RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1269-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GABRIEL T. MATOS,
Defendant-Appellant. ________________________
Argued March 25, 2025 – Decided August 4, 2025
Before Judges Gilson, Bishop-Thompson, and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 21-01- 0044.
Rachel A. Neckes, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Rachel A. Neckes, of counsel and on the briefs).
Hudson E. Knight, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Hudson E. Knight, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Gabriel Matos was convicted of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count two);
second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count three); third-degree
aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); and
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1) (count
five). The charges resulted from defendant's recurrent sexual assault of his
stepdaughter G.L.V. (Georgina).1
Defendant was sentenced to an aggregate prison term of sixty-three years.
In that regard, on count one defendant was sentenced to forty years of
imprisonment with thirty years of parole ineligibility. On counts two, three, and
four, he was sentenced to consecutive prison terms totaling twenty-three years.
Counts two and three were subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2. Count five was made consecutive to count one, while running concurrent
to all other convictions. Defendant was also sentenced to parole supervision for
life and required to report and register under Megan's Law, N.J.S.A. 2C:7-2,
1 We use initials and fictitious names for the minor victim and witnesses to protect their privacy interests. R. 1:38-3(c)(9), (12).
A-1269-23 2 once he was released on parole. The judge also imposed assessments and
penalties.
I.
On appeal, defendant raises the following contentions for our
consideration:
POINT I
[DEFENDANT'S] CONVICTIONS MUST BE REVERSED BECAUSE THE COURT DID NOT INSTRUCT THE JURY ABOUT THE NARROW PURPOSE OF FRESH COMPLAINT EVIDENCE AND THE FRESH COMPLAINT TESTIMONY WAS UNDULY CUMULATIVE.
POINT II
REVERSAL IS NECESSARY BECAUSE SUBSTANTIAL EVIDENCE OF UNCHARGED WRONGDOING WAS ERRONEOUSLY INTRODUCED AT TRIAL. (Not raised below).
A. The New York Allegations are not Admissible Intrinsic Evidence.
B. The New York Allegations are not Admissible Under Rule 404(b).
POINT III
[DEFENDANT'S] CONVICTIONS MUST BE REVERSED BECAUSE THE COURT EXCLUDED RELEVANT EVIDENCE NECESSARY TO [DEFENDANT'S] DEFENSE.
A-1269-23 3 POINT IV
THE PROSECUTOR IMPROPERLY BOLSTERED [GEORGINA'S] CREDIBILITY AND INFLAMED THE JURY, DEPRIVING [DEFENDANT] OF A FAIR TRIAL. (Not raised below).
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL AND REQUIRES REVERSAL. (Not raised below).
POINT VI
THE COURT'S SEVERAL SENTENCING ERRORS NECESSITATES A REMAND FOR RESENTENCING.
A. The Court Erred in Finding and Weighing the Aggravating and Mitigating Factors.
B. The Court Should Have Merged Count One with Count Three and Count Two with Count Four.
C. The Court Failed to Apply Yarbough and Torres Before Imposing Consecutive Sentences. 2
D. The Court Erred in Assessing a Fee Under N.J.S.A 2C:14-10.
We have considered the arguments in view of the record and guiding legal
principles, and we are not persuaded any errors, individually or cumulatively,
2 State v. Yarbrough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 (1986); State v. Torres, 246 N.J. 246 (2021). A-1269-23 4 warrant reversal. We therefore affirm defendant's convictions. However, we
vacate and remand for resentencing.
A. The Fresh Complaint Testimony of K.M. and B.P.
We first address defendant's arguments that the trial judge erred in
permitting the fresh complaint testimony of K.M. (Ken), Georgina's boyfriend,
and B.P. (Phillips), her eighth-grade teacher. Specifically, defendant contends
the fresh complaint testimony of these witnesses should not have been used for
their truth or to bolster Georgina's allegations. Defendant further contends the
trial judge failed to properly instruct the jury regarding the limited purpose for
which their fresh complaint testimony can be considered.
Prior to trial, following a N.J.R.E. 104 hearing, the motion judge ruled
that the testimony of Ken and Phillips was admissible as fresh complaint
testimony. At trial, Ken's testimony was limited to Georgina's disclosure to him
that she was "being molested by [defendant]" and to his subsequent disclosure
of this information to Phillips. Similarly, Phillips's testimony was confined to
the disclosures he received from Ken and Georgina, as well as his subsequent
reporting of these disclosures to the appropriate authorities. Defendant did not
object to either witness's testimony at trial.
