0380 and 18- 06 -0381. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). John P. McDonald, Somerset County Prosecutor, attorney for respondent (Gerard J. Tyrrell, Assista nt Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1650

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PER CURIAM On the evening of May 4, 2018, C.V.N. (Cathy) and R.P. (Randy) were driving in Cathy's Mazda. 1 A black Nissan SUV driv en by defendant Robert Smith pulled alongside the Mazda, and Smith fired t hree shots at the Ma zda

. Both vehicles then crashed. Fortunately, Cathy and Randy were not hit by the bullets and sustained only relatively minor injuries, although Randy later testified he suffered a head injury. A jury convicted defendant of two counts of first- degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C :11 -3(a)(1); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5( b)(1); fourth-degree possession of a defaced handgun, N.J.S.A. 2C:39-3(d ); fourth-degree possession of ho llow nose bullets, N.J.S.A. 2C:39-3(f)(1); and second-d egree possession of

a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a )(1). The same jury, in a separate trial, also convicted defendant of secon d-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1 ). Defendant was sentenced to an aggregate term of twenty years in p rison with periods of parole ineligibility and supervision as prescribed by the No Early Release Act (NERA),
N.J.S.A. 2C: 43

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1 We use initials and pseudonyms to protect the vic tims' privacy interests.3 A- 1650

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Defendant appeals from his convictions and sentenc e. Discerning no reversible error, we affirm.
I. Cathy, Randy, and defendant knew each other. Cath y had lived with defendant, and they had two children together. Cat hy and Randy had one child together. In the afternoon of May 4, 2018, Cathy had driven home in her Mazda with Randy. As she and Randy pulled into the parki ng lot of Cathy's apartment building, defendant arrived in a separate car. Defendant and Cathy exchanged some words. Cathy later testified that the interaction was "ten s[e]," but that there was no "major argument." Several hours later, defendant came to Cathy's apartment, and he and Cathy had an argument. Defen dant gathered some of his belongings and told Cathy that he would not be back until the next day. At approximately 9:30 p.m. that same evening, Randy drove Cathy to pick up food for the children. Cathy testified that as she and Randy were driving in the Mazda, she noticed a black Nissan SUV tailgatin g the Mazda. Cathy then described a chaotic situation during which the Niss an pulled alongside the Mazda and she heard gunshots. The Mazda flipped ov er , rolled several times ,4 A- 1650

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and came to a stop upside down off the road. Cathy was not serio usly hurt, and she called 911 to report the incident. The Nissan also went off the road and hit a pole. Two neighbors witnessed the Mazda and Nissan drive by, heard three gunshots , and then heard crashing metal. The neighbors went to investigate and found defen dant lying outside the Nissan screaming about an injury to his leg. They also saw another car in the bushes and saw Cathy standing nearby screaming about sh ots being fired at her. One of the neighbors called 911. Several police officers responded to the scene, in cluding Officer David Giraldo. Giraldo testified that when he arrived sh ortly after 10 :00 p.m., he saw defendant lying on the grass two or three feet from a heavily damaged black Nissan. A bystander pointed out that there was ano ther car in the bushes. Giraldo saw Cathy and Randy standing by the overtur ned Mazda, and Cathy told the officer that someone in the Nissan had fired sh ots at them. Cathy then recognized defendant and told the officer that she had an argument with him before the shooting. The police questioned defendant, but he denied hav ing a gun. The police later found a handgun under the passenger seat in t he Nissan. There were three
h ollow nose bullets in the barrel of the gun, and the gun was in a cocked , ready-5 A- 1650

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to -fire position. Three spent shell casings were als o recovered. The serial number on the gun had been scratched off. Defendant, Cathy, and Randy were all taken to a ho spital. Several hours after the incident, police interviewed Randy at the hospital. Randy told the police that he had been driving with Cathy when ano ther car had pulled up behind and then alongside them. Randy then saw a g un through the passengerside window of the other car and a muzzle flash. Rand y stated he heard the first bullet "whiz" past him. Randy then accelerated the Mazda, and it crashed. Following the incident, law enforcement personnel examined both the Nissan and the Mazda. The passenger-side mirror on the Nissan had been bent forward, and it had a hole consistent with a bullet passing through the mirror. The driver 's side of the Mazda was also damaged. Law enforceme nt personnel also learned that the Nissan belonged to defendant' s cousin. Investigators found two bullet holes in the Mazda: one in the driver's door and one in the rear driver's side passenger door. They also recovered two bullets from the Mazda: one from the floor and the other f rom inside the rear passenger door. Cathy and Randy both testified at trial. Randy te stified that he could not recall most of the incident, and he explained he ha d suffered a head injury that6 A- 1650

