Opinion
DOCKET NO. A-4975-08T4
06-13-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR BAEZ, a/k/a CARLOS M. TORRES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0612.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Victor Baez was tried before a jury, and found guilty on six counts of first-degree robbery and other offenses. Defendant appeals from his convictions and the sentences imposed. For the reasons that follow, we affirm defendant's convictions, reverse the sentences imposed on the robbery convictions, and remand the matter to the trial court for re-sentencing.
I.
We briefly summarize the relevant facts. On December 10, 2006, Emin Odabasi (Odabasi) and Nuri Savas (Savas) were working at a Valero gas station and convenience store in Paterson. Around 4:00 a.m., Odabasi went outside to smoke a cigarette when a red vehicle driven by a woman pulled up. Odabasi and Savas recognized the woman. She asked for gasoline. There was a passenger in the front seat of the car. Savas started to pump the gas.
At the same time, two men approached the gas station on foot. Odabasi recognized defendant and Mark DeJesus (DeJesus) even though they were wearing masks. Defendant "pushed" a knife towards Savas. Savas attempted to evade it, but the knife sliced his finger and it tore his jacket. Defendant demanded money and Savas gave him $300. Meanwhile, DeJesus approached Odabasi. He had a black handgun, which he placed against Odabasi's body. Dejesus demanded money and Odabasi handed him approximately $3,300.
Following the robbery, defendant and DeJesus fled on foot. The woman drove off without paying for the gasoline. She was later identified as Jessica Gonzalez (Gonzalez), defendant's girlfriend. Gonzalez followed defendant and DeJesus. She picked them up and drove to her apartment in Sussex County.
Detective Carmine Pelosi (Detective Pelosi) investigated the robbery of the Valero gas station. Pelosi spoke with Savas and Odabasi, and based on his investigation, Pelosi identified Gonzalez, DeJesus and defendant as suspects in the robbery. The following day, Gonzalez drove DeJesus to Paterson. DeJesus left his gun in the car. He was arrested later that day.
On December 17, 2006, Gonzalez drove defendant and his brother Carmelo Baez (Carmelo) to a gas station in Fair Lawn, which they planned to rob. Defendant wore a mask and used a revolver to rob the gas station. Carmelo claimed that he acted as a lookout. He was wearing a black handkerchief and was not armed. Carmelo said he participated in the robbery because he had no money.
After the robbery, Gonzalez drove defendant and Carmelo to Clifton, where defendant and Carmelo robbed another gas station. Saluddin Modak (Modak) was the only employee working there at the time. Defendant threatened Modak with a handgun, and Modak gave him $1280. Defendant threw Modak to the ground and punched him in the face.
On December 18, 2006, Gonzalez drove defendant and Carmelo to a convenience store in Lodi and parked outside. The store's owner, Rajiv Shah (Shah), was in the store with Manher Pandya (Pandya). Defendant and Carmelo entered the store and Carmelo started punching Pandya. Defendant pulled out a gun, pointed it at Shah and demanded money.
Defendant told Shah to open the cash register. Shah was nervous and he repeatedly hit the wrong button. Defendant told Shah to get down on the floor. Defendant started hitting Shah as Carmelo took money out of the cash register. They also took Shah's wallet, which contained about $400 to $500.
On December 20, 2006, defendant was driving a car in Clifton, with Gonzalez as his passenger. It appears that defendant lost control of the vehicle, which collided with three parked cars before coming to rest. Gonzalez and defendant grabbed their suitcases and fled.
At 8:02 a.m., Officer Jose Padilla, Jr. (Padilla) of the Clifton Police Department (CPD) received a report of the hit and run accident. The report indicated that a man and a woman fled the scene, and the man was wearing a gray, hooded sweatshirt. Padilla went to the scene of the accident in a marked patrol car.
Padilla observed Gonzalez and defendant, who was wearing a gray hat that Officer Padilla described as a "skully." As Padilla drove past defendant and Gonzalez, defendant put his arm out. Padilla interpreted this as a gesture signaling Gonzalez to stop. Padilla drove past them and "looped" around. He then observed defendant and Gonzalez turn around and walk quickly into a yard. Padilla thought that they were attempting to flee. Padilla ran towards them and told them to stop.
