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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0161-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAWAMI R. JUNOR,
Defendant-Appellant. ________________________
Argued February 25, 2025 – Decided April 9, 2025
Before Judges Gilson and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 21-05- 0394.
Rachel Glanz, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Rachel Glanz, of counsel and on the briefs).
Alexandra E. Harrigan, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; John J. Santoliquido, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Shortly after they met, defendant Kawami Junor drove N.D. to a beach in
Sandy Hook.1 After a series of unwanted advances, defendant's conduct towards
N.D. became increasingly forceful. While in the backseat of his locked car,
defendant pulled down N.D.'s shorts, ripped her underwear off, inserted his
finger into her vagina, and placed his mouth on her vagina. N.D. was eventually
able to unlock the car door and get away from defendant. As defendant drove
off, he ran over N.D.'s ankle.
A jury convicted defendant of second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and
third-degree criminal restraint, N.J.S.A. 2C:13-2(a). After the jury was
dismissed, a judge found defendant guilty of fourth-degree assault by auto,
N.J.S.A. 2C:12-l(c)(l).
Thereafter, the sentencing court granted the State's motion to impose a
discretionary extended term sentence because defendant was found to be a
persistent offender under N.J.S.A. 2C:44-3(a). On the conviction for sexual
assault, defendant was sentenced to an extended term of eighteen years in prison
1 We use initials for the victim and witnesses to protect their privacy interests. See Rule 1:38-3(c)(12). A-0161-23 2 subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's
conviction for criminal sexual contact was merged with the assault conviction,
but the court also sentenced defendant to a concurrent term of eighteen months
in prison. On the conviction for criminal restraint, defendant was sentenced to
five years in prison, to run concurrent to his sentence on the sexual assault
conviction.
Defendant appeals from his convictions and sentence. Having reviewed
the evidence and law, we affirm defendant's convictions, vacate his sentence,
and remand for further proceedings, including a new sentencing.
I.
We summarize the facts from the evidence at trial. Defendant and N.D.
first met on June 5, 2020, while N.D. was walking in her neighborhood. After
a brief conversation, the two exchanged phone numbers.
The following morning, on June 6, 2020, defendant texted N.D. and
invited her to go to the beach with him. N.D. declined. Later that afternoon,
defendant called N.D. and again asked her to go to the beach with him. Again,
N.D. declined. Eventually, however, N.D. agreed to meet defendant on a street
near her home.
A-0161-23 3 When defendant arrived, he was accompanied by his cousin. Defendant
brought up the beach again, and N.D. ultimately agreed to go with defendant.
Thereafter, defendant dropped his cousin off and he and N.D. drove to a beach
in Sandy Hook.
While stopped at a red light, defendant attempted to kiss N.D. N.D.
rejected defendant's advance and told defendant that she did not want him to
touch her. In response, defendant told N.D. that he wanted her to be his girl, but
N.D. retorted that he was "moving way too fast for [her.]" The pair eventually
arrived at the beach.
Defendant then walked N.D. to a "secluded area on the beach." Defendant
tried to kiss N.D. again but she said no. As N.D. walked towards the water,
defendant "grabbed [her]," and "[tried] to kiss [her]." At that point, N.D.
informed defendant that she wanted to go, and defendant agreed to take her
home.
When they arrived back at the car, defendant opened the back door and
directed N.D. to get into the back seat. Defendant then turned the car on and
got into the back seat with N.D. Defendant again told N.D. that he "want[ed]
[her] to be his girl" and tried to kiss her. N.D. "didn't want to be kissed" but "let
[defendant] peck [her] . . . [until] it just progressively [got] worse."
A-0161-23 4 N.D. testified that as defendant's advances became more forceful, she
expressly told him to stop and tried to push him off her. Defendant, however,
persisted, locked the car door, and pulled N.D.'s shorts down. N.D. remembers
screaming: "[y]ou're trying to rape me," "stop," and "I won't tell anybody[] if
you just let me go." But defendant did not stop and eventually ripped N.D.'s
underwear off her. Defendant then "insert[ed] his finger inside of [her vagina]"
and "put his mouth on [her] vagina."
