Opinion
DOCKET NO. A-0060-09T4
01-12-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NORVIL PETERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-1049.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief).
Defendant Norvil Peterson appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of: one count of third-degree conspiracy to commit credit card theft, theft of credit card account information, or the unlawful use of a fictitious credit card, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-6(h) (Count 1); four counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (Counts 2 through 5); two counts of fourth-degree possession of false government documents, N.J.S.A. 2C:21-2.1(d) (Counts 10 and 11); one count of third-degree conspiracy to commit identity theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-17(a)(1) (Count 12); two counts of third-degree assuming a false identity, N.J.S.A. 2C:21-17(a)(1) (Counts 13 and 14); four counts of fourth-degree distributing personal information of another for fraudulent purposes, N.J.S.A. 2C:21-17.3(a) (Counts 15 through 18); one count of third—degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (Count 19); two counts of third-degree theft by deception, N.J.S.A. 2C:20-4 Counts 20 and 21); and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count 22). The jury acquitted defendant of four counts of third-degree falsely making or embossing a credit card, N.J.S.A. 2C:21-6(c)(5) (Counts 6 through 9). After merging some of the counts and running some sentences concurrent to others, the judge imposed eight consecutive sentences totaling an aggregate term of thirty-six and one-half years imprisonment.
One count of fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4), was dismissed prior to trial.
Defendant raises the following points on appeal:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for entry of an amended judgment of conviction.
THE JUDGE ABUSED HIS DISCRETION UNDER N.J.R.E. 404(B) IN ADMITTING EVIDENCE THAT DEFENDANT PRESENTED FAKE IDENTIFICATIONS DURING A ROUTINE TRAFFIC STOP IN NEW YORK ONE MONTH BEFORE THE THEFTS IN THIS CASE BECAUSE THE NEW YORK EVIDENCE HAD NO RELEVANCE TO THE "SPECIFIC CHARGES" IN THIS CASE. STATE V. KEMP, 195 N.J. 136, 149 (2008). U.S. Const. Amends. VI, XIV; N.J. Const. Art I, ¶ 10
POINT II
THE SENTENCE VIOLATES DOUBLE JEOPARDY AND IS ILLEGAL UNDER N.J.S.A. 2C:1-8 BECAUSE CONSECUTIVE SENTENCES WERE IMPOSED FOR OFFENSES WHICH SHOULD HAVE MERGED BECAUSE THEY PUNISH THE SAME CRIMINAL CONDUCT OF DEFENDANT AS PREPARATORY OR INCLUDED OFFENSES. THE IMPOSITION OF EIGHT CONSECUTIVE MAXIMUM TERM SENTENCES FOR WHAT WAS ESSENTIALLY ONE THIRD-DEGREE THEFT OF $7000 FROM ONE VICTIM WAS PATENTLY EXCESSIVE. U.S. Const. Amends. V, VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 11, 12
I.
On June 21, 2005, Patricia Barrett was working at the Linwood branch of PNC Bank when "a slender black male, elderly, wearing a leisure suit" entered the bank and requested a $3,500 cash advance on a Visa credit card. Pursuant to bank policy, Barrett requested identification before proceeding with the transaction. The man produced a New York State driver's license matching the name on the credit card. Barrett handed the man $3,500 in hundred dollar bills in a bank envelope.
Almost immediately thereafter, Lisa Penman, who was also working at the bank, received a phone call from John Owens, the assistant vice president in the Fraud Division of AmSouth Bank. Owens told Penman that someone had just fraudulently secured a cash advance and urged Penman to obtain the license plate number of the person's car and call the local police. From outside the front door of the bank, Penman saw a car exiting the parking lot and memorized its license plate number. She immediately called the Linwood Police Department and provided the license plate number, description of the car and Owens' name and contact information.
Owens testified that he called Penman because he suspected fraudulent cash advance transactions had occurred at the PNC Bank and a nearby Wachovia Bank. At the time of the New Jersey transactions, his customers -- account holders with AmSouth Bank -- were using their cards in Alabama. Owens contacted those customers, Gladys Snell and a representative of Joann Dawson & Company, who denied making or approving the New Jersey transactions.
Detective James Norris and Captain Doug Carman of the Linwood Police Department received a call from their dispatcher regarding a fraudulent cash advance at the PNC Bank and providing a description of the vehicle, the license plate number and the direction it was traveling. Norris was in the immediate area, saw the car and followed it on Route 9 until it turned into the parking lot of Ocean City Home Bank. Other police officers arrived at the scene as some of the vehicle's passengers exited the car.