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affected his memory. He claimed that he had never met defendant and could only recall driving Cathy, seeing a flash of light, and then rolling over in the Mazda. Randy did remember that he had given a stat ement to the police while at the hospital following the incident, but he coul d not recall what he had said
in that statement. The trial court conducted a Gross 2 hearing to determine if the State could use Randy's statement. Detective Ste ph en Zeichner testified that he interviewed Randy at the hospital several hours after the crash . Zeichner stated that Randy had seemed fine, had no visible injuries, and never indicated that he did not wish to give a statement. After hearing Zeichner's test imony and listening to Randy's recorded statement, the trial court found that the statem ent was reliable and that it was inconsistent with Randy's trial testimony. The trial court, therefore, allowed the State to play Randy's recorded statemen t to the jury. The State also called defendant's cousin to testif y at trial. The cousin explained that on May 5, 2018, she noted her Nissan SUV was missing and defendant's car was in the space where she had left her car.

2 State v. Gross , 121 N.J. 1 (1990).7 A- 1650

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Defendant elected to testify at trial. In a prior proceeding, the trial court had ruled that if defendant testified, the State co uld challenge his veracity by confronting him with his 2009 criminal convictions. Defendant testified that he had an argument with C athy on the evening of May 4, 2018. He explained that he decided to leave the apartment and spend the night with some relatives who lived in Carteret . Thereafter, he learned of an opportunity to work as a bouncer at a party in Newa rk that same night. He testified that he took his cousin's Nissan because he did not want to drive his Cadillac. He also stated that he retrieved a firearm from a s torage unit to use for his safety. He admitted he did not have a perm it for the firearm. Defendant went on to testify that he parked outsid e Cathy's apartment building in the Nissan. As he was sitting there, he saw Cathy's Mazda dri ve out of the apartment complex and believed the Mazda had been stolen. Accordingly, defendant followed the Mazda and pulled out his gun , planning to shoot at the Mazda's tires. Defendant explained that when he tried to contact t he Mazda, the Mazda rammed his car and his gun discharged acciden tally. Defendant stated that the Mazda rammed him at least twice and h e fired a shot at the Mazda's tires. Defendant also stated that the Mazda rammed him again, and he crashed.8 A- 1650

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Defendant told the jury that he was not trying to k ill Cathy or Randy, and he denied being jealous of the relationship between Ca thy and Randy. After hearing all the testimony at the trial, the jury convicted defendant of two counts of first-degree attempted murder and rel ated weapons offenses. Almost immediately after the end of the first trial , the same jury was presented with additional evidence and instructions in a new trial . Thereafter, the jury convicted defendant of second-degree possession of a weapon by a previously convicted person. Approximately two months later, defendant was sent enced. On the two convictions for attempted murder, defendant was sen tenced to concurrent terms of twenty years in prison, subject to NERA. On the convictions for unlawful possession of a weapon and certain persons not to h ave a weapon, defendant was sentenced to eight years in prison on each convicti on, and both those sentences were run concurrent to his other sentences. All of defenda nt's other convictions were merged. Accordingly, in aggregate, defendant was sentenced to twenty years in prison, subject to NERA.
II. Defendant now appeals from his convictions and sen tence. He presents five arguments for our consideration, which he arti culates as follows:9 A- 1650