N.D. continued to resist, "trying to get the car door open, trying to scream,
. . . pulling [defendant's] hair, scratching him, [and] trying to fight him off [her]."
N.D. saw defendant's exposed penis shortly before she was able to get the car
door open. Once the door was open, N.D. fell out of the car and landed on her
back. Defendant then "jumped from the back seat to the front seat . . . and . . .
pulled off real[ly] fast." While driving away, defendant's car ran over N.D.'s
right ankle.
E.R. and her husband, S.R., were in the beach parking lot when E.R. saw
N.D. fall out of defendant's car. E.R. told S.R. what she had observed, which
prompted S.R. to approach N.D. and offer assistance. N.D., who was still
unclothed below the waist, asked S.R. not to come any closer. S.R. quickly
flagged down a nearby park ranger.
A-0161-23 5 When the ranger approached N.D., she was "in hysterics." While the
ranger was speaking with N.D., she received phone calls and text messages from
defendant stating that "he was going to come back and pick her up." The ranger
asked N.D. to tell defendant to come back to the parking lot, which she did, but
defendant did not return.
Shortly thereafter, emergency medical service personnel arrived at the
scene and transported N.D. to a hospital. N.D. remained at the hospital for
several hours to have her ankle X-rayed and to undergo a sexual assault nurse
examination (SANE). However, after learning that the SANE examination
would take four hours, and because she was "already exhausted from what had
happened," N.D. left the hospital without being examined. Prior to her
departure, officials collected N.D.'s torn underwear and advised her not to
shower until after her examination.
N.D. returned to the hospital the following morning. She brought back
the shorts she had been wearing the prior day and completed the SANE
examination. As part of the examination, a forensic nurse collected an external
genital swab, a vaginal swab, a cervical swab, a buccal swab, and a fingernail
swab from N.D.
A-0161-23 6 Forensic analysis of the swabs later revealed the presence of amylase, a
constituent of saliva, on the external genital swab. Likewise, forensic analysis
revealed the presence of amylase on the crotch panel of N.D.'s shorts. DNA
analysis of the external genital swab, the shorts, and the swab of N.D.'s left-hand
fingernail revealed the presence of DNA from the same male contributor on each
sample.
On June 11, 2020, investigators interviewed defendant about the incident
at the beach. Defendant provided a different account of what had happened.
Defendant claimed that after he got into the back seat of his car, he and N.D.
started kissing each other. Defendant further stated that N.D. only left his car
after the two got into a dispute concerning her ex-boyfriend. At the conclusion
of the interview, investigators obtained a buccal swab from defendant.
DNA analysis of defendant's buccal swab later revealed that he was a
match for the male DNA recovered from the external genital swab obtained from
N.D., a match for the male DNA recovered from the swab of N.D.'s left-hand
fingernail, and the source of the male DNA recovered from the crotch panel of
N.D.'s shorts.
Thereafter, a grand jury indicted defendant for three crimes: second-
degree sexual assault; fourth-degree criminal sexual contact; and third-degree
A-0161-23 7 criminal restraint. In a complaint-warrant, defendant was also charged with
fourth-degree assault by auto.
On December 20, 2021, a plea-cutoff hearing was held before a trial judge.
At the hearing, the State and defense counsel both informed defendant that he
was eligible to be sentenced to a discretionary extended term of imprisonment
due to his prior criminal record. Additionally, the judge and defendant discussed
the State's pretrial memorandum, which had been prepared that day.
The pretrial memorandum stated that defendant qualified for an extended
term sentence but incorrectly stated that he faced a maximum sentence of fifteen
years. During the hearing, however, the judge told defendant that he could be
sentenced to up to twenty years in prison. In that regard, the judge had the
following discussion with defendant:
Q All right. Did you go over the pretrial memorandum form with your attorney [defendant]?
A Yes, Your Honor.
Q And did he answer any questions you may have had about this pretrial memo form?
Q And did he answer your questions to your satisfaction about really everything that's going on here today?
A-0161-23 8 A Yes, Your Honor.
