State v. Hudson

39 A.3d 150, 209 N.J. 513, 2012 WL 360464, 2012 N.J. LEXIS 126
CourtSupreme Court of New Jersey
DecidedFebruary 6, 2012
DocketA-64 September Term 2010, 066660
StatusPublished
Cited by83 cases

This text of 39 A.3d 150 (State v. Hudson) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hudson, 39 A.3d 150, 209 N.J. 513, 2012 WL 360464, 2012 N.J. LEXIS 126 (N.J. 2012).

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

In this appeal, and in its companion, State v. McDonald, 209 N.J. 78, 35 A.3d 669 (2012), separately conducted sentencing proceedings resulted in sentences that imposed, in their aggregate, multiple extended-term sentences. Previously, in State v. [517]*517Papasavvas1 and State v. Pennington,2 we addressed N.J.S.A. 2C:44-5(a)(l)’s prohibition against sentencing a defendant to multiple extended terms in a single sentencing proceeding. In this appeal, we address, for the first time, the import of N.J.S.A. 2C:44-5(b)(l)’s incorporation of subsection a’s prohibitions to certain offenses and sentencing proceedings, when sentencing is conducted in separate proceedings. Subsection b pertains when “sentences of imprisonment [are] imposed at different times,” and provides that “[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence ... (1) The multiple sentences imposed shall so far as possible conform to subsection a. of this section.”

In this matter defendant, Kevin Hudson, was sentenced to a second extended-term sentence for an offense committed prior to the imposition of the extended-term sentence he was serving. The imposition of that second extended-term sentence fit, in all respects, the temporal requirements for subsection (b)(l)’s application. We hold that imposition of the second extended-term sentence transgressed the direction in N.J.S.A. 2C:44-5(b)(l) to incorporate subsection a’s prohibition against a defendant serving an aggregate sentence that accumulates multiple extended-term sentences. Subsection b’s plain language applies subsection a’s bar against imposing a sentence comprised of more than one extended term for the conviction of an offense which was committed prior to the imposition of the defendant’s current extended-term sentence but for which defendant is being sentenced after the imposition of the first extended sentence.

We find unavailing the argument that the “so far as possible” qualifier in subsection (b)(1) waters down the specific prohibition to a mere preference to be considered in the general discretion of [518]*518the sentencing court. Rather, based on the Legislature’s express incorporation in subsection b of the prohibitions enumerated in subsection a and its direction that they be given effect “so far as possible,” we conclude that those limitations must be given effect and their application excused only when it is not possible to apply subsection a’s limitations and parameters. That circumstance is not present here.

Both of Hudson’s extended-term sentences stemmed from the same original indictment. He was tried and sentenced in separate proceedings as a result of his having moved for severance of the charges against him because two victims were involved. The extended-term sentence challenged herein was imposed in the second of the two trials on an offense that preceded in time the imposition of the extended-term sentence he was serving at the time of his second trial. Under these facts, the imposition of the second extended term violated N.J.S.A. 2C:44-5(b)(l), rendering it illegal. We are constrained to reverse and remand for resentencing.

I.

On June 12, 2006, Hudson was indicted in Monmouth County Indictment No. 06-07-1466 on twenty-three counts charging him with offenses associated with multiple assaults on two victims. He moved to sever the counts for trial because separate victims were involved. The severance motion was granted and, thereafter, he was subjected to two trials and sentencing proceedings.

The sentencing issue before us arose from the charges involving the victim, G.B. The trial that concerned the offenses involving the other victim, G.R., proceeded first. In the first trial, a jury found Hudson guilty of four third-degree offenses based on conduct that occurred on February 7, 2006. On one third-degree offense, the court sentenced defendant, on August 21, 2007, to an extended-term sentence of seven years imprisonment with a three-and-one-[519]*519half-year period of parole ineligibility.3 Defendant’s sentences on the other offenses were made to run concurrently with the extended-term sentence.

Hudson then was tried for the offenses involving G.B., which concerned conduct that had occurred on October 12, 2005 and on February 8, 2006. Although there were multiple charges, defendant was found guilty on two counts—second-degree aggravated assault (Count 13) and fourth-degree unlawful possession of a weapon (Count 15)—both of which arose from the February 8, 2006 incident. The facts underlying those charges may be summarized briefly.

Hudson and G.B. became involved in a romantic relationship beginning in 2004. There was a significant age difference between the two as Hudson was twenty-live years older than G.B., who was in her early twenties at the time of the assaults described herein. On the evening of October 12, 2005, allegedly because she had not been in touch with him, Hudson attacked G.B. as she walked to her home from a local train station. After slashing her face with a scalpel-like device, he wrapped her wounds with gauze and left her at the scene of the attack. When this incident initially was investigated by law enforcement authorities, G.B. gave a physical description of her attacker, but did not identify him as Hudson. She later attributed her reticence to fear, yet continued to see him, even after she learned that he was involved with another woman (the other victim, G.R.), with whom he had a child.

G.B.’s relationship with Hudson again turned violent when, in the early hours of February 8, 2006, he was waiting for her at the train station. He made her walk with him to an apartment complex where he forced her to have sexual intercourse. Afterward, G.B. unsuccessfully attempted to escape and defendant hit [520]*520her in the eye. She thereafter remained with him throughout the evening, eventually entering another building and sleeping for awhile. Later, Hudson became enraged when, after searching G.B.’s belongings, he found she had been deleting messages on her cell phone. A vicious attack ensued in which he twice attempted to suffocate her with a plastic bag and, when that proved unsuccessful, he used an eyebrow archer’s razor to trace over and reopen her facial scar where he had cut her before. He also inflicted cuts to her neck. Afterward, he did not prevent her from going home.

G.B. reported the February 8, 2006, as well as the earlier October 12, 2005, incidents to the police and identified Hudson as the assailant in each. Approximately two weeks later, when she found Hudson again waiting outside the train station when she emerged, she called 9-1-1. Police arrived and apprehended him.

Hudson was tried on the charges involving G.B. in January 2007. The jury found him guilty of third-degree aggravated assault (as a lesser-included offense of Count 13, second-degree aggravated assault) contrary to N.J.S.A. 2C: 12-1 (b)(7), and fourth-degree unlawful possession of a weapon (Count 15) contrary to N.J.S.A. 2C:39-5(d). Both counts related to the February 8, 2006 incident.

The State filed a motion seeking imposition of a discretionary extended term.

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Cite This Page — Counsel Stack

Bluebook (online)
39 A.3d 150, 209 N.J. 513, 2012 WL 360464, 2012 N.J. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hudson-nj-2012.