- 21 POINT ONE: THE PROSECUTOR VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL WHEN HE REPEATEDLY TOLD THE JURORS THAT [DEFENDANT] LIED TO THEM UNDER OATH IN HIS OPENING AND SUMMATION. POINT TWO: THE TRIAL COURT'S ORDER ADMITTING . . . DEFENDANT'S 2009 CONVICTION[S] IMPROPERLY UNDERMINED [DEFENDANT'S] CREDIBILITY.
POINT THREE : THE TRIAL COURT'S ORDER ADMITTING THE PRIOR INCONSISTENT STATEMENT OF A STATE'S WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1) DEPRIVED [DEFENDANT] OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT FOUR: THE TRIAL COURT FAILED TO CHARGE THE JURY BEFORE [DEFENDANT'S] CERTAIN [PERSONS] TRIAL AND THEREFORE DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.
POINT FIVE: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
A. The Prosecutor's Comments. Prosecutors in criminal cases are expected to make "vigorous and forceful" arguments to juries. State v. Frost , 158 N.J. 76, 82 (1999); see also State v. Garcia, 245 N.J. 412, 435 (2021). Neverth eless, a prosecutor's opening

statement to the jury "'should provide an outline or roadmap of the State's case' and 'should be limited to a general recital of what the State expects, in good10 A- 1650

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faith, to prove by competent evidence. '" State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014) (emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004)). Likewise, prosecutors are "obliged to confine summation remarks to the evidence in the case and o nly those reasonable inferences that may be drawn from that evidence." State v. McNeil- Thom as , 238 N.J. 256, 283 (2019) (LaVecchia, J., dissenting ). Accordingly, a prosecutor's comments concerning th e credibility of witnesses must be supported by the record. See Sta te v. Smith, 167 N.J. 158, 179 -82 (2001). The prosecutor should not express his or her personal opinion on a witness's credibility, but "may attempt to per suade the jury that a witness is not credible and in doing so, 'may point out dis crepancies in a witness's testimony or a witness's interests in presenting a particular version of events.'" State v. Supreme Life, 473 N.J. Super. 165, 174 (Ap p. Div. 2022) (quoting State v. Johnson, 287 N.J. Super. 247, 267 (App. Div. 199 6)). When a defendant testifies, a prosecutor may commen t on inconsistencies
in the defendant's trial testimony or prior statement s, provided that the prosecutor does not attempt to characterize the ent irety of the defendant's testimony as false. See id. at 175. In that regard, we have explained:

[W]hile the prosecutor was entitled to draw the jur y's attention to [the] defendant's false statements . . . when11 A- 1650

- 21 assessing the credibility of [the] defendant's tria l testimony, he was not permitted to tip the scale in the State's favor by repeatedly telling jurors that [th e] defendant's trial testimony was not worthy of belie f because [the] defendant lied before, was lying agai n and was, simply put, therefore a liar. [Ibid.] In short, a prosecutor should not call a defendant a "liar." See State v. Wakefield, 190 N.J. 397, 466 (2007) ; Supreme Life, 473 N.J. Super. at 174. Defendant argues that his right to a fair trial wa s violated when the prosecutors repeatedly told the jury that defendant was a liar. 3 Defendant points to comments in the State's opening and closing stat ements to the jury. In the State's opening statement, the prosecutor made the following two comments:
1. "One of the officers asks [defendant] immediately [if there is ] anything in the car that [the officer] needs to kno w about. The defendant says no, help me with my leg

. He lies."
2. "Again, the officer asks[,] anything in the car th at I need to know about[?] The defendant says there's nothing in the car. He lied." During the closing arguments, the prosecutor made the followi ng eight additional statements to the jury:

3 Two assistant prosecutors represented the State at trial. One gave the opening and the other the closing.12 A- 1650

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3. "The defendant lied to you multiple times in his t estimony under oath. Multiple times."
4. "That gun is an illegal gun for multiple reasons. It is clearly defaced. Another lie to you: 'Oh, I don't know wh at defaced means.'" 5. "The bizarre nature of the defendant's version is so inconsistent with objective evidence in this case that you know he li ed to you under oath." 6. "How do you know he lied to you under oath? What was the word he used . .