Q All right. So, let me go over with you, also, because I just want to make sure you're comfortable with what's going on. . . . So, you're charged with three different crimes under Indictment 21-05-394. The first count is the most serious one, which is, you're charged with sexual assault, which is a second[-]degree offense. Wherein you are looking at, on the offense, is normally a ten-year sentence.
However, because you're [exposed to] a discretionary extended term, and I'll explain that to you, . . . you could receive a sentence like . . . it was a first [-]degree offense, so now you're looking at exposure up to [twenty] years in jail on this charge. Do you understand that?
A How is that?
....
Q So, what that mean[s] is . . . because . . . you have been sentenced on two different occasions for indictable crimes prior to this case going to trial and you're over the age of [eighteen], which you are, [you] are exposed to what's called a discretionary extended term, meaning the [c]ourt would make a determination whether . . . the amount of time you would get if convicted would be appropriate in that second[-]degree range, which is what you're charged with or I have the discretion to actually sentence you in the first[-]degree range because of these two prior convictions.
Now, I don't know what I'm going to do. I have no idea. I haven't heard any facts of this case. I have no idea what the evidence is going to show. But if you're convicted of that second[-]degree offense of
A-0161-23 9 sexual assault and the Prosecutor's Office then requests an extended term, I have to do the legal analysis of whether . . . I can sentence you within that second [-]degree range or I say, you know what, based upon his prior record and based upon the crime as I just heard it, I think I need to impose him to a sentence within the first[-]degree range and that's a legal determination.
So -- and I do that by way of looking at aggravating and mitigating factors and I decide what's appropriate for you. So, that's why your exposure is a lot more than just ten [years] potentially on this case. Did you -- do you understand that now?
A Yes, I do.
Later during the hearing, the following exchange regarding defendant's
sexual assault charge also occurred:
Q All right, . . . again though, the biggest exposure that you have is the sexual assault [charge], because if you're convicted of that, in and of itself, you're looking at exposure of up to [twenty] years in jail. Do you understand that?
A Understood.
Shortly thereafter, the judge clarified defendant's potential sentencing
exposure under a discretionary extended term for a third time.
Q All right. And this sexual assault again, because of the type of crime it is, you'd be subject to [NERA]. So, that means, you would have to serve [eighty-five] percent of whatever sentence I impose. So if I imposed a five year sentence for example, it would be four years, three months and four days.
A-0161-23 10 A Understood.
Q Right, but then for example, if I sentence you to the max, which [is] [twenty] years then you would have to serve [seventeen] years before you'd be eligible for parole. Do you understand that?
Thereafter, defendant rejected the State's plea offer of eight years of
imprisonment subject to NERA. After defendant initially expressed his intent
to reject the offer, the judge clarified his understanding once more, stating:
"[J]ust to be clear . . . you are looking at the potential of a more [severe] sentence
than what this plea offer is right now if you go to trial and [are] convicted. Do
you understand that?" Defendant answered in the affirmative, stating that he
was rejecting the plea offer because of "Megan's Law and the parole provision
for life." Defendant explained that he wanted to "take [his] case to trial."
Less than two months later, at another pretrial hearing on February 8,
2022, the judge again discussed the State's pretrial memorandum with defendant.
At that hearing, however, the judge incorrectly told defendant that "the
maximum on[e] can receive on [the] offense [for sexual assault] is actually
[fifteen] years."
A four-day jury trial was conducted in late February and early March
2022. The State's evidence included testimony from N.D. and DNA evidence.
A-0161-23 11 Defendant also testified. After hearing all the evidence, the jury found
defendant guilty of all three criminal charges. After the jury was dismissed, the
trial judge found defendant guilty of assault by auto.
In April 2022, the State moved for a discretionary extended term on the
sexual assault conviction pursuant to N.J.S.A. 2C:44-3(a). The trial judge
determined that defendant was a "persistent offender" and granted the State's
motion. Defendant was then sentenced on August 24, 2022.
