NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

Following a jury trial, defendant was convicted of third-degree burglary, N.J.S.A. 2C:18-2. The trial judge sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3(a), to a ten-year extended term subject to five years of parole ineligibility. Defendant contends that the judge committed plain error by failing to instruct the jury on identification and that his sentence was excessive. Considering defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We glean the following relevant facts from the trial record. On June 14, 2012, at approximately 9:50 p.m., then sixty-nine-year-old Ernestine Constock1 entered her home in Cherry Hill through the garage, and observed a person behind the dining room window curtain. Constock testified that she immediately called 911 to report an intruder. When the 911 operator asked if the person was still in the house, Constock stated that "he was part way in, like probably a leg and an arm. . . ." While still on the phone with the operator, she saw that the movement at the window started "disappearing." Constock admitted that she did not see the person. She did, however, look out the window and saw "a man walking along the sidewalk" toward Haddonfield-Berlin Road. She described him as having a "real trim build," short hair, with "a short sleeve shirt with no collar," and he appeared to be carrying something, although she could not see what it was.

The Cherry Hill police responded to Constock's home within minutes of her 911 call. Constock did not immediately notice that anything was missing. While the police were there, she noticed that "something was wrong on the back porch"; specifically, a porch window that had been closed was opened, the porch door that had been locked was unlocked, and a still running electric fan had been knocked over and was lying on the floor. She further noticed that one of her gardening gloves, which she kept on top of a bin near her porch, was on the floor underneath the dining room window where she had observed the intruder.

Early that morning, after unsuccessfully attempting to sleep, Constock woke up and went back to the porch. She realized that her pruning shears that she left on her porch were missing. She described the shears as "heavy duty," approximately eight inches long with an orange and red plastic handle and two curved blades, with one blade a little wider than the other; she also said that the shears had a "latch" as well with "little indentations" for fingers. She subsequently, notified the police that her pruning shears were missing. Constock testified that shortly thereafter, a police officer came to her house and showed her pruning shears she recognized as hers. She stated that she never gave defendant or anyone else permission to enter her home on the date in question or permission to take her pruning shears.

Cherry Hill police officers Martin Heath and Randall Karch testified regarding their involvement with the investigation and subsequent arrest of defendant. Heath confirmed much of Constock's testimony about what occurred after the police responded to her residence that night at approximately 10:00 p.m., as well as the next morning when Constock reported her gardening shears were missing. Heath also testified that he arranged for a perimeter of police cars in the area to try to "contain" a suspect from leaving the area surrounding Constock's home.

Karch testified that at approximately 10:20 p.m., he was assigned a perimeter post at the intersection of Ashbrook Road and Haddonfield-Berlin Road. While there, he encountered defendant, whose build and clothing matched the description provided by Constock. Upon inquiry, defendant told Karch he was walking from the Patco train station, although he was actually walking towards the station. Karch also asked him what was inside his backpack, and defendant explained that he had tools for his work as a landscaper. Defendant permitted Karch to take a look inside the backpack, whereupon Karch discovered bolt cutters and pruning shears. Constock testified that the pruning shears found in defendant's backpack looked like the ones missing from her house the night the intruder entered her home.

In addition, Cherry Hill Detective Jason Snyder, qualified as an expert in crime scene forensics, testified regarding his processing of latent fingerprints at Constock's home and subsequent identification. Snyder recovered seven latent fingerprints on the exterior window glass of the glass sun room (referred to as the porch during Constock's testimony). Snyder used the analysis, comparison, evaluation verification method (ACE-V method) to conclude within a scientific degree of certainty, that the latent fingerprints recovered at the crime scene belonged to defendant. Defense counsel cross-examined Snyder to discredit his methodology and try to establish that Snyder did not have sufficient proof that the latent fingerprints matched defendant's fingerprints.

Defendant elected not to testify and did not present any witnesses on his behalf. His defense was that there was not sufficient proof identifying him as the intruder in Constock's home.

At the conclusion of the trial, the judge instructed the jury on the charge of burglary as follows:

The judge then instructed the jury on the lesser-included offense of criminal trespass. The judge did not give an instruction on identification; nor did defendant request such a charge. After approximately two hours of deliberation, the jury convicted defendant of third-degree burglary.2

At sentencing, the judge granted the State's motion for an extended term sentence under the persistent offender statute, N.J.S.A. 2C:44-3a, based upon defendant's record of one municipal court conviction and twelve indictable convictions of which nine were for burglaries and theft offenses. The judge did not find any mitigating factors, but applied aggravating factors three, six, and nine in sentencing defendant. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense);-1(a)(6) (the extent of prior criminal record and the seriousness of the current offense); and-1(a)(9) (the need for deterrence).

In finding aggravating factor three, the judge stated:

When the judge later considered whether aggravating factor three applied under the extended term analysis, she indicated: "There is certainly a strong and high almost predictable risk, looking at [defendant's] history that he would commit another offense."

In applying aggravating factor number six, the judge stated that when "I look at the extent of [defendant's criminal] record, I find that there's a strong need to protect the public." In considering aggravating factor nine, the judge concluded it was "certainly applicable" and that there was "a strong need for deterrence." She explained,

Defense counsel did not dispute that defendant was eligible for an extended-term sentence as a persistent offender. Instead, relying on a competency report concerning defendant's "mental health problems" that "were never checked," he argued for application of mitigating factors one, two, three, four, six, eight, and nine. N.J.S.A. 2C:44-1(b)(1) (conduct neither caused nor threatened serious harm); -1(b)(2) (not contemplate that conduct would cause or threaten serious harm); -1(b)(3) (acted under a strong provocation); -1(b)(4) (substantial grounds tending to excuse or justify conduct); -1(b)(6) (has compensated or will compensate the victim for the damage or injury sustained, or will participate in a program of community service); -1(b)(8) (conduct was the result of circumstances unlikely to recur); and -1(b)(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense). The trial judge rejected these arguments.

