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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5901-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCOS R. BLANDINO a/k/a MARCOS RAFAEL BLANDINO,
Defendant-Appellant.
Submitted October 12, 2021 – Decided November 24, 2021
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-08-0553.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM Tried to a jury, defendant Marcos R. Blandino was convicted of forcibly
entering a stranger's apartment in Hoboken around 6:00 p.m. on Sunday, April
23, 2017, and groping her against her will. Following the jury's guilty verdict
on third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), as a
lesser-included offense of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(3) (counts one and two), and second-degree burglary, N.J.S.A.
2C:18-2(a)(1) (count three), defendant was sentenced to an aggregate fifteen -
year prison term. The trial judge imposed concurrent five-year prison terms on
the sexual contact offenses to be served prior to a consecutive ten-year prison
term on the burglary conviction. Defendant's sentence on the burglary
conviction, only, is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
During the ten-day trial, the State presented the testimony of fourteen
witnesses, including the victim, K.O. (Katrina),1 and her two roommates, who
found Katrina curled in a fetal position after the attack. Surveillance video
footage captured defendant's minivan traveling down Katrina's block as she
1 We use initials to protect the privacy of the victim and pseudonyms for ease of reference. See R. 1:38-3(c)(12).
A-5901-17 2 walked toward her apartment building; Katrina entering the building; and
defendant following moments later.
Katrina told the jury she did not observe defendant until he was standing
next to her outside her apartment door. As she opened the door, defendant
pushed Katrina into the apartment, causing her to fall to the floor. Defendant
pulled down Katrina's pants, held her down, and touched her vagina with his
finger and penis. Katrina kicked and screamed, and eventually defendant left.
According to the surveillance video, defendant exited the apartment
building five minutes after he entered. Police reviewed the surveillance video
and issued a "be on the lookout" (BOLO) advisory for defendant's minivan. The
following Sunday, Hoboken police stopped defendant, while he was driving the
minivan, which matched the BOLO description.
Defendant was not under arrest, but he waived his Miranda2 rights and
voluntarily agreed to give a statement to members of the Hudson County
Prosecutor's Office (HCPO). Police told defendant they were investigating
"something" that had occurred the previous week. Acknowledging he had been
in Hoboken on April 23, defendant claimed he only made one stop at the "Hindu
store," which he "always" patronized when his Lyft job brought him to the area.
2 See Miranda v. Arizona, 384 U.S. 436 (1966). A-5901-17 3 But shortly after defendant was shown photographs of his minivan from the
surveillance video, defendant invoked his right to counsel and all questioning
about the incident ceased.
At trial, the State introduced defendant's video-recorded statement, which
was made in defendant's primary language of Spanish. Accordingly, the trial
judge provided English transcripts to the jury as listening aids when the
statement was played in open court. Because the transcripts were not admitted
in evidence, the judge did not provide them to the jury during deliberations.
Defendant testified on his own behalf, denying Katrina's account. Instead,
defendant claimed Katrina – about twenty years his junior and someone he had
not previously met – invited him into her home and attempted to have sex with
him. Defendant said he returned Katrina's kiss but froze when "she put her
vagina in [his] face." He left soon thereafter.
Defendant now appeals, arguing:
POINT I
DEFENDANT'S CONVICTION FOR SECOND- DEGREE BURGLARY MUST BE REVERSED.
A. The Trial Court's Instructions to the Jury Directed a Verdict on an Element of Burglary and Thereby Improperly Relieved the State of its Constitutional Burden of Proving Guilt Beyond a Reasonable Doubt. (Not raised below)
A-5901-17 4 B. After the Jury Verdict the Trial Court Sua Sponte Should Have Exercised Its Discretion Pursuant to R[ule] 3:18-2 by Entering a Judgment of Acquittal. (Not raised below)
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S FAILURE TO PROPERLY WARN THE JURY TO DISREGARD DEFENDANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT. (Not raised below)
POINT III
[]DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL BECAUSE THE JURY CONSIDERED HIS PRIOR STATEMENT, WHICH WAS PLAYED IN OPEN COURT IN SPANISH WITH AN ENGLISH TRANSCRIPT, BUT THE ENGLISH TRANSLATION WAS NOT ADMITTED INTO EVIDENCE. (Not raised below)
POINT IV
THE SENTENCE OF THE MAXIMUM TERMS IN PRISON ON EACH COUNT AND RESULTING IN FIFTEEN YEARS IN PRISON WITH [AN] EIGHT AND ONE-HALF[-]YEAR[] PERIOD OF PAROLE INELIGIBILTY WAS EXCESSIVE BECAUSE THE COURT ERRED IN APPLYING AGGRAVATING SENTENCING FACTORS ONE AND TWO[, N.J.S.A. 2C:44-1(a)(1) and (2)].
A-5901-17 5 For the reasons that follow, we affirm defendant's convictions and remand
for resentencing.
I.
Initially, we consider the arguments asserted in point II. For the first time
on appeal, defendant argues the trial judge committed reversible error by
including the invocation of defendant's right to counsel when his statement to
police was introduced in evidence. Acknowledging the final jury charge
included a limiting instruction regarding defendant's invocation, he argues the
instruction should have accompanied the offending statement when it was
received in evidence. Because defendant neither objected to admission of the
statement nor requested a cautionary instruction at trial, we review his newly -
minted challenges through the prism of the plain error standard. R. 2:10-2.
Defendant invoked his right to counsel after police presented photographs
from the surveillance video depicting his minivan outside Katrina's apartment
building, and police told defendant the victim's description of her assailant was
"precisely a description of [him]." At issue is the following excerpt of
defendant's exchange with police:
LIEUTENANT: []It's important that you provide an explanation here regarding what happened. It's the only thing I'm asking you sir. We already know what happened, so. I wish you can go back one week, years,
A-5901-17 6 months, and we would be able to change many things, but we can't. We can't but already [sic] what happened, happened and we have to see forward, towards the future, okay and its important. The only thing that we ask you is that you say the truth that's all. Explain to me what happened; tell me.
DEFENDANT: For me to explain anything I would like to come with an attorney. I don't . . . I don't have the desire to explain anything that may have happened with him [sic] you can ask me what you want to ask me. Obviously, it's my vehicle; I was there because it's my vehicle. I don't know what that person may have said. I don't want to say anything.
At the conclusion of the court's final instructions to the jury, at request of
the State, the judge issued a limiting instruction:
You've heard the defendant invoked his right to an attorney at the end of his statement to the prosecutor's office on April 30th. You also heard at the beginning of the statement the detective explained to him that he had a right to an attorney, the right to remain silent, and other rights.
These are his rights as guaranteed by the United States and New Jersey State Constitutions. You cannot draw any negative inference from the defendant's exercise of his constitutional rights.
In State v. Feaster, 156 N.J. 1, 73-77 (1998), our Supreme Court
considered whether a jury should be permitted to hear the defendant invoke his
right to silence. As a general principle, the Court held trial judges "should
endeavor to excise any reference to a criminal defendant's invocation of his right
A-5901-17 7 to counsel." Id. at 75. Nonetheless, the Court found permissible the admission
of such statement where it "is essential to the complete presentation of the
witness's testimony and its omission would be likely to mislead or confuse th e
jury." Id. at 76. In that situation, the trial court must give a cautionary
instruction to guard against any impermissible inferences. Ibid.
However, "a trial court's failure to follow the Feaster stricture of excision
or a cautionary instruction does not necessarily equate to reversible or plain
error." State v. Sui Kam Tung, 460 N.J. Super. 75, 94 (App. Div.), certif. denied,
240 N.J. 249 (2019). As we explained in Tung:
The Feaster Court found the error of failing to excise the reference or provide a cautionary instruction was harmless due to "the fleeting nature of the reference" in testimony, the fact that the prosecutor "did not comment on the matter during summation," and the trial judge's "emphatic instruction" that defendant's failure to testify could not be held against him, which "impart[ed] to the jury the respect to be accorded defendant's decision to remain silent."
[Id. at 94 (quoting Feaster, 156 N.J. at 77).]
In the present matter, defendant's invocation demonstrated why the
questioning ceased and, as such, was properly admitted at trial. The prosecutor
neither elicited any testimony about defendant's invocation from the detective
through whom the statement was introduced at trial, nor commented on
A-5901-17 8 defendant's right during summation. Instead, the prosecutor urged the court to
issue the curative instruction, albeit belatedly. See State v. Herbert, 457 N.J.
Super. 490, 505-06 (App. Div. 2019) (citations omitted) (reiterating the
principle that "a swift and firm instruction is better than a delayed one"). Thus,
although not requested by defendant, the trial judge should have issued the
limiting instruction when defendant's statement was played for the jury.
Nonetheless, we do not find plain error here. The exchange by defendant
that terminated the interview was brief; the prosecutor did not comment on it
during summation; defendant's attorney never objected; and the judge
specifically instructed the jury to refrain from "draw[ing] any negative inference
from the defendant's exercise of his constitutional rights." We presume the jury
followed the trial judge's instructions. See State v. Vega-Larregui, 246 N.J. 94,
126 (2021).
II.
For the first time on appeal in point III, defendant asserts the trial judge
sua sponte failed to admit in evidence the English-language translation of his
statement to police, which was conducted entirely in Spanish and played for the
jury in that form. Defendant argues because the jury "was never presented with
evidence of defendant's statement that was in a form that the jury could
A-5901-17 9 understand," the jury was unable to consider his "denial of culpability." We are
unpersuaded.
Defendant's statement was admitted in evidence through the testimony of
HCPO Detective Paola Bolivar – one of two Spanish-speaking officers, who
questioned defendant. Prior to playing the video for the jury, Bolivar testified
she had previously reviewed the English-language transcript of defendant's
statement and that it was "accurate in terms of substance." The transcript was
marked for identification and copies were distributed to the jury. The prosecutor
then instructed the detective to "follow along and let [everyone] know when to
turn the page."
Prior to the distribution of the transcripts to the jurors, defense counsel
expressly indicated she had "no objection." The prosecutor then confirmed in
open court that the transcripts would "be used as an aid for the jury." Later, at
the conclusion of the judge's final instructions and before the evidence was
provided to the jury, the prosecutor advised the judge that counsel agreed "the
transcript will . . . not go to the jury room. We'll hold that if they want to watch
the [video]." The judge concurred, stating: "It's not evidence."
Our court rules generally permit members of the jury to "take into the jury
room the exhibits received in evidence." R. 1:8-8. Thus, exhibits that are
A-5901-17 10 marked for identification but not moved in evidence ordinarily should not be
provided to the jury. We have long recognized "a transcript may be used as an
aid for understanding a tape recording." State v. DeBellis, 174 N.J. Super. 195,
199 (App. Div. 1980); see also State v. Zicarelli, 122 N.J. Super. 225, 239-40
(App. Div. 1973). The decision whether to provide the transcript to the jurors
during their deliberations lies within the trial court's sound discretion. See
DeBellis, 174 N.J. Super. at 199.
In DeBellis, we discerned no error in the trial court's decision to provide
transcripts of the defendant's recorded statements, where among other factors,
witnesses testified to their accuracy; the defendants did not deny their accuracy;
the judge issued a limiting instruction on the use of the transcript; and "the jury
had already seen the transcripts." Ibid. Those factors similarly apply here,
especially where defendant's statement was made in Spanish and the translated
transcript assisted the jurors in comprehending the statement.