After they stopped, defendant bent down and began to unzip a pocket in his suitcase. Padilla drew his weapon and ordered defendant to stop. He ordered defendant and Gonzalez to turn away from him and put their hands on a fence. Padilla called for backup.
From where he was standing, Padilla was able to peer into the open pocket of the suitcase and spotted what appeared to be a weapon. It was a black Smith & Wesson revolver. Backup officers arrived on the scene. Defendant and Gonzalez were handcuffed, read their Miranda rights, and placed in separate police vehicles. The officers then secured defendant's and Gonzalez's suitcases.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The Clifton police officers contacted the Paterson Police Department (PPD), because defendant and Gonzalez were wanted in connection with the Paterson gas station robbery. Detective Pelosi and Detective Sergeant Alex Popoz of the PPD responded to the Clifton police station. The Clifton police also contacted the Fair Lawn police because they were aware that a similar robbery had been committed in that municipality.
Fair Lawn Detectives James Corcoran (Corcoran) and Robert Tillie (Tillie) interviewed Gonzalez. She said she and defendant had taken part in the Paterson gas station robbery because they feared DeJesus. She also told the detectives about the robberies of the gas stations in Fair Lawn and Clifton. Detectives Corcoran and Tillie knew of the robbery of the Lodi convenience store and questioned Gonzalez about it. She said that defendant and Carmelo robbed the store.
Defendant waived his Miranda rights and gave a statement to the officers. He admitted he was involved in the Paterson gas station robbery, but said DeJesus had forced him to do so. He then refused to continue the interview. However, on December 21, 2006, when he was about to be transported to the county jail, defendant said he wanted to speak with the detectives about the Clifton robbery.
Defendant again waived his Miranda rights and gave the detectives a videotaped statement. Defendant admitted that he committed the robberies in Clifton, Fair Lawn and Lodi. He stated that Carmelo was involved in all three robberies but Gonzalez was not. Thereafter, the Paterson police located and arrested Carmelo.
Defendant was charged with first-degree robbery, in violation of N.J.S.A. 2C:15-1 (counts one, five, six, twelve, sixteen, twenty and twenty-two); fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6 (counts two, seven, thirteen, seventeen, twenty-one and twenty-three); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (counts three, eight, fourteen eighteen and twenty-four); third-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (counts four, nine, fifteen, nineteen, twenty-five and twenty-six); third-degree possession of a knife for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count ten); fourth-degree unlawful possession of a knife, in violation of N.J.S.A. 2C:39-5(d) (count eleven); third-degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a)(1) (count twenty-seven); third-degree possession of a CDS with an intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count twenty-eight); and second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b) (counts thirty-one, thirty-three, thirty-five, thirty-seven and thirty-nine). DeJesus, Gonzalez, and Carmelo were charged as co-defendants.
The State declined to prosecute defendant on counts one through four. The jury found him guilty on counts five through twenty-six. The State agreed to dismiss counts twenty-seven, twenty-eight and thirty-one. Defendant was then tried separately and convicted on counts thirty-three, thirty-five, thirty-seven and thirty-nine.
Defendant waived his right to appear at the sentencing hearing held on November 14, 2008. The court imposed an aggregate sentence of sixty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT I
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE JUDGE ARBITRARILY REFUSED HIS REQUEST FOR A CONTINUANCE.
POINT II
THE VOIR DIRE OF PROSPECTIVE JURORS WAS INADEQUATE BECAUSE THE COURT ATTEMPTED TO REHABILITATE APPARENTLY BIASED JURORS AND ACCEPTED THEM IF THEY CLAIMED THAT THEY COULD BE FAIR. (Not Raised Below).
POINT III
THE COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE SEARCH OF [DEFENDANT'S] BAG AND HIS STATEMENTS TO THE POLICE WERE THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST.
POINT IV
THE COURT ABUSED ITS DISCRETION IN DENYING [DEFENDANT'S] SEVERANCE MOTION, EMPLOYING THE WRONG TEST AND FAILING TO APPLY AN N.J.R.E. 404(b) ANALYSIS.