Carman arrived and saw the car matching the description provided by the dispatcher: a silver-gray Lincoln with Colorado license plates. Its occupants included "a middle aged woman, an elderly gentleman, [and] two . . . younger males. One of them had a pencil thin . . . beard and/or pencil thin mustache . . . [a]nd there was a small child." The man with the thin mustache identified himself as Morville Paterson, the elderly man identified himself as Emerson Guerrier, the woman identified herself as Sahara DeJean, and the last occupant was identified as Franz Fanfan. At trial, Carman identified defendant as the man who identified himself as Morville Paterson.
DeJean consented to the search of the car. At the bottom of a full tissue box on the floor of the front passenger side of the vehicle, the officers found two bank envelopes, one from Wachovia Bank and one from PNC Bank, each containing $3,500 in cash. The search also produced some legal documents in defendant's name, one of which came from New York, and two Maryland license plates. Carman contacted the New York State Police.
Suspecting a fraudulent cash advance from Wachovia Bank had also occurred, Carman contacted AmSouth. He proceeded to the Wachovia Bank and viewed a surveillance video showing Guerrier and DeJean entering the bank. Guerrier made a transaction using a credit card and driver's license, received $3,500 and left the bank with DeJean.
Carman conducted a second search of the vehicle at which time he seized: an HSBC Visa card in the name Dagobert St. Laurent; a Capital One Visa card in the name Dagobert St. Laurent; a Citi Platinum Select card in the name Jack Joseph; a New York State driver's license with Guerrier's picture but in the name Jack Joseph; receipts from Wachovia Bank and PNC bank recording $3,500 cash advances to Dagobert St. Laurent; and a log book containing names with addresses, birthdays, driver's license numbers, and notations regarding amounts of money.
Defendant was arrested, taken to police headquarters and searched. Hidden in defendant's sock were a Bank of America Visa card in the name Dagobert St. Laurent and a New York State driver's license in the name Dagobert St. Laurent but containing a picture of Guerrier. Defendant initialed the property inventory form with the letters W.G., and Carman testified one of the names defendant used was "Wilner Garson."
New York State Trooper David Augugliaro testified that on March 15, 2005, he was patrolling the Southern State Parkway in the vicinity of Farmingdale, Long Island. He observed a vehicle parked on the side of the road in an area reserved for emergencies. Augugliaro and his partner approached the vehicle to check its occupants: a Hispanic female and a black male, who identified himself as Peterson Morville. Augugliaro identified defendant as that man. Defendant produced proper registration for the vehicle, a gray Mercury Grand Marquis with Colorado license plates matching the description provided by the dispatcher.
Defendant also produced two New York State driver's licenses with the same pictures, birthdates and addresses, but different names -- Bob Pickle and David Court. The photos on the licenses were of Guerrier. Augugliaro also recovered two additional pieces of identification from defendant's wallet: a Sam's Club card in the name Samuel Fakul, and a Bally Total Fitness card in the name Wilner Garson. Both cards displayed defendant's picture.
Defendant did not testify or call any witnesses on his behalf.
II.
Defendant contends the judge abused his discretion in permitting Augugliaro's testimony and admitting into evidence the documents he obtained during the traffic stop on Long Island. He argues this evidence was irrelevant to the charges contained in the indictment and, contrary to N.J.R.E. 404(b), was introduced solely to show a propensity to commit fraud.
N.J.R.E. 404(b) provides "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." Ibid. In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.
The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;"Further, even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: 'relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.'" State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).
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.
[State v. Williams, 190 N.J. 114, 122 (2007) (quoting Cofield, supra, 127 N.J. at 338).]
Rule 404(b) applies not only to evidence of other crimes but also to evidence of "other . . . wrongs, or acts." N.J.R.E. 404(b); see also State v. Foglia, 415 N.J. Super. 106, 122 (App. Div.), certif. denied, 205 N.J. 15 (2010). "The evil the Rule seeks to avoid is that '[i]f other [bad act] evidence were to be admitted, the jury might think of . . . defendant as a bad person in general and convict.'" Foglia, supra, 415 N.J. Super. at 123 (first alteration in original) (quoting Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 4 04 (2010); accord State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2011), certif. denied, 205 N.J. 78 (2011).