On the conviction for sexual assault, defendant was sentenced to an
extended term of eighteen years in prison subject to NERA. 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, once he was released on parole. The court stated
it was merging the conviction for criminal sexual contact with the sexual assault
conviction but then sentenced defendant to a concurrent term of eighteen months
in prison on that conviction. On the conviction for criminal restraint, defendant
was sentenced to a concurrent term of five years in prison. Defendant was
sentenced to monetary penalties on the assault by auto conviction. Finally,
defendant was required to pay a mandatory Sex Crime Victim Treatment Fund
Penalty of $1,000 and other fines and penalties totaling $2,930. So, defendant's
A-0161-23 12 aggregate prison sentence was for eighteen years, with just over fifteen years of
parole ineligibility.
Defendant now appeals from his convictions and sentence.
II.
On appeal, defendant makes five arguments, which he articulates as
follows:
I. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE COURT ACTIVELY MISINFORMED HIM ABOUT HIS SENTENCING EXPOSURE DURING THE PRETRIAL CONFERENCE.
II. A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED ON THE CRIMINAL RESTRAINT CHARGE BECAUSE THE STATE FAILED TO PROVE THAT THE DEFENDANT KNOWINGLY RESTRAINED THE VICTIM UNDER CIRCUMSTANCES EXPOSING HER TO THE RISK OF SERIOUS BODILY INJURY.
III. THE MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE COURT FAILED TO EXPLAIN HOW IT ARRIVED AT A SENTENCE OF 18 YEARS FOR THE SECOND- DEGREE SEXUAL ASSAULT.
IV. THE COURT SHOULD NOT HAVE IMPOSED ANY FINES OR FEES ON THE CRIMINAL SEXUAL CONTACT CONVICTION, WHICH MERGED INTO THE SEXUAL ASSAULT CONVICTION.
A-0161-23 13 V. SENTENCING DEFENDANT AS A PERSISTENT OFFENDER WITHOUT GRAND AND PETIT JURY FINDINGS OF THE PREDICATE FACTS VIOLATED DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.
We are not persuaded by defendant's arguments concerning his
convictions. Because the law now requires a jury to make the findings necessary
to sentence defendant to an extended term, and because there were other errors
in defendant's sentence, we vacate the sentence and remand for further
proceedings, including a new sentencing.
A. The Plea Process.
"The practice of plea bargaining has become institutionalized in our
criminal justice system." State v. Bellamy, 178 N.J. 127, 134 (2003) (first citing
State v. Thomas, 61 N.J. 314, 321 (1972); and then citing R. 3:9-3). "Notions
of fairness apply to each side in the plea bargaining process." Ibid. (quoting
State v. Warren, 115 N.J. 433, 443 (1989)) (internal quotation marks omitted).
"Knowledge of the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether to plead
guilty." State v. Ashley, 443 N.J. Super. 10, 23 (App. Div. 2015) (quoting
United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)) (internal quotation marks
omitted). Accordingly, a defendant "has the right not to be 'misinformed' about
A-0161-23 14 a material element of a plea agreement." Bellamy, 178 N.J. at 134 (quoting State
v. Nichols, 71 N.J. 358, 361 (1976)).
"Where the prosecutor reserves the right to move for an extended term, it
is incumbent upon the trial judge at the time of the plea to make certain that the
defendant is made aware of the possible sentencing consequences under N.J.S.A.
2C:43-7." State v. Cartier, 210 N.J. Super. 379, 381 (App. Div. 1986). See R.
3:9-1(f) (noting that "the court . . . shall address the defendant to determine that
the defendant understands . . . the sentencing exposure for the offenses charged,
if convicted"). "[A] defendant cannot be sentenced to an extended term unless
he [or she] has been apprised of the increased sentences permissible under [the
law]." Cartier, 210 N.J. Super. at 382-83.
In the pretrial memorandum and at the plea-cutoff hearing, defendant was
informed (1) that he faced a discretionary extended term sentence; and (2) that
he could be sentenced to up to twenty years in prison. The State's pretrial
memorandum, prepared on December 20, 2021, stated that defendant qualified
for an extended term sentence, but incorrectly noted that he faced a maximum
sentence of fifteen years. Nevertheless, at the plea-cutoff hearing, the judge and
defendant discussed both the pretrial memorandum and the maximum sentence
that defendant could be exposed to under a discretionary extended term. In that
A-0161-23 15 regard, the judge informed defendant three different times that he faced a
maximum of twenty years in prison on the sexual assault charge. The judge also
emphasized that defendant was facing "the potential of a more [severe] sentence
than . . . [the] plea offer . . . if [he] [went] to trial and [was] convicted."