POINT V
THE COURT ERRED IN IMPOSING THREE CONSECUTIVE [TWENTY]-YEAR SENTENCES AND IN WEIGHTING AGGRAVATING FACTORS [ONE] AND [TWO].
POINT VI
[DEFENDANT] IS ENTITLED TO GAP-TIME CREDIT.
II.
Defendant argues that he was denied his constitutional right to counsel of his choice because the trial judge refused his request for a continuance so that he could retain private counsel. We disagree.
The matter was initially scheduled for trial on May 13, 2008. On the eve of trial, defendant told the trial judge that he was dissatisfied with his assigned counsel and intended to hire private counsel. The judge asked whether counsel would be prepared to begin the trial the next day, but defendant said that he had not yet hired an attorney and would not be able to begin the hiring process for a month, when his mother was expected to return from Puerto Rico.
On May 13, 2008, the judge conducted an evidentiary hearing on defendant's motion to suppress. After the hearing, the judge stated that the trial would begin on May 28, 2008. The judge advised defendant, that if he wished to hire private counsel, the attorney would have to be prepared to start the trial on that date. On May 28, 2008, defendant said that he had not taken any steps to hire a new attorney. Defendant told the court that he would not attend the trial.
Both the United States Constitution and the New Jersey Constitution provide that defendants enjoy the right to counsel in all criminal prosecutions. U.S Const. amend. VI; N.J. Const. Art. 1, § 7. In interpreting the Sixth Amendment, the United States Supreme Court has "held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 416 (2006).
The right to the counsel of one's own choice is, however, not without limitation. Id. at 144, 126 S. Ct. at 2561, 165 L. Ed. 2d at 417. For instance, a trial court has "wide latitude" to balance "the right to counsel of choice . . . against the demands of its calendar[.]" Id. at 152, 126 S. Ct. at 2565-66, 165 L. Ed. 2d at 421 (citing Morris v. Slappy, 461 U.S. 1, 110 12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)).
In Morris, the Court observed that, "Trial judges necessarily require a great deal of latitude in scheduling trials." Morris, supra, 461 U.S. at 11, 103 S. Ct. at 1616, 75 L. Ed. 2d at 619. Furthermore, trial courts have "broad discretion" in determining whether to grant a continuance, and the right to counsel is violated only by "an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay . . . .'" Id. at 12, 103 S. Ct. at 1616, 75 L. Ed. 2d at 620.
In State v. McLaughlin, 310 N.J. Super. 242, 257 (App. Div.), certif. denied, 156 N.J. 381 (1998), the defendant sought an adjournment on the first day of the trial to permit him to retain counsel of his choice. Id. at 257-58. The trial judge denied the request, noting that defendant had two and a half years since the indictment to retain private counsel. Id. at 257. The defendant claimed that he had recently secured funds necessary to retain counsel and he expressed dissatisfaction with his present attorney. Ibid.
We stated that, although a defendant in a criminal case has a constitutional right to counsel of his own choice, the right was not absolute. Id. at 258 (citing State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985)). Indeed, "a defendant must act with reasonable diligence when exercising the right to choose his or her own counsel." Id. at 259 (citing Furguson, supra, 198 N.J. Super. at 401; State v. McCombs, 171 N.J. Super. 161, 165 (App. Div. 1978), aff'd, 81 N.J. 373 (1979)).
We observed that a trial judge's decision to deny an adjournment request to allow a defendant to retain counsel of his choice will not be reversed absent a showing of an abuse of discretion that caused "'a manifest wrong or injury.'" Ibid. (quoting Furguson, supra, 198 N.J. Super. at 402). We held that the trial court did not abuse its discretion by denying the request. Id. at 260. We noted that the defendant had more than two and a half years to retain counsel, and his claim of "sudden wealth" was not substantiated. Ibid. We also noted that even if the trial had been adjourned, the defendant did not have a firm commitment from private counsel. Ibid.
Here, defendant did not act with reasonable diligence in seeking to retain counsel of his own choice. Defendant was indicted on May 7, 2007, and he first requested an adjournment to obtain new counsel a year later on May 12, 2008. As in McLaughlin, defendant's request for an adjournment came on the first day of trial. At that time, defendant had no assurance that a private attorney would take the case, and he was not prepared to begin his search for a new attorney until his mother returned from Puerto Rico.