A-1269-23 5 Hearsay is an out-of-court statement admitted "to prove the truth of the
matter asserted," N.J.R.E. 801(c), and, subject to certain exceptions, is
inadmissible. N.J.R.E. 802. However, under the fresh complaint rule, the State
can present "evidence of a victim's complaint of sexual abuse, [which is]
otherwise inadmissible as hearsay, to negate the inference that the victim's initial
silence or delay indicates that the charge is fabricated." State v. R.K., 220 N.J.
444, 455 (2015).
We review a trial judge's evidentiary rulings "under the abuse of discretion
standard because, from its genesis, the decision to admit or exclude evidence is
one firmly entrusted to the trial [judge's] discretion." State v. Prall, 231 N.J.
567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202
N.J. 369, 383-84 (2010)). "Under [the] deferential standard, we review a trial
[judge's] evidentiary ruling only for a 'clear error in judgment.'" State v.
Medina, 242 N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479
(2017)). We will not substitute our "judgment for the trial [judge's] unless," the
trial judge's determination "' was so wide of the mark that a manifest denial of
justice resulted.'" Ibid. (quoting State v. Brown, 170 N.J. 138, 147 (2001)).
Defendant made no objection at trial to the admission of the testimony of
Ken and Phillips; thus, we review the alleged error for plain error. See R. 2:10-
A-1269-23 6 2; State v. Branch, 182 N.J. 338, 353 (2005). "Plain error is a high bar and
constitutes 'error not properly preserved for appeal but of a magnitude dictating
appellate consideration.'" State v. Santamaria, 236 N.J. 390, 404 (2019)
(quoting State v. Bueso, 225 N.J. 193, 202 (2016)). To warrant reversal under
this standard, the "error must be sufficient to raise 'a reasonable doubt . . . as to
whether the error led the jury to a result it otherwise might not have reached.'"
State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting State v. Jenkins, 178 N.J.
347, 361 (2004)). We evaluate an alleged error "in light of the overall strength
of the State's case" in determining whether it rises to the level of plain error.
State v. Clark, 251 N.J. 266, 287 (App. Div. 2022) (citation and internal
quotation marks omitted).
We are satisfied that the testimony of both Ken and Phillips falls within
the scope of the fresh complaint doctrine. Accordingly, we reject defendant's
arguments. Georgina disclosed the sexual abuse to two people she trusted. State
v. Hill, 121 N.J. 150, 163 (1990) ("[T]o qualify as fresh complaint, the victim's
statements to someone [they] would ordinarily turn to for support must have
been made within a reasonable time after the alleged assault and must have been
spontaneous and voluntary.").
A-1269-23 7 The testimony of Ken and Phillips was not hearsay because it was limited
to Georgina's spontaneous and voluntary disclosure within a short time after the
last act of sexual abuse occurred. "[S]tatements . . . offered, not for the
truthfulness of their contents, but only to show that they were in fact made and
that the listener took certain action as a result" are "not . . . inadmissible
hearsay." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007)
(citation and internal quotation marks omitted). See also State v. Kelly, 207 N.J.
Super. 114, 121 (App. Div. 1986). We discern no error in the trial judge's ruling
admitting the testimony of Ken or Phillips regarding Georgina's disclosure, nor
do we conclude those admissions constituted plain errors. We therefore
conclude defendant failed to establish plain errors warranting reversal. See R.
2:10-2.
Defendant next contends the trial judge failed to instruct the jury
regarding the narrow purpose of fresh complaint testimony provided by Ken and
Phillips. At the charge conference, the trial judge reviewed the jury charge and
the verdict sheet with the State and defendant. No objections were raised by
either party at the charge conference or when the charge was read to the jury
before deliberation. Nor did defendant propose any revisions to the jury charge.
Therefore, we apply the plain error standard of review. See State v. Montalvo,
A-1269-23 8 229 N.J. 300, 320 (2017) ("Without an objection at the time a jury instruction is
given, 'there is a presumption that the charge was not error and was unlikely to
prejudice the defendant's case.'") (quoting State v. Singleton, 211 N.J. 157, 182
(2012)); see also Funderburg, 225 N.J. at 79.
Appropriate and proper jury instructions are essential for a fair trial. State
v. Scharf, 225 N.J. 547, 581 (2016); State v. R.E.B., 385 N.J. Super. 72, 90
(App. Div. 2006). "The test to be applied . . . is whether the charge as a whole
is misleading, or sets forth accurately and fairly the controlling principles of
law." State v. Baum, 224 N.J 147, 159 (2016) (alteration in original) (quoting
State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)); see also State v.