Augugliaro testified in a manner consistent with his trial testimony at a pre-trial N.J.R.E. 104 hearing. Applying the Cofield analysis and considering the relevancy of the evidence, the judge noted:
[T]he . . . only material disputed issue . . . is whether or not this defendant had any involvement with or any knowledge in what was transpiring in the banks in Linwood. . . . [I]t is the defendant himself who has made that the foremost issue in this case since he is not the one who physically went into the banks. He is the one in essence in the vehicle when it's stopped. . . . But his knowledge and his absence of mistake and his intentions are the key elements in this case. And certainly and clearly [a] genuinely disputed material issue.The judge further found that the New York traffic stop occurred approximately one month before defendant's arrest, while defendant was driving a car utilizing the same plates as those on the car in which defendant was arrested, and that defendant possessed driver's licenses that bore Guerrier's photograph.
The judge found the evidence clear and convincing, noting the events led to defendant's guilty plea to "downgrade[d]" charges in New York. As to the fourth Cofield prong, the judge concluded:
Defendant's New York conviction was not introduced before the jury.
[C]ertainly any evidence to be used . . . is prejudicial to the defendant. But that's not the issue. The issue is whether the probative value outweighs the prejudice. And here it is so probative, so critical, so critical to the issue of knowledge, absence of mistake, identification that I find that the probative value highly outweighs any prejudicial impact upon the defendant and therefore the trooper is permitted to testify about the [May 15, 2005] event
. . . .
Defendant first argues that the evidence was not relevant, and, that to the extent the judge found the evidence admissible to prove identity, he applied the wrong standard. "[W]e give great deference to the decision of the trial [judge]" regarding the admissibility of 404(b) evidence. State v. Barden, 195 N.J. 375, 390 (2008) (citing Lykes, supra, 192 N.J. at 534). Under Cofield's first prong, the proffered evidence must be relevant to a "material issue [that is] genuinely disputed." Cofield, supra, 127 N.J. at 338. To determine "whether 404(b) evidence bears on a material issue, the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede." State v. P.S., 202 N.J. 232, 256 (2010).
At trial, defense counsel argued that defendant lacked knowledge of what Guerrier and DeJean were doing at the banks. In his opening statement, defense counsel told the jury that defendant "doesn't fit" into the case and posed the questions: "How many banks did [defendant] go in? How many times did [defendant] present false ID for money?" In summation, defense counsel asked: "What's the evidence of the involvement of Mr. Peterson . . . ? [W]as [a]ny money at all found on Mr. Peterson?" Thus, evidence that connected defendant with Guerrier and DeJean was highly relevant to prove intent and a common plan, and to negate the defendant's arguments.
Indeed, the evidence tended to prove defendant's involvement in an ongoing conspiracy with Guerrier and DeJean and, in that respect, bore directly upon charges contained in the indictment. We need not consider, therefore, whether the evidence was admissible to prove some other exception under N.J.R.E. 404(b), such as identity, because the evidence was clearly admissible for other purposes.
Defendant also argues that because the 404(b) evidence was not necessary to prove the State's case, Cofield's fourth prong was not satisfied. Again we disagree.
The trial judge's decision regarding the balancing required by the Rule should only be disturbed where there is a "clear error of judgment." State v. Marrero, 148 N.J. 469, 483 (1997) (citation and internal quotation marks omitted). "[T]he availability of other evidence that can be used to prove the same point" should be considered "[i]n the weighing process," but it is not determinative of the balancing test's outcome. Barden, supra, 195 N.J. at 389 (quoting State v. Jenkins, 178 N.J. 347, 365 (2004) (internal quotation marks omitted).
In this case, the evidence regarding the New York traffic stop was highly relevant and was not outweighed by any apparent prejudice. Our conclusion in this regard is further buttressed by the judge's limiting charge to the jury immediately after the evidence was received and in his final instructions. See id. at 390 ("The instruction should be given when the evidence is presented and in the final charge to the jury.") We affirm defendant's conviction.
III.
We turn to defendant's sentencing arguments. He contends that the sentence was illegal because certain mergers were required pursuant to N.J.S.A. 2C:1-8; the judge applied an incorrect standard in determining whether to impose consecutive or concurrent sentences; and the sentence was "patently excessive."
At the time of sentencing, defendant was thirty-two years old. The pre-sentence investigation report listed his use of nine aliases and revealed that defendant failed to appear within months after posting bail in this case. He was serving a sentence in Pennsylvania, apparently for robbery of a motor vehicle, and was lodged in Atlantic County pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15. The judge determined defendant had a total of four prior convictions in New York and Pennsylvania "for robbery, burglary, [and] credit card theft," "plus a conditional discharge."
The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the possibility that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and seriousness of offenses for which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence). He found no mitigating factors.
