NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Tried together before a jury on a four-count Atlantic County Indictment, No. 10-09-2174, defendant Hanifa Rodriguez and co-defendant Asiameik Mayo were convicted of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, and simple assault, N.J.S.A. 2C:12-1a, as lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1 (count one). They were also convicted of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). Defendant and Mayo were acquitted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:5-2 (count two), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).

The trial judge sentenced defendant to five years in prison on the theft by unlawful taking charge, with a two-year period of parole ineligibility; a concurrent six-month term for simple assault; and a concurrent one-year term for unlawful possession of a weapon. Appropriate fines and penalties were also assessed.

At the time of sentencing, defendant also pled guilty to a violation of probation (VOP) in connection with an earlier conviction for third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d), under Atlantic County Indictment No. 09-12-3002.1 On the VOP, the judge sentenced defendant to five years in prison, concurrent to the sentence imposed under Indictment No. 10-09-2174. Thus, defendant's aggregate sentence was five years, with a two-year period of parole ineligibility.

On appeal, defendant has raised the following contentions:

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence under Indictment No. 10-09-2174, but remand for resentencing on the VOP under Indictment No. 09-12-3002.

I.

The State developed the following proofs at trial. Maung Oo and his two friends, Sandro and Danny, decided to drive from New York City to an Atlantic City casino. The group arrived at the casino in the early morning hours of July 30, 2010. Oo testified that he had approximately $7500 in his front pants pocket and another $500 in his wallet in his back pants pocket.

Oo went to the check-in desk to rent a suite. While he was checking in, his friends met defendant and Mayo in the lobby of the hotel. The five of them then took the elevator directly to Oo's suite. Oo stated he did not know that the women were prostitutes, but believed they wanted to come up to the room and "have a drink and fun with us."

Oo described the suite as having a living room area and a master bedroom with a bathroom. Once in the suite, Oo went into the bathroom in the master bedroom. Because of a spinal cord injury, Oo testified he had to use a catheter to urinate and that it was necessary for him to take off his pants and underwear to do so. While he was undressed, defendant opened the door to the bathroom. However, Oo would not let her come inside.

After Oo finished in the bathroom, he got dressed and went into the bedroom. He testified that defendant began hugging him from behind and Mayo began hugging him from the front. The hugging went on for "less than a minute" and then defendant immediately went into the bathroom.

After defendant went into the bathroom, Oo realized his money was missing. He suspected that defendant took it and he ran into the bathroom. He saw defendant "with one of her legs. . . on top of the toilet seat" and an "open condom on the floor." Oo then left the bathroom, confronted Mayo about his missing money, and tried to grab her purse. When he did so, Mayo pulled pepper spray out of her purse and sprayed Oo in the face. Oo testified that Sandro came into the room to help and defendant sprayed him in the face with pepper spray. Defendant and Mayo then ran out of the suite.

Oo called hotel security to report that he had been robbed by defendant and Mayo. He was taken to the hotel "nursing office" and then to the Atlantic City Hospital where he was treated for injuries to his eyes.

Using surveillance cameras, hotel security observed defendant and Mayo running out of the stairwell of the casino into the employee parking lot. A surveillance officer, Tina Carletti, testified the women were "between cars and . . . it appeared they were attempting to hide something."

David LoPresti, a hotel security officer, testified he went to the parking lot and, after locating defendant and Mayo, he ordered them to stop. The women ignored LoPresti and "proceeded to split [up] . . . as if to try to make it more difficult for me to stop and ask them questions." Two additional hotel security officers arrived in the parking lot, stopped the women for questioning, and brought them to the casino holding area.

Two Atlantic City Police officers responded to the casino. One can of pepper spray was found on the floor of the casino holding area where defendant and Mayo were being detained. The officers arrested and then transported defendant and Mayo to the Atlantic City Police Department, where $100 was recovered from defendant and $260 was recovered from Mayo.2

Defendant and Mayo did not call any witnesses or testify at trial.

II.

We have thoroughly considered the arguments raised by defendant in Points I, II, III, IV, and V of her brief in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following comments.

In Point I, defendant argues that the prosecutor's remarks during summation denied her a fair trial. We disagree. Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). When, as here, defendant fails to object to the prosecutor's comments at trial, the allegedly "improper remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999).

No misconduct occurred in this case. The prosecutor's statement that "there has been no testimony of the defense of self-defense" in the case was a direct response to defense counsel's argument that defendant was acting in self-defense when she used the pepper spray. Likewise, the prosecutor's brief mention of the State's decision not to call Danny as a witness was merely a response to defense counsel's argument that the State had an obligation to produce Danny at the trial. Contrary to defendant's argument, neither comment was directed to defendant's decision not to testify and neither remark improperly attempted to shift the burden of proof to defendant. In addition, the judge carefully instructed the jury on defendant's claim of self-defense, the State's burden of proof, and that defendant was not required to testify.