Garrison, 228 N.J. 182, 201 (2017) (finding the whole charge, not just
challenged portion, must be read to determine the overall effect).
The record reflects that the jury instruction concerning Georgina's silence
and delay in disclosing the sexual assault closely adhered to Model Jury Charges
(Criminal), "Fresh Complaint: Silence or Failure to Complain" (rev. Apr. 15,
2013). We generally do not consider an instruction erroneous if it closely
tracked the model jury charge. Mogull v. CB Com. Real Est. Grp., Inc., 162
N.J. 449, 466 (2000).
A-1269-23 9 The trial judge instructed the jury to "not automatically conclude
[Georgina's] testimony [was] untruthful based only on her silence or delayed
disclosure" and to consider that "silence or delayed disclosure along with all the
other evidence, including [Georgina's] explanation" for her delayed disclosure
in determining how much weight to give her testimony. We are not persuaded
by defendant's argument that he was deprived of a right to a fair trial because
the jury instruction "merely dispel[led] the inference [Georgina] was silent."
State v. P.H., 178 N.J. 378, 393 (2004). Therefore, we conclude defendant has
failed to establish plain error in the way the jurors were instructed regarding the
fresh complaint testimony.
B. The New York Sexual Acts.
For the first time on appeal, defendant argues the trial judge improperly
allowed Georgina to testify regarding alleged prior "bad acts" that occurred
while she and defendant were residing in New York. Defendant specifically
argues the New York allegations are not admissible under N.J.R.E. 404(b) or as
intrinsic evidence. We reject defendant's arguments.
The motion judge granted the State's pre-trial motion to admit intrinsic
evidence of sexual assault committed in New York through Georgina's
testimony. During oral argument, defendant posed no objection.
A-1269-23 10 At trial, Georgina testified that, during a three-year period when she lived
in New York with her mother, older sister, and defendant, acts of oral sex
involving defendant occurred on a daily basis. Defendant coerced her into
performing the sexual act by giving her money, clothes, or toys. Georgina also
testified that defendant attempted vaginal penetration.
In 2016, the family moved into a one-room apartment in Perth Amboy
when Georgina was twelve years old. Defendant continued to force Georgina
to perform oral sex on him three or four times per week when she came home
from school. In March 2017, defendant vaginally penetrated Georgina on at
least two occasions. Georgina testified that she initially refused defendant's
repeated advances for sexual intercourse but relented when defendant reminded
her that he was "the only person that [paid] the bills."
Defendant did not object to this testimony. Accordingly, the trial judge
did not conduct a Rule 404(b) analysis regarding Georgina's testimony.
Nevertheless, we "may engage in our own 'plenary review' to determine
admissibility" when the trial judge did not apply Rule 404(b) at trial. State v.
Rose, 206 N.J. 141, 158 (2011). Under N.J.R.E. 404(b), evidence of "other
crimes, wrongs, or acts" is inadmissible as evidence of a person's bad character
or criminal predisposition; however, such evidence is admissible to prove
A-1269-23 11 "motive, opportunity, intent, preparation, plan, knowledge, identity , or absence
of mistake or accident when such matters are relevant to a material issue in
dispute." N.J.R.E. 404(b); see State v. Stevens, 115 N.J. 289, 300-01 (1989).
Under State v. Cofield, the evidence: (1) must be relevant to a material
issue which is genuinely disputed; (2) the other conduct must be similar in kind
and must have occurred reasonably close in time to the events at issue in the
criminal trial; (3) evidence of the other conduct must be clear and convincing;
and (4) the probative value must not be outweighed by prejudice to defendant.
127 N.J. 328, 338 (1992).
We are satisfied that the evidence of defendant's conduct in New York
was properly admitted under the four-prong Cofield analysis to prove motive
and opportunity. As to the first prong, the New York acts were relevant and
probative of defendant's motive and opportunity to assault Georgina. One of
defendant's defenses was that Georgina had falsely accused him of sexual
assaults. Georgina's testimony concerning the assaults in New York showed
defendant's motive and opportunity to commit the assaults and rebutted his claim
that Georgina had recently fabricated the allegations. Concerning the second
prong, the acts that occurred in New York explained Georgina’s reason for
disclosing the abuse, provided background regarding their relationship, and
A-1269-23 12 established the defendant’s motive to continue assaulting Georgina, believing
that she would remain silent.