We are satisfied that, under the circumstances, the trial judge did not abuse his discretion by denying defendant's request for an adjournment, and defendant was not wrongfully denied his right to counsel of his own choice.
III.
Next, defendant argues that the trial judge did not conduct an appropriate voir dire of the prospective jurors. Defendant's attorney raised no objection to the manner in which the court conducted voir dire. Therefore, we consider whether the judge's questioning of the prospective jurors was erroneous and, if so, "clearly capable of producing an unjust result." R. 2:10-2.
The trial court enjoys "considerable discretion in determining the qualifications of prospective jurors." State v. DiFrisco, 137 N.J. 434, 459 (1993) (citing State v. Martini, 131 N.J. 176, 218 (1993); State v. Pennington, 119 N.J. 547, 589 (1990)). See also State v. Winder, 200 N.J. 231, 252 (2009) (stating that "a trial court's decisions regarding voir dire are not to be disturbed on appeal, except to correct an error that undermines the selection of an impartial jury"). The court must decide "whether the responses elicited from a prospective juror indicate a view that would prevent or substantially impair that juror's performance in accordance with [the] court's instructions and that juror's oath." DiFrisco, supra, 137 N.J. at 460.
Defendant argues that the trial judge failed to inform potential jurors that he would not appear at trial and that the presumption of innocence still applied despite defendant's non-appearance. We are convinced, however, that the judge's failure to provide this information to the jury was not plain error. We note that, in his final instructions to the jury, the judge stated that
Now, as you know, [defendant] was absent from the trial. You should not speculate about the reason for his absence. You are not to consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] was not present at trial. That fact should not enter into your deliberations or discussion in any manner at any time.In our view, this instruction addressed any potential for prejudice arising from the fact that defendant elected not to appear at his trial. Consequently, the judge's failure to inform the prospective jurors that defendant would be tried in absentia and that the he would still be presumed innocent of the charges did not amount to plain error.
Defendant further argues that the trial judge's voir dire of the prospective jurors was insufficiently probing and the judge erred by failing to ask open-ended, follow-up questions. He also contends that the judge "mechanistically" accepted the jurors' statements that they could be "fair." Defendant also contends that the judge erroneously "attempted to rehabilitate" prospective jurors who purportedly indicated they might be inclined to accept the testimony of a police officer.
We are convinced that these arguments are without merit. The responses to the judge's questions indicated that the jurors could be fair and impartial. The court could have handled voir dire differently, but none of the deficiencies complained of rise to the level of plain error.
Defendant alternatively argues that he was denied the effective assistance of trial counsel because his attorney failed to: challenge the manner in which the judge conducted voir dire, request additional peremptory challenges, and seek the discharge of a juror for cause after his peremptory challenges were exhausted.
To establish ineffective assistance of counsel, a defendant must meet the two-part test articulated by the Supreme Court of United States in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), which the Supreme Court of New Jersey later adopted in State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland test requires the defendant to show (1) that representation by his attorney fell below an objective standard of reasonableness and (2) that, but for counsel's errors, the results of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 58.
We are satisfied that defendant has not established he was denied the effective assistance of trial counsel in the jury selection process. Defendant has not shown that his counsel's handling of the process was outside "the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Defendant also has not shown that the result here would have been different if counsel had objected to the judge's voir dire, requested additional peremptory challenges, or sought the discharge of a juror for cause after his peremptory challenges were exhausted.
IV.
Defendant also argues that the trial judge erred by denying his motion to suppress evidence obtained in the search of his suitcase and his statements to the police because this evidence was obtained as the result of an allegedly illegal arrest. Again, we disagree.
The Constitution of the United States and the New Jersey Constitution "'protect citizens from unreasonable searches and seizures.'" State v. Mann, 203 N.J. 328, 337 (2010)(quoting State v. Amelio, 197 N.J. 207, 211 (2008)). The court have recognized three types of police-citizen encounters, specifically, the field inquiry, an investigative detention or Terry stop, and an arrest. State v. Nishina, 175 N.J. 502, 510-11 (2003); State v. Rodriguez, 172 N.J. 117, 126-27 (2002); State v. Pineiro, 181 N.J. 13, 20 (2004).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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As the least intrusive inquiry, the field inquiry "'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted "without grounds for suspicion.Nishina, supra, 175 N.J. at 510 (quoting Rodriguez, supra, 172 N.J. at 126). A field inquiry occurs when a police officer approaches an individual in a public setting and asks that individual whether he or she is willing to answer some questions. Ibid. However, an encounter "becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." Rodriguez, supra, 172 N.J. at 126.