In Point II, defendant notes that both defense attorneys continually referred to their clients as "prostitutes" during the trial in support of their overall contention that what occurred in the hotel room was a "hooker/john situation going bad," rather than a planned robbery. Although she did not request a limiting instruction at trial, defendant now argues that the trial judge should have instructed the jury that defendant's status as a "prostitute" could not be used against her in support of an inference that she had "a criminal propensity[.]" We disagree. N.J.R.E. 404(b) prohibits the State from introducing evidence of other crimes to prove that a defendant acted in conformity with a disposition to engage in criminal behavior. Here, however, the State consistently argued at trial that defendant and Mayo were not prostitutes and, therefore, it never sought to infer that defendant had a pre-disposition to engage in criminal activity. Moreover, a defendant who fails to request a limiting instruction is "in a poor position to argue on appeal" about the judge's failure to provide such an instruction. State v. Nelson, 318 N.J.Super. 242, 254 (App. Div.), certif. denied, 158 N.J. 687 (1999). We discern no error, much less plain error, in the judge's failure to instruct the jury sua sponte concerning defendant's theory of the case.

In Point III, defendant argues that the judge should have granted her motion for a judgment of acquittal on the unlawful possession of a weapon charge. She states that, under N.J.S.A. 2C:39-6i, a person may, "for the purpose of personal self-defense[,]" possess one "pocket-sized device" containing a "chemical substance" that "is intended to produce temporary physical discomfort or disability through being vaporized or otherwise dispensed in the air." Therefore, she argues she was in legal possession of the can of pepper spray.

Again, we disagree. This court uses the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). This court must determine

Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J.Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

N.J.S.A. 2C:39-5d makes it illegal for a person to possess any "weapon under circumstances not manifestly appropriate for such lawful uses as it may have[.]" The term "weapon" includes any "device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air." N.J.S.A. 2C:39-1r. Here, the State presented evidence that defendant and Mayo targeted Oo and his friends in the lobby of the hotel, took money from Oo in the hotel room, and then used pepper spray to disable the men to facilitate their escape. Thus, there was an ample basis for a jury to conclude that defendant possessed the pepper spray for the purpose of using it as an offensive weapon as prohibited by N.J.S.A. 2C:39d, rather than for self-defense as permitted by N.J.S.A. 2C:39-6i. Accordingly, the judge properly denied defendant's motion for a judgment of acquittal at the close of the State's case.

Moving to Point IV, defendant was charged with second-degree robbery in the indictment. Because there was ample evidence in the record that defendant and Mayo took the money from Oo as they hugged him in the bedroom, the judge properly charged the jury on the lesser-included offense of third-degree theft by unlawful taking under N.J.S.A. 2C:20-3. Theft by unlawful taking constitutes a third-degree crime when the property is stolen "from the person of the victim." N.J.S.A. 2C:20-2b(2)(d). Although she did not raise this argument at trial, defendant now speculates that the jury might have been able to find that defendant took the money from Oo's pants when she attempted to enter the bathroom while he was undressed, rather than directly from his person. Therefore, she argues the judge should have also charged the jury on fourth-degree theft and disorderly persons theft.3

Generally, a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e. Here, defense counsel did not request the lesser-included charges of theft she now seeks. "An unrequested charge on a lesser[-]included offense must be given only where the facts in evidence `clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990). Applying this standard, we see no error. There is no evidence in the record to support defendant's belated claim that she took the money from Oo's pants after he removed them inside the bathroom in order to use the catheter. Indeed, Oo testified he prevented defendant from entering the bathroom.

Defendant argues in Point V that the cumulative prejudice of the errors she raises deprived her of a fair trial. Having rejected defendant's argument that any reversible error occurred during her trial, we also reject her cumulative error argument.

Finally, defendant argues in Point VI that her sentence under Indictment No. 10-09-2174 was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500-01 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention concerning the sentence imposed under Indictment No. 10-09-2174. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).

However, we are constrained to remand the VOP under Indictment No. 09-12-3002 for resentencing. As defendant contends, and the State concedes, the judge did not set forth his analysis of the applicable aggravating and mitigating factors when he sentenced defendant on the VOP as required by Rule 3:21-4(g) and State v. Baylass, 114 N.J. 169, 177 (1989).

Affirmed as to defendant's conviction and sentence under Indictment No. 10-09-2174; remanded for sentencing for the VOP under Indictment No. 09-12-3002. We do not retain jurisdiction.