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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1344-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.C.N.,1
Defendant-Appellant. _________________________
Argued October 18, 2021 – Decided November 8, 2021
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-06-2019.
Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Scott M. Welfel, of counsel and on the brief).
Caitlinn Raimo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Acting Essex
1 We use initials to protect the identity of the parties because this matter involves an incident of domestic violence. R. 1:38-3(d)(10). County Prosecutor, attorney; Caitlinn Raimo, of counsel and on the briefs).
PER CURIAM
Defendant D.C.N. appeals from an amended judgment of conviction and
sentence that were entered after a jury found him guilty of second-degree
burglary, N.J.S.A. 2C:18-2, the lesser-included offense of simple assault,
N.J.S.A. 2C:12-1(a), and third-degree terroristic threats, N.J.S.A. 2C:12-3(b).
The trial court sentenced defendant on September 17, 2018, to ten years'
imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
to run consecutively to his seven-year sentence under Indictment Number 15-
01-22I2 for illegal gun possession. We affirm.
I.
Th evidence at trial showed that during the morning of February 8, 2016,
T.B. was at her home in East Orange with her three children: her son, D.I., then
thirteen years old; another son, D.Y., then nine years old; and B.C., an infant,
2 This appeal is calendared for November 1, 2021, under docket number A- 2737-18T4.
A-1344-18 2 defendant's biological daughter.3 As T.B. was getting ready to take her sons to
school that morning, she noticed the tires on her vehicle had been slashed.
T.B. went back inside her home with the children and texted defendant,
who denied slashing her tires. He stated he wanted to come over and bring a
pair of sneakers for B.C., but T.B. told him not to. Defendant responded he was
already parked across the street. T.B. opened her bedroom window and told him
to leave. Eventually, defendant placed the sneakers at the door of T.B.'s
residence and left the premises. Defendant continued to text T.B. and inquired
whether the sneakers fit B.C., and T.B. responded affirmatively.
A short time later, T.B. heard her chihuahua whimpering downstairs in
her house. As she walked down the stairs to tend to her dog, T.B. saw the first-
floor bathroom door close and then open, leading her to suspect someone had
entered her home. T.B. discovered defendant was the intruder, and she retreated
upstairs to her bedroom. She attempted to lock the bedroom door, but defendant
pushed it open, prompting her to call 9-1-1 while holding her phone behind her
back to avoid defendant seeing it. T.B. was hopeful that the 9-1-1 operator
3 D.I. and D.Y. have the same initials, D.E., so they are referred to by the first two letters of their respective first names for clarity purposes. B.C. is an abbreviation of the child's nickname, which is how the witnesses referred to her in their testimony. A-1344-18 3 would hear the interaction with defendant and dispatch officers to the scene to
assist her.
Defendant began yelling and cursing at T.B., accusing her of sleeping with
another man. T.B. asked D.I., who had been feeding B.C. in the room, to leave
so he would not hear defendant's profane language. Defendant then abruptly
punched T.B. in the left temple, causing her to see "white, like a bright, bright
white, and . . . it took [her] some time to . . . collect [her]self." T.B. later ended
up in a shelter, where she photographed her face, including her eye and temple
area, the day after the incident. The photograph depicted a black eye and a
"knot," which T.B. testified persisted at the time of trial.
Defendant then pulled up his pant leg, revealing a knife, and said "I came
here to slash your throat and kill you." T.B. grabbed defendant's hands and
looked him in the eyes in an attempt to calm him down. She also called for her
sons to come in the room hoping they would help her to calm defendant. The
sons' presence did not alleviate defendant's agitated state, therefore, T.B. told
the children to leave and return to their room.
T.B. and defendant then "went into another room," and he "kept shushing
for [T.B.] to be quiet." T.B. noticed defendant was wearing latex gloves, which
frightened her. She said to defendant "well, since you said you did not slash the
A-1344-18 4 tires can you please help me fix it[?] Let's go outside." After defendant walked
out of the house, T.B. quickly telephoned her mother and told her to call the
police. Defendant returned to get T.B. and the two walked outside towards her
vehicle.