The third prong, clear and convincing evidence, is also satisfied by
Georgina's testimony. The jury had the opportunity to hear Georgina's
testimony and evaluate her credibility. See State v. Hernandez, 170 N.J. 106,
127 (2001) ("The clear and convincing standard may be satisfied by
uncorroborated testimonial evidence."). As to the final prong, Georgina's
testimony was relevant to defendant's motive and opportunity, thus its probative
value outweighs the prejudice to defendant. That defendant failed to object to
the testimony at trial also demonstrates that defendant did not perceive the
testimony about the assaults that occurred in New York to be prejudicial. See
State v. Skinner, 218 N.J. 496, 516 (2014). Thus, Georgina's testimony satisfied
all four Cofield prongs.
Defendant also argues that the omission of the Rule 404(b) limiting
instruction left the jury to conclude that he was a "serial abuser," "a danger to
the community," and he had a "propensity to commit the charged crimes." We
reject this argument.
"[T]here is a presumption that the [failure to] charge was not error and
was unlikely to prejudice the defendant's case" if defendant did not object to the
A-1269-23 13 absence of a jury charge. Montalvo, 229 N.J. at 320. Therefore, we review for
plain error.
Here, evidence of the New York acts was used to show motive and
opportunity. In the final instruction to the jury, the judge provided instructions
to the jury regarding the proper use and consideration of the credibility of each
witness, as well as the how the jury should evaluate the testimony of those
witnesses. We conclude there was no error, much less an error that possessed a
clear capacity to bring about an unjust result.
We likewise reject defendant's argument that the New York acts were
inadmissible as intrinsic evidence. In Rose, our Supreme Court established a
test, which limits intrinsic evidence to "two narrow categories of evidence." 206
N.J. at 180; see State v. Brockington, 439 N.J. Super. 311, 327-28 (App. Div.
2015). "The first category applies to evidence that 'directly proves' the charged
offense," and the "operative factor is whether the evidence has probative value
as to the charged offense." Brockington, 439 N.J. Super. at 327 (quoting Rose,
206 N.J. at 180). The second category defines intrinsic evidence as "uncharged
acts performed contemporaneously with the charged crime [that] . . . facilitate
the commission of the charged crime." Ibid. (quoting Rose, 206 N.J. at 180).
A-1269-23 14 The New York acts provide relevant background information concerning
motive and opportunity. Santamaria, 236 N.J. at 409-10. While the New York
acts are more appropriately considered admissible pursuant to N.J.R.E. 404(b),
we are satisfied the New York evidence is also admissible under an intrinsic
evidence framework.
C. Exclusion of Alleged Relevant Evidence under Rape Shield Law.
Defendant next argues that the trial judge erred in applying the Rape
Shield Law, N.J.S.A. 2C:14-7(a), which governs the admissibility of "evidence
of the victim's previous sexual conduct" in sexual assault-related offenses.
Defendant contends he was precluded from eliciting testimony related to
Georgina's sexual history, which he argues was relevant to her credibility and
motive to fabricate the charges. Defendant also sought to impeach Georgina by
highlighting contradictory statements made to the investigator—initially
claiming she had "vaginal and penile intercourse" at age nine, and later stating
it occurred at age thirteen.
Defendant's arguments lack support in both case law and the governing
legislation. The Rape Shield Law places "restrictions on a defendant's ability to
introduce evidence of [a] rape victim's past sexual conduct" in prosecutions for
certain sexual offenses, including aggravated sexual assault, sexual assault, and
A-1269-23 15 endangering the welfare of a child. State v. J.D., 211 N.J. 344, 355 (2012)
(quoting Assemb. Judiciary, L. & Pub. Safety Comm. Statement to A. 677 (Jan.
20, 1994), reprinted in N.J.S.A. 2C:14-7 note); N.J.S.A. 2C:14-7(a).
In that regard, "[u]nder the Rape Shield Law, the probative value of the
victim's prior sexual conduct 'depends on clear proof that the conduct occurred,
that it is relevant to a material issue in the case, and that it is necessary to a
defense.'" State v. Perry, 225 N.J. 222, 234 (2016) (quoting State v. J.A.C., 210
N.J. 281, 300 (2012)). The prejudice contemplated by the Rape Shield Law
includes "the trauma to the victim," whether the evidence would "invade the
victim's privacy," and the "need to guard victims from excessive cross -
examination and prevent undue jury confusion." Ibid.