Specifically, when looking at mitigating factor one, the judge reasoned:

The judge applied the same reasoning in rejecting mitigating factor two. In finding that these mitigating factors also did not apply to an extended term sentence, the judge stated:

Ultimately, the judge concluded that the aggravating factors "convincingly and substantially" outweighed the mitigating factors. Thereafter, the judge sentenced defendant to a ten-year extended term as a persistent offender with a five-year term of parole ineligibility, noting:

On appeal, defendant raises the following issues for our consideration:

II.

We address defendant's arguments in the order in which they are presented. Defendant first contends that the trial judge committed plain error by failing to instruct the jury regarding the identification of him as the intruder in Constock's home. Defendant argues that there was no eyewitness testimony that he was the person in Constock's home. The State's claim that defendant had Constock's shears when he was arrested, was unproven due to Constock's testimony that she could not be sure that the shears were actually hers. Defendant also contends that the State fingerprint evidence was inconclusive and faulty. Snyder's testimony was biased based on his involvement in the investigation, and his analysis was not objective as he failed to remember or document points of comparison, demonstrating confirmation bias. In the alternative, defense counsel argues that the perpetrator's intent in entering Constock's home was not proven.

"`[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,

An "error in a jury instruction that is `crucial to the jury's deliberations on the guilt of a criminal defendant' is a `poor candidate[ ] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of `the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light of the overall strength of the State's case." Ibid. (citation omitted).

Applying these principles, we are convinced that there was no plain error in the trial judge's failure to instruct the jury on identity. Simply put, defendant's arguments are misguided. The Criminal Model Charges set forth three instructions regarding identification: Model Jury Charge (Criminal), "Identification — In Court" (2012), Model Jury Charge (Criminal), "Identification — Out of Court" (2012), and Model Jury Charge (Criminal), "Identification — In Court/Out of Court" (2012). None of these charges apply due to the fact that Constock did not see the intruder's face, and consequently, she did not identify defendant to the police or in-court when she testified. The State's case was based on the theory that defendant's fingerprints were found in Constock's home and defendant was found in possession of Constock's missing shears. The jury agreed with the State, that defendant broke into Constock's home with the intent to commit a crime.

The fact that defendant's trial counsel did not request an identification charge indicates that the charge was not relevant or necessary. Defendant's theory that the State did not prove that he was the intruder intending to commit a crime was addressed in the jury instructions when, as noted, the judge told the jury that for the State to sustain the charge of burglary, it must prove beyond a reasonable doubt "[t]hat the defendant entered the structure . . . without permission" and "it was the defendant's conscious object" to "commit an unlawful act." In fact, these comments, coupled with the judge's model charges on burden of proof, essentially mimic the following provision that is set forth in all three model charges on identification,

Similarly, defendant's reliance upon State v. Green, 86 N.J. 281, 293 (1981), and State v. Davis, 363 N.J.Super. 556, 560-62 (App. Div. 2003), is misplaced. Both decisions determined that the trial court erred and denied the defendants a fair trial by failing to give jury charges on identification. Green, supra, 86 N.J. at 291-94; Davis, supra, 363 N.J.Super. 559, 560-62. However, unlike here, those decisions involve circumstances where the defendants were identified as perpetrators, thus warranting an identification charge.

There is also no merit to defendant's contention that he is entitled to a new trial because the jury's finding that he was the intruder was based on the flawed methodology used by the State's fingerprint expert. First of all, we have no way of knowing that the jury convicted defendant based upon Snyder's testimony. Defense counsel cross-examined Snyder regarding his methodology. The jury could have disagreed with Snyder's testimony even though defendant did not present his own expert to challenge Snyder. The jury could have convicted defendant solely on the finding that he possessed Constock's missing shears, which was circumstantial evidence that he was the intruder she saw in her home. See State v. Thomas, 256 N.J.Super. 563, 570 (App. Div. 1992), aff'd, 132 N.J. 247 (1993) (circumstantial evidence may even be "more certain, satisfying and persuasive than direct evidence"); State v. Franklin, 52 N.J. 386, 406 (1968) (circumstantial evidence alone may support a guilty verdict).

III.

Next, we address defendant's claims that his sentence was excessive. Specifically, defendant contends that the trial judge improperly refused to acknowledge mitigating factors one and two connected to the gravity of the offense. In addition, despite not disputing that his prior convictions rendered him statutorily eligible for an extended term, defendant submits that the sentence was "shockingly excessive."

We begin by noting that review of a criminal sentence is limited; a reviewing court must decide "whether there is a `clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not `based upon competent credible evidence in the record;' or (3) `the application of the guidelines to the facts' of the case `shock[s] the judicial conscience.'" Ibid. (alteration in original) (citation omitted). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 494 (1996).

The arguments raised by defendant lack any support in the record. Based upon the judge's analysis of the crime and defendant's criminal record, she did not abuse her discretion in rejecting defendant's claims that mitigating factors one and two should be applied. In light of the weight afforded to the applied aggravating factors and the absence of any mitigating factors, the sentence imposed on defendant was consistent with our sentencing guidelines and does not shock our judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.