Less than five minutes later, the police arrived at the scene. Officer
Clothy Isabel Ortiz approached T.B. and defendant, who were inspecting T.B.'s
tires. Officer Ortiz remained separated from the two by a small fence and asked
T.B. whether she was all right. Because T.B. was concerned defendant could
still attack her before Officer Ortiz could react and navigate the fence, T.B.
verbally responded that everything was fine but gave the Officer a look of panic.
Officer Ortiz noted that T.B.'s tires were slashed, recognized the "fear in her
eyes," and moved T.B. away from defendant so they could speak privately. T.B.
pulled back her hair and showed Officer Ortiz the bruise on her face where
defendant had punched her and told the Officer she was "scared [defendant]'s
gonna kill me." Officer Ortiz signaled to her partner, Officer Eric Rodriguez,
to stand by defendant. Officer Rodriguez detained defendant and performed a
protective pat down search, which revealed latex gloves, but no knife or other
weapon on his person.
A-1344-18 5 T.B. and Officer Ortiz entered the home, and the Officer noted the door
to the back of the house had been broken into, evidenced by the broken lock.
Upon exiting the home, Officer Ortiz signaled to Officer Rodriguez to place
defendant under arrest. Officer Ortiz then reentered the home and T.B.
explained the interactions that had taken place earlier in the day with defendant.
Officer Ortiz asked T.B. to gather her children, which she did, and they left
together. Officer Rodriguez transported defendant to police headquarters, where
he was interviewed by Detective Phillip Reed. Defendant gave a statement after
waiving his Miranda4 rights.
T.B. and her children arrived at police headquarters with Officer Ortiz,
who encouraged her to find a safe place to stay. T.B. asked for assistance in
obtaining a restraining order against defendant and temporary housing.
Ultimately, Officer Ortiz found a shelter for T.B. and her children. At the
shelter, T.B. experienced difficulty eating because her bottom teeth felt loose
because of the blow to her temple.
Defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2
(count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count
two); two counts of second-degree endangering the welfare of a child, N.J.S.A.
4 Miranda v. Arizona, 384 U.S. 436 (1966). A-1344-18 6 2C:24-4(a) (counts three and four); third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a) (count five); and third-degree terroristic threats,
N.J.S.A. 2C:12-3(b) (count six).
Prior to trial, the court conducted a Rule 104 hearing to ascertain the
admissibility of defendant's statements to the police and the validity of his
Miranda waiver, which were denied and are not challenged on appeal. Officers
Ortiz and Rodriguez, T.B., D.I., and D.Y. testified at trial. Initially, defendant
chose to testify, but after further consultation with his counsel, he decided
against doing so. After the State rested, defendant moved for a judgment of
acquittal as to each of the six counts of the indictment. The trial court granted
the motion as to counts three, four, and five, and denied the motion as to counts
one, two, and six.
On May 2, 2018, the jury was charged and began deliberating. The
following day, juror number one was discharged for medical reasons and
replaced by alternate juror number three. The next day, at 4:05 p.m., the jury
foreperson sent a note to the court indicating a verdict had been reached. The
foreperson read the verdict in open court, finding defendant guilty of count one
(burglary), guilty of the lesser-included offense of simple assault as to count
two, and guilty on count six (terroristic threats). In addition, the foreperson
A-1344-18 7 indicated the verdict was unanimous; however, when the court polled the jury,
juror number three replied "I'm not sure" when asked whether that juror agreed
with the verdict.
The trial court then asked the jury to return to the jury room for further
deliberations. At 5:07 p.m. a verdict had yet to be reached, prompting the trial
court to bring the jury back into the courtroom. They were instructed:
You're going to go back into the jury room and you're going to write me a note. And that note is going to say one of two words; stay or go. Stay the [c]ourt will take to mean that you believe it may be fruitful to stay now. Go would mean you're coming back tomorrow at 9:00. Those are the alternatives; stay or go. Please go into the jury room and we will await your note.