In determining whether to admit evidence of a victim's prior sexual
conduct, the trial judge must "weigh the relevance of the proffered evidence, its
necessity to the defense, and its apparent veracity against its potential to
humiliate the victim, invade her [or his] privacy, and confuse the jury." J.D.,
211 N.J. at 358. That determination "is exquisitely 'fact-sensitive' and 'depends
on the facts of each case.'" Perry, 225 N.J. at 238 (quoting J.D., 211 N.J. at
358).
A-1269-23 16 We disagree with defendant that evidence of Georgina's sexual history
was both relevant and minimally prejudicial. Georgina's sexual history, her
alleged anger toward defendant, or that she wanted him out of the apartment
bore no relevance to the criminal charges. Nor did Georgina's alleged
contradictory statements regarding when she was penetrated by defendant
indicate bias or fabrication. Simply stated, there was no "logical connection
between the proffered evidence" and the charged conduct. State v. Schnabel,
196 N.J. 116, 130-31 (2008) (quoting State v. Williams, 190 N.J. 114, 123
(2007)). We discern no abuse of discretion in precluding evidence of Georgina's
sexual history.
D. Prosecutor's Opening Argument and Closing Summations.
For the first time on appeal, defendant argues the prosecutor made
numerous remarks during the opening statement and closing argument, which
improperly bolstered Georgina's credibility and inflamed the jury. During
opening argument, the prosecutor told the jury that "defendant . . . violated his
stepdaughter in the worst ways imaginable" and "[f]or five years [Georgina's]
life was a living nightmare because of [defendant] . . . ."
Defendant now challenges the prosecutor's closing argument made in
response to his defense theory that Georgina fought with him and wanted him to
A-1269-23 17 leave the house. The prosecutor stated: "Children don't make up allegations of
extensive sexual assault because of arguments that they have with their parents
or because of their keys being taken away." "[A]buse as traumatic and ongoing
as it was in this case, a victim does not forget and she does not make up, even if
she wishes she could forget it, even if she wishes it were made up." Lastly, the
prosecutor stated: "[Y]ou can hear it in [Georgina's] voice that her testimony
has the ring of truth."
Defendant also argues that during closing argument, the prosecutor made
two emotional appeals to the jury. The prosecutor reiterated the opening
argument that Georgina had been through "the most horrible experience that a
child can go through" and the "crime was motivated by depravity, evil, power,
[and] control. The [d]efendant took advantage of his position of trust in
[Georgina's] life to violate her. And he violated her trust." In remarking on the
testimony of the interrogating detective, the prosecutor stated: "I want you to
think about what detectives like Detective [Ayala] are tasked with doing every
day. And what they have to deal with is beyond comprehension."
"A prosecutor's opening statement '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 good faith, to prove by competent evidence.'" State v. Land, 435
A-1269-23 18 N.J. Super. 249, 269 (App. Div. 2014) (quoting State v. Walden, 370 N.J. Super.
549, 558 (App. Div. 2004)). "Prosecutors are afforded considerable leeway in
[opening statements and] closing arguments as long as their comments are
reasonably related to the scope of the evidence presented." State v. Patterson,
435 N.J. Super. 498, 508 (App. Div. 2014) (quoting State v. R.B., 183 N.J. 308,
332 (2005)).
The prosecutor's remarks "will not be deemed prejudicial" if no objections
were made by defendant. State v. Frost, 158 N.J. 76, 83 (1999). In doing so,
we consider that the overall tenor of the trial was emotional, as it involved the
ongoing sexual abuse of a child under the age of thirteen. The prosecutor's
remarks were vigorous, forceful, and were not "'so egregious' that [they]
deprived defendant of the 'right to have a jury fairly evaluate the merits of his
defense.'" State v. Williams, 244 N.J. 592, 607 (2021); State v. Pressley, 232
N.J. 587, 593-94 (2018) (quoting State v. Wakefield, 190 N.J. 397, 437-38
(2007)). Given the context of the challenged remarks, we find no merit to
defendant's arguments.
Furthermore, the trial judge instructed the jury that counsels' summations
were not evidence. We presume the jury followed those instructions. State v.
Burns, 192 N.J. 312 (2007).
A-1269-23 19 E. Cumulative errors.
Defendant argues the cumulative effect of the previously discussed
misconduct and trial errors deprived him of due process and a fair trial. Based
on the record, there is no error, individually or cumulatively, in any of
defendant's arguments that warrant a reversal of his convictions. State v. T.J.M.,
220 N.J. 220, 238 (2015); see State v. Weaver, 219 N.J. 131, 155 (2014).
F. Sentencing.
Finally, we address defendant's consecutive sentences of sixty-three years.