An investigative detention or Terry stop is more intrusive than the field inquiry. Nishina, supra, 175 N.J. at 510. To conduct an investigative detention, a "police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. The most intrusive inquiry is an arrest, which requires probable cause. Rodriguez, supra, 172 N.J. at 127.
Defendant contends that Padilla did not have probable cause to arrest him. He asserts that his presence in a neighborhood where a hit-and-run accident occurred did not constitute probable cause for an arrest. He maintains that the description provided to Padilla was too vague to justify his arrest. He argues that Padilla surprised him by speeding towards him and heading the wrong way down the one-way street. He asserts that the fact that he and Gonzalez changed direction and walked away did not provide a basis to stop him or make an arrest.
We disagree with these contentions. We are convinced that Padilla had reasonable, particularized suspicion to make a Terry stop. Although reasonable suspicion is not easily defined, it requires less than the probable cause standard. State v. Stovall, 170 N.J. 346, 356 (2002). Reasonable suspicion is "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" Id. at 356 (citing Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)).
In this case, Padilla encountered defendant and Gonzalez walking together near the accident scene. Although defendant was not wearing a grey, hooded sweatshirt, he was wearing a grey hat. Defendant and Gonzalez were the only pedestrians on the street at the time. Padilla observed defendant react when he passed by. He saw defendant put out his arm, apparently signaling Gonzalez to stop. Padilla turned his car around and approached defendant and Gonzalez by coming the wrong way down a one-way street. Defendant and Gonzalez changed directions, and when Padilla stopped his police vehicle, they turned off the sidewalk and walked quickly into a yard.
In our view, Padilla had reasonable, particularized suspicion that defendant and Gonzalez had engaged or were engaging in criminal activity. He therefore had grounds to make an investigative stop. After defendant and Gonzalez were stopped, defendant reached down and partially unzipped a pocket on the suitcase. Padilla was reasonably concerned for his own safety. He ordered defendant to step away from the suitcase and told defendant and Gonzalez to turn around, put their hands on the fence and not move. Padilla observed a handle of a weapon in the suitcase. After backup arrived, the officers confirmed that there was a black handgun in the suitcase. At that point, the officers had probable cause to arrest defendant.
Accordingly, we reject defendant's argument that the trial judge erred by denying his motion to suppress.
V.
Defendant additionally argues that the trial judge erred by denying his motion to sever the counts for separate trials. We do not agree.
We recognize that, in ruling on defendant's severance motion, the trial judge employed the incorrect analysis. The judge determined that joinder of the counts pertaining to the four robberies for trial was permissible but the judge did not address defendant's contention that he would be prejudiced if the charges related to the four robberies were tried in a single proceeding. We nevertheless agree with the State that the judge reached the correct result by denying the severance motion.
Joinder of offenses in one indictment is permissible when the offenses arise out of a "common scheme or plan." R. 3:7-6. Joinder of the charges related to the four robberies was permissible here. The robberies took place over an eight-day period, in relatively close proximity. The last three incidents occurred in a twenty-four-hour period. The perpetrators used a rented or borrowed getaway car, driven by Gonzalez. A black revolver was used in each robbery. Defendant and Gonzalez participated in all four robberies. The first three incidents involved gasoline stations. The evidence needed to prove the charges included defendant's statements, the handgun recovered from defendant's suitcase, and the testimony of Gonzalez and Carmelo.
Defendant contends, however, that he was particularly prejudiced by having the Paterson robbery tried with the other robberies because his defense to that offense was duress. He contends that this defense was inconsistent with his defense to the other offenses, which was that the testimony of his co-defendants was not credible. Defendant says that, while Gonzalez may have corroborated his assertion that he committed the first robbery under duress, he was forced to simultaneously maintain that Gonzalez lied regarding the other three robberies.
