NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3706-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN N. MAHONEY,
Defendant-Appellant. __________________________________
Submitted May 8, 2018 – Decided July 19, 2018
Before Judges Reisner, Hoffman and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-0996.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant John N. Mahoney appeals from a March 15, 2016
judgment of conviction, after a jury found defendant guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a), possession of
weapons for unlawful purposes, N.J.S.A. 2C:39-4(a), and hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4). At
sentencing, the trial judge imposed the following prison terms:
twenty-years, with an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-
7.2, for aggravated manslaughter; a concurrent five years with
three-years parole ineligibility for possession of a weapon; and
a consecutive four years for hindering.
Defendant presents the following arguments for our review:
POINT ONE
THE TRIAL COURT'S REPEATED ADMISSION OF OTHER CRIMES EVIDENCE WITHOUT CONDUCTING A HEARING PURSUANT TO N.J.R.E. 104 AND WITHOUT THE NECESSARY LIMITING INSTRUCTION DENIED DEFENDANT A FAIR TRIAL.
POINT TWO
THE JURY INSTRUCTION ON SELF-DEFENSE WAS PLAINLY ERRONEOUS AS IT LIMITED THE DEFENSE TO THE MURDER AND WEAPONS OFFENSES AND BECAUSE IT WRONGFULLY INSTRUCTED ON THE DUTY TO RETREAT. (PARTIALLY RAISED BELOW)
POINT THREE
EVIDENCE OF STATEMENTS FROM NON-WITNESSES WAS IMPROPERLY ADMITTED.
2 A-3706-15T3 POINT FOUR
DEFENDANT WAS PREJUDICED BY THE ADMISSION OF TESTIMONY BY THE STATE'S EXPERT WHICH WAS NOT CONTAINED IN HIS REPORT.
POINT FIVE
THE PROSECUTOR'S SUMMATION IMPROPERLY DENIGRATED THE DEFENSE EXPERT. (Not Raised Below)
POINT SIX
DEFENDANT'S TWENTY YEAR NO EARLY RELEASE SENTENCE WITH A CONSECUTIVE FOUR YEAR TERM FOR HINDERING CONSTITUTED AN EXCESSIVE SENTENCE.
We affirm defendant's conviction and sentence on the
aggravated manslaughter and hindering counts, but remand for the
trial court to vacate the sentence imposed on the unlawful
possession of a weapon count, which the court merged. We first
generally describe the facts surrounding the crimes, then address
each of defendant's specific arguments, and their attendant facts,
in turn.
I
On the morning of December 27, 2007, defendant called police
and reported that an intruder shot him and his father in their
home. When police arrived, they found defendant's father lying
dead in a reclining chair in the living room, with his feet up and
a blanket over him, and three gunshot wounds to the right side of
3 A-3706-15T3 his head. While defendant sustained a gun-shot wound in the left
arm, police observed a "muzzle-burn" on his skin.
After receiving medical treatment at a nearby hospital,
defendant spoke to police, who described him as calm and relaxed.
Notably, defendant never asked about his father.
Police took defendant back to the police station to take a
recorded statement. Defendant told police he went to dinner with
a friend the previous evening, then played computer games and
instant messaged another friend until about 7:00 a.m. At
approximately 7:30 a.m., defendant heard gunshots, ran into the
living room, struggled with the intruder, who shot him in the arm,
then disarmed the intruder and fired at him as the intruder fled
out the back door.
While taking defendant's statement, the police learned of
conflicting crime scene evidence and that defendant's gunshot
wound appeared self-inflicted. They immediately read him his
Miranda1 rights and began interrogating him. Defendant adhered to
his story for more than three hours and told officers he and his
father had a good relationship and his father never abused him.
He denied accidentally shooting his father, as police suggested.
Eventually, defendant admitted to having some problems with his
1 Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-3706-15T3 father over football and school. He stated he had been thinking
about killing his father for some time, but had abandoned the
idea.