At 5:15 p.m. the jury returned a note reading "stay," and at 5:25 p.m. the jury
returned another note indicating a verdict had been reached. The verdict
matched the one previously announced, and this time all of the jurors indicated
they agreed with the verdict.
Defendant was sentenced and this appeal ensued. On appeal, defendant
presents the following arguments for our consideration:
POINT I
THE COURT'S RESPONSE TO THE NONUNANIMOUS VERDICT—OUTING JUROR [THREE] AS THE SOLE DISSENTER, FAILING TO
A-1344-18 8 GIVE A CZACHOR5 CHARGE, AND ASKING THE JURORS IF THEY WANTED TO DELIBERATE PAST 5:00 P.M.—WAS COERCIVE. (Not Raised Below).
POINT II
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS, WHICH WAS CLEARLY INDICATED BY THE EVIDENCE. (Not Raised Below).
POINT III
A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE TRIAL COURT ERRED IN FINDING AND WEIGHING AGGRAVATING FACTORS THREE, NINE, AND FOURTEEN, AND FAILED TO ASSESS THE FAIRNESS OF THE OVERALL SENTENCE AS PART OF ITS YARBOUGH6 ANALYSIS.
A. The Court's Finding Of Aggravating Factor Fourteen Was Error Because T.B.'s Children Were Not Present During The Assault Or Threats.
B. The Court[] Failed To Assess The Fairness Of The Overall Sentence As Part Of Its Yarbough Analysis.
C. Once The Court Had Determined To Run This Sentence Consecutive To The Sentence For Indictment 15-01-222-I, It Erred In Relying On Aggravating
5 State v. Czachor, 82 N.J. 392 (1980). 6 State v. Yarbough, 100 N.J. 627 (1985). A-1344-18 9 Factors Three And Nine To Justify A Top-Range Sentence.
II.
Defendant's first point on appeal claims that the trial court 's reaction to
juror number three responding "not sure" when polled was unduly coercive.
Specifically, defendant asserts the trial court pressured juror number three by:
(1) polling the other jurors and publicly outing juror number three as the sole
dissenter; (2) directing the jury to continue deliberating without giving a
Czachor7 charge; and (3) interrupting deliberations by directing the jury to return
a note indicating "stay" or "go."
Since defendant did not raise these arguments at trial, he must prove plain
error that was "clearly capable of producing an unjust result." R. 2:10-2. "Plain
error is a high bar." State v. Santamaria, 236 N.J. 390, 404 (2019). "The 'high
7 The charge is given to the jury when the court is informed they may be deadlocked. See State v. Ross, 218 N.J. 130, 143-45 (2014); State v. Figueroa, 190 N.J. 219, 231-39 (2007). Usually, upon being so notified, a court will charge the jury in accordance with the Model Jury Charge (Criminal), "Judge's Inquiry When Jury Reports Inability to Reach Verdict" (2013), as follows:
You have indicated that your deliberations have reached an impasse. Do you feel that further deliberations will be beneficial, or do you feel that you have reached a point at which further deliberations would be futile? Please return to the jury room to confer, and advise me of your decision in another note. A-1344-18 10 standard' used in plain error analysis 'provides a strong incentive for counsel to
interpose a timely objection, enabling the trial court to forestall or correct a
potential error.'" Ibid., (quoting State v. Bueso, 225 N.J. 193, 203 (2016)).
Where a defendant raises a new issue on appeal, he "bears the burden of
establishing that the trial court's actions constituted plain error." Id. at 404-05.
A trial court is not prohibited from interrupting deliberations to inquire
about time-management concerns. See State v. Barasch, 372 N.J. Super. 355,
361-62 (App. Div. 2004). Whether the interruption amounted to coercion must
be examined on a case-by-case basis. Id. at 362. As a general matter, coercion
will more likely happen when the court sets or implies a deadline for
deliberations. See State v. Nelson, 304 N.J. Super. 561, 566 (App. Div. 1997).
When the court simply inquires about the anticipated amount of time a jury will
need to continue deliberations, coercion is less likely. See State v. Tarlowe, 370
N.J. Super. 224, 238 (App. Div. 2004).
The right to a unanimous verdict is an essential component of the
defendant's right to a jury trial. State v. Milton, 178 N.J. 421, 431 (2004); see
also R. 1:8-9 (establishing that verdicts in all criminal actions must be
unanimous). "Further, under New Jersey [l]aw[,] it is well[-]established that
'the accused has an absolute right to have the jury polled.'" State v. Rodriguez,
A-1344-18 11 254 N.J. Super. 339, 349 (App. Div. 1992) (quoting State v. Schmelz, 17 N.J.
227, 232 (1955)). Rule 1:8-10 governs situations such as this. The rule states:
Before the verdict is recorded, the jury shall be polled at the request of any party or upon the court's motion . . . . If the poll discloses that there is not unanimous concurrence in a criminal action . . . the jury may be directed to retire for further deliberations or discharged.
While it is appropriate "to inquire of the jury whether further deliberations
will likely result in a verdict . . . it is not always necessary for the trial court to
do so." Figueroa, 190 N.J. at 240 (citations omitted). Moreover, a "[f]ailure to
timely object to either the lack of a poll of the jurors or a defect in the polling
constitutes a waiver of rights." Rodriguez, 254 N.J. Super. at 349 (citing State
v. Ward, 57 N.J. 75, 79 (1970)); see also Figueroa, 190 N.J. at 241 n. 10 (noting
a defendant's "fail[ure] to object to the charge when given, result[s] in [the
appellate court's] application of a plain error analysis.").
A trial court also has discretion "to decide whether repeating the [jury]
charge [on further deliberations] is appropriate when a jury . . . is unable to
agree." Id. at 235. The decision can be based on "such factors as the length and
complexity of trial and the quality and duration of the jury's deliberations."
Czachor, 82 N.J. at 407. In State v. DiFerdinando, 345 N.J. Super. 382, 393
A-1344-18 12 (App. Div. 2001), we concluded that two days and one hour of deliberations did
not constitute a sufficient length of time to require a repeated Czachor charge.
Here, the trial court posed a question to both parties as to whether they
wanted the jury to return to the jury room to deliberate on May 3, and both
parties agreed. The record shows the trial court and counsel for each party
agreed to inquire of the jury whether they wanted to stay and continue
deliberating or leave and return the next day, and neither party objected. After
the court advised the jury of their choice, the parties each indicated they had no
objection to the process. Polling the entire jury was appropriate here and
permitted the trial court to make its discretionary decision as to further
deliberations. Under these circumstances, there was nothing inappropriate about
the court's comments or procedure and there was no plain error. We have no
doubt the trial court asked the note to be returned with "stay" or "go" solely for
"trial management reason[s]" and out of "courtesy" to the jury. Barasch, 372
N.J. Super. at 362.
Moreover, the trial court was not obliged to repeat the Czachor charge.
This was a relatively short trial—less than two full days of testimony. The trial
court provided the jury with a copy of the charge during their deliberations. The
jury had barely been deliberating for one day, and there was no indication they
A-1344-18 13 were intensely deadlocked. In any event, "[n]o matter how complicated the case,
brevity in jury deliberations is not, in itself, a basis for scuttling a verdict."
Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1383 (1st Cir.
1991) (denying relief where deliberations lasted fifteen minutes) (citations
omitted); accord U.S. v. Cunningham, 108 F.3d 120, 123 (7th Cir. 1997)
(denying relief where deliberations lasted ten minutes); Paoletto v. Beech
Aircraft Corp., 464 F.2d 976, 983 (3d Cr. 1972). "Brief deliberation, by itself,
does not show that the jury failed to give full, conscientious or impartial
consideration to the evidence." Wilburn v. Eastman Kodak Co., 180 F.3d 475,
476 (2d Cir. 1999) (denying relief where deliberations lasted twenty minutes);
see, e.g., Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 292 (App. Div.
2016). Because defendant fails to show the trial court was obligated to reiterate
the Czachor charge, there was no plain error. See R. 2:10-2.
III.
Defendant also argues, for the first time on appeal, that the trial court erred
in failing to instruct the jurors on criminal trespass, a lesser-included charge of
burglary. Defendant contends he entered T.B.'s home to see if the sneakers he
dropped off for B.C. fit, thus, he was not entering the home with the intent to
commit a crime, an element of the burglary charge. Again, we disagree.
A-1344-18 14 At the outset, we observe that "[w]hen a defendant fails to object to an
error or omission [about a jury charge] at trial, we review for plain error . . . .
'unless it is of such a nature as to have been clearly capable of producing an
unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2).
Reversal is warranted only where an error raises "a reasonable doubt . . . as to
whether the error led the jury to a result it otherwise might not have reached."
Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
"The mere possibility of an unjust result is not enough." Ibid. In our review of
a trial judge's instructions, if a defendant does not object to an instruction at
trial, we "presume[] that the instructions were adequate." State v. Belliard, 415
N.J. Super. 51, 66 (App. Div. 2010) (quoting State v. Morais, 359 N.J. Super.
123, 134-35 (App. Div. 2003)).
In its jury charges, a "trial [judge] must give 'a comprehensible
explanation of the questions that the jury must determine, including the law of
the case applicable to the facts . . . the jury may find.'" State v. Baum, 224 N.J.
147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
Accordingly, "the [judge] has an 'independent duty . . . to ensure that the jurors
receive accurate instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by either party.'"
A-1344-18 15 Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)).
"[I]f the parties do not request a lesser-included offense charge, reviewing
courts 'apply a higher standard, requiring the unrequested charge to be "clearly
indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting
State v. Alexander, 233 N.J. 132, 143 (2018)). Further, there must be a rational
basis "to acquit defendant of the greater[-included] offense," before a court is
required to deliver the lesser charge. N.J.S.A. 2C:1-8(e); see e.g., State v.
Denofa, 187 N.J. 24, 41-42 (2006). As such,
[t]he "clearly indicated" standard does not require trial [judges] either to "scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty," or "'to meticulously sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain' a lesser charge." Instead, the evidence supporting a lesser- included charge must "jump[] off the page" to trigger a trial [judge's] duty to sua sponte instruct a jury on that charge.
[Alexander, 233 N.J. at 143 (third and fourth alterations in original) (citations omitted).]
It is well settled that criminal trespass is a lesser-included offense of
burglary. State v. Clarke, 198 N.J. Super. 219, 225-26 (App. Div. 1985). Both
criminal trespass and burglary require the State to establish that a defendant
A-1344-18 16 entered a structure without a license or privilege to do so. See N.J.S.A. 2C:18-
2; N.J.S.A. 2C:18-3(a). Burglary, however, requires proof of an additional
element: that the defendant enter the structure with the intent to commit an
offense therein. See N.J.S.A. 2C:18-2; State v. Singleton, 290 N.J. Super. 336,
341 (App. Div. 1996).
Our review of the record reveals no rational basis permitting a jury to
convict defendant of fourth-degree criminal trespass under N.J.S.A. 2C:18-3(a)
instead of burglary, N.J.S.A. 2C:18-2. Defendant presented no evidence to
support his theory that his purpose in entering T.B.'s home was to ensure the
sneakers he dropped off for B.C. fit her properly. The record shows defendant
was previously told by T.B. that the sneakers fit. And, prior to charging the
jury, the trial court spoke informally with counsel for each party and counsel
agreed "there would be no rational basis" to include "criminal trespass as a lesser
included offense of the burglary count or harassment as [the] lesser included
offense of the terroristic threats count."
Based on this consensus, the trial court stated, "then because of the parties'
positions and their views of the evidence, there would be no sua sponte
obligation for the [c]ourt to charge those lesser[-included offenses] and the
[c]ourt did not." Applying the principles enunciated earlier, we find no error in
A-1344-18 17 the court's failure to charge fourth-degree criminal trespass under N.J.S.A.