Following each exchange, defendant confirmed that he understood his
sentencing exposure.
Defendant now focuses on a later conference where the judge incorrectly
stated that the maximum sentence defendant could receive was fifteen years.
Significantly, however, at that conference defendant was not considering the
State's original plea offer, which he had already rejected, or a new plea offer.
Just as importantly, the record does not demonstrate that defendant did not fully
understand his sentencing exposure. He had previously been expressly and
correctly told he could be sentenced to up to twenty years in prison.
Consequently, defendant's due process rights were not violated during the plea-
bargaining process.
B. The Criminal Restraint Conviction.
At trial, defendant moved for a judgment of acquittal on the criminal
restraint charge, contending that the State failed to present evidence that N.D.
was restrained in circumstances exposing her to a risk of serious bodily injury.
A-0161-23 16 The trial court denied that motion, and defendant now repeats the same argument
on appeal.
In determining whether a judgment of acquittal is warranted, the trial court
"must determine whether, based on the entirety of the evidence and after giving
the State the benefit of all its favorable testimony and all the favorable
inferences drawn from that testimony, a reasonable jury could find guilt beyond
a reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014) (citing State
v. Reyes, 50 N.J. 454, 458-59 (1967)). Appellate courts use that same standard
in conducting a de novo review of a denial of a motion for acquittal. Id. at 593-
94.
"A person commits a crime of the third degree if he [or she] knowingly
. . . [r]estrains another unlawfully in circumstances exposing the other to risk of
serious bodily injury . . . ." N.J.S.A. 2C:13-2(a). Accordingly, there are three
elements to criminal restraint in the third degree. First, the State must prove
that defendant knowingly restrained the victim. Second, the State must prove
that defendant knew that the restraint was unlawful. Third, and finally, the State
must prove that the restraint occurred under circumstances in which defendant
knowingly exposed the victim to a risk of serious bodily injury. See Model Jury
A-0161-23 17 Charges (Criminal), "Criminal Restraint (N.J.S.A. 2C:13-2(a))" (rev. June 19,
2000) (citation reformatted).
Defendant argues that the State presented no evidence that N.D. suffered
serious bodily injury or that he knew that there was a risk of N.D. suffering
serious bodily injury when he restrained her. The evidence at trial refutes that
argument.
N.D. testified to the violent nature of the sexual assault committed by
defendant. In that regard, she explained that defendant locked her in his car,
pulled her shorts down, tore off her underwear, inserted his fingers into her
vagina, and put his mouth on her vagina, all against her will. N.D. also explained
that she physically struggled with defendant, "pulling his hair, scratching him,
[and] trying to fight him off [her]," while the assault was occurring.
The trial court gave the jury the model charge on criminal restraint. In
doing so, the court correctly explained all three elements of the crime, including
that the jury had to find beyond a reasonable doubt "that the restraint was under
circumstances in which the defendant knowingly exposed [N.D.] to a risk of
serious bodily injury." The trial court also correctly instructed the jury that
"[t]he term serious bodily injury means bodily injury which creates a substantial
A-0161-23 18 risk of death, or which causes serious permanent disfigurement or protracted
loss or impairment of the functions of any bodily member or organ."
The New Jersey Supreme Court has recognized that second-degree sexual
assault, of which defendant was convicted, is one of the "most serious forms of
sexual violence." State v. Rangel, 213 N.J. 500, 510 (2013). In addition, the
Court has stated that "severe mental anguish can satisfy the serious bodily harm
element for" aggravated sexual assault. Collins v. Union Cnty. Jail, 150 N.J.
407, 422 (1997) (citing State v. Walker, 216 N.J. Super. 39, 43-44 (App. Div.
1987), certif. denied, 108 N.J. 179 (1987)). Consequently, we hold that N.D.'s
testimony, together with the other evidence presented by the State, was
sufficient for the jury to find, beyond a reasonable doubt, that defendant
knowingly restrained N.D. under circumstances which exposed her to the risk
of serious bodily injury.