As the interrogation continued, defendant told police he had
gone into the kitchen while his father slept, picked up a gun he
knew was loaded, and without realizing the safety was off, pulled
the trigger, causing the gun to discharge into the hallway. His
father woke up and defendant pointed the gun at him and shot him
for "no reason." Then defendant said he shot his father because
he yelled and it startled him. Defendant claimed he fired so
quickly his father had no time to move after he opened his eyes
and yelled out. Thereafter, he shot himself in an effort to cover
up what he had done.
Defendant then told police his father abused him and it was
more than he "could live with." He claimed his father "went
beserk" after the gun went off, and he thought, "I've got to get
rid of him." The police arrested defendant and charged him with
murder. After indictment and trial, the jury found him guilty of
the lesser-included offense of aggravated manslaughter, along with
illegal possession of a weapon and hindering.
II
Defendant first contends he did not receive a fair trial
because the trial court erred by allowing the State to admit prior
5 A-3706-15T3 bad acts evidence on multiple occasions, without holding a hearing
or providing the jury with a limiting instruction. We disagree.
"Appellate courts generally defer to trial court rulings on
the admissibility of evidence of other crimes, unless those rulings
constitute an abuse of discretion." State v. Erazo, 126 N.J. 112,
131 (1991) (citation omitted). Where there has been no objection
to the admission of inadmissible hearsay testimony, an appellate
court must consider whether the error was "clearly capable of
producing an unjust result." R. 2:10-2; State v. Branch, 182 N.J.
338, 353 (2005).
Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided
by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith." However,
"[s]uch evidence may be admitted for other purposes, such as proof
of 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). "The
underlying danger of admitting other-crime evidence is that the
jury may convict the defendant because he is 'a "bad" person in
general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting
State v. Gibbons, 105 N.J. 67, 77 (1987)).
6 A-3706-15T3 A four-prong test guides the admissibility of evidence of
other crimes or wrongs:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 338 (citation omitted).]
Here, the trial court allowed testimony regarding several
prior bad acts including testimony about defendant being lazy,
going to a strip club, soliciting the housekeeper and his father's
girlfriend for sex, selling alcohol in high school, and breaking
into an ATM. The court also permitted the State to cross-examine
defendant regarding a statement that he kept a short list of people
he knew that he was not planning to murder. Finally, the court
allowed a conversation between defendant and a friend, who was
accused of theft, in which defendant told the friend he should
plan ahead when committing theft so as not to get caught.
Defense counsel objected to some of that testimony, but not
all. The State argued the testimony was admissible to rebut the
claim that defendant was afraid of his father, that he did not
have the characteristics of a battered child, that he was
7 A-3706-15T3 financially-motivated to murder his father, or his willingness to
devise a plan. In many of the objections, the court considered
the relevancy, the probative versus prejudicial impact, and when
the bad acts occurred. Defense counsel did not request any
limiting instructions.
We find the testimony regarding selling alcohol at school and
planning to break into an ATM admissible under N.J.R.E. 404(b) as
proof that defendant had a financial motive to kill his father.
The testimony regarding the list of people and the conversation
with the friend concerning how to plan a theft are also admissible
under N.J.R.E. 404(b) as proof that defendant was planning his
father's murder.
The State contends it offered the testimony regarding
defendant's laziness, going to a strip club, and solicitation of
sex to rebut defendant's argument that he was afraid of his father.
Although rebuttal of self-defense evidence is not explicitly
listed in N.J.R.E. 404(b), the statute uses the language "such
as," indicating evidence can be admitted for purposes other than
those listed "when such matters are relevant to a material issue
in dispute." Here, defendant argues he killed his father in self-
defense because he was afraid of him. Therefore, the State is
entitled to admit evidence of specific acts showing defendant was
not afraid of his father.
8 A-3706-15T3 Consideration of the Cofield factors supports admissibility
as well. All of the acts are relevant to material issues, as
previously noted. The evidence is clear and convincing as there
are documented conversations and credible witnesses. All of the
acts occurred not long before the killing; however, the acts are
not particularly similar to the crime committed. Although the
testimony likely had some prejudicial effect, the trial court did
not clearly abuse its discretion in allowing the testimony.
Furthermore, defendant received a rather favorable verdict
considering defendant shot his father while he sat in a recliner
with a blanket around him, strongly suggesting any error did not
produce an unjust result. Accordingly, we conclude the trial
court did not abuse its discretion in admitting the evidence to
rebut various aspects of the defense, and any error was harmless.
III
Defendant next contends the trial court committed plain error
in its charge on self-defense. Specifically, defendant argues the
jury charge should have explicitly stated self-defense was
available for both murder and all lesser-included offenses. We
disagree that these circumstances required such explicit
instruction.
When a defendant fails to object to a jury charge, we review
for plain error, and "disregard any alleged error 'unless it is
9 A-3706-15T3 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). Plain error in jury charges is "[l]egal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant and sufficiently grievous to justify notice
by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust
result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration
in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
In reviewing any claim of error relating to a jury charge,
"[t]he charge must be read as a whole in determining whether there
was any error." State v. Torres, 183 N.J. 554, 564 (2005) (citing
State v. Jordan, 147 N.J. 409, 422 (1997)). In addition, "[t]he
error must be considered in light of the entire charge and must
be evaluated in light 'of the overall strength of the State's
case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State
v. Chapland, 187 N.J. 275, 289 (2006)). Furthermore, counsel's
failure to object to jury instructions "gives rise to a presumption
that he did not view [the charge] as prejudicial to his client's
case." State v. McGraw, 129 N.J. 68, 80 (1992).
Our Supreme Court "held that a person who acts in self-defense
and 'kills in the honest and reasonable belief that the protection
10 A-3706-15T3 of his [or her] own life requires the use of deadly force' cannot
be convicted of murder, aggravated manslaughter, or manslaughter."
State v. O'Neil, 219 N.J. 598, 601 (2014) (quoting State v.
Rodriguez, 195 N.J. 165, 172 (2008)). "Where the evidence could
support self-defense as the justification for a homicide, the
trial court must tell the jury that self-defense is a complete
defense to aggravated and reckless manslaughter as well as to
murder." State v. Gentry, 439 N.J. Super. 57, 67 (App. Div. 2015)
(citing Rodriguez, 195 N.J. at 174-75).
Here, defense counsel did not formally object to the jury
instructions; however, he did raise a concern during a preliminary
charge conference that the jury may not understand that self-
defense applies to all charges except hindering. The trial court
generally advised the jury that it had to acquit defendant if it
found he acted in self-defense. Additionally, defense counsel
made it clear in his summation that self-defense applied equally
to the lesser-included offenses to murder. Furthermore, defendant
did not have a viable self-defense claim as his father was unarmed
and sitting in a recliner with a blanket tucked around him;
therefore, Rodriguez did not require the trial court to inform the
jury explicitly that self-defense applies to manslaughter as well
as murder. Accordingly, we find no error in the jury instructions
regarding self-defense.
11 A-3706-15T3 Defendant also argues the trial court erroneously instructed
the jury on the requirement to retreat. Specifically, defendant
claims the court incorrectly instructed the jury that defendant
had a duty to retreat in his own home. We disagree.
According to N.J.S.A. 2C:3-4(b)(2), "[t]he use of deadly
force is not justifiable . . . unless the actor reasonably believes
that such force is necessary to protect himself [or herself]
against death or serious bodily harm . . . ." Furthermore, the
use of deadly force is not justifiable if "[t]he actor knows that
he [or she] can avoid the necessity of using such force with
complete safety by retreating," except "[t]he actor is not obliged
to retreat from his [or her] dwelling, unless he [or she] was the
initial aggressor . . . ." N.J.S.A. 2C:3-4(b)(2)(b)(i).
Here, the court omitted from its charge the exception to the
duty to retreat that defendant was "not obliged to retreat from
his dwelling." Defense counsel failed to object. We find no
plain error because defendant was the aggressor here, and
therefore, had a duty to retreat even though he was in his own
home. See N.J.S.A. 2C:3-4(b)(2)(b)(i). Again, defendant's father
was unarmed and sitting in a recliner with a blanket around him
at the time of the shooting, indicating he was not the aggressor.
There was no threat of death or serious bodily injury at that
moment, and therefore no need for defendant to protect himself
12 A-3706-15T3 with deadly force. Accordingly, we reject defendant's argument
that the trial court committed plain error in its jury charge
regarding the duty to retreat.
IV
Defendant contends the trial court committed reversible error
in admitting testimony from the investigator that he spoke to
several unnamed persons during the investigation, all of whom told
him they had no knowledge of defendant's father abusing him.
Again, we disagree.
Our standard of review on evidentiary rulings is abuse of
discretion. State v. Weaver, 219 N.J. 131, 149 (2014). We only
reverse those "rulings that undermine confidence in the validity
of the conviction or misapply the law . . . ." Ibid.
Consequently, we do "not substitute [our] own judgment for that
of the trial court, unless 'the trial court's ruling is so wide
of the mark that a manifest denial of justice resulted.'" State
v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170
N.J. 138, 147 (2001)).
First, defendant argues the investigator's testimony was
inadmissible hearsay. N.J.R.E. 801(c) defines hearsay as "a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted." "[W]here statements are offered, not for
13 A-3706-15T3 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 thereof, the statements are not deemed inadmissible
hearsay." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376
(2007) (citation omitted). However, when the court admits such
evidence, it should provide the jury with a limiting instruction
regarding the proper use of the evidence. State v. Maristany, 133
N.J. 299, 309-10 (1993).
Second, defendant argues he was denied a fair trial because
he was denied the right to confront the witnesses against him.
The Sixth Amendment to the United States Constitution provides
that "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him . . . ." U.S. Const. amend. VI. The text of our state
constitution contains the same language. N.J. Const. art. I, ¶
10.
Here, the trial court allowed the investigator to testify as
to what witnesses told him regarding whether defendant's father
abused defendant. Defense counsel objected on hearsay grounds,
and the State argued it elicited the testimony not for its truth,
but rather to show why the investigation proceeded the way it did.
Furthermore, the State later called several witnesses who
testified they never saw defendant's father abuse defendant. The
14 A-3706-15T3 trial court allowed the testimony; however, it failed to provide
a limiting instruction to the jury.
Although the investigator's statements may have been
inadmissible and the court did not provide a limiting instruction,
we find no prejudice to defendant in allowing them. The State
later elicited the same testimony from witnesses, who defendant
had the opportunity to confront. Accordingly, we find any error
harmless.
V
Defendant contends he was denied a fair trial when the trial
court permitted the State's expert to offer testimony on matters
not addressed in his report. We are not persuaded.
"The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court." Townsend v. Pierre,
221 N.J. 36, 52 (2015) (citing State v. Berry, 140 N.J. 280, 293
(1995)). Specifically, "[t]rial judges have discretion to
preclude an expert from testifying to opinions not contained in
his or her report or in any other discovery material." Anderson
v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div.
2010) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super. 197,
202 (App. Div. 1990)). We will only reverse the decision of the
trial court for an abuse of that discretion. Townsend, 221 N.J.
at 53.
15 A-3706-15T3 Here, the testimony in question deals with a tape recording
of an argument between defendant and his father allegedly showing
abuse. Neither the defense expert nor the State's expert included
the recording in their reports because a clear version of the
recording was not initially available. First, the defense expert
attempted to testify regarding the recording and the State
objected. The court allowed the defense expert to testify that
he listened to the tape, it assisted him in assessing defendant's
credibility, and the content supported the defense's abuse theory.
Next, the State's expert began to testify regarding the
recording. Defense counsel objected on the same grounds that he
did not include the recording in his report. The court ruled the
State could ask the expert about what he heard, but not ask him
how the enhanced tape affected his opinion. The court then
instructed the jury to strike the expert's prior testimony
regarding the recording and not use it in deliberations.
Subsequently, the State only asked the expert if he listened to
the recording, and did not elicit any testimony regarding his
opinion of the recording.