. . Something like . . . he was jolted or something . . . . Oh, maybe this is an accidental shooting."
7. "During his testimony, he lied to you multiple tim es." 8. "He lied to [an officer] at the scene." 9. "That source of testimony that comes from the defe ndant and a lot of the testimony that he gave to you is a source th at you should be reticent [sic] to believe because it's (a) inconsistent with the f acts, it's inconsistent with human beings. He's motivated to lie or mislead you. He' s charged with very serious offenses."
10. "He testified that they were like six inches apart of [inaudible] connected or you are nowhere near tires. That's a lie."13 A- 1650

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All those statements by the prosecution were impro per. Nevertheless, defense counsel did not object to any of those stat ements at trial. Accordingly, we review the statements for plain error. See R. 2:10 -2; State v. Sin gh , 245 N.J. 1, 13 (2021) (explaining that "[w]hen a defendant d oes not object to an alleged error at trial, such error is reviewed under the pl ain error standard"). "[A]n unchallenged error constitutes plain error if it wa s 'clearly capable of producing

an unjust result,'" Singh, 245 N.J. at 13 (quoting R. 2:10 -2), and "raise[s] 'a reasonable doubt . . . as to whether the error led the jury to a result it otherwise might not have reached,'" State v. Funderbu rg , 225 N.J. 66, 79 (2016) (omission in original) (quoting State v. Jenkins, 178 N.J. 34 7, 361 (2004)). When applying the plain error standard, courts must evaluate the error "in light of the overall strength of the State's case." State v. Sanchez-Me dina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012) ). Here, we discern no plain error. The State's evid ence against defendant was very strong. Defendant did not deny that he wa s driving the Nissan. He also admitted that he had a weapon with him and tha t at least two bullets were discharged towards the Mazda. Defendant's contenti on was that he initially discharged the gun accidentally. There was strong circumstantial evidence that the gun did not discharge accidentally. In that re gard, the jury heard Randy's14 A- 1650

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statement that a bullet "whizzed" by him. The Stat e also found two bullet holes in the Mazda and recovered two bullets from the Maz da, one from the floor and the second from the rear passenger door. That evid ence does not suggest an accidental firing and is inconsistent with defendan t's contentions that he only fired one bullet intentionally and aimed for the ti re, and that any other bullets discharged were done so accidentally. The jury als o heard Cathy's testimony that she and defendant had some kind of exchange ea rlier in the evening, that bullets had been fired at her while she was in her Mazda, and that just after the accident, she saw defendant at the scene of the cra sh. Defendant correctly points out that his credibilit y was a critical issue at trial. He also correctly points out that it was im proper for the prosecutors to call him a liar ten times. Nevertheless, when evaluated in full context, the prosecutors' comments were not clearly capable of p roducing an unjust result nor do the y raise a reasonable doubt as to whether those comm ents led the jury to a result it otherwise might not have reached. B ecause the evidence against defendant was substantial and came from various wit nesses, we discern no plain error in the prosecutors' improper comments.15 A- 1650

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B. The Admission of Defendant's 2009 Convictions. N.J.R.E. 609 governs the admissibility of a prior conviction for the purpose of impeaching a witness. If more than ten years "have passed since the conviction or the witness 's release from confinement for that conviction, whichever is later, the conviction 'is admissible on ly if the court determines that its probative value outweighs its prejudicial effec t.'" State v. Higgs, 253 N.J. 333, 368 (2023) (quoting N.J.R.E. 609(b)(1)). The party seeking to introduce the conviction must show that the probative value o utweighs its prejudicial effect. Ibid. In making the admissibility determination, the tria l court can consider (1) "whether there are intervening convict ions for crimes or offenses, and if so, the number, nature, and seriousness of t hose crimes or offenses," (2) "whether the conviction involved a crime of dishone sty, lack of veracity or fraud," (3) "how remote the conviction is in time," and (4) "the seriousness of the crime." State v. R.J.M., 453 N.J. Super. 261, 2 69 (App. Div. 2018) (quoting N.J.R.E. 609(b)(2) ). "The key to exclusion is remoteness," which "canno t ordinarily be determined by the passage of time alone." State v. Murphy, 4 12 N.J. Super. 553, 564 (App. Div. 2010) (quoting State v. Sands, 76 N. J. 127, 144 (1978)). An16 A- 1650