2C:18-3(a) because we are not convinced the evidence clearly indicated the
appropriateness of the charge.
IV.
Finally, defendant claims the sentencing court erred in finding
aggravating factors two (N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of
the harm defendant inflicted on the victim); three (N.J.S.A. 2C:44-1(a)(3) (the
risk defendant will commit another offense); six (N.J.S.A. 2C:44-1(a)(6) (the
extent of the defendant's prior criminal record and the seriousness of the
convicted offenses); nine (N.J.S.A. 2C:44-1(a)(9) (the need for deterring
defendant others from violating the law); and fourteen (N.J.S.A. 2C:44-1(a)(14)
(the need to deter defendant and others from violating the law), and failed to
consider the Yarbough guidelines that are used to determine whether to impose
concurrent or consecutive sentences. 8 In the matter under review, defendant was
sentenced to an aggregate term of ten years' imprisonment subject to NERA to
run consecutively to his seven-year term with a three-and-a-half period of parole
ineligibility under Indictment Number 15-01-22I. On September 26, 2018, the
8 Defendant submitted a supplemental brief on May 17, 2021, referencing our Court's recent opinion in State v. Torres, 246 N.J. 246 (2021). A-1344-18 18 trial court issued an amended judgment of conviction to remove jail credit
previously and erroneously awarded contrary to State v. C.H., 228 N.J. 111
(2017). In his supplemental brief, defendant argues the holding in Torres should
be applied retroactively to his case and entitles him to a new sentencing hearing.
The scope of our review of sentencing decisions is narrow. As a general
matter, sentencing decisions are reviewed under a highly deferential standard.
See State v. Roth, 95 N.J. 334, 364-65 (1984) (holding that an appellate court
may not overturn a sentence unless "the application of the guidelines to the facts
of [the] case makes the sentence clearly unreasonable so as to shock the judicial
conscience.") Our review is therefore limited to considering:
(1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State v. McGuire, 419 N.J. Super. 88, 158 (App. Div. 2011)).]
"[A]ppellate courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.
Lawless, 214 N.J. 594, 606 (2013)). Similarly, a trial court's exercise of
A-1344-18 19 discretion that is in line with sentencing principles "should be immune from
second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).
We first address whether the sentencing court erred in directing the
sentence imposed under Indictment Number 16-06-2019 be served
consecutively to the sentence imposed under Indictment Number 15-01-22I on
the gun possession conviction. In Yarbough, the Supreme Court noted "there
can be no free crimes in a system for which the punishment shall fit the crime."
100 N.J. at 643. The Court listed relevant considerations, including whether:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[Id. at 644.]
In Torres, our Court reiterated "that while Yarbough guides a court's
sentencing decision, it does not control it." 264 N.J. at 269. That conclusion
A-1344-18 20 comports with the major tenet in State v. Cuff, a sentencing court's focus "should
be on the fairness of the overall sentence." 239 N.J. 321, 352 (2019) (citing
State v. Miller, 108 N.J. 112, 121 (1987)); see also Torres, 246 N.J. at 270
(holding an "evaluation of the fairness of the overall sentence is 'a necessary
feature in any Yarbough analysis.'" (quoting Cuff, 239 N.J. at 352)). We agree
with the sentencing court that in the particular circumstances of this case, the
criminal act of illegal gun possession was independent of the charges the jury
found defendant guilty of in the present matter and is supported by our Court's
holdings in Yarbough and Torres.
Here, the sentencing court properly addressed and analyzed each
aggravating and mitigating factor, finding the aggravating factors preponderated
and no mitigating factors applied. We discern no abuse in the sentencing court's
discretion nor did the sentence it imposed shock our judicial conscience. The
court sentenced defendant in accordance with the sentencing guidelines. We
have no cause to disturb defendant's sentence.
To the extent we have not addressed any of defendant's arguments, it is
because we have concluded they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1344-18 21