The trial court precluded the State's expert from offering
an opinion regarding the recording. Furthermore, the court allowed
the defense expert to offer his opinion on the recording despite
16 A-3706-15T3 not including it in his report. Accordingly, we reject defendant's
contention he was denied a fair trial.
VI
Defendant contends he was denied a fair trial when the
prosecutor improperly denigrated the defense expert. We disagree.
"[P]rosecutors in criminal cases are expected to make
vigorous and forceful closing arguments to juries." State v.
Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J.
525, 559 (1995)). They are "afforded considerable leeway in
closing arguments as long as their comments are reasonably related
to the scope of the evidence presented." Ibid. (citations
omitted). Prosecutors "may comment on facts in the record and
draw reasonable inferences from them . . . ." State v. Lazo, 209
N.J. 9, 29 (2012) (citing State v. Smith, 167 N.J. 158, 178
(2001)). However, "prosecutors should not make inaccurate legal
or factual assertions during a trial . . . ." State v. Reddish,
181 N.J. 553, 641 (2004) (quoting Smith, 167 N.J. at 178). Nor
may prosecutors denigrate the defense. Lazo, 209 N.J. at 29
(citing Frost, 158 N.J. at 86).
Here, in her summation, the prosecutor: (1) argued the defense
expert was not qualified to give opinions on post-traumatic stress
disorder because his background was largely in education; (2)
repeated several times that the expert's opinions could not be
17 A-3706-15T3 trusted because he was on a "mission" to make a finding consistent
with the defense, and ignored all contradictory evidence; and (3)
argued the evidence did not support the expert's conclusion that
defendant suffered from post-traumatic stress disorder. Defense
counsel made no objection to the prosecutor's summation.
Defense counsel also made questionable remarks during his
summation: (1) he mocked the State's expert's statement that he
failed to see how a well-trained police officer would point a gun
at anyone let alone his son, asking "[does] he read the papers?";
(2) he described as "ridiculous" and "preposterous" the expert's
opinion that defendant's father had good intentions for defendant
in pushing him to play football; (3) he asserted that, unlike the
State's expert who was simply an "advocate" for the State, the
defense expert was "painfully" honest and answered questions
truthfully; (4) he disparaged as "ridiculous" the State's expert's
statement that defendant had many friends; (5) he claimed the
expert did not want to talk to defendant's mother because she
might have said something that "wouldn't fit" with his theory that
defendant had carried out a long-term plan; (6) he asserted the
expert distorted the facts surrounding defendant's childhood; (7)
he stated the expert argued with defense counsel; and (8) he asked
"what planet does [the expert] live on?"
18 A-3706-15T3 When viewed side-by-side, defense counsel delivered a far
more inflammatory closing argument attacking the State's expert
than the prosecutor's comments regarding the defense expert.
Furthermore, the trial judge repeatedly instructed the jury that
the attorney's remarks made in their summations were argument and
not evidence. We trust the jury followed the court's instruction.
See State v. Smith, 212 N.J. 365, 409 (2012). Accordingly, we
reject defendant's contention he was denied a fair trial because
of prosecutorial misconduct during the summation.
VII
Finally, defendant contends the trial court erred in imposing
an excessively long sentence. We disagree.
In reviewing a sentence on appeal, we assess the trial court's
"sentencing determination under a deferential standard of review."
State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless,
214 N.J. 594, 606 (2013)). "We are 'bound to affirm a sentence,
even if [we] would have arrived at a different result, as long as
the trial court properly identifies and balances aggravating and
mitigating factors that are supported by competent credible
evidence in the record.'" Ibid. (alteration in original) (quoting
Lawless, 214 N.J. at 606).
"In determining the appropriate sentence to impose within the
range, judges first must identify any relevant aggravating and
19 A-3706-15T3 mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that
apply to the case." State v. Case, 220 N.J. 49, 64 (2014) (citing
State v. Fuentes, 217 N.J. 57, 72 (2014)). "The finding of any
factor must be supported by competent, credible evidence in the
record." Ibid. (citing State v. Roth, 95 N.J. 334, 363 (1984)).