The judge further observed:
And maybe the worst thing that ever happened to [defendant] . . . was that these other states . . . have treated him with a great deal of leniency in working out his past crimes and sentences therefore. And indeed the Prosecutor I thought offered a very, very fair and reasonable . . . offer to the defendant, it wasn't good enough for the
defendant, a 3 flat concurrent with what he was presently serving because it would have meant he'd serve a couple more months in jail. And he knew very well that the State was under huge pressure to move this case because he's here under the Interstate Agreement on Detainers. He also . . . thought that the State would, especially on short notice be unable to get a hold of certain witnesses. So his con artistry even followed I think and propelled him if you will, or caused him to force this matter to trial. I find him to be a professional and career thief and con artist who rolled the dice at trial, assuming or hoping that in part with the assistance of the pressure from the antiquated Interstate Agreement on Detainer law the State would be unable to get its witnesses, especially from Alabama and New York, to come to court on short notice. Guess what? He was wrong.
Citing 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), the judge noted there were "a variety of counts, charges and victims [which] do not merge nor should the pertinent sentences run concurrent to each other based upon the no free crime doctrine." Although he found defendant's prior record could "merit" an extended term, the judge decided not to impose one. He continued:
These actions involving fraudulent credit cards, thefts, wrongful impersonation, identity theft would have gone on endlessly had it not been for the excellent work and lightening [sic] fast response by the Linwood Police Department and the bank employees. . . . I give no concurrent sentences under that theory in the one case
about a crime spree because I don't think that case makes any sense because there are separate victims and they're affected individually and separately.
The judge imposed a five-year sentence on Count 1, third-degree conspiracy to commit credit card theft, and ran that sentence concurrent to the sentences he imposed on Counts 2, 3, 4, and 5. On each of those counts, charging defendant with third-degree fraudulent use of four different credit cards, the judge imposed four consecutive five-year sentences. On Counts 10 and 11, two counts of fourth-degree possession of two different false government documents, the judge, finding "[t]hese were totally different documents found in the sock of defendant," imposed concurrent eighteen-month sentences and ran those sentences consecutive to the sentences imposed on Counts 2 through 5. On Count 12, third-degree conspiracy to commit identity theft, the judge imposed "a concurrent 5 flat."
On Counts 13 and 14, charging defendant with two counts of assuming a false identity, the judge imposed concurrent five-year sentences, but ran them consecutive to the sentences on Counts 2 through 5. Counts 15 through 18, four counts of fourth-degree distributing personal information of another for fraudulent purposes, involved the same individual credit cards identified in Counts 2 through 5. The judge merged those counts.
However, on Count 20 and 21, charging third degree theft by deception, the judge noted "this [wa]s taking it one step further. These are separate evil acts where [defendant] actually [went] and use[d] these identifiers to obtain money." He imposed two consecutive five-year terms, consecutive to the sentences imposed on Counts 2 through 5. This brought the aggregate sentence to thirty-six and one-half years.
On Count 19, third-degree conspiracy to commit theft, the judge imposed a concurrent five-year term. Finally, the judge merged Count 22, third-degree receiving stolen property, with the theft by deception counts.
Completing his remarks, the judge stated:
Now whether . . . it shocks the conscience of a more generous thinking appellate judge or panel, that's up to them. But I will tell you it does not shock my conscience because had this man not been stopped [he] would have nailed countless other victims all the way down the roadway and in various states.
A.
Defendant first argues that the sentence is illegal because sentences were imposed for offenses that should have merged. Defendant contends that the sentences imposed on Counts 2 through 5, Counts 10 and 11, and Counts 13 and 14 all should have merged into the two counts of Theft by Deception contained in Counts 20 and 21. He argues that these offenses were either "included [in] or preparatory offenses" of the two thefts. We agree in part.
"Merger stems from the well-settled principle that 'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Cole, 120 N.J. 321, 325-26 (1990) (alteration in original) (quoting State v. Miller, 108 N.J. 112, 116 (1987)). Pursuant to N.J.S.A. 2C:1-8(a)(1), a defendant may not be convicted of more than one offense if one is included in the other. An offense is included in another if "[i]t is established by proof of the same or less than all the facts required to establish the commission of the" other offense. N.J.S.A. 2C:1-8(d)(1). However, our Court has eschewed this "mechanical" test, and continues to follow the "preferred and more flexible standard . . . articulated in the pre-code case of State v. Davis, [68 N.J. 69, 81 (1975)]." State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Diaz, 144 N.J. 628, 637 (1996)) (internal quotation marks omitted).
Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.
[Id. at 543 (quoting Diaz, supra, 144 N.J. at 638.]