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appellate court reviews a trial court's admission o f a defendant's prior conviction for an abuse of discretion. Higgs , 253 N.J. at 367. Before trial, the trial court conducted a hearing on which convictions, if any, would be admitted if defendant testified. The State sought to introduce four prior convictions: a 2001 conviction for third-deg ree possession of drugs on or near school property; a 2003 conviction for third-d egree possession of drugs with intent to distribute; and two 2009 convictions for third-degree terroristic threats and third-degree receiving stolen property. The trial court correctly recognized that all those convictions were beyond t he ten-year period and, therefore, the court balanc ed probative value versus prejudicial effect. The co urt excluded the 2001 and 2003 convictions. In contrast, the court allowed the 2009 convictions because they were just beyond the ten-year period. Just as importantly, the cour t considered the nature of the crimes and found that they went to defendant 's veracity. The court then appropriately sanitized what the jury would hear co ncerning the 2009 convictions. We discern no abuse of discretion in that decision. Defendant also argues that the court did not give a limiting instruction immediately after the jury heard about defendant's 2009 convictions. That is accurate. The trial court did, however, give a lim iting instruction as part of the17 A- 1650

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final jury charge. The court explained that defend ant's prior convictions "may only be used in determining the credibility or beli evability of [his] testimony," and that the jury "may not conclude that the defend ant committed the crime charged in this case or is more likely to have committed the crime charged simply because he committed a crime on another occa sion." Consequently, we discern no reversible error concerning when the trial co urt provided that correct limiting instruction.
C. The Admission of Randy's Prior Statement. The State called Randy to testify at trial. After Randy stated that he could not remember most of the incident, the State moved to admit the statement he had given to the police shortly after the incident. After conducting a Gross hearing outside the presence of the jury, the trial court found that Randy's testimony was inconsistent with his prior statement and the prior statement was reliable. Accordingly, the trial court permitted t he State to introduce and play for the jury Randy's prior recorded statement. Def endant now argues that the admission of Randy's prior statement was reversible error because it deprived him of a fair trial. We disagree. N.J.R.E. 803(a) provides that a witness's prior in consistent statement may be admitted as substantive evidence under certain c ircumstances. When the18 A- 1650

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prior statement is inconsistent with the witness's testimony at trial and the party that called the witness seeks to introduce the stat ement, the statement is admissible if it is "contained in a sound recording or in a writing made or signed by the declarant-witness in circumstances establish ing its reliability," or was given under oath in a proceeding or deposition. N. J.R.E. 803(a)(1). Reliability is determined by considering several f actors relating to how and to whom the statement was made. See Gross, 121 N.J. at 10; State v. Brown , 138 N.J. 481, 539 (1994). The statement must be pr oven reliable "by a fair preponderance of the evidence" when considering "al l surrounding circumstances" under which the statement was made. State v. Spruell, 121 N.J. 32, 41-42 (1990). The trial court conducted a hearing outside the pr esence of the jury and heard testimony from Zeichner, who took the stateme nt from Randy. The trial court also listened to Randy's recorded statement. Based on that evidence, the trial court found that Randy's prior statement was reliable. The trial court also found that the substance of Randy's prior statement was inconsistent with his testimony at trial. We discern no abuse of discret ion in that decision. See Summit Plaza Assocs. v. Kolta , 462 N.J. Super. 401, 409 (App. Div. 2020) (explaining that "a trial court is afforded conside rable latitude regarding the19 A- 1650

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admission of evidence, and is to be reversed only i f the court abused its discretion" (quoting Alves v. Rosenberg, 400 N.J. S uper. 553, 562 (App. Div.
2008 ))).
D. The Trial Court's Charge to the Jury at the Certai n Persons Trial. When a defendant is charged with a weapons offense and the offense of certain persons not to have a weapon, the certain p ersons offense "must be tried separately since proof that [the] defendant was a c onvicted felon (required in the trial of the latter charge) clearly tends to prejud ice the jury in considering the former." State v. Ragland, 105 N.J. 189, 193 (1986). To protect the defendant's right to a jury trial, the jury in the second trial must be instructed that (1) the State needs to prove each el ement of a certain persons offense beyond a reasonable doubt; (2) the jury must consider all th e evidence at the second trial as new evidence; and (3) the jury must disregard its prior verdict. Id. at 194- 95. "Appropriate and proper jury instructions are esse ntial for a fair trial."
State v. A.L.A. , 251 N.J. 580, 591 (2022). A jury charge must "corr ectly state the applicable law, outline the jury's function and be clear in how the jury should apply the legal principles charged to the facts of the case at hand." Ibid. (quoting Est. of Kot so vska v. Liebman, 221 N.J. 568, 591 (2015)).20 A- 1650

