NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Following a jury trial, defendant Lorenzo Pernell Nash was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a), and acquitted of possession of a weapon, N.J.S.A. 2C:39-5(b), and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). Judge James C. Heimlich imposed a nine-year term subject to NERA.1

Around noon on August 11, 2007, Michelle Kitson was having an argument with her boyfriend, Antalom Holston. During the argument, defendant, Holston's friend, approached and attempted to ease the tension. Although Kitson did not know defendant, she accepted his invitation to go for a walk to get cigarettes. En route, defendant stopped at an apartment building to purchase marijuana. Defendant knocked on the seller's door for a half an hour, while Kitson waited on a nearby landing between two flights of stairs.

Suddenly, defendant grabbed Kitson by the throat, turned her around and told her to take her jewelry off. As defendant took off her jewelry, Kitson saw "something that looked like a barrel of a gun," in defendant's shorts. As defendant fled downstairs, he threatened that if Kitson "told anybody, he'd kill [her]." After defendant left, Kitson "ran down the stairs and started screaming for . . . help."

Elizabeth Police Officers Michael Barros and Anthosius Mikros responded to Kitson's robbery call ten minutes later, at 8:30 p.m. They testified that Kitson appeared to have been "in some sort of struggle," and she told the officers that defendant had beaten and robbed her.

Kitson was unable to remember any details of the eight hours between meeting defendant around noon and the arrival of police at 8:30 p.m., except for the robbery. Although Kitson admitted to taking Trileptal and Cymbalta for her bipolar disorder on August 11, 2007, she blamed the trauma of the event for her memory loss.

The police located defendant later that evening when they responded to a fire alarm at a Prince Street apartment complex at 9:30 p.m. Recognizing that defendant fit the description that Kitson had given to police of her assailant, officers took defendant outside to search him. He had Kitson's jewelry in his possession. That same evening, Mikros drove Kitson to the scene where she positively identified defendant as her assailant.

After the prosecution rested, the judge conducted a Sands/Brunson2 hearing to determine the admissibility of defendant's prior convictions. The State offered certified judgments of defendant's convictions for six offenses: (1) second-degree theft by deception in 2007; (2) second-degree theft by deception in 2006; (3) second-degree robbery in 2001; (4) possession of controlled dangerous substance in 1997; (5) third-degree possession of controlled dangerous substance in 1994; and (6) third-degree receiving stolen property in 1994.

The judge determined that the 2007, 2006 and 2001 convictions were admissible to impeach defendant's credibility. The 1997 and 1994 convictions were only admissible to demonstrate a "series of crimes through the years." The State would only be permitted to introduce the conviction, the degree of the crime and the sentence for each.

Defendant's testimony diverged considerably from Kitson's version of events. After meeting Kitson around noon, the pair went to 405 Westminster Street to "get high." After smoking crack cocaine, the two decided to buy more cocaine, heroin and marijuana. They bought the drugs and went to an acquaintance's apartment. There, they used narcotics and engaged in sexual intercourse. After running out of drugs, Kitson offered defendant her jewelry to pay for more drugs. He was purchasing these narcotics at the Prince Street apartment complex when the police arrested him after responding to the fire alarm.

During his direct examination, defendant testified as to his prior convictions. During cross-examination, the State asked only whether he "received [jail] time," for "some convictions in 2006 and 2007." The State did not ask any further questions about appellant's convictions.

To rebut defendant's testimony that Kitson was under the influence of crack cocaine on the day in question, the State offered the rebuttal testimony of officers Barros and Mikros. They explained that Kitson had not appeared under the influence when they responded to her robbery call. Defendant objected, contending that this information had already been elicited from Barros during the following portion of his direct testimony:

The judge overruled the objection, explaining that defendant's testimony concerning Kitson's alleged drug use that day raised a new issue to which the State should be permitted to respond.

During deliberations, the jury sent the following question to the judge: "Need clarification on Count One, question two." Question two of count one asked if the jury found that the defendant committed the robbery, whether he did so while "armed with, us[ing] or threaten[ing] the immediate use of a deadly weapon?" The judge asked the jury to clarify their question. The jury responded: "Please disregard [the last question]. We no longer require an explanation on Count One, part two. We have a verdict."

On appeal, defendant contends:

Defendant argues that the officers' direct testimony established that they believed Kitson was not under the influence of narcotics, and that the rebuttal testimony was cumulative and prejudicial. We disagree.

A judge "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence." N.J.R.E. 611(a). The proffered evidence's "probative value [however, must] substantially outweigh[] . . . the risk of . . . undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.

A trial judge's evidentiary and procedural rulings are entitled to "substantial deference" on appeal. State v. Morton, 155 N.J. 383, 453 (1998). Reversal is only appropriate where a reviewing court finds a "clear error of judgment or manifest denial of justice." State v. Cook, 179 N.J. 533, 569 (2004).

Here, we conclude that the judge's decision to allow the rebuttal testimony was not an abuse of discretion. On direct, Mikros did not testify as to Kitson's physical appearance. Although Barros testified about Kitson's general condition, he did not specifically address whether she appeared to be under the influence of narcotics. Defendant raised the issue for the first time in his direct not only to discredit Kitson's perception of events, but also to support his testimony that she voluntarily surrendered her jewelry. It was not, therefore, an abuse of discretion to permit the State to rebut this testimony.

Defendant also contends:

Defendant argues that the judge misapplied the Sands/Brunson standard by admitting convictions that suggested his criminal propensity. We disagree.

The judge found that the 2006, 2007 and 2001 convictions were admissible to impeach defendant's credibility because they were recent. The 1994 and 1997 convictions were also admissible, despite being more than ten years old, because they demonstrated a "series of crimes committed through the years."