We are convinced that defendant was not unfairly prejudiced by the joinder of offenses related to the four robberies. Even if the Paterson robbery had been tried separately, evidence regarding that offense would have been admissible under N.J.R.E. 404(b) since it was probative of defendant's motive, intent, or plan to commit the four armed robberies. State v. Morton, 155 N.J. 383, 451 (1998); State v. Oliver, 133 N.J. 141, 151 (1993). We therefore conclude that the trial judge did not abuse his discretion by denying defendant's severance motion.
VI.
Defendant additionally argues that his sentence is excessive.
Here, the trial judge found the following aggravating factors: one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense and the role of defendant therein); two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted upon the victim); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge also found the following mitigating factor: eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment of defendant will entail excessive hardship to defendant and his dependents). The court found that the aggravating factors "overwhelmingly outweigh" the mitigating factors.
After merging certain offenses, the judge imposed twenty-year sentences on counts five, six, twelve, sixteen, twenty and twenty two, each with a NERA period of parole ineligibility. The sentences on counts twelve and twenty were consecutive to the sentence imposed on count five. The judge also imposed a concurrent five year sentence on count twenty six, with a two-and-one-half-year period of parole ineligibility. In addition, the judge imposed concurrent five year sentences, with five year periods of parole ineligibility, on counts thirty three, thirty five, thirty seven and thirty nine.
Defendant argues that the judge erred in finding aggravating factor one. He contends that, while the robberies were serious, none of the victims was seriously injured. He also argues that the judge erred by finding aggravating factor two. He says that the victims were not gravely or seriously harmed and no evidence that any victim suffered a psychological injury. He contends further that the finding of aggravating factor nine was erroneous because there was "no special need" to deter him from committing another offense.
Defendant further argues that the court erred by failing to find mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) (willingness to cooperate with law enforcement authorities). Defendant says that he gave the police a description of his brother, who was subsequently arrested. Defendant also says that he was willing to assist the police investigate another robbery.
We are satisfied, however, that the record supports the judge's findings. As the State points out, in three of the four robberies, defendant inflicted pain upon the victims, which was beyond that necessary to commit the robberies. Moreover, the finding of aggravating factor six was warranted by defendant's extensive criminal record, which includes convictions for possession and distribution of a controlled dangerous condition, eluding, receiving stolen property and theft.
Defendant additionally argues that the judge erred by imposing consecutive sentences. He argues that the judge failed to apply the guidelines enunciated State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
In Yarbough, the Court established the following criteria for imposing consecutive sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;The limit on the cumulation of consecutive sentences was superseded by L. 1993, c. 223. State v. Pennington, 154 N.J. 344, 361 (1998).
(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 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;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
Here, the trial judge sentenced defendant to consecutive sentences because of the "overwhelming aggravating factors in this case." The judge's reliance upon the aggravating factors for the imposition of consecutive sentences was not consistent with guideline 4 under Yarbough.
Moreover, the judge did not address guideline 5 under Yarbough, which suggests that it is ordinarily inappropriate to impose the maximum sentence for each offense and require that the sentences be served consecutively. State v. Miller, 108 N.J. 112, 122 (1987). The Yarbough guidelines do not preclude the imposition of such sentences but the judge did not explain his reasons for doing so.
In addition, the judge did not address guideline 3, which provides that the sentencing court should consider whether the crimes involved separate acts of violence and separate victims, and whether they were committed relatively close in time and place "as to indicate a single period of aberrant behavior." Yarbough, supra, 100 N.J. at 644. Ibid. We note that, in denying defendant's severance motion, the court found that the offenses were part of a common plan or scheme.
Defendant additionally argues that the judge erred by failing to award him gap time credits as recommended in the pre-sentence report. The State concedes that defendant is entitled to these credits.
Accordingly, we reverse the sentences imposed on the robbery convictions and remand the matter to the trial for re-sentencing on those counts. On remand, the trial judge shall award defendant the aforementioned gap time credits. In addition, the judge should address the question of whether the sentences imposed on this indictment should run consecutive to the sentences imposed on Indictment 05-10-1456-I.
Affirmed in part, reversed in part and remanded to the trial court for re-sentencing in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION