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N.J.S.A. 2C:20-4 (count one) and fourth-degree unauthorized practice of law, N.J.S.A. 2C:21-22(b)(1) and (b)(2) (count two). We affirm. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5876-07T45876-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY FOSTER GILLEAD, Defendant-Appellant. ________________________________________________________________

Submitted April 21, 2010 - Decided Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0067. Yvonne Smith Segars, Public Defender, attorney for appellant (James A. Plaisted, Designated Counsel, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Brent A. Bramnick, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant appeals from his sentence and convictions for third-degree theft by deception, N.J.S.A. 2C:20-4 (count one) and fourth-degree unauthorized practice of law, 117 N.J. 210, 215 (1989). The thrust of defendant's challenge to his sentence is that the presumption of non-incarceration applicable to a third-degree conviction for a first offender precluded the imposition of county jail time as a condition of probation. Although a presumption of non-incarceration exists, "a term of imprisonment as a condition of probation is permissible where the presumption of non-imprisonment governs a defendant's sentence." State v. Hartye, 105 N.J. 411, 418 (1987). Therefore, the court did not err in imposing this condition as part of defendant's probationary
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sentence. Aside from arguing that the trial court improperly relied upon defendant's prior arrests, defendant has not challenged any aggravating factor as lacking a sufficient factual basis in the record. In addition, he argues that the court erred in failing to find four mitigating factors beyond those found, and that if these factors had been found, the mitigating factors would have outweighed the aggravating factors. The fallacy in defendant's argument is that the analysis of aggravating and mitigating factors is qualitative and not quantitative. State v. Kruse, 105 N.J. 354, 363 (1987). Further, contrary to defendant's assertions, the record does not indicate that the court's references to defendant's prior arrests or counsel's efforts to impeach Lee's credibility formed the basis for its decision to impose jail time as a condition of probation. Defendant's argument in Point II that the prosecutor committed misconduct by making improper comments during his summation was not raised below. This court does not entertain exceptions raised for the first time on appeal, State v. Robinson, 200 N.J. 1, 20 (2009), except for those that constitute plain error. See R. 2:10-2. Defendant argues that the prosecutor improperly expressed a personal belief in the defendant's guilt. In the complained of remarks, the prosecutor referred to a remark in his opening statement that "with overwhelming evidence I would prove this case beyond a reasonable doubt" and that he was tempted to sit down but did not have the nerve to do so "because I couldn't sleep tonight if that's all I did and something wrong happened in this case." Defendant argues that this comment, now scrutinized out of context in an appellate brief, constitutes a statement to the jury that they would do something wrong if they did not convict defendant. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted). We are satisfied that there was no objection to this comment because when it was heard at the trial, defense counsel did not deem it prejudicial. We agree with that assessment. Finally, defendant challenges the jury charge on reasonable doubt. Pursuant to Rule 1:7-2, defendant's failure to object at trial constitutes a waiver of his right to challenge that instruction on appeal, and so, we review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997). The trial court provided the jury with the Model Jury Charge on reasonable doubt, as it was required to do, see State v. R.B., 183 N.J. 308, 325 (2005) ("model jury charges should be followed and read
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in their entirety to the jury"), and did not commit plain error in doing so.

Affirmed. (continued) (continued) 8 A-5876-07T4 August 19, 2010 0x01 graphic

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