Evidentiary decisions are within the "sound discretion of the trial judge." State v. Hutson, 211 N.J.Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). A judge's decision warrants reversal only where it results in a "manifest denial of justice." State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).

The State may impeach a testifying criminal defendant with evidence of prior convictions pursuant to N.J.R.E. 609 and N.J.S.A. 2A:81-12. A prior conviction is inadmissible where its "probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." Sands, supra, 76 N.J. at 147. Prior convictions that are similar to the offense for which the defendant stands trial are admissible, but limited to the degree of the crime, the sentence and the date of offense. Brunson, supra, 132 N.J. at 391 (1993). For example, it was error to admit all of the details of a defendant's prior conviction of receiving stolen property where that defendant was on trial for robbery because both crimes involved theft. State v. White, 297 N.J.Super. 376, 381-82 (App. Div.), certif. denied, 149 N.J. 407 (1997).

Here, evidence tending to impeach defendant would be relevant to determining the veracity of his testimony, which was the crux of his defense. Further, the judge properly sanitized the convictions; the defendant testified to them on direct; and the State barely inquired into those convictions.

When a jury seeks clarification of a jury charge, the trial judge "is obligated to clear the confusion." State v. Conway, 193 N.J.Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). If the jury's question is unclear, the judge should seek clarification. State v. Graham, 285 N.J.Super. 337, 342 (App. Div. 1995). Failure to do so is plain error. State v. Savage, 172 N.J. 374, 395 (2002).

In State v. Bey, 129 N.J. 557, 599-600 (1992), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L. Ed. 2d 1093 (1995), the jury was given the option of either sentencing the defendant to "death or life with a thirty-year parole disqualifier," for each of the two counts of murder. Shortly after beginning deliberations, the jury submitted a note to the judge asking whether the defendant would ever be "eligible for parole in the next seventy years?" Id. at 599. The judge met with counsel to discuss the question, but did not answer the question immediately. Ibid. The jury reached a verdict an hour later. Id. at 599-600. The defendant appealed.

The Supreme Court affirmed, noting that the question demonstrated the jury's understanding of the law because they "knew the aggregate parole-ineligibility period from two life sentences would be seventy years." Id. at 606. Further, the jury's decision to reach a verdict without further instruction demonstrated that they must have resolved their question. Ibid.

Judged against this precedent, and applying the plain error standard, R. 2:10-2; R. 1:7-2, we conclude that reversal is not warranted. See State v. Afanador, 151 N.J. 41, 54 (1997). The jury's decision to reach a verdict without the judge's answer demonstrates that they resolved their question.

Defendant alleges that his trial counsel was ineffective for failing to move for a judgment of acquittal notwithstanding the verdict pursuant to R. 3:18-2. Defendant argues that Kitson's testimony "lacked total credibility," because Kitson was unable to account for eight hours of the day; her testimony about the presence of a gun at trial conflicted with her statement to the police; and she was taking "psychotropic medication with illegal narcotics," on the day of the incident. We are not persuaded.

To establish ineffective assistance of counsel, a defendant bears the onerous burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence;" and (2) "`a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 694 (1984)).

Our courts have expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Because defendant's claim rests entirely on the evidence adduced at trial, it is ripe for direct review.

The first prong of the Strickland test requires proof that counsel's performance was not professionally competent. 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Given the innumerable factual variations of criminal practice, there are no bright line rules by which a reviewing court can measure trial counsel's performance. See State v. Echols, 199 N.J. 344, 358 (2009). Indeed, there is a presumption of competence that can only be rebutted by a showing that trial counsel did not exercise "sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

To determine whether trial counsel's strategy was sound in this context, a review of the applicable law is necessary. A motion for a judgment of acquittal notwithstanding the verdict is only appropriate where:

Viewed through this lens, there was ample evidence here to justify the jury's finding that "the State's charge has been established beyond a reasonable doubt." Ibid. As such, defendant has not been harmed by the alleged failure of counsel to move for a judgment of acquittal notwithstanding the verdict.

Defendant finally contends:

Defendant argues that the judge failed to consider his medical conditions, including HIV and Hepatitis C, as a mitigating factor and misapplied the aggravating factors because his prior criminal record "involved mostly drug possession."

The judge found three aggravating factors: the risk of recidivism; the extent of defendant's criminal record; and the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6), (9). Finding that the aggravating factors "outweigh[ed] the absence of mitigating factors," the judge imposed a nine-year term subject to a NERA parole disqualifier.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors, and does not shock our judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

Defendant argues that the judge should have applied mitigating factor eleven, N.J.S.A. 2C:44-1b(11), because imprisonment would cause defendant excessive hardship due to his medical infirmities. We reject this argument.

Excessive hardship may result from a defendant's physical or mental condition. See, e.g., State v. Jarbath, 114 N.J. 394, 414-15 (1989) (finding incarceration would cause excessive hardship for defendant who was severely mentally handicapped). However, this rule is not absolute. For example, in State v. M.A., 402 N.J.Super. 353, 372 (App. Div. 2008), we affirmed a trial court's finding that the defendant's affliction with AIDS did not render prison an excessive hardship because the defendant was "functioning at a reasonable level; . . . undergoing active treatment; and there was nothing in the record indicating his needs could not be adequately met in prison."

Here, as in M.A., defendant is functioning well and takes medication for his conditions. There was no evidence presented at the sentencing hearing that his medical needs could not be managed in a correctional institution. Moreover, defendant may move for relief pursuant to Rule 3:21-10(b)(2), if his condition deteriorates further in the future.

Affirmed.