Notably, however, in DeBellis, the trial court also believed it "had
unintentionally deceived [the] defendants into believing that the transcripts
would go into evidence." Ibid. Conversely, in the present matter, the parties
agreed that the transcripts would not be provided to the jurors during
A-5901-17 11 deliberations unless they asked to replay the video-recorded statement. 3
Because the jury was provided with an English transcription of defendant's
statement when the video recording was played during trial, the jury was
presented with defendant's denial of fault, which they again heard when he
testified. Even if the judge abused his discretion by not providing the transcripts
to the jury during their deliberations, that decision was not "clearly capable of
producing an unjust result." R. 2:10-2.
III.
A.
Little need be said regarding the belated contentions raised in point I,
challenging the trial court's instructions on burglary and the sufficiency of the
evidence supporting the jury's verdict on that charge. Defendant initially asserts
error in the following portion of the burglary instruction:
Purpose, with purpose and similar words have the same meaning. In other words, in order for you to find the defendant acted purposely, the State must prove beyond a reasonable doubt that it was his conscious object at the time he unlawfully entered . . . the premises to commit an unlawful act.
3 We presume playback of the video-recorded statement would have proceeded in open court. See State v. A.R., 213 N.J. 542, 546 (2013). A-5901-17 12 Defendant claims the emphasized language advised the jury "to assume"
he was not privileged or licensed to enter Katrina's residence, thereby relieving
the State of its obligation to prove defendant entered Katrina's residence without
permission and negating his consent defense. Defendant's argument is belied by
the entirety of the trial judge's instructions, which largely tracked the model jury
charge. See Model Jury Charges (Criminal), "Burglary in the Second Degree
(N.J.S.A. 2C:18-2(b))" (rev. Mar. 14, 2016).
Prior to defining "purpose," – and consistent with the model jury charge
and the burglary statute – the judge aptly instructed the jury on the elements of
burglary: "In order for you to find the defendant guilty of burglary, the State
must prove beyond a reasonable doubt the following elements: the defendant
entered the structure known as K[atrina]'s apartment without permission; that
the defendant did so with the purpose to commit an offense therein." (Emphasis
added). See ibid.; N.J.S.A. 2C:18-2(a)(1). A jury charge that tracks the
language of the governing statute, and is consistent with the applicable model
jury charge, is not plainly erroneous. See State v. Rodriguez, 365 N.J. Super.
38, 53-54 (App. Div. 2003).
A-5901-17 13 B.
Defendant further contends the trial judge erred in sua sponte failing to:
dismiss the burglary count at the conclusion of the State's case, R. 3:18-1; or
enter a judgment of acquittal notwithstanding the verdict, R. 3:18-2. Noting
there was no evidence of forced entry, defendant argues "it was possible" he and
Katrina "were already inside the apartment when she was pushed." Defendant's
delayed argument fails under both Rules.
"At the close of the State's case or after the evidence of all parties has been
closed, the court shall, on defendant's motion or its own initiative," enter a
judgment of acquittal "if the evidence is insufficient to warrant a conviction."
R. 3:18-1. A trial judge may also enter a judgment of acquittal after a jury has
returned a guilty verdict. R. 3:18-2; see Pressler & Verniero, Current N.J. Court
Rules, cmt. 1 to R. 3:18-2 (2021). Under Rule 3:18-1, the trial judge must
determine whether, viewing the evidence in its entirety and "giving the State the
benefit of all favorable testimony as well as all . . . favorable inferences which
reasonably could be drawn therefrom, a reasonable jury could find guilt of the
charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).
"When a defendant moves for a judgment of acquittal after all the proofs,
however, the court considers not only the evidence presented by the State, but
A-5901-17 14 'the entirety of the evidence.'" State v. Lodzinski, 246 N.J. 331, 357 (2021),
(Patterson, J., concurring) (quoting State v. Williams, 218 N.J. 576, 594 (2014)).
Here, the State presented sufficient evidence that defendant committed
second-degree burglary under N.J.S.A. 2C:18-2(b)(1), where "in the course of
committing the offense," he "[p]urposely, knowingly or recklessly inflict[ed]
. . . bodily injury on [Katrina]." Katrina testified that, upon reaching her
apartment door, she realized someone was behind her. After unlocking the door
and pushing it, she turned toward defendant, asking: "What are you doing?" At
that point, defendant pushed Katrina into the apartment, causing her to fall to
the living room floor. Katrina told the jury "[i]t hurt" when she fell on the floor.
She described a "big struggle" which preceded the sexual offenses. Katrina
testified she never gave defendant permission to enter her apartment – or
anywhere inside the building.
Katrina's testimony, in addition to the surveillance footage, provided
sufficient evidence to present the case to the jury under Rule 3:18-1. Even in
view of defendant's testimony to the contrary, that evidence also was sufficient
to convict him of burglary under Rule 3:18-2.
A-5901-17 15 IV.
Lastly, defendant argues his sentence is excessive. He asserts the judge
erroneously imposed the maximum prison term on each conviction by
improperly finding aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature
and circumstances of the offense), and two, N.J.S.A. 2C:44-1(a)(2) (the gravity
and seriousness of harm to the victim). Defendant also contends the Yarbough4
factors do not support the imposition of consecutive sentences. For the reasons
that follow, we remand for resentencing.
Our analysis of these arguments is framed by well-settled principles.
Ordinarily, we defer to the sentencing court's determination, State v. Fuentes,
217 N.J. 57, 70 (2014), and do not substitute our assessment of the aggravating
and mitigating factors for that of the trial judge, State v. Miller, 205 N.J. 109,
127 (2011); see also State v. Case, 220 N.J. 49, 65 (2014). We will not disturb
a sentence that is not manifestly excessive or unduly punitive, does not
constitute an abuse of discretion, and does not shock the judicial conscience.
See State v. O'Donnell, 117 N.J. 210, 215-16 (1989). However, our deference
"applies only if the trial judge follows the Code and the basic precepts that
channel sentencing discretion." Case, 220 N.J. at 65.
4 State v. Yarbough, 100 N.J. 627 (1985). A-5901-17 16 A. Aggravating Factors One and Two
At sentencing, the trial judge found aggravating factors one, two, three,
and nine. See N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the
offense); (a)(2) (the gravity and seriousness of harm to the victim); (a)(3) (the
risk of re-offense); (a)(9) (the need to deter defendant and others). The judge
contemplated mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (the absence of a
prior criminal record), but did not find that factor because defendant had a prior
domestic violence offense. The judge concluded the aggravating factors
substantially outweighed the non-existing mitigating factors.5
We review a trial judge's findings as to aggravating and mitigating factors
to determine whether the factors are based on "competent, credible evidence in
the record." O'Donnell, 117 N.J. at 215. "To facilitate meaningful appellate
review, trial judges must explain how they arrived at a particular sentence."
Case, 220 N.J. at 65. "Elements of a crime, including those that establish its
grade, may not be used as aggravating factors for sentencing of that particular
crime," State v. Lawless, 214 N.J. 594, 608 (2013), which "would result in
impermissible double-counting," State v. A.T.C., 454 N.J. Super. 235, 254 (App.
5 Defendant does not challenge the imposition of aggravating factors three and nine, or the absence of mitigating factors. A-5901-17 17 Div. 2018); see also Yarbough, 100 N.J. at 633. We will remand for
resentencing if the sentencing court considers an inappropriate aggravating
factor. Lawless, 214 N.J. at 604-05.
While "sentencing courts frequently apply both aggravating factors one
and two, each requires a distinct analysis of the offense for which the court
sentences the defendant." A.T.C., 454 N.J. Super. at 255 (quoting Lawless, 214
N.J. at 600). When evaluating aggravating factor one, "[a] sentencing court may
consider 'aggravating facts showing that [a] defendant's behavior extended to
the extreme reaches of the prohibited behavior.'" State v. Miller, 237 N.J. 15,
29 (2019) (alterations in original) (quoting Fuentes, 217 N.J. at 75).
Aggravating factor two "focuses on the setting of the offense itself with
particular attention to any factors that rendered the victim vulnerable or
incapable of resistance at the time of the crime." Lawless, 214 N.J. at 611. As
the Court has noted, "psychological harm . . . has been considered relevant under
this aggravating factor." State v. Kromphold, 162 N.J. 345, 357 (2000); see also
State v. Logan, 262 N.J. Super. 128, 132 (App. Div. 1993) (finding aggravating
factor two applied where the defendant caused psychological harm to a sexual
assault victim).
A-5901-17 18 Here, the judge assigned "some weight" to aggravating factor one, finding
defendant "came up from behind [Katrina] and ambushed her." According to
the judge: "That alone is aggravating factor number one, the nature of the
offense. [Defendant] absolutely surprised her and [he] stalked her."
While the surveillance video depicts defendant's minivan driving
alongside Katrina as she was walking, then rushing into her apartment building
after she entered, Katrina was unaware that defendant was "stalking" her.
However, because we agree that defendant ambushed Katrina in the sanctity of
her home – and because the judge assigned minor weight to aggravating factor
one – we discern no reason to disturb the judge's finding.
Turning to aggravating factor two, the judge found defendant caused
"tremendous harm" to Katrina, thereby assigning this factor "tremendous
weight." To place the judge's findings in context, we note – similar to
defendant's trial – the sentencing hearing was marked by two vastly different
arguments.
Against the advice of counsel, defendant made a lengthy statement on his
own behalf. He claimed he forgave Katrina "for all the evil [she did to him]; for
lying; destroying [his] life; and destroying [his] family's life." Defendant
accused Katrina's friends of manipulating her to file false charges against him.
A-5901-17 19 Conversely, Katrina's loved ones spoke of a young woman who was
shattered emotionally after the incident: A "young, vibrant woman," whose "life
has forever been changed." According to her aunt, Katrina "thought[] of ending
her own beautiful life." Katrina's mother told the judge Katrina cried
"hysterical[ly]" when drafting her victim-impact statement.
In finding aggravating factor two, the judge elaborated:
I've heard today about K[atrina] sobbing to her family and friends, the letters and what I hear today, of thoughts of suicide, that's today.
The day of the incident, afterwards her family and friends found her curled up in her bed in the fetal position, near lifeless.
She felt so unsafe in her room, that at times she slept with her roommate [be]cause she didn't even want to be alone in her own bed.
But that got worse. She couldn't even bear that. So, she moved out of Hoboken but continued to work in New York, but endured having to commute a . . . much longer commute and not be[ing] with her friends just because she feared being alone. She didn't fear that before April 23, 2017.
....
[]I remember K[atrina] testifying and even though she's not here today, I incorporate that into my finding of aggravating factor number two. She was crying. She was ashamed. She had a very low voice. She was hurt. Those are all certainly harms.
A-5901-17 20 The judge's detailed findings dispel defendant's contentions that "the court
did not put forth its reasoning for finding this factor or why it was putting
tremendous weight on it." The psychological harm to Katrina recounted by the
judge, see Kromphold, 162 N.J. at 357; Logan, 262 N.J. Super. at 132, finds
support in the record, see O'Donnell, 117 N.J. at 215. Moreover, because
Katrina was taken off guard as she entered her home, and overpowered by
defendant thereafter, the record further demonstrates she was "incapable of
resistance at the time of the crime." Lawless, 214 N.J. at 608.
B. Consecutive Sentences
In imposing consecutive sentences, the trial judge recognized Yarbough
as controlling precedent. In Yarbough, our Supreme Court set forth 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 should 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-5901-17 21 (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;
(4) there should be no double counting of aggravating factors; [and]
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]
[100 N.J. at 643-44.]
A sixth factor, imposing an overall outer limit on consecutive sentences, was
superseded by statute. See State v. Eisenman, 153 N.J. 462, 478 (1998) (citing
N.J.S.A. 2C:44-5(a)).
Like the statutory aggravating and mitigating factors, "[t]he Yarbough
factors are qualitative, not quantitative," and "applying them involves more than
merely counting the factors favoring each alternative outcome." State v. Cuff,
A-5901-17 22 239 N.J. 321, 348 (2019). Instead, the sentencing court must consider all the
Yarbough guidelines, with emphasis on the five subparts of the third guideline.
State v. Rogers, 124 N.J. 113, 121 (1991). Concurrent or consecutive sentences
are at the discretion of the sentencing judge. See State v. Carey, 168 N.J. 413,
422 (2001) (citing N.J.S.A. 2C:44-5(a)). In applying the factors, "[t]he focus
should be on the fairness of the overall sentence, and the sentencing court should
set forth in detail its reasons for concluding that a particular sentence is
warranted." State v. Miller, 108 N.J. 112, 122 (1987).
In his assessment of the Yarbough factors that supported consecutive
sentences, the trial judge placed "the most weight on the first factor: There can
be no free crimes." The judge also found defendant committed "three
independent acts of violence," resulting in three separate convictions, and there
was no double counting of the aggravating factors. Unsure whether defendant's
objectives were predominantly independent of one another, the judge recognized
the crimes were committed "very close in time," and involved a single victim.
Although these crimes could be viewed as part of a continuous episode of
aberrant conduct, there is no question they represented separate violations of the
victim. Defendant's pushing his way into Katrina's home and knocking her to
the floor was different from his pinning her down and touching her vagina with
A-5901-17 23 his finger and penis. As we recognized more than three decades ago in a similar
case: "Clearly, the burglary offense is distinct and dissimilar [from] the sexual
offense." State v. Mosch, 214 N.J. Super. 457, 462-63 (App. Div. 1986). Stated
another way, defendant could have been charged and convicted of second-
degree burglary without committing sexual offenses – and vice-versa. See id.
at 463. Accordingly, we find no abuse of discretion in the court's imposition of
consecutive sentences consistent with the Yarbough guidelines.
While this appeal was pending, however, our Supreme Court issued its
opinion in State v. Torres, 246 N.J. 246 (2021). In that case, the Court
exhaustively reviewed the Yarbough factors, while reaffirming the discretionary
authority of trial courts to impose consecutive sentences by using those
guidelines. Id. at 264-66. The Court reiterated that Yarbough requires the trial
court to place on the record a statement of reasons for imposing consecutive
sentences, which should address the overall fairness of the sentence. Id. at 267-
68 (citing Miller, 108 N.J. at 122).
The Court further recognized that sentencing judges "often seized upon"
the "no free crimes" factor identified in Yarbough. Id. at 269. However, after
Yarbough was decided, the Legislature eliminated the sixth factor, which limited
the overall length of consecutive sentences. Ibid. The Court explained that the
A-5901-17 24 Yarbough "no free crimes" factor was part of "a set of considerations that
originally included an outer limit." Ibid.
As a result, the Court held:
An explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper Yarbough sentencing assessment. . . . Acknowledging and explaining the fairness of the overall sentence imposed on the defendant advances critical sentencing policies of the Code, as amplified by Yarbough. It remains, in fact, the critical remnant of accountability imposed by Yarbough, since the legislative elimination of the outer limit imposed by factor six.
[Id. at 268.]
In the present matter, the trial judge assessed the applicable Yarbough
factors, relying heavily on the "no free crimes" factor. He did not address
explicitly or implicitly, the overall fairness of the maximum, consecutive
sentences imposed on defendant, who had no prior indictable convictions.
Consistent with the Court's advisement in Torres, we therefore remand for the
trial judge to provide "[a]n explicit statement, explaining the overall fairness"
of the sentences imposed.
Consequently, we vacate the sentence imposed and remand the matter for
resentencing in light of the Court's admonition in Torres. We express no
A-5901-17 25 position on the appropriate aggregate sentence. In all other respects, we affirm
defendant's convictions.
Affirmed, and remanded for resentencing. We do not retain jurisdiction.
A-5901-17 26