C. The Sentence.
As already noted, defendant was sentenced to a discretionary extended
term of imprisonment as a persistent offender. See N.J.S.A. 2C:44-3(a). That
sentence was imposed after the court found that the State established the
elements of the extended-term statute.
A-0161-23 19 In 2024, while this appeal was pending, the United States Supreme Court
held that "the Fifth and Sixth Amendments generally guarantee a defendant the
right to have a unanimous jury find beyond a reasonable doubt any fact that
increases his exposure to punishment." Erlinger v. United States, 602 U.S. 821,
828 (2024). In Erlinger, the Supreme Court also held that "[v]irtually 'any fact'
that '"increase[s] the prescribed range of penalties to which a criminal defendant
is exposed"' must be resolved by a unanimous jury beyond a reasonable doubt
(or freely admitted in a guilty plea)." Id. at 834 (second alteration in original)
(quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
We have recently applied the holding in Erlinger to N.J.S.A. 2C:44-3(a).
State v. Carlton, 480 N.J. Super. 311, 317 (App. Div. 2024). Specifically, we
held that "a unanimous jury must find beyond a reasonable doubt that all . . . of
the [N.J.S.A. 2C:44-3(a)] factual predicates are present, or the defendant must
admit these predicates as part of a knowing and voluntary waiver of the right to
a jury trial with respect to extended-term eligibility." Id. at 328-29. We also
held that our ruling applied retroactively to pipeline cases, which were pending
on appeal. Id. at 337-38. See also Griffin v. Kentucky, 479 U.S. 314, 328 (1987)
(explaining that "a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or
A-0161-23 20 not yet final, with no exception for cases in which the new rule constitutes a
'clear break' with the past").
In Carlton, we also rejected the State's argument that the harmless
constitutional error doctrine applies to pipeline cases to which Erlinger is
retroactively applied. Carlton, 480 N.J. Super. at 339. We based that holding
on "the Erlinger majority's unambiguous rejection of the notion that
overwhelming evidence obviates the need to have a jury make the decision " that
the elements of an extended-term statute have been met. Id. at 336.
We therefore apply the holding in Erlinger to defendant's direct appeal of
his sentence. We vacate defendant's extended-term sentence and remand for
further proceedings. If the State seeks to impose an extended-term sentence on
remand, the court shall, in the absence of a knowing waiver of defen dant's right
to a jury trial, hold a jury trial limited to the question of whether defendant is a
persistent offender. See N.J.S.A. 2C:44-3(a). The State shall have the burden
of proving, beyond a reasonable doubt, the required elements of the persistent
offender statute.
No matter how the State and defendant elect to proceed on remand,
defendant will have to be resentenced. We, therefore, need not address all of
A-0161-23 21 defendant's other arguments concerning his sentence, but we do provide
guidance on two issues.
First, the sentencing court correctly merged defendant's conviction for
criminal sexual contact into his conviction for sexual assault. See N.J.S.A.
2C:1-8(a). The sentencing court, however, then erred by separately sentencing
defendant to eighteen months in prison and imposing a series of penalties related
to the conviction for criminal sexual contact. The State concedes that that part
of the sentence was improper. Accordingly, at resentencing the conviction for
criminal sexual contact should again be merged into the sexual assault
conviction, but no separate sentence or penalties should be imposed for the
criminal sexual contact conviction. See State v. Tate, 216 N.J. 300, 302 (2013)
(explaining that the "doctrine of merger is based on the concept that 'an accused
[who] committed only one offense . . . cannot be punished as if for two'" (quoting
State v. Davis, 68 N.J. 69, 77 (1975))).
Second, at defendant's resentencing, the sentencing court must re-evaluate
and make express findings of fact concerning the aggravating and mitigating
factors. See State v. Comer, 249 N.J. 359, 404 (2022). The court must also
address the overall fairness of the sentence. See State v. Torres, 246 N.J. 246,
272 (2021).
A-0161-23 22 III.
In summary, we affirm defendant's convictions. We vacate his sentence
and remand for further proceedings, including a new sentencing.
Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
A-0161-23 23