Counts 20 and 21 of the indictment charged defendant with the thefts of $3500 from PNC Bank and Wachovia Bank. The credit cards used to commit those thefts were the same credit cards cited in Counts 2 and 3. The same two credit cards also provide the basis for the allegations contained in Counts 13 and 14, i.e., they were used by defendant to "impersonate another or assume a false identity." All the counts contained in the indictment alleged that defendant's conduct took place on June 21, 2005 in Linwood.
Count 13 specifically alleged that contrary to N.J.S.A. 2C:21-17(a)(1), defendant "did impersonate another . . . for the purpose of obtaining a pecuniary benefit." The language in Count 14 curiously provides: "[Defendant] did impersonate another . . . and did perform an act . . . in such assumed character, while using the personal identifying information of at least two victims, specifically, two credit card numbers of at least two separate parties." It is unclear what subsection of N.J.S.A. 2C:21-17(a) proscribes that conduct.
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We think it clear that applying the Davis analysis to these facts compels the conclusion that Count 2 should have merged into count 20 — theft by deception using the credit card of Gladys Snell — and Count 3 should have merged into count 21 — theft by deception using the credit card of Joann Dawson & Co. Counts 13 and 14 likewise should have merged into one or the other theft count.
However Counts 4 and 5 involved different credit cards that were not actually used by defendant to commit the thefts from PNC Bank and Wachovia Bank. Similarly, the false government documents cited in Counts 10 and 11 were not necessary to the commission of the thefts, and, moreover, the offense, N.J.S.A. 2C:2-2.1(d), criminalizes conduct that is separate from any acquisitive purpose. Thus, those four counts do not merge into the two theft counts.
Although defendant has not specifically raised the issue, we note that the imposition of separate, though concurrent, sentences on the conspiracy convictions was error. The conspiracy charged in Count 1 specifically cited defendant's use of the credit cards at the two banks in question; the conspiracy charged in Count 12 cited defendant's possession or use of "fraudulent identification and/or one or more credit cards bearing a fictitious name or names"; the conspiracy charged in Count 19 cited defendant's use of the same two credit cards to commit the theft at the banks.
Defendant was convicted of the substantive crimes that were the sole objects of the three charged conspiracies. As a result, the conspiracy counts merge as a matter of law into the substantive offenses. See Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:1-8 (2011) ("[W]here the completed offense was the sole criminal objective of the conspiracy . . ., the preparatory conduct will merge with the completed offense."); see also State v. Hardison, 99 N.J. 379, 386-87 (1985) ("There may be conviction of both a conspiracy and a completed offense committed pursuant to that conspiracy if the prosecution shows that the objective of the conspiracy was the commission of additional offenses.") (quoting 2 New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Commentary 19 (1971) (internal quotation marks omitted)).
B.
Defendant also argues that the judge improperly applied Yarbough, supra, to impose consecutive sentences.
"When multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5(a). In Yarbough, supra, 100 N.J. at 643-44, the Court set forth the following factors to be considered in imposing a consecutive sentence:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)) (internal quotation marks omitted). They should be applied qualitatively, not quantitatively. Id. at 427. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (even when offenses are connected by a "unity of specific purpose," "somewhat interdependent of one another," and "committed within a short period of time," concurrent sentences need not be imposed) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).
(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) the crimes and their objectives were predominantly independent of each other;(4) there should be no double counting of aggravating factors;
(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;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.
[Ibid. (footnote omitted)]
Here, the judge adequately explained his reasons for imposing consecutive sentences. Counts 4 and 5 involved the possession of credit cards other than those used to commit the actual thefts by deception. The false documents in defendant's possession that supported the convictions on Counts 10 and 11 were independent of the credit cards used in the thefts. The two thefts were committed on the same day, but clearly involved two separate victims. In sum, we cannot conclude that the judge mistakenly exercised his broad discretion in imposing consecutive sentences upon defendant.
C.
Lastly, defendant argues that the sentence was manifestly excessive. We disagree.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). As the Court has noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
We do not condone the judge's reference to the pre-trial plea bargain offer, or his characterization of defendant's exercise of his right to trial as that of a "con artist who rolled the dice at trial." These remarks are inappropriate and have no place in the principled exercise of the broad discretion accorded the judge at sentencing. However, the imposition of the maximum ordinary terms of imprisonment for each of the crimes was fully justified by the judge's consideration of the appropriate aggravating sentencing factors, all of which were adequately supported by the record.
D.
We remand the matter to the trial court for the entry of an amended judgment of conviction reflecting the appropriate mergers we have ordered. In all other respects, we affirm the sentence imposed.
Affirmed; remanded for the entry of an amended judgment of conviction. We do not retain jurisdiction.