Because "a defendant should be assessed as he stands before the
court on the day of sentencing, . . . the sentencing court must
consider a defendant's relevant post-offense conduct in weighing
aggravating and mitigating factors." State v. Jaffe, 220 N.J.
114, 116 (2014) (citing State v. Randolph, 210 N.J. 330 (2012)).
First, defendant contends the trial court improperly relied
on recordings of conversations between defendant and his mother
while defendant was in jail. The trial court permitted the
prosecutor, over a defense objection, to play excerpts from those
recordings, which the State alleged supported aggravating factor
three (the risk of re-offense). In the recordings, defendant made
various statements regarding gun violence, physical violence, and
his disdain for rules. The State also submitted a "hit list"
allegedly maintained by defendant and obtained from a prison
informant.
At sentencing the court found aggravating factor three (the
risk of re-offense) applied. The court found the recordings
supported aggravating factor three. However, the court also
20 A-3706-15T3 considered "evidence that the defendant denied responsibility for
the crime, has shown a lack of remorse until today . . . [and
has] issues with respect to his ability to control his anger [and]
lying to protect himself."
We find the trial court properly relied on the post-offense
recordings in analyzing aggravating and mitigating factors. See
Jaffe, 220 N.J. at 116. The court also relied on other competent
credible evidence; therefore, we affirm the finding of aggravating
factor three.
Second, defendant contends the twenty-year sentence for
manslaughter was excessive. The court went through each of the
aggravating factors the State requested the court consider. The
court then went through all of the mitigating factors defendant
requested the court consider. In the end, the court found
aggravating factors three and nine, and mitigating factors four
and seven, and that the factors were in balance. Because the
factors were in balance, the court imposed a mid-point sentence
of twenty years. See Fuentes, 217 N.J. at 73 (quoting State v.
Natale, 184 N.J. 458, 488 (2005)) ("[I]f the aggravating and
mitigating factors are in equipoise, the midpoint will be an
appropriate sentence."). Because "the trial court properly
identifie[d] and balance[d] aggravating and mitigating factors
21 A-3706-15T3 . . . supported by competent credible evidence," we affirm the
twenty-year sentence for aggravated manslaughter. See Grate, 220
N.J. at 337.
Third, defendant contends the hindering sentence should have
run concurrent to the sentence for manslaughter. Our Supreme
Court adopted the following "criteria as general sentencing
guidelines for concurrent or consecutive-sentencing decisions":
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence shall be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominately 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;
(4) there should be no double counting of aggravating factors;
22 A-3706-15T3 (5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .[2]
[State v. Yarbough, 100 N.J. 627, 643-44 (1985) (footnote omitted).]
Concurrent or consecutive sentences are at the discretion of
the sentencing judge. Carey, 168 N.J. at 422 (citing N.J.S.A.
2C:44-5(a)). "When a sentencing court properly evaluates the
Yarbough factors in light of the record, the court's decision will
not normally be disturbed on appeal." State v. Miller, 205 N.J.
109, 129 (2011).
Here, the trial court went through the factors listed under
item three of the Yarbough factors. The court found the crimes
of manslaughter and hindering had independent objectives, involved
separate acts, and involved different victims, supporting a
consecutive sentence; however, the fact that the crimes were
committed at the same time and place supported a concurrent
sentence. The court also considered the "principal that there
should be no free crimes," and concluded the hindering sentence
will run consecutive to the manslaughter. Because the trial court
"evaluate[d] the Yarbough factors in light of the record," we will
not disturb its ruling. See Miller, 205 N.J. at 129.
2 An amendment to the statute later superseded a sixth guideline. State v. Carey, 168 N.J. 413, 423 n.1 (2001).
23 A-3706-15T3 We therefore affirm defendant's convictions and the sentences
imposed, but remand for the trial court to vacate the sentence on
the merged unlawful possession of a weapon count. We do not retain
jurisdiction.
Affirmed in part, remanded in part.
24 A-3706-15T3