Defendant argues the trial judge (1) erred in finding and weighing each
mitigating and aggravating factor, (2) failed to merge count one with count three
and count two with count four, and (3) failed to conduct the required analysis
under Yarbough and Torres.
Our "review of a sentencing [judge]'s imposition of sentence is guided by
an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318 (2018) (citing
State v. Robinson, 217 N.J. 594, 603 (2014)). Trial judges have the discretion
to determine if a sentence should be concurrent or consecutive. State v. Cuff,
239 N.J. 321, 350 (2019). However, when a trial judge decides to impose a
consecutive sentence, the judge must "place on the record its statement of
reasons for the decision to impose consecutive sentences, which . . . should focus
A-1269-23 20 'on the fairness of the overall sentence, and the sentencing judge should set forth
in detail its reasons for concluding that a particular sentence is warranted.'"
Torres, 246 N.J. at 267-68 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
When imposing a consecutive sentence, the Yarbough factors the judge
must consider are: (1) whether the crimes and defendant's objectives were
independent of one another; (2) whether the crimes involved separate acts or
threats of violence; (3) whether the crimes were committed at different times or
places; (4) whether the crimes involved multiple victims; and (5) whether the
convictions are numerous. Yarbough, 100 N.J. at 643-44. These Yarbough
factors are to be applied qualitatively, and not quantitatively. Cuff, 239 N.J. at
348.
If a judge fails to properly evaluate the Yarbough factors on the record
and explain why consecutive sentences are warranted, "a remand is ordinarily
needed for the judge to place reasons on the record." State v. Miller, 205 N.J.
109, 129 (2011). Here, the judge did not sufficiently address the Yarbough
factors. The judge found defendant's conduct "clearly [was] repetitive due to
the multiple acts that were testified to by [Georgina]," a finding that addressed
only the third Yarbough factor, specifically subparts (b) (separate acts), (c)
(committed at different times), and (e) (numerosity).
A-1269-23 21 At the sentencing hearing, the judge determined aggravating factors two,
three, four, and nine, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm
inflicted on the victim), (3) (risk of re-offense), (4) (defendant took advantage
of a position of trust or confidence), and (9) (the need for deterrence), applied.
However, the judge did not specify which aggravating factors were applied to
each conviction, leaving us unable to discern how those factors were considered
as to each conviction.
The judge rejected the State's argument that mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7) (absence of juvenile or criminal history), did not apply,
finding defendant had no history of prior delinquency or criminal activity given
his age and had lived a substantial part of his life without committing an offense.
The judge noted that once these offenses began, they were "egregious" and
"heinous." Nevertheless, the findings on the aggravating and the mitigating
factors were not sufficiently detailed "to ensure fairness and facilitate review."
State v. Comer, 249 N.J. 359, 404 (2022).
We are also not persuaded the judge satisfied the requirements set forth in
Torres when addressing the overall fairness of imposing consecutive sentences.
When imposing a consecutive sentence, a sentencing judge is required to
provide "[a]n explicit statement, explaining the overall fairness of a sentence
A-1269-23 22 imposed on a defendant for multiple offenses . . . ." Torres, 246 N.J. at 268
(citing Miller, 108 N.J. at 122). A remand may be required when the trial judge
omits this analysis, unless the reviewing court "can readily deduce" inclusion or
omission of any factors. State v. Bieniek, 200 N.J. 601, 609 (2010).
At sentencing, the judge stated that it was "within the interest of justice"
to sentence defendant to consecutive sentences "because of the length of the
abuse and the different time periods of the abuse and the distinction between
them." Torres provides the appropriate standard for consideration, rather than
the interest of justice standard. Accordingly, we remand the matter to address
the overall fairness of the sentence imposed on defendant.
Defendant next argues that the trial judge erred by failing to merge
second-degree sexual assault with first-degree aggravated sexual assault, and
third-degree aggravated sexual contact with first-degree aggravated sexual
assault. We leave that issue to be addressed by the trial court at the resentencing.
In sum, we affirm defendant's convictions. However, we vacate
defendant's sentences and remand for resentencing. We leave to the judge's
sound discretion whether to permit further briefing and argument. The "[judge]
should view defendant as he stands before the [judge]" at the time of the
A-1269-23 23 resentencing. State v. Randolph, 210 N.J. 330, 354 (2012). We express no
opinion as to an appropriate sentence.
Affirmed in part, vacated and remanded in part. We do not retain
jurisdiction.
A-1269-23 24