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The model criminal jury charge for a certain perso ns offense directs the jury to "disregard completely [its] prior verdict" and instructs that defendant is entitled to the presumption of innocence and the St ate must again prove every element of the crime beyond a reasonable doubt. Model Jury Charges (Criminal), "Certain Persons Not to Have Any Firear ms (N.J.S.A. 2C:39- 7(b)(1))" (rev. Nov. 13, 2023). The model jury charge states that the char ge should be given "before the beginning of the second trial if it is tried before the same jury that decided the possessory charge of a w eapon or firearm." Ibid. Accordingly, the focus is whether the jury was suff iciently instructed to disregard its prior verdict and consider the eviden ce anew. See Ragland, 105 N.J. at 195- 96; State v. Hooks, 350 N.J. Super. 59, 71 (App. Div. 2 002). The court here did not instruct the jury at the beg inning of the separate trial on the certain persons offense. Defense counsel, however, did not object or request an instruction at the beginning of the s econd trial and, therefore, we review this issue for plain error. See Singh, 245 N.J. at 13. The trial court did give the jury clear instructio ns at the end of the second trial, which took only one day. In that regard, the trial court instructed the jury:

You must now disregard completely your prior verdict that you just returned on the seven counts presented to you and consider anew the evidence previously admitted on the possession of a weapon.21 A- 1650

- 21 The defendant is entitled to a presumption of innocence. Each and every material fact that makes up the crime including the element of possession must be proven by the State beyond a reasonable doubt. That instruction correctly explained the jury's rol e, and we discern no reversible error even though the jury was not given the instruction at the beginning of the second trial. Given the short dur ation of the second trial, our review of the record satisfies us that the jury was properly instructed that it must disregard the prior verdict, consider the evidence of possession anew, and determine that the State had proved each element of the certain persons charge beyond a reasonable doubt.
E. Defendant's Sentence. Finally, defendant argues that his sentence was ex cessive. The record does not support that argument. An appellate court's standard of review of a sente nce is well-established and deferential. State v. Cu ff , 239 N.J. 321 , 347 ( 2019 ); State v. Fuentes, 217 N.J. 57, 70 (2014). We will affirm a trial court's sentence unless: "(1) the sentencing guidelines were violated; (2) the findin gs of aggravating and mitigating factors were not 'based upon competent c redible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N .J. 221, 228 (2014) (alteration22 A- 1650

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in original) (quoting State v. Roth, 95 N.J. 334, 3 64-65 (1984)). The balancing process to determine a sentence "is more than count ing whether one set of factors outnumbers the other . . . the court must qualitat ively assess the relevant aggravating and mitigating factors, assigning each factor its appropriate weight." State v. Case, 220 N.J. 49, 65 (2014) (ci ting Fuentes, 217 N.J. at 72- 73). Defendant was convicted of two counts of first-degr ee attempted murder. The sentencing range for those first-degree convict ions is between ten and twenty years. N.J.S.A. 2C: 43 -6(a)(1). The court also needed to consider whether to run those sentences consecutively or con currently. See State v.
Torres , 246 N.J. 246, 267-70 (2021); State v. Yarbough , 100 N.J. 627, 643-44 (1985). The court found aggravating factors three (the risk of re-offense), N.J.S.A. 2C:44-1(a)(3); six (defendant's prior crim inal record), N.J.S.A. 2C:44- 1(a)(6); and nine (the need for deterrence), N.J.S. A. 2C:44-1(a)(9). The court also considered but found no mitigating factors. A fter evaluating the relevant considerations under Yarbough, the court determined to run the two sentences concurrently. The court also determined to run the sentences for defendant's weapons convictions concurrently or to merge those convictions. So, after being convicted of seven different crimes, including two first-degree crimes and two23 A- 1650

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second-degree crimes that were not merged, defendan t was sentenced to an aggregate prison term of twenty years, subject to N ERA. We discern nothing excessive in that sentence and no abuse of discreti on. Affirmed.